ML20214A098

Transcript of 870515 Telephone Prehearing Conference in Washington,Dc.Pp 17,369-17,381

ML20214A098
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/15/1987
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#287-3656 OL-3, NUDOCS 8705190255
Download: ML20214A098 (15)

Text

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ORtGINKL UNITED STATES O

NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:

DOCKET NO: 50-322-OL-3 LONG ISLAND LIGHTING COMPANY (Shore m Nuclear Power Station, O

LOCATION:

WASHINGTON, D.C-PAGES:

17369 - 17381 DATE:

FRIDAY, MAY 15, 1987 i

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l ACE-FEDERAL REPORTERS, INC.

i OfficialReporters 444 North Capitol Street Washington, D.C. 20001 (2 23 347 3700 gpqg888?88@p T

NATIONWIDE COVERAGE l

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CR30984.0 OMT/sjg 17369 1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMM:'3 ION 2

BEFORE THE ATOMIC SAFETY AND uI.LISING BOARD

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 4

In the Matter of:

5 Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY 6

(Shoreham Nuclear Power Station, Unit 1) 7

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9 Ace-Federal Reporters, Inc.

Suite 402 10 444 North Capitol Street Washington, D.

C.

11 Friday, May 15, 1987 13 The telephone preeharing conference in the above-14 entitled matter convened at 2:00 p.m.

15 BEFORE:

16 JUDGE MORTON B.

MARGULIES, Chairman Atomic Safety and Licensing Board 17 U.S.

Nuclear Regulatory Commission Washington, D.

C.

20555 18 JUDGE JERRY R.

KLINE, Member A

m a e y an ensing Board 19 U.S.

Nuclear Regulatory Commission Washington, D.

C.

20555 JUDGE FREDERICK J.

SHON, Member 21 Atomic Safety and Licensing Board U.S.

Nuclear Regulatory Commission 22 Washington, D.

C.

20555 23 (V~)

24 25 ACE FEDERAL REPORTERS, INC.

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APPEARANCES:

O 2

On behalf of the Applicant:

3 JAMES CHRISTMAN, ESQ.

DONALD P.

IRWIN, ESQ.

4 STEVEN MILLER, ESQ.

MARY'JO LUGERS, ESQ.

5 Hunton & Williams 707 East Main Street 6

Richmond, Virginia 23212 7

j On behalf of Suffolk County:

8 CHRISTOPHER M. McMURRAY, ESQ.

DONALD CASE 9

Kirkpatrick & Lockhart South Lobby, Ninth Floor 10 1800 M Street, N.W.

Washington, D.

C.

20036-5891 11 On behalf of FEMA:

12

{

GEORGE WATSON, ESQ.

1

.13 Federal Emergency Management l

Agency 14 500 C Street, S.W.

Washington, D.

C.

20472 15 On behalf of the State of New York:

16 i

RICHARD J.

ZAHNLEUTER, ESQ.

17 Deputy Special Counsel to the Governor

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18 Executive Chamber Capitol, Room 229 Albany, New York 12224 19 20 On behalf of NRC:

z 21 RICHARD G. BACHMAN, ESQ.

U.

S. Nuclear Regulatory 22 Commission l

Washington, D.

C.

20555 23 C:)

24 25 2

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PROCEEDINGS 2

JUDGE MARGULIES:

This is Judge Margulies.

3 With me are Judges Kline and Shon.

4 This is an on-the record proceeding called by the 5

Board.

The purpose of this call is for the purpose of 6

having the Board resolve the LILCO motion of May 7th, 1987 7

for acceptance of a protective order or, in the alternative, 8

for stay of requirements of the April 30th, 1987 order and 9

for expedited referral of certification.

10 I would like to take appearances at this time.-

11 Who appears for the Applicant?

12 MR. CHRISTMAN:

Judge Margulies, this is Jim 13 Christman, and in the same room I have Don Irwin, Steven 14 Miller, and Mary Jo Lugers.

15 JUDGE MARGULIES:

Thank you.

16 Who appears for the State of Nei York.

l 17 MR.'ZAHNLEUTER:

This is Richar'd J.

Zahnleuter, 18 representing the State of New York.

l 19 JUDGE MARGULIES:

Who represents Suffolk County?

20 MR. CASE:

Judge, this is David Case, 21 representing Suffolk County, urith Chris McMurray also on the i

22 phone.

'23 JUDGE MARGULIES:

Who represents Staff?

24 MR. BACHMAN:

This is Richard G. Bachman, 25 representing the NRC Staff.

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JUDGE MARGULIES:

Does FEMA have a 2

representative?

3 MR. WATSON:

George Watson, representing FEMA.

4 JUDGE MARGULIES:

Thank you.

5 The motion relates back to the Board's order of 6

April 30th, 1987, in which we ruled on the County and 7

State's motion to compel of April 13th, 1987.

8 In that memorandum and order, the Board ordered 9

that LILCO was to furnish information consisting of the 10 identities of the individuals that furnished certain data 11 which was the subject of the motion to compel.

12 The second part of the order, the Board stated

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x-13 the information is not to be furnished prior to the entry of 14 a protective order.

That is to shield the individuals from 15 possible harassment, intimidation or pressure.

16 The motion that we received from LILCO on May 7th 17 does not comply, in the Board's opinion, with the ordering 18 paragraph of its memorandum and order.

Neither are the 19 identities of the individuals furnished, nor has the 20 Applicant come up with a protective order that the Boa > 1 21 finds satisfactory.

22 The usual protective order that is entered in 23 Commission proceedings makes available the information to 24 opposing counsel.

Our review of this matter does not O)

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25 indicate that there is anything special about this ACE FEDERAL REPORTERS, INC.

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proceeding or Intervonors' counsel that the usual procedure 2

should not be followed.

3 The Board is of the further opinion that this is 4

not a matter for certification to the Appeal Board.

Should 5

the Applicant not desire to make the information available 6

under a reasonable protective order, it has the option of 7

not making the information available, and we don't see that 8

those circumstances give rise to a situation requiring 9

certification to the Appeal Board, 10 What this matter comes down to and the crux of 11 our call is to find out whether the Applicant is willing to 12 provide the information ordered in the Board's order

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13 available to the Intervenors on the basis of identifying the 14 individuals involved with a protective order that will limit 15 the information to the Intervenors' counsel.

16 We are using this procedure of a conference call

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17 to expedite the matter and to save us the problems and i

18 headaches of entering into a paper war in terms of having an 19 unending matter of filing papers back and forth.

l 20 So we pose the question to the Applicants.

They 21 may comment, if they wish, on my entire statement, but more 22 importantly we want to get to the issue as to whether they 23 will comply with the order as the Board entered it.

24 MR. CHRISTMAN:

Judge Margulies, this is Jim 25 Christman.

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Thanks for giving me the chance to comment.

2 The Applicant's preference is not to reveal those 3

names.

Ilence, we would like the opportunity to modify the 4

testimony in question so that it does not rely on the 5

information from those individuals.

6 JUDGE MARGULIES:

That is your proposed 7

resolution of this state of affairs?

8 MR. CilRISTMAN:

Yes, sir, much ir. the way that 9

the State of New York recently withdrew their testimony and 10 mooted out a discovery request, we believe that we would 11 like to modify our testimony so that the identities of those 12 people are not material.

13 JUDGE MARGULIES:

We would like to hear from the 14 Intervenors now.

15 MR. CASE:

Judge, this is David Case for Suffolk 16 county.

17 We have no objection to a withdrawal of that 18 portion of the testimony.

It is unclear what is meant by a 19 modification of the testimony, and if that won't raise the 20 issue all over again of what the sources of the information 21 are that LILCO is relying on.

22 JUDGE MARGULIES:

We will get back to the 23 Applicant and see if the Applicant can clarify that after we 24 go through the comments of the other counsel.

25 Mr. Zahnleuter, do you wish to comment?

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MR. ZAHNLEUTER:

This is Richard Zahnleuter.

2 I don't understand the reference to the State of 3

New York's withdrawal of testimony, but I don't think it 4

really matters here.

5 My concern, too, is precisely what the 6

modification of the testimony is, and until we know what the 7

modification is I don't think that the State of New York can 8

say that its concern will or will not be addressed.

9 So to be fair to LILCO, I think we should hear 10 what it has in mind regarding the modifications.

11 JUDGE MARGULIES:

Mr. Bachman.

12 MR. BACHMAN:

The Staff has no comment on the p)

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13 Applicant's proposal.

14 JUDGE MARGULIES:

Mr. Watson.

15 MR. WATSON:

George Watson here.

16.

We have no comment, sir.

17 JUDGE MARGULIES:

Could you give us some more 18 clarifying information, Mr. Christman?

19 MR. CHRISTMAN:

Yes, sir, I haven't drafted the 20 testimony, but I would propose to withdraw the first part of 21 the question and answar ending with the table, and including 22 the table, and submit about one or two sentences that says 23 something like we don't believe that the information about 24 the capacities of other plants is available in publicly

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25 available documents.

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But we would be withdrawing that table.

2 MR. CASE:

Suffolk County would have no objection 3

to that, Judge, if that is the way it would be modified, 4

withdrawal of the table and that information.

5 JUDGE MARGULIES:

How about New York State?

6 MR. ZAHNLEUTER:

I can't be so certain that I 7

would have no objection because it could turn out that at 8

the hearing, upon cross-examination, the basis for the one 9

or two sentences turns out to be the material that has been 10 deleted from the testimony, and than in that case what we 11 would face is a discovery dispute at.the time of the 12 hearing, which would be probably a week from now.

I think 13 that is an inappropriate time to have a discovery dispute, 14 especially when we can head it off at this time.

15 I don't think a two-sentence summary of the' table 16 is a sufficient modification of the testimony to do away 17 with this problem.

18 MR. CHRISTMAN:

I did not pr opose to summarize 19 the table, and the sentence I suggested by way of example 20 didn't summarize the table.

21 I am proposing essentially to withdraw the table 22 and to say pretty much, I think, what I said.

23 If something comes up on cross-examination, well, 24 that is a problem to be faced at that time, and it is also 25 largely in control of the people doing the cross-ACE-FEDERAL REPORTERS, INC.

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examination, which I take it is Mr. Zahnleuter.

2 In any event, it sounds like we don't really have 3

a problem, and I think you probably ought to let.us submit 4

our one or two sentences of replacement testimony, withdraw 5

the first part of that question and answer, and then if 6

there is some horrible problem with it, which I don't think

.7 there will be even from the Intervenors, we can go from 8

there.

9 MR. ZAHNLEUTER:

This is Richard Zahnleuter.

10 It is true that I need to know exactly what the 11 replacement sentences are, but upon cross-examination I just 12 don't want it said that the State of New York has waived an 13 objection to pursuing discovery, and that is my concern, and 14 that is why I really do not wish to concede to the propriety 15-of this now.

i 16 MR. CHRISTMAN:

Well, I think we can -- the 17 Applicant -- this is Jim Christman -- can concede that if I

18 Mr..Zahnleuter shows good cause for further discovery at 1

19 some point that he will be entitled to get it.

20 JUDGE MARGULIES:

From the language that Mr.

21 Christman gave us, I can't see any problem arising in his 22 statement that the information isn't publicly available.

I 23 don't see where cross-examination can bring in a problem.

24 MR. ZAHNLEL.ER:

Well, without actually having 25 the sentence before m to question about, I would have to l

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presume that possibly I would ask what is the basis or what 2

public information havo you reviewed, sir, and what is its 3

source and where is the origin, and in that sense the answer 4

might eventually como back to this table.

5 I really can't tell, and it is very hypothetical 6

and speculative since wo don't have the proposed testimony 7

before us.

8 MR. CHRISTMAN:

Judge Margulies, this is Jim 9

Christman.

That is why I am proposing that we submit the 10 testimony within the next few days.

We are about a month 11 before hearing, and I don't think it is going to cause any 12 problems.

13 If Mr. Zahn1 outer sees problems in the precise 14 language -- and I can't give you the preciso languago 15 because this is witness testimony, not lawyer briefing, and 16 obviously the witnesses have to be comfortable with the 17 words -- but I can provido you the words, and it is only, I 18 think, no more than two sentonces, within a few days, and wo 19 will have a whole month, if Mr. Zahnleuter has problems with 20 it, to deal with that problem.

I just don't think there 21 will be any.

22 Also, if Mr. Zahnleuter has information that is 23 publicly available and thinks that it may como up at 24 hearing, he should provido it to us all.

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25 JUDGE MARGULIES:

I think we ought to set a l

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schedulo for the filing of your otatement, Mr. Christman, 2

and an opportunity by the other parties to respond, and we 3

will take it from there.

4 MR. CilRISTMAN:

That seems reasonable to us.

5 MR. CASE:

That is reasonable with Suffolk 6

County.

7 JUDGE MARGULIES:

Is 16 reasonable for the other 8

parties?

9 MR. Z AllNLEUTER:

This is Richard Zahnloutor.

It 10 is reasonable.

11 MR. CASE:

David Caso, for Suffolk County.

That i

12 is reasonable from our perspective.

13 JUDGE MARGULIES:

When do you expect to submit 14 that, Mr. Christman?

15 MR. CHRISTMAN:

Would it be okay to have it to 16 you by Tuesday next?

17 JUDGE MARGULIES:

That sounds reasonable.

18 And how about the other parties?

Ilow much time 19 will they nood to respond?

20 MR. CASE:

I believe Suffolk County would simply 21 request a wook to respond, the following Tuesday.

22 JUDGE MARGULIES:

Is that all right with New York 23 Stato?

24 MR. Z AllNLEUTER:

I have boon checking my calendar 25 to see that the Monday proceding that Tuesday is Memorial ace FEDERAL REPORTERS, INC.

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Day.

2 Would this mean that our responso would be duo 3

the 26th?

4 JUDGE MARGULIES:

It would mean that it would be 5

due the 26th.

6 MR. Z AllNLEUTER:

That is acceptable, your lionor.

7 JUDGE MARGULIES:

Okay, we will adjourn on that 8

basis.

9 If the Applicants will submit the proposed chango 10 in testimony to the Board by the 19th of May and any 11 responses to that are due on May 26th.

12 Is there anything further?

CO N/

13 MR. CHRISTMAN:

No, Judge Margulion, that sounds 14 fino.

I guess it is understood without my saying it that wo 15 prosorve this issue for ultimato appeal if it should over 16 becomo necessary, but I think I don't nood to make any 17 special exception or anything.

18 MR. CASE:

The scheduling order is satisfactory 19 with Suffolk County, Judge Margulios, and we havo nothing 20 further.

21 MR. Z AllNLEUTER:

And the Stato of New York 22 agrees.

23 JUDGE MARGULIES:

Thoro boing nothing further, 24 this conferenco is adjourned.

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25 Thank you.

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VOICES:

Thank you.

2 (Whereupon, at 2:21 p.m.,

the tolophone 3

conference was adjourned.)

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CERTIFICATE OF OFFICIAL REPORTER O

t This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of NAME OF PROCEEDING:

LONG ISLAND LIGilTING COMPANY l

(Shoreham Nuclear Power Station, Unit 1) i i

DOCKET NO.:

50-322-OL-3 i

PLACE:

WAS!!INGTON, D.

C.

DATE:

FRIDAY, MAY 15, 1987 i

were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear l

Regulatory Commission.

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JOSEPli MAGGIO Official Reporter ACE-FEDERAL REPORTERS, INC.

Reporter's Affiliation i

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