ML20196F288
| ML20196F288 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/06/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#488-7695 88-579-06-OL-5, 88-579-6-OL-5, OL-5, NUDOCS 8812120252 | |
| Download: ML20196F288 (123) | |
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UNITED STATES O
NUCLEAR REGULATORY COMMISSION i
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i ATOMIC SAFETY AND LICENSING BOARD i
, In the Matter oft ) l j ) Docket No. l LONG ISLAND LIGHTING COMPANY ) 50-322-OL-5R I i
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) ASLBP No.
(SHOREHAM NUCLEAR POWER ) 88-579-06-OL-5R i STATION, UNIT 1) )
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I Pages: 1 through 122 i
Place: Bethesda, Maryland l 1
Date: December 6, 1988 ,
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I l UNITED STATES NUCLEAR REGULA10RY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ) i
) Docket No. !
LONG ISLAND LIGHTING COMPANY ) 50-322-OL-5R
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) ASLBP No. l (SHOREMAM NUCLEAR POWER ) 88-579-06-OL-5R l STATICN, UNIT 1) ) L i
Tuesday, c December 6, 1988 j East West Towers Hearing Room {
4325 East West Highway ,
Bethesda, Maryland l The above-entitled matter came on for conference, pursuant to notice, at 10:00 a.m.
BEFORE JUDGE JOHN H. FRYE,III, Chairman !
Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission !
(} Washington, D.C. 20555 ATOMIC SAFETY & LICENSING BOARD PANEL MEMBERS:
JUDGE OSCAR H. PARIS U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i i
JUDGE FREDERICK J. SHON l U.S. Nuclear Regulatory Commission f Washington, D.C. 20555 [
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APPEARANCES: '
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(,T/ On behalf of the U.S. Nuclear Reculatory Commission Staff: i LISA CLARK, Esquire ,
SHERWIN TURK, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 On behalf of Federal Emergency Manaaement Agency FEMA):
WILLIAM R. Cute (ING, Esquire Federal Emergency Management Agency (FEMA) [
500 C Street, S.M.
Washington, D.C. 20472 On. behalf of Leno Island Lichhino Co. (LILCO):
i DONALD P. IRMIN, Esquire JAMES CHRISTMAN, Esquire Hunton & Williams 707 East Main Street P.O. Fox 1535 Richmond, Virginia 23212 On behalf of Suffolk County, New York:
O'N MICHAEL S. MILLER, Esquire CHRISTOPHER M. McMURRAY, Esquire J. LYNN TAYLOR, Esquire
, LAWRENCE LAMPHER, Esquire Kirkpatrick & Lockhart South Lobby, 9th Floor !
1800 M Street, N.W. [
Washington, D.C. 20036-5891 On behalf of the Governor Mario Cuomo and the !
State of New York .
RICHARD J. ZANNLEUTER, Esquire !
Deputy Special Counsel to the Governor (
Executive Chamber, Room 229 L The Capitol l Albany, New York 12065 [
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3 1 EBQCEED1HGE (j) 2 JUDGE FRYEt This is a conference of counsel. Am 3 I not being heard?
4 Good morning. This is a conference of counsel 5 concerning the 1988 exercise of the emergency plan for the 6 Shoreham Nuclear Power Station.
7 We are the Atomic Safety and Licensing Board, 8 constituted in the so-called OL-5 proceeding which heard the 9 exercise litigation of the 1986 exercise and are sitting 10 pursuant to a remand of the Appeal Board in ALAB-901, if I'm 11 not mistaken.
12 On my left is Dr. Oscar Paris. He's a permanent 13 member of the Atomic Safety and Licensing Board Panel. He 14 is an environmental scientist.
(~) 15 And on my right is Judge Frederick Shon, a nuclear
\J 16 engineer, also a permanent member of the Atomic Safety and 17 Licensing Board Panel.
18 I am John H. Frye, also a permanent member of the 19 Panel, a lawyer, and Chairman of the Board.
20 With those preliminaries, let me ask the partier- i 21 if they would please identify themselves, beginning with 22 Staff.
23 MS. CLARK: Representing the Staff, my name is 24 Lisa Clark. And with me today is Sherwin Turk.
25 MR. CUMMING: William R. Cumming, counsel for the Heritage Reporting Corporation (202) 628-4G88
4 1 Federal Emergency llanagement Agency.
(} 2 3
MR. IRMIN:
firm of Hunton & Williams, counsel for Long Island Lighting My name is Donald P. Irwin, with the l 4 Company. With me to my left is James Christman, also of our 5 firm, also counsel for LILCO.
6 MR. MILLER: My name is Michael S. Miller with the 1
7 firm of Kirkpatrick & Lockhart. My firm represents Suffolk 8 County, New York. With me to my right is Christopher 9 McMurray and to his right, J. Lynn Taylor of the same firm.
10 Mr. Lampher, I may also mention, Judge Frye, is in the 11 sudience, and is here if the Board would care to hear a
j 12 discussion on Contention 1 regarding the scope of the l 13 exercise.
14 JUDGE FRYEt Thank you.
15 MR. ZANNLEUTER: My name is Richard J. Zahnleuter.
O 16 I represent Governor Cuomo and the State of New York.
17 JUDGE FRYEt Thank you. It had been the Board's 18 thought that we would proceed by beginning with a discussion
, 19 of CLI-88-9. Does that suit with the parties or do they l
20 have some other agenda in mind?
1 l 21 MR. IRMIN: No other agenda that I'm aware of, 22 Judge Frye.
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- 23 MR. MILLER
- That's fine with us, Judge Frye., All 24 right. I take it thac you have all received that document 25 and had an opportunity to study it. We thought it raised i
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5 1 some issues in tctma of the practice that normally takes
() 2 place in these proceedings.
3 One such unique aspect is the fact that it places 4 the burden of going forward with evidence on the f 5 Intervenors, as opposed to LILCO, who would normally carry 3
6 such burden. Does that view comport with the parties' ;
I 7 views? !
8 MR. MILLER: Absolutely, Judge Frye, from at least i 9 Suffolk County's standpoint. We view the Commission's order ,
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10 as being very different from the normal procedures utilized 4 l
] 11 in 31 censing proceedings and does indeed place the burden at l i :
12 least initially upon the Governments to go forward, which we [
13 take objection to, and the Governments intend and are 14 working on a motion for reconsideration to the Commission }
J l 15 with respect to CLI-88-9. We hope to have that motion for l 1 !
16 reconsideration filed certainly this week and perhaps the i 17 Commission will reverse its decision. But for the time 18 being, I think your summary is a fair summary of what the 19 Commission has done in terms of burden of proof, and we do 20 object to that.
l 21 JUDGE FRYEt Well, unless and until the Commission 1
l 22 reconsiders, we are bound by it, and we will have to proceed 23 under it. And I think ue need to address the procedures
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24 that we're going to use in following it.
, 25 One of the things that occurs to me in light of i
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i 1 the fact that the Intervenors do have the burden of going l
() 2 forward with testimony is that we are likely after that 3 testimony is filed to be confronted with some motions to the i
4 effect that the Intervenors have not met that burden because i 5 the testimony does not describe a fundamental flaw under 6 ALAB-903. Is that a likely result or not? l 7 MR. IRMIN: Judge Frye -- I don't think this mike ;
8 is operating. Maybe this one is.
9 I obviously cannot preclude or anticipate exactly {
f 10 what the Intervenors' testimony will say. Certainly on the l 11 basis of what is in their contentions and on the basis of 12 other materials known to LILCO, we do believe that that is a 13 possibility. I understand, though, from the Commission's 14 order, though, that it anticipates oral motions to strike
() 15 testimony which would certainly provide an opportunity for 16 making the kind of objections you anticipate and clearly the 17 parties could put the Board and the other parties on notice 18 -of their expected intention by filing at least written 19 summary motions of areas they intenn to striko and the basic 20 rationalia.
21 I'd like to address Mr. Miller's objtetion very 22 briefly, because this is not a standard proceeding. It 23 clearly coaies at the end of a long proceeding. There is an 24 ample documentary basis for proceeding, including vast 25 amounts of discovery that LILCO has already made available Heritage Reporting Corporation (202) 628-4888
7 1 to Interverors as well as a comprehensive FEMA report. And 2 we believe that one can modify the presumptive standards or 3 the presumptive procedures of Part 2 without denying 4 anybody's due process right. And LILCO intends to help 5 assist in that process.
6 JUDGE FRYE However that may be, that's not an 7 issue before us, I don't believe, is it?
8 MR. IRWIN: I'm sure there will be opportunities 9 to test both the ptrties' and the Board's ingenuity as we go 10 along. We intend to help on that while staying within the 11 framework which the Commission has prescribed. !
12 JUDGE FRYE My concern in bringing up this issue 13 about the possible motions was to provide some time frame 14 for filing such motions and having that kind of an issue 15 briefed and giving us a little better opportunity to O 16 consider it than we would get if oral motions t. ore filed.
17 Similarly, I would anticipate that the Intervenora 18 may well want to move to strike LILCO and Staff testimony on 19 various grounds.
20 I don't believe that the Commission order really 21 provides for anything more than oral motions. If the 22 parties anticipate that thera motions may be fair'.y 23 extensive, then I think we perhaps might went to exercise 24 our discretion, since we can extend schedules by up to 15 25 days without anybody's permission to do so to accommodate Heritage Reporting Corporation (202) 628-4888 O
8 i 1 auch motions.
() 2 MR. IRMIN: Judge Frye, clearly, the Board can 3 extend the schedule up to 15 days. As I understand the !
t 4 Commission's order, the 15 days is an aggregate extension i
5 and the Board might wish to keep the entire basket of 1 1
f 5 requests that may have come before it today in mind before {
7 it makes any specific suggestions for modifying the (
8 schedule. ,
j 9 JUDGE FRYEt Fair enough.
10 MR. HILLER: Cudge Frye, may I just quickly make a f I
, 11 couple of comments?
1 12 Number one, generally, as a proposition, the l 13 Governments would prefer to file in writing motions to 14 strike, if such motions were to be filed against either
() 15 LILCO or the Staff / FEMA testimeny. Like Mr. Irwin, I have ;
j 16 trouble anticipating at this time the nature of what that ;
- 17 testimony might be, as 7 .a not sure there will be motions to !
18 strike. But if history is any guide there will be motions j 19 to strike, and I think written motions would make the most i j 20 sense, f 21 My second comment is that I believe Judge Frye, if 1
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. 22 you read CLI-88-9, that it is clear that the Board, thic l 23 Board, has the permiasion, has the authority, the ability to !
1 l 24 extend the schedule beyond 15 days without seeking [
- 25 pormission of anyone, including the Commission. I think !
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9 1 this Board can extend the schedule. And all the Commission ,
O 2 av 1 88-9 i ease it ewas xe io eo 8 ve a 15 ear-3 the commission is to be notified.
4 My last point, Judge Frye, is that Mr. Irwin's 1
5 comment about the 15 days as an aggregate extension I think
, 6 totally misreads CLI-d8-9. That order can only be read in 7 one way which is that this Licensing Board has the authority i
8 to adjust the schedule in any way it sees fit up to 15 dayu 9 for any aspect of this schedule without notifying the :
- 10 Commission and beyond 15 days for any aspect of the schedule f 1
11 if t.he Commission is so notified.
12 There is no way to read that order as saying that 13 it is an aggregate 15-day extension.
14 In fact, Judge Frye, on Page 7 of the Commission's 15 order, it talks abot.t extensions in the plural of more than ;
16 15 days. i 17 MR. IRWIN: I think it profiteth little to go into 18 too much detail on this. But the order is pretty clearly an 5 multd. plying Mr. Miller's 15 days -
19 expediting order, and i
20 times the number of steps in the order leads one to an I i l 21 extension of possibly up to four to five months without even j I
22 notifying the Commission.
I 23 JUDGE FRYE: Well, let's don't fight battles until
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i 24 we get to them. I'm not sure we're at that battle yet, l l
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10 1 Now, Mr. Irwin, you mentioned that we should hold lh 2 the consideration of whether the schedule needs to be 3 modified for motions until we've got the whole picture.
4 What else did you have in mind?
5 MR. IRWIN: I anticipate that the Intervenors will 6 wish probably to postpone the expected date of filing of 7 testimony for discovery, and that would clearly affect the 8 ochedule right at the front end.
9 We received a letter from them y3sterday afternoon 10 requesting our permission or our consent to a major schedule 11 modification. We did not agree to it. But I would be 12 surprised if they don't raise it this morning.
13 So that's an example of the kind of thing that I'm 14 sure will come up.
ggg 15 JUDGE FRYE: Hell, are there other schedule 16 considerations we need to take up this morning?
17 MR. MILLER: Judge Frye, just to try to put in 18 context what Mr. Irwin is referencing, as the Board knows, 19 the Commission in its order indicated that there could be 20 adjustments to the schedule if all the parties agree and 21 thic Board approves.
22 With that in mind, notwithstanding our objections 23 to the Commission's order, we initiated correspondence 24 yesterday with all the parties indicating a proposed 25 adjustment to the schedule. We understand it will take the fleritage Reporting Corp.' ration (202) 628-4888 1
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i 11 1 agreement of all the parties. LILCO, through Hunton &
() 2 Williams, has already indicated that they will not agree to 3 adjustments to the schedule, at least the adjustments that 4 we proposed, but the thrust of their letter seems to be they 5 will not agree to any adjustments to the cchedule.
6 So at this point in time, the Governments are left f 7 with no recourse other than to make various proposals to (
8 this Board, that this Board uso its authority to adjust the l l
l 9 schedule as it sees fit.
10 And we are prepared to discuss such adjustments.
11 We can do that now, --
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>n nf 12 JUDGE FRYEt Let's do it Aet. ,
13 MR. MILLERt -- in the abstract.
14 JUDGF FRYEt Well, is there something -- I cut you [
() 15 off. ;
i 16 MR. MILLERt I suppose, Judge Frye, there's two i l
17 ways to proceed. One way is to proceed in the abstract. I 18 One way is to proceed after the parties have some sense of ;
19 which contentions if not all the contentions are going to be 20 admitted by the Board. l l
21 There may be some impact on what we would be
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22 propos!.ng depending upon the number of contentions which are f 23 admitted for litigation. But I could proceed in the 24 abstract at this point if that's what the Board wishes. [
t 25 JUDGE FRYEt Can you give us a synopsis at least I t
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< l 1 at this point in the abstract so we have some idea of what l 2 you envision may be necessary?
3 MR. MILLER: Judge Frya, I could set forth the !
4 proposed schedule we have made to the other parties.
5 JUDGE FRYE All right, fine. [
6 MP. . MILLER: Let me, before I do that, let me just f
7 say, Mr. Irwin anticipates correctly, with respect to the U schedule and the steps for a schedule set forth by the 9 Commission. Obviously the first step, once this Board has 10 ruled on the contentions, is the Governments having to 11 prepare and file testimony with the Board and the other 12 parties.
13 The Commission has proposed a 30-day period of 14 time to do so. It would clearly be the Governments' 15 position that a 30-day period to prepare and file all O 16 profiled written testimony on these proffered contentions 17 within 30 days is simply not possible. Reasons, there are 18 many. The holiday season is one oi' the reasons. Tnat's not 39 the most persuasive. -
20 JUDGE FRYE: Let me interject myself at that point 21 and say I 6.hink it's safe to assume that you won't have a 22 ruling on contentions before the holiday season is over.
23 MR. MILLER: Okay. There's two other factors, 24 Judge Frye, that I think the Bo . must take into account.
25 One factor is t tnt we've talked to the Board about this Heritage Reporting Corporation (202) 628-4888 O
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13 1 before and I think the Board has an appreciation of it. We
() 2 are representatives of Governments. We have to go not only 3 find our witnesses to sponsta whatever contentions are 4 admitted, but we have to retain those witnesses through 5 governmental processes. That is not something we have the 6 power or the authority or the ability to do overnight.
7 There is a process which must be followed, must be adhered 8 to under the rules and conduct that govern the Governments.
9 So we must not only find our witnesses, we must go through 10 the process of retaining those witnesses so that they can 11 then sponsor testimony. That takes aome time.
i 12 More importantly, I believe, is the fact that the l
13 Commission has at thir point said there will be no formal l
14 discovory in this case.
15 At this time, Judge Frye, to proceed in the 16 preparation and filing of prefiled testimony without 17 discovery makes anyone's job difficult. We have essentially 18 the field report to go on and we have documents that have 13 been provided by LILCO.
20 fr. Irwin has suggested that vast amounts of 21 dovuments have already been made available to the parties.
22 We have received thousands of pages of documents from LILCO.
l 23 I will represent to the Board that many of those pages j 24 produced by LILCO are worthless pieces of paper. They are l l
25 redacted beyond meaning. We literally get hundreds and Heritage Reporting Corporation (202) 628-4888
14 1 hundreds of pages of documents from LILCO that have nothing
) 2 on them but stamps, redacted, all up and down the page.
3 They give you no information.
4 If the Board recalls back in the ' 86 ' 87 5 litigation, one of the issues before the Board involved the 6 slow mobilization and tardy dispatch of LILCO traffic 7 guides. We also had much evidence and testimony regarding 8 road crew mobilization and the time that they responded to 9 the simulated FEMA impediments.
10 I will reptesent to the Board again in putting 11 together our contentions on those two issues as examples, we 12 had access to documents provided by LILCO in discovery. We 13 formed in part our contentions based upon those LILCO 14 documents. Those documents indicated by positions, such as
(} 15 road crew or traffic guide, the times those personnel got to 16 staging areas, they time they were briefed and dispatched 17 from the staging areas, the time they got to their positions 18 in the field. All that information was provided by LILCO.
19 We then used that same information in our profiled 20 testimony. We submitted exhibits to the Board based upon l 21 LILCO documentation showing in chart format the time those 22 personnel were dispatched to the field or arrived at their l
l 23 posts, and our arguments then followed that this war, target l
l 24 dispatch, late mobilization, and led to soriour probisms in 25 LILCO's plan.
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15 1 I will represent further to the Board that in this 2 instance following the 1988 exercise LILCO has given us the 3 same kind of information with the following exception. All 4 it says is Port Jefferson or Pachogue or Riverhead staging 5 area and then everything is literally redacted. No 6 position, no time of dispatch, no time of arrival in the 7 field. It's going to make our job very difficult to piece 8 together our case and prepate testimony when we're being 9 given no information by LILCO despite their claims that 10 we've had vast amounts of discoverv thus far.
11 With respect to FEMA, FEMA at this point, we have 12 the FEMA report. That's essentially it. In the past, as 13 the Board will recall, we were given by FEMA the evaluation 14 critique forms from the exercise. They were valuable 15 documents. They shed substantial light upon the underlying I'
16 bases for the FEMA report.
17 In fact, this Board, when it ordered FEMA to 18 produce those documents, I believe in January of 1987, 19 recognized the essential nature of those underlying 20 evaluation critique forms in the comments made by the 21 evaluators.
22 At this point in time, FEMA has refused to produce 23 any of those documents. We don't have anything from FEMA 24 except its basis, the bases set forth in the FEMA report.
25 JUDGE FRYE Yes, but we don't have authority to Heritage Reporting Corporation (202) 628-4888 O
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16 1 order any discovery, as I read this order.
2 MR. MILLER: You have authority, Judge Frye, to
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3 strongly encourage the parties to voluntarily produce, 4 documentation in discovery. I will say that in that context 5 yesterday as well, Suffolk County on behalf of al the 6 Governments sent correspondence to TEMA and Hunton &
7 Williams on behalf of LILCO requesting that they produce 8 documents in the spirit of informal voluntary discovery 9 urged by the Commission.
10 I think you're correct, Judge Frye, as the 11 Commission has written this order, there is no formal 12 discovery. The most the Governments can od sitting here 13 today is to request that this Licensing Board arge LILCO and 14 FEMA to provide documents which have some meaning so that 15 they could be useful to the Governments in preparing its O 16 case.
17 MR. IRMIN: Judge Frye, may I respond to what Mr.
18 Miller just said unless he's not through?
19 JUDGE YRYE 7oes that complete your synopsis of 20 the schedule changes' Essentially what you've talked about 21 revolves around th' ariod of time to prepare your 22 testimony.
23 MR. MILLER: Yea, sir. I guess I did not complete 24 because you had asked if maybe I should go ahead and put on 25 the table the schedule that we had proposed to the other Heritage Reporting Corporation (202) 628-4888 O
17 1 parties yesterday. I'll be glad to do that.
() 2 JUDGE FRYEt I would appreciate it.
3 MR. MILLER: There are some assumptions to this 4 schedule, Judge Frye, and I think the first is that we 5 assumed, the Governments assumed for no basis or reason but 6 just to make an assumption and get a starting point, that 7 the Licensing Board could rule as early as December 12 on 8 the contentions. So that's kind of your start date.
9 With that in mind we proposed the completion of 10 discovery beginning or about December 12 going until about 11 March 1, 1989.
! 12 We envisioned in this letter that there would be 13 discovery, that LILCO and the Staff and FEMA would agree to 14 the discovery that would involve depositions as well as j
() 15 16 interrogatories and admissions and all the sLandard sorts of discovery.
i 17 We then indicated that we believsd 21 days to 18 prepare testimony by the Governments, LILCO and the Staff, 19 FEMA, would be filed on March 21 and otherwise we were 20 assuming in our letter that the parties would agree to 21 simultaneously file tectimony on March 21 of next year.
22 We envisioned that as the Commission suggested 23 there would be a prehearing conference a week later en March 24 28, 1989, that the hearings would begin roughly a couple 25 weeks after that time on or about April 11, 1989, that the Heritage Reporting Corporaticn (202) 628-4888
18 1 hearings would end on or about May 19, 1989 which of course
, 2 is an extension beyond the time proposed by the Commission, 3 and I believe under our tito table it would be a hearing of 4 roughly five to six weeks.
5 We indicated in our correspondence yesterday that 6 we would adhere or try to adhere to the proposed findings 7 schedule set forth by the Commission of rougl.ly 20 days 8 following the end of hearing so that the findings would come 9 in about June 13, 1989, that reply findings would be due ten 10 days later, June 23, 1989 and then we built into our 11 proposed schedule another assumption, which is that it would ac take the Board roughly a couple of months to issue a ,
13 decision so that a decision would come out around late 14 August or early September of 1989.
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15 Those are the dates. Part of the premise for the O 16 letter, Judge Frye, was to try to get cooperation among the 17 parties with respect to a proposed schedule and discovery.
18 The letter was also premised on the Governments' assumption r 19 that what the Commission is trying to accomplish in CLI-88-9 f 20 is to prevent the two-year closure of the window for an 21 exercise so that LILCO would not face time rolling by 22 without being able to use an exercise of the licensing 23 decision.
24 Under our proposed schedule, if accepted, even if !
25 there are some rough adjustments made to that schedule, a Heritage Peporting Corporation !
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19 1 decision would come out sometime in the Fall cf 1989 which !
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() 2 is roughly nine months before a decision would have to be 3 rendered. I'm sorry. Which is roughly nine months before 4 the two-year closure period. So that we thought this would 5 surely guaranteed or provide to LILCO the comfort it seeks 6 in making sure that two years doesn't roll by again and yet 7 be more fair to the parties in trying to present its case, 8 their case, in trying to put forth evidence before the 9 Licensing Board so that the Board can make a reasoned, 10 informcd decision.
11 But as I've stated, Hunton & Williams has already 12 indicated that they will not accept adjustments to a i 13 schedule.
14 Maybe the other thing I could do, Judge Frye, is 15 to give you a copy of the letter that went out to the r 16 parties yesterday, if the Board cares to have the letter. -
17 JUDGE FRYE that might be helpful, yes. I assume i 18 all the parties have it so we may as well have it. Mr. ,
19 Irwin? '
20 MR. IRWIN: Judge Frye, let me address a number of i l
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'l aspects. !
22 JUDGE FRYEt Incidentally, while I'm saying that, !
23 why don't we get your response as well? I assume all the l i
24 parties have that we well.
25 MR. IRWIN: Mr. Miller's schedule needs to be put f
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20 1 into a context of a situation where litigation went on in i 2 such a protracted fashion that the Commission felt compelled 3 to intervene on its own. t 4 I talked about a potentially endless cycle of l l 5 litigation which is brought about not through any fault of ,
6 any parties other than Intervonors nor through the fault of j 7 this Board, but simply by a series of devices which I will l
8 not go into at this point in any more detail than I need to.
9 The fact that *.he Commission's regulations 10 prescribe a two-year licensing window does not embody the :
4 l 11 notion that two years is a desirable time in which to rosiew
, i 12 a one or two or three day exercise. Far from it.
I 13 As this Board remembers, the regulation used to f
- 14 provide for a one year exercise period and it had to be I 15 modified just for this case. That's room enough for a l 16 starting point. !
l 17 The fact of the matter is that this is the second !
i 18 time around the track. We have an exercise which was !
19 flawless by FK,HA standards. We have a reasonable assurance f
20 of funding based on revision 10 of the emergency plan plus j 21 the exercise report. There is no colorable basis to assume l
22 that this exercise deserves micros.7opic dissection. That is 23 a starting point. t 24 The second starting point is that the Commission 25 as I mentioned itself has intervened and said we don't want !
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l 21 r 1 what happened before to happen again.
() 2 A third starting point is the'; the Appeal Board r
3 itself in ALAB-903 imposed highur threshold pleading 4 standards, which I will come back to in a minute, because I i
5 thof are quasi-substantive in nature. l 6 JUDGE FRYE: Me want to get to those later on.
7 MR. IRMIN: Right. Mr. Miller hadn't addressed
- 8 them specifically, but I think they are part of the matrix -
9 the Bosrd has to consider, i 1 i 10 Now, Mr. Miller's modest proposal for a schedule i 11 distorts what the Commission ordered in four fundamental i
12 ways. First, although the Comaission did not order !
. I l 13 compulsory discovery, it did encourage voluntary discovery. l I 14 And I want to put on the record right now that discovery [
l 15 which LILCO has already made so the Board not be under any (
(]) 1 1 16 mis-impressions, i j 17 The first is that on July 13, approxiEstely one i
j 18 month after the exercise and approximately five moeths ago, !
i 19 LILCO made available to Intervenors every player gene.-ated (
j 20 document collected after the exercise, over 32,000 page of I
I l 21 documentation. That's every log, every message, every ;
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22 miscel'aneous scrap of paper. They've had it for almost f 23 half a year. f
! I i 24 Ten days later or 12 days later on July 25th, !
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- 25 LILCO made available to Intervonors all seven of the l s i l f I i l Heritage Reporting Corporation !
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22 1 oversized maps used at the EOC during the exercise.
2 On October 13, LILCO also made available various 3 categories of on-site player generated documents. On 4 October 13 they turned over the EOF documents and the ENC 5 documents. Over 3800 pages of those documents.
6 Jgain, all of the documents.
7 On November 2, they turned ovur the EOF and EOC 8 sign-in sheets. Some 57 saeets. Again, all of those 9 documents.
10 On October 13, LILCO turned over a calculation 11 performed at FEMA's request for totaal population dose. On 12 October 13, LILCO also turned in, turned over videotapes, 13 copies of videotapes made of every news conference held at 14 the ENC in the three days of the m 'ise.
15 The only category of dow ation not provided 16 thus far by LILCO to Intervenors is LILCO controller logs.
17 Those are secondary documents which consist basically of the 18 observations made by LILCO personnel who are not players who l 19 are basically shadowing or following or paralleling the FEMA 20 evaluators.
21 But every piece of primary documentation has been 22 long since turned over. LILCO is redacting right now the 23 names and other pertinent background infr, eni.u necessary 24 to protect confidentiality from its control + logs and will 25 have even them turned over to Intervenors by the end of this Heritage Reporting Corporation (202) 628-4888 1
l
c.
23 1- week.
7-' 2 Now, that is basically the raw material from which 1*
3 FEMA prepared its repor't. So Intervenors have had for
.p k 4 months not only the FEMA report'but also the background 5 information.
6 Now, that provides a substantial basis on which to 7 file testimony.
8 JUDGE SHON: Mr. Irwin?
9 MR. IRWIN: Yes, sir.
10 JUDGE SHON: What of Mr. NL \er's hetertion that il so many of the pages -- he gave us the impression tne vast 12 majority of what you've given him -- ere simply redacted 13 pages with nothing on them?
14 MR. IRWIN: Let me adcresa that right now, Judge 15 Shon.
16 There was an exchange of correspondance, and I 17 believe the first letter of this nature wo got, 18 notwithstanding t.a dates when these documents were turned 19 over, was approximately a weak to ten days ago.
20 But about, somewhere in that period ~ a week or ten 21 days ago, we received a lotter from counsel for Intervenors 22 containing a listing of various documents which were alleged 23 to have excessive redactione on the,.or mistaken redactions.
24 I believe there were 23 such incidents.
25 We went back through each of those enumerated Heritage Reporting Corporation (202) 628-4888 O
24 1 pages which are Bates stamped and we found in fact four 2 mistakes. We corrected those four mistakes.
('S 3 The others, we could find no mistakes in the 4 documentation. There are various documents, and I believe 5 the number is probably on the order of 50 to 100 pages of 6 paper which are for one reason or another blank or virtually 7 blank. They do not, however, relate to the kind of 8 information Mr Miller was talking about relating to l
9 dispatch, mobilization, et ceters, Mr. Mf.ller and I can get 10 into a swearing contest with one another and we will be 11 happy to work out details of these documents with 12 Intervenors.
13 But I will represent to the Board that we are 14 talking about a da minimis problem. And I cannot be more 15 emphatic about that.
16 How, let's talk about the alleged obstacles to 17 preparation of testimony. Intervenors filed their 18 contentions sometime ago. They had documentation on the 19 basis of which to have prepared them. They theoretically.
20 knew what they were preparing their contentions about. They 21 shou 3d have thought, if they didn't, about who was going to 22 support that testimony. Certainly they have witnesses who 23 have been around this track before.
24 Therefore, this business about retaining witnesses 25 and building in delay, which only prejudices LILCO in the Heritage Reporting Corporation (202) 628-4888 m
km
25 1 schedule, is something which I submit the Board should not (n,) 2 pay much attention to.
3 Secondly, as to the inconvenience of a holiday 4 season, I will remind this Board, which was not then 5 convened but which you can look in the historical records, 6 that on Christmas Eve in 1985 the Intervenors undertook what 7 I cars only describe as the equivalent of Pearl Harbor 8 against LILCO and the 1986 exercise 9 They passed a resolution through the Suffolk 10 County legislature, in one day making it a criminal offense 11 to participate in the 1986 exercise. They petitioned the 12 Commission to cancel the exercise. They petitioned FEMA to 13 withdraw its support of the exercise.
14 They chilled preparation of the exercise for the
(} 15 following six weeks.
How, when it suits their purposes, they can work 16 17 like dogs throughout the holidays. But when it suits 18 anybody else's, they have holidays to celebrate.
19 I don't think that's fair. We've been around that 20 track before, and it should not be listened to.
21 The long and short of it is, gentlemen, we have 22 provided everything with the exception of one small category 23 of secondary documentation which we're about to provide.
24 The raw material to provide testimony is there. And the 25 Commission was aware of it when it wrote this order, and it Heritage Reporting Corporation (202) 628-4888
26 1 should not be lightly disregarded by this Board.
r~s 2 That's the first category. In other words, the
(_)
3 need for discovery or further delay in the schedule to 4 accommodate discovery.
5 The second respect in which Intervenors' proposal 6 distorts the Commission's order is in abolishing the burden 7 of going forward which you noted aptly, Judge Frye, the 8 Commission had imposed. The business of filing testimony 9 simultaneously dissolves that burden.
10 I submit that that burden is fairly placed in this 11 proceeding for the reasons which I've gone through which 12 relate to discovery and ability to prepare. I won't go into 13 that further. But the Board should note that.
14 The third respect in which Mr. Miller's proposal 15 changes the Commission's concept is in the length of the 16 hearing, which the Commission said should be three weeks 17 long. The Intervenors' proposal is in fact six weeks long.
18 The fourth respect is in its assumptions about the 19 length of time it would take the Board to reach a decision, 20 where they I think propose actually two and a half months.
21 The rules of practice, of course, in Appendix A, presume 22 that in a contested case, the Board will have reached a 23 decision in 35 days, in an unexpedited proceeding.
24 What I am suggesting, gentlemen, is that this is 25 intended by the Commission with good cause to be an Heritage Reporting Corporation (202) 628-4888
()
27 1 expedited proceeding. What we are seeing is a standard
) 2 track. And our experience with standard track litigation is 3 that it lasts years. And that is not what the Commission 4 intended that is not what LILCO is interested in. We have a 5 plant that costs $1 million a day in carrying costs. It is 6 ready to go and there's no reason to hold it up.
7 JUDGE FRYE: Mr. Turk?
8 MR. TURK: Your Honor, I'll address briefly CLI-9 8d-9. When me get around to addressing contentions I'm 10 going to turn to Ms. Clark.
11 JUDGE FRYE: Sure.
12 MR. TURK: First off, I'd note that the essence of 13 this proceeding, as was true for the exercise proceeding 14 until now, was to evaluate the adequacy of LILCO's plan.
(} 15 The exercise is a means of testing that plan.
16 They've already had one round of litigation on the '86 17 exercise. But two years have passed, now there is a 1988 18 exercise.
19 The focus, however, is whether LILCO has provided 20 an adequate plan for emergency planning purposes.
21 I would note that I share Mr. Irwin's observation 22 that what you have here is an exercise that lasted one or 23 two or three days in al of its aspects and the Commission I 24 believe was aware that the focus is the plan and did not see 25 a need to protract litigation beyond the schedule which it Heritage Reporting Corporation (202) 628-4888 l
4
[
28 1 proposed and ordered in fact in its latest decision.
2 I do not agree that the purpose for that order was
-( )
3 to simply prevent the two-year window from closing. I think 4 the clear focus of the Commission was to avoid another round 5 of protracted litigation. And the Commission fairly ordered 6 this Board and the parties to proceed in an expeditious 7 fashion along the schedule it proposed unless there was good 8 cause for this Board to do otherwise.
9 I think it's entirely premature for Mr. Miller and 10 the intervenors at this time to propose to you a schedule 11 which would severely elongate that schedule without even 12 knowing how many contentions are going to be litigated.
13 Mr. Miller himself noted that it may be premature 14 to discuss this. And I think before we get down to the nuts 15 and bolts of how much additional time should be provided for 16 hearings or for filing of testimony that we really do have 17 to see what the issues are for litigation before we can 18 reach a concrete resolution of whether there's a need to 19 adjust the schedule.
20 In terms of the burden of going forward, I don't 21 see that the Commission has shifted this burden unfairly to 22 the Intervenors. All the Commission has done here is it has 23 said although in a normal case you may have simultaneous
- 24 filing or you may have Staff filing later than other l 25 parties, here, because there has been discovery already, and Heritage Reporting Corporat.i'>n I (202) 628-4888 l ()
29 1 because the Commission wanted to avoid a second round of 2 testimony, a second round of rebuttal testimony, what the 3 Commission ordered is that in the first instance, that the 4 Intervenors file their case, let them file their testimony.
5 If there had been simultaneous filing, then there 6 would be no difference to the Intervenors. They would be 7 filing testimony without seeing LILCO's tectimony in advance 8 and then it provides an opportunity for LILCO to consolidate 9 the presentation of its testimony. Instead of LILCO 10 providing a first round of testimony and then a rebuttal 11 testimony, LILCO now has the burden of doing all of its case 12 at one time, it'a case in chief and any rebuttal it wishes 13 to present to the Intervonors. And that's simply a 14 procedural mechanism to avoid the delay of having additional 15 rounds of testimony filed.
16 In terms of the need for formal discovery, I l
17 personally am not familiar with what LILCO has already 18 provided the Intervenors, but I have to note that if LILCO 19 has in fact provided the discovery which Mr. Irwin 20 represents it has done, then Mr. Miller's charges that there 21 is this gross over-redaction of documents waich precludes 22 their case from going forward I think focuses on a da 23 minimis issue. It attempts to take a small flaw in document 24 production and elevate that to grounds for this Board 25 overruling and disregarding a Commission directive to Heritage Reporting Corporation (202) 628-4888 O
30 1 expedite the proceeding.
{} 2
-3 And if that's true, then the representation by Mr.
Miller, while it may be true that there has been over-4 redaction, is totally out of place and should not be 5 permitted to be r(peated in the future.
6 JUDGE FRYE: Mr. Cumming, does FEMA have any view 7 on this?
8 MR. CUMMING: FEMA does have a view on this.
9 I think it would be helpful for the Board to 10 understand that starting on Jane 5, 1988, an extensive 11 series of FOIA requests were sent to the Federal Emergency 12 Managemont Agency which have been responded to by the 13 Federal Emergency Management Agency.
14 This included production of the detailed 15 controller logs which were representative of the documents.
16 In fact, they were inclusive of all documents prepared in 17 the FEMA control cell at Brookhaven during the course of the 18 exercise.
19 This is the one area in which the Intervenors did 20 not have observers, so the Federal Emergency Management 21 Agency believed for other reasons that full disclosure of 22 all the documents prepared by FEMA in excess of 500 pages 23 were in fact disclosed prior even to the filing of 24 Intervenor proposed contentions.
25 I should cor.ect the record with respect to Mr.
Heritage Reporting Corporation (202) 628-4888 O
1 31 i
1 Miller, and that is in the '86 exercise, the rulings, which
() 2 I'm sure this Board well remeinbers, with regard to discovery 3 against FEMA, were all subsequent to the admission of 4 contentions.
5 It is also fair to state that the documents left 6 that have not been produced, there are two major groups.
7 The first group deals with a form which the Board and the 8 parties would not be familiar with, which are verification, 9 the followup to the ARCAS.
10 FEMA is prepared to release those today, in fact, 11 during this proceeding, to all parties. The reason being is 12 that it supports Mr. Turk's argument that FEMA gives an 13 integrated plan review. In fact, one of the statements that 14 should be corrected by Mr. Miller, and that is that the 15 reasonable assurance finding of the Federal Emergency
)
16 Managemont Agency does not rest solely on the pillar of the 17 exercise. It also reflects the plan amendments and the 18 changes that have been made, modifications of the plan that 19 were made prior to our issuing that reasonable assurance -
20 finding in a letter from Mr. Grant Peterson to the Associate 21 Director for State, the State and Local Programs Director to 22 Mr. Victor Stello on September 9.
23 So there is, the point of the exercise ir, as Mr.
24 Turk r.cated, to test in fact the plant.
25 FEMA believes that the verification forms would Heritage Reporting Corporation (202) 628-4888
32 1 enhance the understanding of the followup of the Board and s,) 2 the parties to what FEMA believed occurred subsequent to the 3 exercise. ;
4 The other major document which has been released ;
5 to the parties, and I understand this is not marked as an ,
i 6 exhibit, FEMA does intend to mark it, but for purposes of 7 informing the Board what I'm talking about I would like to 8 present a copy to the Board of something that's called the 9 Exercise Evaluator's Manual that was done for Shoreham. It 10 essentially superceded the August 23 McLaughlin memo to the 11 Regions on the exercise modules. ,
12 With the permission of the Board, may I give you a 13 copy?
14 JUDGE FRYE: Let me ask you a question In ALAB- ;
() 15 903 the Appeal Board referred to a FEMA document as 16 furnishing guidance as to what were major observable 17 portions -- '
18 MR. CUMMING: That's correct. l 19 JUDGE FRYE -- of the plant. Does this document 20 supercede that?
21 MR. CUMMING: That's correct.
22 JUDGE FRYE Okay. Yes, I think it would be i
23 helpful for us to have that. I assume all the parties have l l
24 it. '
25 And while you're at it, Judge Paris and I do not i
i
~
Heritage Reporting Corporation (202) 628-4888 O l
33 1 have copies of FEMA's report. Judge Shon does. ,
() 2 MR. CUMMING: Would you like a copy with holes in 3 it or with no-holes?
4 JUDGE FRYE: Either way.
]
5 (Pause) 6 MR. CUMMING: The documentation concerning the ;
7 preparation of this document I just handed to the Board has 8 been furaished to the Intervenors. They understand its ;
t 9 utilization. l I
10 Basically the document I've given you is an i
11 uncompleted, it's basically blank forms. l 12 Now, obviously, in some instances, certain
- 13 objectives, there are multiple observers or evaluators, and i 14 so they' re filled out.
i
(} 15 16 FEMA traditionally has been very reluctant and in fact only in accordance with this Board's orders in the
- 17 prior exercised litigation disc 1(sed the exercise evaluator i
4 18 forms.
l !
! 19 The reluctance of the agency to produce those is t l !
l 20 based on the so-called deliberative process or the chilling i 21 effect on evaluators. There is case law which supports that l
]
, i l 22 objection. [
23 It's also true that the individual evaluators do 24 not in fact determine the ultimate rating which will be j 25 assigned a particular objective. ,
i
, (
Heritage F.oporting Corporation l l p (202) 628-4888 l U- !
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_ _ ~ , _ _ _ , , _ . . . _ _ _ - - _ _ . - _ _ _ _ . . _ _ . _ - . _ _ _ . . , _ _ _ _ _ _ _ --- - -
____ ___---.---._-. _-__.___ ._ _ i
34 1 In other words, with respect to a plan review,
() 2 there is the term adequacy or inadequacy. That's with 3 respect to the NUREG 0654 elemonts.
4 With respect to an exercise evaluation, it deals 5 with whether the ;bjectives have been met or not met.
6 FEMA does have concerns, and obviously just read 7 the Commissf a's ruling in CLI-8-9 recently. We have 8 brought if -c the attention of our management. We have j 9 indicated that there is in fact informal discovery. We 10 believe that the Board on the basis of the document I've 11 just given you should at least be willing to give a 12 suggestion and the parties speak to the issue as to whether
- 13 those documents should be produced.
14 FEMA is very concerned that there not be a due 15 process argument later raised based on FEMA actions. And so
[
16 we are in fact concerned that there be disclosure. It may 17 be necessary to disclose those documents.
18 It is also true that FEMA management at this time s
19 has not determined to disclose the exercise evaluator forms.
20 So I'm soliciting a suggestion, I guess, from the 1
) 21 parties and the Doard to speak to this issue. You have the 22 document before you.. Basically the filled-out forms are 23 what would be produced.
24 There is in fact an issue raised by ALAB-905 as to l
25 how the policy review function, as opposed to an individual l
l
! Heritage Reporting Corporation
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35 1 evaluator-reviewer, is brought to the attention of the 7- 2 Board, discussed and defended.
O 3 It is true that these forms would be basically i
4 composed of three parts. An observation part, which is 5 largely fact, what the observer observed, but also a 6 technical portion where the observer has to determir.e 7 whether or not the objective is met.
8 Therefore, to that extent, it is subjective. It 9 is an evalur. tor's opinion as to whether or not the objective 10 has been mat. !
11 I think with very few exceptions, the final 12 portion of the form, based on instructions that were given 13 out prior to the exercise by Mr. Husar, the regional RAC 14 Chairman, th', portion of the forms that dealt with whether 15 it should be a sign ot' deficiency, are incomplete on these
( 16 forms.
17 So if any party believes that they are going to 4
18 somehow find a smoking gun or a deficiency that was labeled i 19 and in fact there was no deficiency assigned, that is not-l 20 the case. I'm the only attorney who has reviewed these 21 forms and I personally believe that all parties might find 22 them of some assistance.
23 I don't think that they are in any way outcome 24 determinative with respect to the Intervenors' ability to 25 present their case.
I Heritage Reporting Corporation (202) 628-4888 1
i
36 1 JUDGE FRYE: The material you say that is not
) 2 there was not put there in the first instance, or was 3 redacted?
4 MR. CUMMING: It was not put there in the first 5 instance. And the reason is that individual evaluators do 6 not determine the ultimate rating of whether an objective 7 has been met.
8 JUDGE FRYE I see.
9 MR. CUMMING: Because that is based on a i 10 combination of the review process, of the observer-evaluator 11 forms, the RAC chairman in conjunction with the RAC, and 12 then with the recommendation, the RAC chairman and the 13 ragional director, do not assign the ultimate finding.
14 There is a recommendation made to headquarters as to what
() 15 that assignment should be.
16 JUDGE FRYE: So essentially these forms consist of i
17 factual observations if I understand you correctly?
l 18 MR. CUMMING: There is certainly a factual 19 portion. There ares some observers who did list LILCO -
20 player names. So we would believe that if the Board's 21 ultimate suggestion to us on the informal discovery is to 22 release the forms, that LILCO vould be given an opportunity 23 to redact.
24 JUDGE FRYE: Redact those names.
25 MR. CUMMING: It's also true that with respect to Heritage Reporting Corporation
- i (202) 628-4888
37 1 the FOIA release of the controller forms, we did give
() 2 Kirkpatrick & Lockhart an opportunity to oppose the 3 redaction by LILCO. They chose not to and the LILCO player 4 names that were mentioned on the controller forms were in o
5 fact redacted.
6 Those controller logs represent the people who 7 were participating in the exercise as described in the 8 report. As the control cell, they played certain Federal 9 agencies and they played state and local governmental 10 officials, and basically on the other end of the line there 11 would be a LILCO player who would have been calling in. And 12 these people in the control cell, one of the reasons, the 13 other reason we did not object to their release, is that 14 they were not evaluators.
~
15 Thc LILCO player activity was evaluated on the 16 other end of the phone by an evaluator standing there 17 observing the calls to the FEMA control cell and making the 18 appropriate evaluation.
19 JUDGE FRYE So the evaluator was observing the.
20 LILCO player.
21 MR. CUMMING: That's correct.
22 JUDGE FRYE And the forms you are talking about 23 were filled out by the FEMA control person who was receiving
- 24 the information over the telephone from a LILCO player?
25 MR. CUMMING: That's correct. Now, one other Heritage Reporting Corporation (202) 628-4888
\
()
l
l l
I 38 '
i 1 fundamental misunderstanding, which I think we could I 2 straighten out now. i Os 3 With the exception of the impediment messages, 4 FEMA did not inject free play messages. There were a number 5 of occasions in which a LILCO controller asked someone at 6 the FEMA control cell to insert data based on the 7 confidential scenario, and that was done, I understand. But 8 there is no nondisclosure of FEMA free play messages or 9 there were no prompts that have not been disclosed.
10 -
11 12 13 g 14 15
( 16 17 18 19 20 21 l 22 I
, 23 24 25 (Continued on the next page)
Heritage Reporting Corporation (202) 628-4888 O
39 1 MR. CUMMING: The controlled exercise was devised
() 2 to fit revised NRC regulation 50.47 (c) (1) and it was not 3 addressed to what some people had styled the normal controls 4 function, which is to make sure that if the exercise goes 5 completely askew, and there's certain elements that might 6 not be tested because the players get off on a track, that 7 they be brought back onto the exercise scenario.
8 That function in this exercise was performed by 9 LILCO. It was a LILCO exercise that FEMA evaluated.
10 JUDGE SHON: Mr. Cumming, a couple of quick 11 questions on these forms that we now have before us.
12 They're captioned Evaluation Form. That's the same as 13 Evaluator Form. Is that right?
14 MR. CUMMING: That's correct.
15 JUDGE SHON: Secondly, you say that in general 16 there were parts that were not filled in. Am I currect in 17 assuming, if you look at Form 1, which deals with Objective 18 1 emergency classification levels, there are a number of 19 things like time notified r.nd notification of the unusual 20 event and that oort of thing.
t 21 Then there is a narrative summary and a note 22 Objective 1 was met, was not met, was partially met. Were 23 those things filled in?
24 MR. CUMMING: Yes.
25 JUDGE SHON: They were. But then the next sheet Heritage Reporting Corporation (202) 628-4888
- l
_ ~ . _ _ _ _ _ _
40 1 which has Issue 1, Deficiencies.
() 2 MR. CUMMING: Yes, that's correct. There was not 3 a single form that had that completed.
4 JUDGE SHON: And these are indeed the forms that 5 Mr. Miller characterized a witile ago as having been 6 extremely useful from the February 1986 exercise. Is that 7 right?
8 MR. CUMMING: That's correct, and the basis of 9 their not being completed, however, was not individual 10 decision. It was a FEMA policy decision that the correct 11 reflection. The evaluator, for example, cannot not mark a 12 deficiency or ARCA or ARFI can have that sustained by the 13 system.
14 They are free to argue their position, but it's 15 not outcome-determinative with respect to the final FEMA
/}
16 judgment. The reason for that is -- there are many reasons 17 for it. One of it is that there are multiple observer-18 evaluators, and you are reviewing ultimately to determine 19 whether the plan elements have been met and are .
20 implementable, and we discussed this before in the context 21 of the 15 and 16 contentions in the earlier exercise.
22 The truth is that there is an aggregation of the 23 various forms, so that you might have multiple observer-24 evaluators on a single element, and there could be in fact a 25 distortion if you relied on that individual observer-Heritage Reporting Corporation (202) 628-4888 l
O 6
41 i
1 evaluator, who only saw a certain slice of the exercise 2 activity, and would not be aware of other compensating 3 measures or other activity which occurred.
4 JUDGE SHON: Well, Mr. Cumming, inasmuch as this 5 portion of the form was not filled out at the evaluator 6 level, does not that to some extent vitiate your objection 7 to turning loose of it, since the objection was founded on 8 this decisionmaking process. The decisionmaking process
. 9 would not be compromised if that wasn't filled out, would 10 it?
11 MR. CUMMING: Well, you identified, Judge Shon, 12 the fact that there is a .,ammary portion, and then there is 13 an evaluation by the evaluator as to whether the objective 14 was met. We believe that is subjective. That is opinion.
15 JUDGE SHON: So to that extent you see that there
( 16 is a chilling effect?
17 MR. CUMMING: That's correct.
18 JUDGE SHON: I see. Let me ask you another 19 question. Have you ever had a FOIA request for these 20 documents?
21 MR. CUMMING: Yes, we have.
22 JUDGE SHON: How did you treat that?
23 MR. CUMMING: It was denied on the basis of 24 deliberative process. I believe that that particular 25 category of form is still on appeal with the agency, and the Heritage Reporting Corporation i (202) 628-4888 i
t
42 1 agency has not made any final determination.
(} 2 JUDGE SHON: I see.
3 MR. CUMMING: I would be unfairly representing to 4 you that the agency did assert all of its rights under FOIA 5 through the course of discovery. However, there were a 6 series of requests and appeals and an extensive amount of 7 material has gone out. It's only the major categories that 8 I've identified the ARCA verification forms, which were 9 prepared and produced today, and those evaluator forms that 10 really remain.
11 The rest of the material, which was not disclosed, 12 was preliminary drafts, which we feel or believe fall 13 clearly within the normal deliberative process exception.
i 14 JUDGE SHON: I see, I see. Well, you've covered a J
15 good deal of ground. Mr. Zahnleuter, I know you have --
16 MR. ZAHNLEUTER: Judge Frye, I know that we have 17 covered a good deal of ground, and I would appreciate the 18 small opportunity to respond to some of the points that have 19 been raised, and I will be brief, noting also that Mr. -
20 Miller has preceded me.
21 JUDGE FRYE Sure, sure.
22 MR. ZAHNLEUTER: Mr. Irwin has made four points 23 and Mr. Turk has mado one additional one. Mr. Turk's 24 additional point is that it is premature to discuss now 25 modifications of the schedule, because we haven't had any Heritage Reporting Corporation (202) 628-4888
43 1 decision on the admission of contentions.
2 And while that may be true to some extent, and 3 while the admission of contentions may provido us with a ;
4 valuable reference point, I think it is prudent for the 5 governments to propose a modification to the schedule at 6 this time, because we're operating under severe time i
7 constraints imposed upon us all by the Commission in CLI-8 889.
9 I think it's fair for everyone that the 10 governments do the right thing here, and adviso that the 11 time constraints are severe, and that we would appreciata .,
\
12 extra time, when the right time does come about, to prepare 13 testimony and to conduct some informal discovery, etcetera.
14 I think we've done the right thing by proposing 15 changes to the schedule at this time, although the admission O 16 of contentions would help.
i 17 Mr. Irwin had four points. His first point was 18 that this is the second time around the track, so therefore j 19 the governments should be expected to move on a faster track 20 also. I'd like to point out that that may have some bearing 21 on factors such as contention drafting, or contention 22 analysis by the Board or by the parties.
23 After all, we have ALAB-900 and ALAB 903. We have 24 LBP 87-32 and LBP 88-2, which are the Board's decisions, and 25 those factors have been incorporated into the drafting and Heritage Reporting Corporation (202) 628-4888 O
44 1 analysis of contentions.
2 But the point is that even though this is the 3 second time around the track, things are different. For 4 example, the County, even though it had prior contracts with 5 prior witnesses, cannot automatically reproduce those at 6 this time. The process needs to be started anew. The came 7 things is true with the State's witnesses. I have go out 8 and try to find different witnesses because of 9 reorganizations and other things that have happened.
10 Also, regarding discovery. The discovery that 11 happened in the prior proceeding on the first time cround 12 the track isn't really applicable to what happened in the 13 1988 exercise. The documents are different, and the basis 14 for the contentions are different. .
15 He n' 'd to have different documents to analyze, to O 16 prepare testir any. We've had seme discussion now with Mr. l 17 Cumming about certain forms that FEMA has, the critique {
18 forms and the evaluation forms. I'd like to ask the Board l
19 at this time to ask Mr. Cumming if those documents, for j 20 example, have been shared with LILCO already in the process l 21 of putting together a draft FEMA report, which I presume is 22 the normal practice to share with FEMA. i 23 If LILCO has those documents, it certainly is no 24 ground in fairness to deny the governments those documents.
25 I don' t know what Mr. Cumming's answer is, and he has stated Heritage Reporting Corporation (202) 628-4888 O
45 1 some information to us already today, but look at when it
() 2 comes. It comes weeks after contentions and amended 3 contentions have been filed. I think that would be a 4 worthwhile inquiry for us to pursue.
5 JUDGE FRYE: Thank you. That is an interesting 6 question, Mr. Cumming. Have those documents been shared 7 outside the Government, with anyone outside the Government?
8 MR. CUMMING: To my knowledge, they have never 9 been furnishec to LILCO. I believe Mr. Irwin should 10 represent a position on the record.
11 MR. IRWIN: That, Judge Frye, is correct insofar 12 as I know. LILCO has had access to documents only insofar 13 as we have filed reverse FOIA requests to try to track the 14 FEMA -- the intervenor's discovery.
[} 15 16 JUDGE FRYE respond -- I'm sorry.
I see. Mr. Miller, did you want to Mr. Zahnleuter, are you finished?
17 MR. ZAHNLEUTER: I had a few other remarks.
18 JUDGE FRYE I' m sorry. I cut you off.
19 MR. ZAHNLEUTER: --that I wanted to make which are 20 brief. I would urge the Board to suggest that FEMA releaso 21 these documents that we've discussed, similkit to the way 22 that the Board in early January of '87 compelled FEMA to 23 release the same documents back on the prior proceeding.
24 Another point that I want to quickly make is not 25 only relevant to document produc*. ion, but depositions. We Heritage Peporting Corporation (202) 628-4888
46 1 have Mr. Cumming's word here in a conference of counsel and
() 2 that is certainly credible. I think the governments 3 deserve, as they have had an opportunity in the past, to 4 talk to the actual people, the actual witnesses who prepared 5 these documents and depositions would also help to go a long 6 way to help prepare testimony. I know that that is true, 7 especially from the point of view of helping to prepare my 8 State witnesses. ;
9 Mr. Irwin's second point related to the burden of 10 proof, and he objected to -- well, he endorsed the 11 Commission's ruling that there should be not simultaneous 12 filings. I think that the statement, as Mr. Miller has 13 reported, is correct, that we need to have simultaneous
! 14 filingu or to have LILCO go first, because in this situation
(} 15 the filing of testimony is not the first thing that's 16 happened in this proceeding.
17 The governments have already submitted contentions l 18 and amended contentions. We have put our case forward. I 19 think it is proper that LILCO also have to respond to that, l
1 20 at least in a simultaneous fashion.
1 i 21 Mr. Irwin's third point regarded the length of 22 hearing, and I'd like to 1 oint out that in CLI-889, the 23 Commission made an error, and they said that the hearing
- 24 that we all participated in in 1986 started on May 13th an'4
! 25 ended on June 18th.
Heritage Reporting Corporation (202) 628-4888 l
i
47
! JUDGE FRfE: Actually, they corrected that error,
,_ 2 I think, yesterday. It began on March 10th. They corrected 3 that.
4 MR. ZAHNLEUTER: That's fine. I was unaware of 5 the correction, but the point is still the same, that the 6 hearing did proceed much longer than the C'>mmission had 7 apparently contemplated when they put together CLI-889. So 8 the modest two or three week extension that the governments 9 proposed in the letter which was just handed to you, is 10 reasonable under those circumstances.
11 And Mr. Irwin's fourth point related to the length 12 of time that it would take the Board to prepare a decision 13 in this case and I don't think it's within the realm of 14 prope; discussion for any of the parties to discuas that.
15 That's within the Board's prerogative.
( 16 JUDGE FRYE Thank you. Mr. Miller?
17 MR. MILLER: Judge Frye, I'll keep this brief.
18 JUDGE FRYE Yes, we've got a lot of ground to 19 cover still, so --
20 MR. MILLER: I understand, so I will sk,ip over 21 some pointo to the one that I would like to m .o .
22 JUDGE FRYE: I guess I would like to know 4
23 specifically whether the documents that Mr. Cumming was 4
24 talking about will satisfy -- if you had them, whether that
] 25 would satisfy some of your problem?
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48 1 MR. MILLER: Judgs Frye, cortainly the governments 2 would welcome the production of any additional documentation O 3 regarding the exercise. I hope everyone understands, Judge 4 Shon, I'll talk mainly to you right now, because you were 5 asking questions of Mr. Cumming.
6 It's my impression or understanding from Mr.
7 Cumming that what he is telling us is that there is a 8 significant oa.'Istence between the evaluation critique forms 9 of 1986 and those forms of 1988, in that in 1986, the 10 evaluators themselves did indicate whether they believed 11 inadequate performance constituted deficiencies or ARCAs or 12 ARFIs, and that information was reflected on the documents 13 that were eventually produced to the governments when this 14 Board ordered FEMA to do so.
15 I gather Mr. Cumming is saying that now, the
( 16 documentation even if produced, would not reflect such 17 information because the process has been changed. I'm not 18 sure why the process was changed. I don't know if it was a 19 result of the previous exercise at Shoreham. But the 20 process has been changed, and so the answer, Judge Frye, is 21 that certainly the governments would find any additional 22 information helpful and we would welcome that.
23 Perhaps the information won't be as informative as 24 it was in 1986, according to Mr. Cumming, but I gather it 25 will be at least somewhat informative.
Heritage Reporting Corporat) e (202) 628-4888 O
49 1 Now I'll try to quickly respond to some of the
() 2 points and I'm mainly, obviously going to address Mr.
3 Irwin's comments. I will try to go through these in quick 4 summary. First of all, Judge Frye, the comment that, the 5 gratuitous comment offered that two years went by last time 6 around because of the behavior of the intervenors, I think 7 is unwarranted and I'll just simply note the governments'
- E objection to Mr. Irwin's characterization, which I don't 9 think the record supports in any way.
i 10 The comment by Mr. Irwin that this is the second 11 time around the track, it is the second time around the 12 track. If LILCO would not have failed so miserably the 13 first timo around the track, we wouldn't be here today 14 perh.ps. But they did fail, and as far as the governments
(} 15 are concerned, LILCO should be held to a higher standard 16 than they were in 1986.
, 17 There were deficiencies and fundamental flaws 18 found by this Board. They have to show they have rectified
,i 19 those. The fact that FEMA has found LILCO's performance to
]
j 20 not be deficiency-free does not bar inquiry by the
, 21 governments under Union of Concerned Scientista, as this
- 22 Board is well aware.
f 23 With respect to the documents, which seems to 24 become a big issue here today, I want to make sure the Board
! 25 understands what I was saying, and I believe again Judge i
i l Heritage Reporting Corporation (202) 628-4888 O
L
50 1 Shon, you asked some questions in this regard. I am not
() 2 suggesting that of the roughly 35,000 psges of documents, I 3 guess, if I tots 1 Mr. Irwin's figures correctly, of the 4 roughly 35,000 pages of documents which LIICO says it has l 5 produced to the governments, 32,500 have been redacted 6 improperly. That is not my suggestion at all. ,
7 What I am suggesting is that in certain instances, 8 in certain areas, if you will, where after the 1986 ex3reise l l
9 the governments proved their case based up7n, in large part, i 10 LILCO documentation. It seems that this time information ,
11 either was not kept or if it was kept, it was totally I 12 redacted before being provided to the governments.
13 Let me give you the contrast. For example, EBS '
14 and rumor control, public information documents of that 15 cort. We were given a lot of documentation in 1986
[}
16 following the exercise by LILCO. We have been given a lot 17 of documentation by LILCO following the 1988 exercise. r 18 To my knowledge, based upon my understanding of l l
19 the documento produced, thera has not been improper i f
20 redaction for the most part, on those type of documents. I t l
21 think that is reflected in our contentjeno themselves, which [
t 22 are very detailed when it comes to rumor control and ENC and [
23 EBS messages and things of that sort. That detail is drawn, 24 certainly not from the FEMA report, but from for the most 25 part, from LILCO's documents, f Heritage Reporting Corporation r (202) 628-4888 ,
O !
r
f 51 !
1 Exceptions to that. I already suggested the
() 2 examples of the traffic guides, the mobilization of traffic 3 guides, the mobilizNtion and dispatch of road crews, another 4 example. The Board will well recall the traffic impediments j
5 of 1986. Those impediments generated a fair amount of 6 discussion before this Board. The Board found a fundamental ,
7 flaw as a result of the performance by LILCO .uring the '86 8 exercise with respect to LILCO's response to the simulated 9 FEMA impediments.
10 We based, the governments based their case in 1985 11 to a large degree not just on the FEM 7 report, but on 12 documents produced by LILCO following the exercise. We have 13 hundreds of documents that led to the impediment issue. We
! 14 have a file containing our analysis review of LILCO's 15 documents regarding the four impediments from the 1988 16 exercise, which contains a total of six pages of docunents
- 17 regarding the four impediments.
18 Before, we had two impediments in 1986 and we had 19 hundreds of documents. Either LILCO didn't keep documeats l 20 this time, cno they did that for a reason, a very specific
]
l 21 reason, oc the document 4 they've given us are so redacted 1 22 they don't tell us anything except that documents were 23 redacted. So it depends on the area that you're talking i 24 about.
25 What I've suggested to the Board and I'll star.d by i
l* Heritage Reporting Corporation (202) 628-4880 k) i t
- - _ _ , , . _._.= , _, _ . _ _ _ , _ _ . _ _ _ _ _ _
52 1 my representation, is that in areas LILCO has redacted the
() 2 documents in a way which the way I read the documents, goes 3 beyond any possible claim of privilege. We, the 4 governments, have never had any problem with LILCO redacting 5 the names of individuals. He still don't have a problem in ;
6 that regard. Mr. Cumming referenced the fact in our FOIA 7 request to FEMA. We agreed to FEMA redacting the names of 8 LILCO players.
9 We don't have any problem with redacting nar es.
10 We have a problem when you redact times people were 11 dispatched, times people got to the field, times they were 12 mobilized. Those kinds of things are informational. That 13 sort of information is relevant, and there's no basis for 14 the redaction and that's what I have suggested to the Board.
(} 15 16 I can -- I don't know if the Board wants to take the time, but I have files with me today, where I can show 17 you the difference between the 1986 information produced by 18 LILCO, and the same sort of information in 1988. You'll see 19 forms from 1986 giving you the whole trray of information 20 from the time they got tc the staging area until they 21 reported to the position in the field. We gleaned that 22 entirely frem LILCO documents.
23 You'll see the same form in 1988 which i' t 24 tell you anything except the name of a staging i 25 Everything else is redacted. If the Board wants to see it, Heritage Reporting Corporation (202) 628-4888
53 1 I'll be glad to show it to the Board.
() 2 I stand by my representation. Mr. Irwin did not 3 want to get into a swearing contest. I do not want to get 4 into a swearing contest. I make my representation. I 5 gather from Mr. Turk's comments, if he cares to believe Mr.
6 Irwin more than he carea to believe me, that's fine. But my 7 representation is on the table.
8 MR. IRWIN: Well, I think Mr. Miller is --
9 MR. MILLER: I would like to finish, Mr. Irwin, 10 and then you can anything you care to say, as long as Judge I
11 Fr' permits you. Now, Judge Frye, the other point made by 12 M: .rwin is that -- the other point I wanted to make, not 13 just the rodaction, but there are other segments of 14 documents that are simply blank pages or they're illegible.
(} 15 16 JUDGE FRYEt MR. MILLER:
Number one, they're illegible?
Illegible. Now, if we were going to 17 be given blann pages, I could have just been given reams of
, 18 xerox paper. It would have been more useful than the 19 information that they actually gave us in some casea. With 20 respect to the illegible documents, we have sent LILCO a
, 21 list of the documenta we claim are illegible.
l i 22 LILCO has indicated that they will try to find if 23 they have better copies than those that were produced.
24 Perhaps Mr. Irwin is confused between our list of illegible 4
25 documents and the list of redacted documents. I'm not sure, i
Heritage Reporting Corporation (202) 628-4bdC O
i l 54 1 regarding his representation.
() 2 But in any event, when we sent to LILCO our 3 complaint about their overzealousness in redacting 4 documents, we listed instances and examples for LILCO to 5 look at, so that LILCO would re-review its documents and
! 6 send us documer.ts that had not been overly-redacted. I do a
7 not want it to be LILCO's impression that thosa were our 4 8 only instances or examples of this kind of redaction 9 problem, and Mr. Irwin's reference to 23 instances. Those 10 are examples. That was not the sum total of the problem we J
11 face.
12 I would also point out to the Board ti:'.t LILCO has 13 yet to produce any training-related documents from the 14 exercise or following the exercise, and as the Board will
(} 15 16 well recall, we fought this battle in 1986.
production of training documents.
LILCO opposed LILCO eventually produced 17 training documents from the exercise and post-exercise, and 18 thoso documents went a long way toward revealing fundamental 19 flaws in LILCO's training program.
20 To date, no training documents have been produced 21 by LILCO, to my knowledge.
22 I'll wrap this up. Mr. Irwin's point about the 13 holiday season. He minses the point, Judge Frye. We're not 94 complaining that the lawyers don't want to work hard. We've 25 been working hard on this case for six and a half years now.
Heritage Reporting Corporation (202) 638-4888 O
55 ,
1 It's got to be recognized by everybody that it's not just a
() 2 lawyer problemt there's a witness problem. Witnesses tend 3 to make plans around holiday seasons, and chat's something 4 that has to be dealt with.
5 With respect to everything that's been provided to i
6 the governments, I think Mr. Irwin's words were that all the 7 raw material is there to provide testimony, with the 8 exception of the controller logs and they' re now going to 9 produce those logs. We have a disagreement, and I can't do ;
10 anything more than make it clear to the Board that our '
11 disagreement is clear and fundamental.
1 12 JUDGE FRYE That does seem to be clear. .
13 MR. MILLER: Lastly, with respect to Mr. Irwin's 14 point, Judge Frye, he has indicated that he disagrees with 1 15 our proposed adjustmente to the schedule for litigation in
{
- 16 this case, because the Commission has made clear, this l
l 17 should not be a standard track litigation. It should be an ,
! l-
! 18 expedited litigation process.
. i 19 Well, if there's anything clear, Judge Frye, it-is l t
, 20 that we recognize that the Commission wants to expedite this I 21 litigation. We have attempted to c.scommodate the l 22 Commission's concerns in that regard and the schedule we ,
l 23 proposed was a very expedited schedule in the governments' 24 view. It was not a standard-track litigation schedulo, f
25 My only response to Mr. Turk's comments, Judge l
l Heritage Re9orting Corporation l (2L2) 628-4888 l
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i
{
56 1 Frye, is his concern seems to be that the filing of 2 simultaneous testimony by the parties would really serve no 3 purpose because then you have to face rounds of rebuttal 4 testimony and perhaps surrebuttal testimony.
5 And frankly, my recollection of the exercise 6 litigation last time is that we had very little need for 7 rebuttal testimony for that litigation, that the parties 8 filed their testimony simultaneously and that that procedure 9 seemed to work just fine. The parties then came in with 10 motions to strike, arad we then went to trial and cross-11 examined the witnesses. But there wasn't rounds and rounds 12 of rebuttal testimony, because --
13 JUDGE FRYE No, but you also had a lot of 14 discovery too, so I suspect that you knew pretty well in 4
15 advance what the testimony opposing you would say.
16 MR. MILLER: Certainly better than we will know 17 this time without discovery. I guess, Judge Frye, I'll wrap l 18 it up with respect to my comments. Mr. Cumming, I think 19 mado one point I wanted to respond to. Oh, I --
just for-20 clarification sake, the form request Mr. Cumming referred 21 to, to my knowledge, had probably already been made by 22 Suffolk County, and just so there's no misimpression, there 23 are a number of documents beyond the critique forms and the 24 ARCA verification forms yet to be produced by FEMA in 25 response to the County's FOIA request.
Heritage Reporting Corporation (202) 628-4888 O
57 1 The County has noticed an appeal and we're still 2 fighting that battle with the agency, but there are a number 3 of other documents.
4 JUDGE FRYE: But you agree with him, that that 5 issue still pends within the agency?
6 MR. MITA5& it still ponds within the agency, and 7 I would agrer 2 dr. Cr' wing that of the documents that 8 have not bee >xeduosd, the most significant ones, based 9 upon the lis-t. *
- . hat -6.s gives you, which is sometimes 10 hard to read o ;o teij that FEMA is really meaning.
11 But the must important documents are the critique 12 forms, completed critique forms, and the ARCA verification 13 forms.
14 JUDGE FRYE Mr. Irwin, do you want to respond 15 quickly and then I think we want to meve en?
r kb) 16 MR. IRWIN: Yes, I do Judge Frye. I guess the 17 first thing, the most general point I want to make is that 18 Mr. Miller's complaints about discovery tcday are to some 19 extent a surprise to LILCO and I think they're an 20 unjustified series of charges.
21 I indicated earlier that LILCO is willing to work 22 out details of discovery, misunderstandings or confusion 23 with the intervenors. We've already undertaken it. The 24 first question we got from them, however, was not more than 25 about ten days ago. So it's not as though these documents lleritage Reporting Corporation (202) 628-4888 O
f 58 1 which we have *nened over in the beginning, about five 2 months ago, have been mined exhaustively from the day they
(:) 3 came in.
4 As for -- just to take an example, though, the 5 business about impediments, the suggestion that there are 6 only six pages of material relating to four impediments this 7 year, overlooks two things. First of all, this year the 8 impediments were handled very well by all accounts. The 9 second is ther* are literally dozens, if not hundreds of 10 pages of log and message form entries, and Mr. Miller is 11 either not talking about them or he hasn't r7ad them. But 12 they're there.
13 All I'm saying is, I don't want to get into more
]
14 of this than we can --
I 15 JUDGE FRYEt Yes. You and Mr. Miller are 16 obvicusly going to disagree on a lot of points, and I'm not 17 sure that we're going to gain any ground by discussing the 3
18 issue here.
19 MR. IRWIN: My point is that I think there is -
) 20 ground to be gained by suggesting that Mr. Miller, if he has I
21 problems, give them to us in writing promptly and we'll deal i
22 with them legitimately.
23 JUDGE FRYEt I would encourage you to do that, 24 particularly where forms have been turned over with dates 25 and times redacted --
Heritage Reporting Corporation (202) 628-4888 O
59 1 MR. IRWIN: What Mr. Miller thinks are dates and
(} 2 3
times redacted, which may not -- LILCO submits might not be the case.
4 JUDGE FRYE: Which may not be, right. I have no j 5 way of knowing. But I would encourage you in any event to 6 try to meet those sorts of objections.
7 MR. IRMIN: We are 100 percent in sympathy with
- 8 that, because we want this proceeding to get underway in a l
9 tinely fashion, and to be completed in a satisfactory way.
10 The one other point I want to address very briefly
- 11 is Mr. Miller's suggestion that intervenors may be surprised 1
i 12 by the content of LILCO's testimony, in a way that they i
4 13 would , sot be normally.
i 14 One of the things that LILCO has tried to do by 15 presenting document discovery early, is give intervenors
! 16 knowledge of its database. The second thing we've tried tt l 17 do in our rasponses to the interrogatories is in a great 18 deal of detail, for instance, on the scope contentions,
)
J i 19 produce material which puts the facts out on the line and-1 l 20 with respect to the other contentions, puts facts in, i'
21 They may claim we're pleading facts, but I think
! 22 under ALAB-903 in particular, it's proper pleading. They 23 are in factual notice of LILCO's case in a way that is not i
24 normally there.
25 JUDGE FRYE Yes. That's an issue ti.st I want to Heritage Reporting Corporation 1 (202) 628-4888
()
i
60 1 get to later as well. Does that complete?
()s 2 MR. IRWIN: That's all.
3 JUDGE FRYE You have a motion pending to dismiss 4 Contentions 4 through 20, is it?
5 MR. IRWIN: That's correct. That's right.
6 MR. IRWIN: And I think we can essentially rule on 7 that one now, but we do have a question with regard to it.
8 We believe that the intervenors have not waived or abandoned S their right to modify their contentions based upon ALAB-903, 10 nor are we concerned about any possible ex-parte 11 communications based on Mr. Miller's phone call. We think 12 his phone call was proper.
13 MR. IRWIN: LILCO never suggested his phone call 14 was not proper, Judge Frye. All LILCO ever suggested was
(} 15 16 that parlaying the ambiguity left by the absence of a Board response into the equivalent of a holding, may have not baer.
17 justified, particularly where they didn't inform us. That' s 18 all.
19 I want to make that straight. Now the Board may ,
20 disagree with us on that, but we never impugned Mr. Miller's 21 calling the Board per se, and I want that to be clear on the 22 record. You have La call the Board to set up a conference.
23 JUDGE FRYE Sure, sure. So -- but the question 24 remains, and let me say we want to get to a discussion of 25 the merits of the amendments that have been made to the i
Heritage Reporting Corporation x (202) 628-4888 d
61 1 contentions later on in this conference.
2 The question remains nonetheless whether your 3 motion contains arguments that should be considered with 4 regard to the admission of these contentions as a general 5 proposition.
6 MR. IRWIN: I think it does. We did not respond 7 to the revised contentions because as the Board may recall 8 in our cover letter --
9 JUDGE FRYE: You didn't argue the poiat.
10 MR. IRWIN: We didn't have them and we also 11 indicated in our cover letter that if the Board wantad to 12 hear from us further, we requested they let us know. We 13 thought the Board had plenty of paper before it. But yes, I 14 think that motion does contain material which should be 15 considered.
() 16 JUDGE FRYE Okay, and we have, Mr. Miller, we 17 have your response to that motion and I thitik we just got 18 Staff's response this morning.
19 MS. CLARK: Yes, Judge Frye, and I'd like to point 20 out that in that response, we do respond to the contentions 21 as amended.
22 JUDGE FRYE: I see. Okay, so you have a written 23 response to the contentions as amended at this point in 24 time?
25 MS. CLAFX: Yes, we do.
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62 1 JUDGE FRYEt Now it goes without saying, in light 2 of our comments on that issue, that we think that the motion ,
3 to amend the contentions, filed by the intervenors, was 4 appropriate and we grant that and we're particularly 5 impressed by the fact that the changes did not go to the !
t 6 bases that had been provided for the contentions originally, i 7 but the contentions themselves, which are more in the nature 8 of argument.
9 That brings me to the Staff's position that the 10 contentions, some of the contentions, are tardy under 2.714 11 and should be rejected. And on that point, I wonder whether 12 LILCO has any comment it wants to make?
13 MR. IRWIN: That was, Judge Frye, I think I have l 14 not yet read the Staff's paper filed this morning, but I 5 15 believe we made a parallel argument in the -- in our motion
, ( 16 to dismiss the contentions on the basis that they were 17 inherently late filed contentions. !
18 Now since I haven't read the Staff's paper, I i
. 19 can't relate it directly. But I believe -- l 20 JUDGE FRYE Well, they made this argument, and t
21 forgive me if I missed that point in your motion. They made i r
22 this argument in their response to the contentions as 23 originally filed. !
24 MR. IRWIN: Well, without having read it in f 25 detail, I think it is a valid argument as a general l
Heritage Reporting Corporation (202) 628-4888 O
63 1 proposition. We made an analogous argument in s Mi -r * / - we
() 2 filed to aismits Contentions 4 through 20, priot to .4 ' ,
3 revision, and I think the same argument would probutly tend 4 to apply.
5 I'm sorry that I haven't read the paper they 6 handed out at the beginning of this hearing.
7 JUDGE FRYE Well, you brought to my attention 8 that there's soma papers apparently I haven't focused on ;
9 properly either, so we will do that. I think we've got yck 10 case on that point.
11 MR. IRWIN: Yes sir.
12 JUDGE FRYE Now before we get into the question 13 of the specific contentions, as modified, one of the things
'4 1 that's troubled me somewhat, Mr. Irwin, about LILCO's
(} 15 responses and you've just alluded to it a moment ago, is the 16 fact that it seems to me in many instances it does raise !
< 17 factual matters which I was brought up to believe just are 18 not an appropriate consideration at this stage of the 19 proceeding. l 20 You have alluded to that and I'd like to elicit 21 some more information or positions in regard to that. For !
22 instance, the contention, one of the contentions, as I i
c 23 recall, states that LILCO's or LERO's, I suppose, response i 24 to the fact that so many sirens failed, as improper in that 25 it did not send out road alert drivers and did not inform !
l Heritage Reporting Corporation ;
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64 1 the governments of the failures. .
. () 2 And the response is that FEMA overrode that fact j t
3 by telling LERO to assume that three sirens failed. Now i 4 that seems to me to get into a question of facts, and I'm j 5 not sure we should be considering that at this stage. [
! t j 6 MR. TRWIN: Well, that may be an interesting k 1
7 illustration, Judge Frye. I think it goes to -- to take it 8 to an extreme, the argument that you've just put to me, -
9 which I understand to be reflected in cases like that at 10 Allen's Creek, is to the effect that you can plea that the f
' i 11 moon is made of balsawood, and get the contention in and it [
1
! 12 has to be disproved later.
\
i 13 JUDGE FRYE Well, I don't want to take it to that !
I l
l 14 extreme, and the reason I picked that example is because I !
a j
(} 15 16 don't think it takes it to that extreme.
MR. IRMIN: Well, let me --
t l l'1 JUDGE FRYE And it seems to me it's uncontested, !
i l
! 18 is it not, that roughly two-thirds of the sirens did fail. f
}
19 MR. IRWIN: That's correct. It's also uncontested f 3
i j
20 that this was not a FEMA -- (
I I 21 JUDGE FRYE That TEMA overrode -- [
I
) The fact is this 22 MR. IRWIN: No sir, it l's riot. L
] {
a j 23 was not a FEMA Rep 10 test where tho' early notification {
24 system itself, as a mechanical system, was being tested.
}
25 The organizational capability to sound those sirens was I
i a
1 Heritage Reporting Corporation j (202) 628-4888 i
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)
I i i
65 1 tested.
2 Now the fact of the matter is that organizational O 3 capability was demonstrated. The fact of the matter is also 4 that it's not that FEMA overrode anything. It was part of 5 the scenario, that X number of sirens were to have failed.
6 As another factual matter, which is not in our 7 pleadings, the reason the sirene failed was that LILCO had 8 not tested the sirens systematically prior to the exercise, 9 largely because of the disapproval of Suffolk County. Since 1
10 the exercise, we've analyzed what happened. It was a 11 readily detectable timing problem. We've modified the 12 procedure. We have tested the sirens approximately five 13 times since the exercise, with a success rate in excess of 14 95 percent per sounding.
15 But that is not part of the exercise. I tell you 16 that as factual background, but the exercise is you're i
- 17 supposed to demonstrate that you can sound the sirens. We 18 demonstrated that organizational 1y.
19 JUDGE FRYE Yes, okay. Excepting that. But you 20 raise another problem that concerns me here, and that is 21 under ALAD-903 we need to consider not only whether the 22 contentions raise one of the elements listed in 50.47 (b) .
23 We also need to consider whether they would require, if J 24 true, significant plan changes.
l 25 How what you just said would lead me to believe Heritage Reporting Corporation (202) 628-4888
()
66 1 that it probably doesn't involved significant plan changes, 2 but there again we're talking about facts, aren't we?
3 MR. IRMIN: Well, if the contention raised the 4 suggestion that there had been a failure within the scope of 5 the exercise, yes, it could have arguably been a significant 6 failure without a need for a substantive or substantial 7 modification of the plan.
8 We don't believe that the mechanical failure of 9 the sirens was within the scope of the matters being tested 10 in the exercise. That's a matter the Board will have to 11 decide at the threshold. But if --
12 JUDGE FRYE Just assume, for the sake of 13 argument, that it is.
14 MR. IRMIN: Okay. Then I think you have parsed 15 that particular matter right. In other words, there >as a
() 16 potentially major failure but there was no substantial 17 modification required, and in fact the correction has 18 already been effected.
19 So that would not, if you accept -- your question ,
20 then is how are we supposed to deal with that at the 21 threshold? Do we rule it out on the basis of common sense 22 and undisputed fact, if the facts are undisputed, or do we 23 let it in and let the testimony decide the matter?
24 I believe that ALAB-903 stands for two 25 propositions in that regard. The first is that there is Heritage Reporting Corporation (202) 628-4888 O
67 1 some notion of substantive scrutiny intended by the Appoal 2 Board at the threshold admission stage, and I would refer 3 the Board in that regard to the latter half of page 12 of 4 ALAB-903, where the Appeal Board is discussing the 5 difficulties faced by an applicant on the one hand, if a 6 deficiency is assigned, in rebutting the presumption that 7 there's a fundamental flaw, and by an intervenor, on the 8 other hand, if a deficiency has not been assigned.
, 9 And the sentence that I look at in particular is 10 one that Mr. McMurray has quoted part of, but I think it's 11 instructive to look at the entire sentence. The sentence i
12 resds, and I quote: " So, too, if FEMA has found problems 13 revealed by *.he exercise, and intervenor seeking the i
14 admission of contentions that allege a fundamental flaw, has 15 a more difficult task, but it cannot be precluded from even 16 offering such contentions. Otherwise, the Commission would 17 be abdicating its ultimate responsibility," etcetera.
18 Now what they're saying, I think, is that the 19 question of substantiality has got to come in to some extent 20 at the threshold. Now, how does that come in? I think it 21 comes in primarily in the way allegations that are contained 22 in the contentions, are knitted together to suggest a 23 fundamental flaw.
24 Is there a really serious problem, in the case of 25 the sirens? Were the sirens within the scope of the Heritage Reporting Corporation (202) 628-4888
i 68 1 exercise, that would be a serious problem. But in other I
() 2 cases, if there is not such a serious problem, the Appeal 3 Board has said there's got to be a pattern of relationships, i
a 4 pervasiveness, repetition, and that has got to be i
5 established within the contention.
., 6 Now we have a point of disagreement with the
.I 7 inte rvonors, because we believe that you've got to look at 8 contentions analytically and that the various parts of them, 9 what they call their bases themselves, have to make some f
10 sense and have to be integrated. They say no, you put the 1
i 11 whole thing together and does it add up to what looks like a l 12 fundamental flaw if you accept everything.
i 13 We think there's got to be more structure added at i 14 this stage, and we believe that in most cases, the l {} 15 16 intervenors have simply strung together miscellania.
are, for instance, allegations of inaccurate communications There j
i j 17 with state and local governments, and they list nine or ten 1
l 18 instances.
1 19 Mell, there were recorded over 655 such .
] 20 communications in the exercise. Our answer says there were a
- 21 over 655 such communications, and they found nine or ten 22 where there was a problem. And FEMA said they didn't see j 23 any evidence of a pervasive problem. Now we're pleading l 24 facts there, but the fact of the matter is unless the 25 intervenors can suggest in their reply, and they had an l
I
! Heritage Reporting Corporation (202) 628-4888 O
t 69 1 opportunity for a reply, that we were way wrong in our 2 assessment.
[}
3 Ten out of 655 and no demonstrable adverse effect 4 on the conduct of the exercise, that ain't bad, and I think 5 the Board is well within its discretion to decide that that 6 contention should not be admitted. In other words, I don't 7 think you can plead the moon is made out of balsawood.
8 You've got to have some verifiable evidence for it.
9 JUDGE FRYE You've got to have some reasonable 10 basis for it.
11 MR. IRMIN: That's right.
12 JUDGE FRYE And I think I would go along with 13 that concept, that your basis can't be, as you say, the moon 14 in made out of balsawood. But let me give you another 15 example, and maybe this states it even more clearly. I O 16 think contention one raises the problem about school 17 participation, and LILCO's response is we asked them to 18 participate and they said they wouldn't.
19 How, I realize that there are more nuances to it 20 than just that, but just taking it based -- just taking 21 those facts, should we accept your factual representation 22 that the schools were asked and didn't participate at this 23 stage?
24 MR. IRWIN: I have to ask you one more question 25 before I can answer it. Are we to assume that the Board has seritage Reporting corporation (202) 628-4888
i l
?O I 1 before it any documentary evidence that the schools declined l 2 to participate?
3 JUDGE FRYEt Only such that you -- only that that !
4 you furnished to us. ;
5 MR. IRWIN: But those are presumptively official -
6 -- are we to assume that those are presumptively official 7 documents, like under the letterhead of school districts or 8 such?
9 JUDGE FRYE Well, let me go back to intervenors 10 and see whether they can answer that.
11 HR. MCMURRAY: What Mr. Irwin is asking is are you 12 prepared to make a merits decision, accept the document as 13 official, and then make a merits decision, and it's our i 14 position that you cannot make a merits decision at this i
- 15 stage, whether it's considered an officisi document or not.
l 16 Whether it's official is really irrelevant at this point.
17 HR. IRWIN: Well, let me put LILCO's position on 18 the record. If there's a presumptively official document, 19 and unless the intervenors can allege successfully that the 20 document is either fraudulent or mistaken, you are allowed 21 to take administrative notice of what it says.
l 22 It's under the business records exception to the i
! 23 hearsay rule. It's under the official records, the Federal 24 Rules --
25 JUDGE FRYE Sure, but I've got to give them an I Heritage Reporting Corporation
- (202) 628-4888 (E)
71 1 opportunity to contradict it too.
l
() 2 MR. IRWIN: Well, they've had -- they had an 3 opportunity to respond to our objections. My contention is 4 that if you have an official document, and a legal 5 presumption that a school is a governmental entity, and 6 ALAB-900, which says if you get turned down by a 7 governmental entity, that's it as a matter of law. Then I !
i 8 think you can throw that contention out. That's LILCO's 9 position.
10 MR. MCMURRAY: We're in no position to state right 11 now that the letters that were given to the governments 12 constituted all of the schools that would have participated, 13 and other schools might not have -- that should have 14 participated that didn't, and were not contacted, because we 15 are not prepared at this time to address merits. Right now, 16 we're at the pleading stage.
17 JUDGE FRYE: So you at this point don't feel that 18 you can admit or deny the genuineness of the documents that 19 LILCO furnished in the attachment to its response? -
l l
20 MR. MCMURRAY: No, I don't think we are.
21 MR. IRWIN: I think Mr. McMurray was making l 22 another point too, Judge Frye, and that is that the (
I 23 intervenors haven't canvassed the available school l 24 districts. And as to that, LILCO's view is that the 25 obligation fell on them at least at the time they received i
Heritage Reporting Corporation (202) 628-4888
72 1 LILCO's response, to undertake that inquiry, if it 'nadn't c3 2 ! allen on them quite earlier.
U 3 We've had six months since that exercise. We've 4 had three months since the FEMA report. We've had over a 5 month since LILCO's objections and Mr. McMurray is now 6 saying well, we're just going to get around to it when the 7 Board rules on the contentions.
8 This is an expedited matter. That is a notion of 9 expedition, did not begin with CLI-889. It began with the 10 UCS case itself. It was reaffirmed in CLI-8611. It's been 11 reaffirmed in every Commission and Appeal Board decision 12 regarding exercise litigation since then.
13 An intervenor cannot respcnsibly sit on its 14 haunches, which I think is what Mr. McMurray is suggesting.
15 I don't want to overstate it, but I think they have an 16 obligation of due diligence, which I don't think they've 17 undertaken yet.
18 MR. MCMURRAY: No sir, that --
19 MR. LANPHER: Judge Frye. The only reason --
20 JUDGE FRYE Yes, Mr. Lanpher.
21 MR. LANPHER: For the Reporter, Larry Lanpher. As 22 was stated at the outset, I'm only here to address 23 Contention 1, because we've had such a nice rapport with Mr.
24 Irwin on Contentions 15 and 16 from befor3.
25 You perhaps chose a simple exar.ple, in going to Heritage Reporting Corporation (202) 628-4888 O
73 1 question to Conten*. ion 1 and the schools issues em
(_) 2 specifically. I concur with what Mr. McMurray said about 3 you're not allowed to go the merits, but two additional 4 things.
5 Evon on the merits, as we addressed at page 48 of 6 our November 15 response, there are 22 school districts that 7 on LILCO's piece of paper indicated they were willing to 8 participate. We've alleged that only one participated. So 9 there are factual ..gues there.
, 10 Furthe,r, snder ALAB-900, the proper showing is 11 whether under 50.47 (c) (1) the failure to have to meet the 12 regulatory requirements of adequate participation is
. 13 excusable. That takes proof under ALAB-900. It's not 14 something that is to be resolved at the pleading stage, and l
{} 15 16 if LILCO believes it can show its proof when its testimony comes in, so be it and we will attempt in our testimony to l
! 17 show that its proof is not adequate.
18 MR. MCMURRAY: Let me just address one other 19 point, Judge Frye, and that is thet we haven't been sitting 20 on our haunches. If LILCO's defense to a contention is that i
j 21 the schools wouldn't participate, that's something to be 22 addressed at a later stage, not at this time.
23 It's not our duty to make LILCO's case. It's our 24 duty to proceed in good faith and in good faith we know that 25 22 school districts who should have participated, schools Heritage Reporting Corporation (202) 628-4888
74 I
1 who should have participated, only one did participate. We 2 have met our obligation in good faith. If LILCO wants to 3 make its affirmative case, it does that at a later time. !
[
4 JUDGE FRYEt Mr. Zahnleuter? l 5 MR. ZANNLEUTER: I think it would be helpful to 6 refer the Board to ALAB-900, page 36 of the slip opinion, {
7 which is what Mr. Lanpher was referring to, and it clearly I 8 establishes that the burden is on LILCO pursuant to 10 !
f 9 C.F.R. 50. 4 7 (c) (1) , to show that the school districts !
I 10 precluded full participation. l 11 JUDGE FRYEt Let me get Staff's position, and then 12 I' 11 come back.
13 MS. CLARK: Well, the Staff believes that in i
14 certain instances, it can clearly be recognized by the Board j 15 that participation, which intervenors allege should have
- 16 occurred, couldn't have because of refusal. And for an 17 example, we would say the Red Cross, the American Red Cross. i i
18 It's clear that they refused to participate in the l l
10 exercise and therefore it would not be deficient in scope. [
l 20 How whether --
21 JUDGE FRYEt I want to come back to
- hat point, I I
22 because I think that raises another issue as well. [
23 MS. CLARK: Now whether in this situation that l
24 you're bringing up, these school districts, this 'nay go, I ,
t 25 think, further towards a merit determination, because it is I r
f f
Heritage Reporting Corporation (
(202) 628-4888 O !
75 1 incumbent, I believe, on LILCO to establish that they had --
() 2 their participation had been requested and they've refused.
3 JUDGE Fait
- I notice that in your response to the 4 contentions, very often you did not object where LILCO had i 5 raised objections, which in my mind anyway, did go to the 6 merits or seemed to. So you takt a somewhat different view, 7 I gather, than LILCO here.
8 HS. CLARK: Well, we believe that it depends on 9 the particular instance you're talking about, at least with 10 regard to scope, that clearly there are situations where we 1
11 really don't need to go into any further detail as to 12 whether certain entities are going to participate in the l exercise because it's clear, from the history of this case, 13 14 that there's no way LILCO is going to get their
(} 15 16 participation. On the other hand, with sonething like the school districts, it's a slightly different situation.
17 JUDGE FRYE Mr. Irwin? Excuse ~... .'ir. Cumming,
, 18 before I get to Mr. Irwin, did you have Liiy ;v'o ts you want 1
l 19 to mako?
20 MR. CUMMING: Two brief comments, Judge Frye.
21 With respect to the failure of the sirens the day of the 1 22 exercise, FEMA counsel would respectfully disagree with Mr.
l 23 Irwin. We don't believe that that mechanical failure could l
24 ever show a fundamental flaw in the plan. It's because of 25 the fact that typically the history of the whole alert i
i l Heritage Reporting Corporation 3
(202) 628-4888 l
i 76 1 notification system has been on-site issue.
l 2 There is case law involving the Sharon Harris j O 3 proceeding, FE,MA even with respect to its formal 350 i
L 4 findings, often has conditioned that granted that finding, t
5 subject to confirmation by the Rep 10 testing, that has been l 1
6 adopted by the full Commission repeatedly as an appropriate 7 procedure. The Sharon Harris ruling was that that was in (
)
8 fact that mechanical testing, statistical analysis was [
. 1
) 9 appropriately separated. !
10 This would effectively reopen a contention, it ,
4 i i 11 seems to me, or add a new contention, that is unrelated to l I
12 the plan. From that standpoint, FEMA took the position j l
13 inconsistent with its long-standing practice, that you had ;
14 to be consistent with what the scenario required. We were l l I q 15 not in a position observe. We separately observe, under the !
16 Rep 10 process, the mechanical testing of sirens, and that's 17 our position on that issue, i 18 With respect to the schools, FEMA has l j 19 traditionally treated the schools as part of the general j 20 public, with special consideration not as response I f l
21 organizations. That's why we don't review down to the level J i
3 22 of the individual school preparedness plans, as far as l
) !'
i 23 verification.
24 It seeras to me that the Staff did take a slightly 25 different position to us in its correspondence, saying that f I
i Heritage Reporting Corporation l
(202) 628-4888 O l
77 ,
1 they should be treated as Governmental units. We don't !
r 2 disagree with that. NRC is certainly the arbiter of its own J 3 rules. It's also true, though, that FEMA does not believe !
4 that school participation is an issua that is dictated by l
, 5 their treatment as a formal response organization as we do 4
6 other formal response organizations. !
l 7 JUDGE FRYE Mr. Irwin.
8 MR. IRWIN: Just two points of clarification. Mr. l 9 McMurray referred to school districts. Mr. Lanpher, more l j 10 correctly, referred to schools and that's important because f l 11 the schools we're talking about are private and day care }
< t l 12 centers and kindergartens, and in fact, there were a number [
i i 13 of them which did participate but were not recorded by FEMA.
14 FEMA observed one, as is I gather, its practice.
f f i
15 But there were a number of others which did participate and I
i 16 in the sense of receiving phone calls, and that in fact is l
17 part of the documented history of this exercise. How
{
~
16 whether the intervenors have noticed that or not, I don't f I i j 19 know. !
l 20 JUDGE FRYE We're in facts again, aren't we? I i
j 21 MR. IRWIN: We are in facts again, but we're also j I 22 into allegations that aren't well founded, and I feel when i i
23 the intervenors raised them, we've got to rebut because the l I
f
$ 24 Board will remember what it's heard. I know. l 1
j 25 MR. MCHURRAY: Judge Frye. Excuse me. I didn't i
, Heritage Reporting Corporation f
- (202) 628-4888
! O i t
78 1 realize earlier that we had finished our debate on whether
() 2 or not merits should be considered at this point.
3 JUDGE FRYEt Well, I don't think we have. t 4 MR. MCMURRAY: Okay, wull I'd also like to respend i
5 and make certain points that I was not able to raise f
- 6 earlier, if Mr. Irwin is finished.
7 JUDGE FRYEt Are you finished Mr. Irwin? l l
8 MR. IRWIN: I wanted to say that I agree with Mr. l 9 Cumming's characterization of a siren problem. We were I
i 10 assuming hypothetically, as you asked me to, that sirens !
J l
- 11 were a major element. r 12 JUDGE FRYEt Yes, yes. f i 13 MR. MCMURRAY: I want to go back to Mr. Irwin's f i
4 14 first set of comments. First, with recpect to the cirens (
i ;
j i
{} 15 16 failing, number one I certainly disagree to any suggestion that Mr. Irwin may have made that the sounding of the sirens j i I
- 17 was not part of the exercise and was not something to be j i
l 18 evaluated at that time. l i
i j 19 As a matter of fact, in a letter from Mr. Crocker l 20 to FEMA, I have here it states under Objective 12, the f I
21 sirens will be sounded onen following the general emergency i 22 declaration, etcetera, etcetera. So certainly the sirens j 23 were a part of the emergency.
24 JUDGE FRYEt But again I think what you're really j
, t I 25 saying is that we've got a factual controversy. j 1 l i !
j Neritage Reporting Corporation f (202) 628-4888 ;
I
! I l I 1 l
79 1 MR. MCMURRAY: Absolutely. Every single response
() 2 that we've heard from Mr. Irwin la getting into facts. He's 3 told F 'oard that well, the sirens weren't really a 4 pr -
icause tney weren't tested systematically for some 5 r S- o 4 it was a timing problem. Well, that's a merits 6 die .on. That's something that the Board has to evaluate 7 at a later stage.
8 The same thing with the communications between 9 various FEMA controllars who were simulating Government 10 officials and the LERO representatives. Mr. Irwin states 11 that there were 655 communications and we dispute that with 12 respect to how substantive, how many substantive 13 communications there were.
)
14 But certainly again that's a merits consideration.
(} 15 16 He states that we only had nine or ten examples.
many more and they were pervasive.
No, we had They didn't just go to 17 one communication. They were statements about the aum total 18 of certain communications by a certain LERO representative.
19 These are all things that must be addressed at-a 20 later stage. I agree with you. I was always taught that at 21 this stage, you don't get into the merits. That's what CLI-22 8611 says. That's what other NRC case law says, and ALAB-23 903 did not change that.
24 All ALAB-903 says 10 that you must address the 25 test that's set out and we do that. In our many Her!.tage Reporting Corporation (202) 628-4888 O
80 1 contentions, we address that test, and we do it in detail,
(^3 2 which is also required. But once we have addressed it, once G) 3 we have made the allegations, it is improper to go behind 4 those allegations and attempt to address the merits.
5 Every argument we've heard from Mr. Irwin has been 6 a merits argument, and this is not the time to hear such 7 merits arguments.
8 MR. IRWIN: Let me try and focus on something, !
9 Judge Frye. There are some -- in Contentions 4 through 19 -
10 in particular, which I'll call garden variety contentions, ,
11 there are areas which arguably deal with merits. I think 12 that merits are properly part of your threshold decision, as '
13 I said, and I'm not going to revisit that.
14 Contentions 1, 2 and 3 are different. Contention 15 20 in a bit different. I'm interested, as es rybody else O 16 is, in moving and proceeding to the extent possible, and I 17 had a thought that I'd like to float, and that is that if 1, 18 2 and 3 are in a different category from 4 through 19, and 19 perhaps they are in different category to some extent, from 20 20, 1 being the scope contention snd 2 being a contention 21 about . i ,.-face and cooperation with governmental agencies, 22 3 being an allegation about the fairness or adequacy of 23 Fr"MA's evaluation, 4 through 19 being properly dedicated to 24 the performance of the exercise, and 20 being training.
25 If we try to thinh about whether or not we can Heritage Reporting Corporation (202) 628-4888
81 1 categorize these things and get some Board rulings on them
( 2 as quickly as possible, because if it frankly is the Board's 3 sense, and I don't think it's correct, but if it is the 4 Board's sense that 4 thrcugh 19 all involve factual 5 determinations, let's get to the merits. Let's get the 6 testimony filed, and let's get on to hearing as the 7 Commissien suggested in CLI-88-9.
8 Let's get decisions by the Board in summr.ry form 9 with a memorandum opinion later, to sustain the Board's 10 reasoning. The Board har plenty of paper before it, and I 11 think that would be helpful to us. As I say, the reason I 12 break it up is that rather than go through 20 contentions, 13 we may want to focus of them and try to parse them today.
14 I was told very frankly by the Board that we 15 weren't going to get a decision until around the end of the
(
16 year.
i 17 JUDGE FRYE: I frankly don't see how we can get a 18 decision out any faster than that, although I'm anxious to 19 do so, get a decision out as quickly as we can, and since 20 you bring up this point, let me tell you that prior to CLI-21 88-9, it had been my thought, taking a cue from the Federal 22 Rules of Civil Procedure, and taking a look at your 23 opposition to the centention, to more or less treat it as a 24 motion for summary disposition.
- 25 I would have you supplem^-t it with affidavits and
)
Heritage Reporting Corporation (202) 628-4888 i
1
82 1 a statement of facts not in dispute and let the intervenors (n) 2 respond and hopefully address the facts at that point, and 3 identifying which ones were not in dispute and which ones 4 were, and then move from that point. But I don't think that 5 option's open to us anymore.
6 MR. IRWIN: That may be. What I'm suggesting is 7 that if the Board does not consider that option open, 8 then -- L 9 JUDGE FRYE: Well, let me rephrase it. It would 10 be open if everyone agreed that it should be open. But I [
11 don't know whether everyone would or not.
12 MR. IRWIN: Well, I believe that there is 13 sufficient material already in the record, particularly as I 14 knew is likely to be supplemented in the very immediate l
{} 15 16 future, to proceed along the lines set out in CLI-88-9, and what I am suggesting is that we might want to think along 17 those lines, particularly if as I say it is the Board's 18 inclination to let in the majority of the factual 19 contentions, so we can get this testimony going, let us see l
20 what the intervenors have to say and let us respond to it 21 and get to the merits on it.
l 22 JUDGE FRYE: Mr. McMurray?
23 MR. MCMURRAY: I'm not really sure I understand 24 Mr. Irwin's suggestion. To the extent that he feels that or 25 he is suggesting that Contentions 1 through 3 and 20 are Heritage Reporting Corporation j (202) 628-4888 l
e 83 1 distinct in that they don't raise factual matters, that's
() 2 just not true.
3 JUDGE FRYE: I didn't understand him to say that, 4 I don't think.
5 MR. MCMURRAY: Well, I think --
6 JUDGF FRY 3: I think he was saying they're 7 different, somewhat different than the others.
8 MR. IRWIN: Well, I do think Contention 2 is a 9 purely legal question, which goes --
10 JUDGE FRYE: Well, 2 and 3, all right.
11 MR. IRWIN: And 3 is a purely legal question.
12 JUDGE FRYE: 2 and 3 probably are.
13 MR. IRWIN: And 20 is -- raises, if the Board 14 decides to admit it, factual issues, but it's one of these
(} 15 16 omne un gatherum contentions which I'm not sure is adequately supported. Well, it's a different kind of --
17 JUDGE FRYE: We need to talk about specific 18 contentions and this afternoon I want to do that.
19 MR. IRWIN: Yes. -
20 MS. CLARK: Judge Frye, if I may I'd like to 21 respond a little bit to some of these conments about the i
22 merits determinations, and that is because in our filing 23 that we gave to you today, we actually have made some 24 additional objections to some of the contentions. And we've 25 made those additional objections because of the issuance of Heritage Reporting Corporation (202) 628-4888
84 1 ALAB-903.
() 2 In essence, in neither this filing nor our 3 previous filing, I believe we have not addressed any of the 4 merits considerations that the intervenors are talking 5 about, and I believe that in many instances LILCO has not 6 either. And the fact is that ALAD-903 states that for a 7 contention to be admissible, it must allege problems which 8 if substantiated, reflect a fundamental flaw in a particular 9 element of the plan.
10 And I think many of these contentions, if you look 11 at the bases that have been alleged, even if they're taken 12 as true, they are not adequate under that standard. And 13 this is not --
14 JUDGE FRYE: You look at the bases.
(} 15 MS. CLARK: Right. The specific instances, the 16 specific problems that they've cited, and this is not, in 17 fact, a merits determination.
18 JUDGE FRYE No. That is not. I agree with you.
19 If you can say excepting the contentions or the bases for i
20 the contention as true, it isn't a fundamental flaw because 21 it doesn't allege a fundamente1 flaw in a particular 22 element. I would agree.
23 MS. CLARK: And I think in many instances, the
! 24 intervenors have confused that argument with a merits 25 argument, and have --
Heritage .) porting Corporation (202) 628-4888 O
85 1 JUDGE FRYE: Wel3, perhaps and perhaps not. There
'^'s 2 are also other aspects of it where I think there seems to be (V
3 a controversy as to whether the bases is true or not.
4 MS. CLARK: That's true, that's true.
5 JUDGE FRYE: And if true, it could perhaps allege 6 a fundamental flaw.
7 MS, CLARK: And in particular in ALAB-903, I think 8 it goes a little further, in that it says that those 9 elements have to be identified with a fai' A ure of a 10 particular element to the plan, and I think oftentimes what 11 these contentions do is string together a lot of unrelated 12 problems, following a very over-general statement that an 13 essential element of the plan is defective, and I think that 14 that also is not adequate. There has to be some nexus shown 15 in the contention.
16 JUDGE FRYE: But here again, when we're 17 considering whether a string of problems are related or 18 unrelated, I get a little troubled if we're really dealing 19 perhaps with facts again. .
20 MS. CLARK: But again - exactly.
21 JUDGE FRYE Where the factual context maybe isn' t 22 totally apparent from the pleadings?
23 MS. CLARK: Again though, I think that -- I think 24 it's upon the intervenors to come up with some kind of 25 legitimate way in which those problems can be re, lated to any i
Heritage Reporting Corporation I
f202) 628-4888
86 1 particular plan element, that if on their face you accept 2 all those problems as crue, and you cannot come up with any 3 legitimate way that they could all come up, and they have 4 not -- and the intervenors have not given you any basis for 5 deciding how they could reflect *, /ailure in the plan, then 6 the contention should not be allowed in.
7 JUDGE FRYE: Okay.
8 MR. MCMURRAY: Judge Frye, we're speaking in 9 generalities. As far as individual contentions go, we stand 10 on our responses to the various objections and maybe there l 11 will be further argument today.
12 JUDGE FRYE: Yes.
13 MR. MCMURRAY: Obviously, we don't agree with the 14 characterization that we've just strung together unrelated 15 bases. We feel that they all deal, in each contention, with
( 16 one essential element. We' re arguing in the abstract now, 17 and until we get to a specific contention, I don't think 18 it's worthwhile to argue anymore.
19 JUDGE FRYE: I think it would be helpful to get to 20 specific situations. I certainly agree with that. So why 1
21 don't we take our lunch break now. Before we do, let me ask 22 have you had an opportunity to read the Staff's response?
23 MR. IRWIN: No sir.
24 JUDGE FRYE: Okay. Have you?
25 MR. CUMMING: No sir.
Heritage Reporting Corporation (202) 628-4888 O
87 1 JUDGE FRYE: All right. Why don't we take an hour 2 and'a half, come back at five minutes -- or excuse me, 25 3 minutes past one. That will give you a chance to look at 4 the Staff's paper that they have filed this morning, and get 5 some lunch.
6 MR. IRWIN: Judge Frye. Okay, from my guidance if 7 nobody else's, can you give us an idea of whether the Board 8 wishes to parse the written responses or contentions, 9 responses and replies and answer my contention this 10 afternoon?
11 JUDGE FRYE First, I think that we may have 12 specific questions for you with regard to specific 13 responses, but I think what we're basically interested in 14 hearing from you is your response co the amendments that the 15 intervenors have filed. Those amendments, it seems to me, 16 focus the issue pretty clearly under ALAB-903.
17 To the extent that you feel that you've already 18 addressed the ALAB-903 elements in your responses, fine. We 19 don't need to go over that again. But your responses, if 20 I'm not mistaken, were largely filed before ALAB-903 was i 21 issued.
t 22 MR. IRWIN: 100 percent.
23 JUDGE FRYE Yes, and it would be helpful to know 24 how ALAB-903 might change your position. In that sense, I 25 think that the intervenors' amendments, which they filed, t
Heritage Reporting Corporation l
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()
88 1 are very helpful and I hope they will enable us to speed up
() 2 the process somewhat.
Judge Frye, just before wm break for 3 IIR. MILLER:
4 lunch, I'm assuming that we're leaving discovery and 5 scheduling matters behind now.
6 JUDGE FRYE: That's right. It was my intent just 7 to hold those for now. I would like to confer with the 8 Board to a certain extent, but more than that I think we may 9 -- well, I want to confer with the Board before I come back 10 to that issue.
11 MR. MILLER: If I could, just so the record is 12 clear, the letter that I gave to the Board, which the other 13 parties had already seen, is a letter dated December 5, 14 1988, from Lawrence Lanpher of my firm to Mr. Irwin, Mr.
15 Reis of the NRC Staff, and Mr. Cumming. That identifies the 16 letter that was given to the Board.
17 The other thing, Judge Frye, is I'm sure the Board 18 will vividly recall in the 1986 exercise, LILCO made a lot 19 of the same arguments we've heard today about we voluntarily 20 have given to the governments thousands and thousands of 21 pages of documents and this should shorten everything and j 22 make all kinds of discovery unnecessary.
23 In fact that turned out not to be the case at all, 24 notwithstanding all the documentation which they did give us 25 voluntarily prior to the formal commencement of discovery in 1
Heritage Reporting Corporation (202) 628-4888
()
l
89 1 1986. The last point --
() 2 JUDGE FRYE You'll also probably get un argument 3 as to whether that discovery was necessary, but that 4 aside --
5 MR. MILLER: I'm sure Mr. Irwin and I could argue 6 all day. Judge Frye, the last thing is juct to accommodate 7 a schedule, is it at all possible that if the Board has
{
8 porticular questions on Centention 1 that we do that before 9 we break for lunch? We didn't amend Contention 1,.iludge 10 Frye, so that --
11 JUDGE FRYEt No, that's true. You didn't amend 12 it, and so I'm not sure that we really have any specific 13 questions on it. I think it is probably unique in the sense 14 that it was filed and the responses came in after ALAB-900.
15 I get all these 900 series mixed up. I think that's the
(}.
16 right one. So I would assume you were pretty well briefed 17 on that. Do you want to be heard on Contention 1 any 18 further?
19 MR. IRWIN: Not unless the Board has any -
20 questions. I think that's ready to be submitted?
21 JUDGE FRYEt Ms. Clark?
22 MS. CLARK No, Your Honor.
23 JUDGE FRYEt I don't believe we have any questions 24 on that.
25 MR. MILLER: Thank you, Judge Frye.
Heritage Reporting Corporation (202) 628-4888 O
\
90 1 MS. CLARK: I here one other point, Judge Frye. I
() 2 just wanted to note for your reference that in our response, 3 the second half of this response essentially sets forth our 4 additional objections under ALAB-903, and for each 5 contention that we have a section which responds to the 6 contention as amended by intervenors. So when you review 7 the document, and how it's structured.
8 JUDGE FRYE: You have given us your position in 9 writing, obviously so. You won't have too much to say this 10 afternoon.
11 MR. CUMMING: Judge Frye, before we go off the 12 record, I'd just like to note that I am going to serve on 13 all the parties at the break the ARCA verification forms, so 14 Mr. Miller doesn't complain. I've given him the best copy
{} 15 16 we have, retaining one copy of that for our own file copy.
If we do, and we are still diligently searching to find the 1
l 17 originals, come up with an original, and a better copy, we j 18 will furnish it to Mr. Miller.
f 19 JUDGE FRYE Fine. Why don't we then -- -
l 20 MR. IRWIN: Judge Frye?
21 JUDGE FRYE Excuse me?
22 MR. IRWIN: I was just going to make a point of I
23 information. Our views on the effect of ALAB-903 will not i
24 be lengthy. I'll save them for after lunch, but they will 25 not be lengthy. I very much hope we can reach closure on a Heritage Reporting Corporation (202) 628-4888 l
l
91 1 schedule this afternoon, and that the Board can give us at 2 least some inkling as to what it believes are likely to be O 3 admitted and not admitted.
4 Let me give one example. Con!.entir.' .1, which 5 makes allegations about FEMA's process, is a metter which 6 LILCO alleges is not fairly within the secje of exercise 7 litigation. A large number of the arguments we've been 8 hearing from intervenors about the need for further l 9 discovery, seem to be predicated largely on the supposition 10 that FEMA's process itself is within the scope of this 11 proceeding.
12 If that is not the case, then it seems to me a lot 13 of -- a decision on that contention has significant bearing 14 on the large number of scheduling arguments. That is an 15 example, but I think it's a salient one.
16 JUDGE FRYE How do the parties feel about our 17 ruling promptly on that contention and reserving the others?
18 FE. MILLER: On Contention 3 in particular, Judge 19 Frye? -
20 JUDGE FRYE: That's -- yes, that's my 21 understanding. Contention 3.
22 MR. MILLER: Obviously the governments believe 23 that the contention is well-pleaded and if the Board --
24 JUDGE FRYE: I'm not trying to -- don't argue it.
25 MR. MILLER: If the Board is prepared to rule on Heritage Reporting Corporation (202) 628-4888 O
92 1 that contention, then we'll prepare to hear the Board's 2 ruling.
O- 3 JUDGE FRYE Would you have any objection if we 4 separated it out?
5 MR. MILLER: When you say separate out, you mean 6 just simply rule on that?
7 JUDGE FRYE: Rule on that one alone, and not on 8 any others, defer the others. You heard Mr. Irwin. He says 9 he thinks it might have some impact upon discovery.
10 MR. MILLER: Let us think about it, Judge Frye.
11 My inclination is that we have no objection, but let me --
12 we'll get back to you right after lunch.
13 JUDGE FR'lE: After lunch, fine. Staff?
14 MS. CLARK: We have no objection.
15 JUDGE FRYE FEMA?
16 MR. CUMMING: We have no objection either.
17 JUDGE FRYE Okay. Anything else? Well, let's 18 break until 1:30.
19 (Nhereupon, at 12:00 p.m., the hearing was 20 recessed, to reconvene at 1:30 p.m. that same day.)
21 22 (Continued on the next page.)
23 Heritage Reporting Corporation (202) 628-4888 O
93 1 AFTERNOON SESSION
(} 2 3 JUDGE FRYE (1:30 p.m.)
Back on the record, please.
4 Mr. Miller, do you object to our ruling on 5 contention 3, now, separately from the others?
6 MR. MILLER: Judge Frye, upon further reflection, 7 the government would object. But let me explain why we 8 would think that ruling on c9ntention 3 separately from the 9 other contentions may not be the best procedure.
10 First of all, if you look at contention 3 in 11 essence, that contention alleges that the FEMA reasonable 12 assurance finding is flawed and is not entitled to any 13 special difference by this Board.
14 That same thesis, if you will, flows throughout 15 contentions 4 through 20. We did amend contentions 4 16 through 20 to try to allege specifically allege that because i
17 of what the FEMA report said or did not say, those 18 particular contentions have merit and should not be rejected 19 by the Board, simply because FEMA in its report disagreed.
< 20 contention 3 goes a step further and says FEMA's 21 overall reasonable assurance finding is wrong, and should be 22 given no special weight by the Board because of the 1 23 allegations made in the contention.
24 I think one of the reasons we would suggest to the 25 Board that it not rule separately in contention 3 is that i
Heritage Reporting Corporation (202) 628-4888
94 1 this thing ties together throughout all the contentions, and 2 it's our position that, in the abstract, piecemealing the 3 Board's ruling with respect to the contentions would not be 4 the way to go. And that the better procedure would be for '
5 the Board to make a reasoned and informed decision on the 1
6 contentions as a whole, because they were submitted as a 7 whole.
8 JUDGE FRYE: Okay.
9 MR. MILLER: I just have two other quick points, 10 Judge Frye.
11 The one thought would be really what is to be 12 gained by ruling on contention 3 separately. If the theory 13 would be to start the clock running against the government 14 with respect to that contention, whereas we would be i
15 awaiting Board rulings in other contentions, it would seem I O 16 to me that by the time that the clock has started to run and 17 has perhaps run against the government's, at that point in 18 time, the board will be coming out with its other rulings 19 and we'd be facing the situation we faced two years ago, -
20 which is that neither the Board nor the parties can do two !
i 21 things at once. And therefore preparing testimony in our ,
l l 22 case, affirmative case on the other contentions we wouldn't 23 be going anywhere with contention 3 anyway assuming !
24 contention 3 is going to be admitted for litigation. '
t 25 And the second thought I have it that I would hope l Heritage Reporting Corporation (202) 628-4888 ,
() i l [
95 1 that the Board would recognize that contention 3 in some
{} 2 3
particular ways is a contention that will require some discovery on the governments' behalf against FEMA 4 specifically.
5 Mr. Cumming has indicated that perhaps there will 6 be some discovery forthcoming with respect to documents, but 7 we need some discovery with respect to proving our case in 8 contention 3. And it would seem to us that for that reason, 9 a Board ruling today on contention 3 should not start the 10 clock running, even if the Board was to take that procedure, 11 because we would need FEMA to provide us additional 12 information in the spirit of cooperation encouraged by the 13 Commission before the clock should ever start to roll.
l 14 JUDGE FRYE I see.
15 Well, I think in light, we'll withhold our ruling 1
O 16 and rule on all of the contentions together at one time.
17 off the record.
18 (Discussion held off the record.)
19 JUDGE FRYEt Back on the record. -
20 Before we address those specific contentions, let i
21 me say a couple of things. With regard to your request for I
22 our thoughts, Mr. Cumming, and I treat it as that, and 23 without taking any kind of a formal position with regar? to l
- 24 deliberative process privilege, we think it would be nice if 25 you made the document available.
Heritage Reporting Corporation (202) 618-4888
96 1 MR. CUMMING: Thank you, Judge Frye. I'll convey
() 2 that to management.
3 JUDGE FRYE: Convey that.
4 With regard to the discovery requests and schedule 5 adjustments, I think we're going to withhold any 6 pronouncements with regard to those until we issue our order 7 on the contentions. But it would be our thought that the t
8 Commission schedule would apply initially. We would not 9 modify it at this time.
10 But Me would hold open the possibility that it 11 might need to be modified in the future.
12 So with that, shall we pick up then with 13 contention, I would say contention 4. One, 2 and 3 really i l
14 have not changed in light of ALAB-903. And it would seem to "
l 15 me that contention 4 would be an appropriate place to pick
{
16 up unless the parties have a different thought.
l 17 Mr. Irwin, do you want to start off responding to 18 their modifications? f 19 Now, what's best, to proceed contention by l 20 contention, or do you want to give them all at once and then f 21 -- !
i 22 MR. IRWIN: Let me give them all at once, Judge I
23 Frye. And I'll be brief.
24 Our objections to the contentions were filed 25 before the issuance of ALAB-903. In our Motion to Dismiss Heritage Reporting Corporation i (202) 628-4888 O
97 1 contentions 4 through 20 following the issuance of ALAB-903, 2 we outlined why we believe that ALAB-903 applied all the 3 further to make those contentions inadmissible.
4 What the intervenors have done in the 5 modifications to their contentions is to address in a purely 6 formalistic way the criteria of ALAB-903. In other words, 7 they have alleged in each case that there is a failure of a 8 significant portion of the local plan. They've cited to a i 9 section of 5047 (b) and often to a section of FEMA Guidance 10 Memornndum EX-3, although that itself is not a basis under 11 ALAB-903. It's got to be the 5047 or Part 50, Appendix A.
12 But nevertheless -- Appendix E -- I'm sorry. But 13 nevertheless, they have formalistically recited that the 14 material they had already alleged satisfies the 15 substantiality test and they have formalistically alleged
( 16 that in each case, substantial reworking of the plan and 17 rethinking of the plan would be necessary.
18 Now, if all that's necessary at a pleadings stage
( 19 is to allege that the moon is made of balsa wood, they have 20 complied. If you were looking for a kind of piercing 21 analysis that suggests that in each case, the elements that l 22 are being alleged need to be put together into a coherent l
23 framework.
24 As Ms. Clark said it just before lunch I think 25 very convincingly, I don't think they've done it and Heritage Reporting Corporation (202) 628-4888
()
98 1 ALAB-903 simply raises what was already the threshold.
~ 2 The Appeal Board said when it wrote ALAB-903, we 3 are not changing the law that the Commission set out in its 4 CLI-8611. We have no power to do that. We are, however, 5 clarifying it.
6 And I think they did it in a number of ways, and 7 most of those ways are pointed out in our pre-903 comments 8 because we anticipated, I think, 903, because that's what we
! 9 believed the law had always been.
10 So the long and short of it, Judge Frye, is we 11 don't think that the intervenor's revised contentions cure 12 in any analytical way the defects that were there before.
13 And I'm not going to belabor the point.
14 We'll be happy to deal with individual 15 contentions.
16 JUDGE FRYE Ms. Clark, do you have anything to 17 add over and above what you've already given us in your 18 paper?
19 MS. CLARK: tiot in general. Do you want me to -
20 address contention 4 in particular?
21 JUDGE FRYE Well, I think that Mr. Irwin -- do 22 you want to proceed contention by contention?
i 23 MR. IRWIlls Judge Frye, you indicated that you 1
1 24 might have questions on contention 4.
25 JUDGE FRYE Well, I think we may have some l
Heritage Reporting Corporation l (202) 628-4888
99 1 questions, but we will come back to that.
(}
2 MR. IRWIN: Well, I think we've laid out our
, 3 contention by contention.e.rguments at length on paper, and i
4 if the Board has questions, we'll be happy to respond to 5 them.
6 JUDGE FRYE: All right. ,
7 MS. CLARK: Basically, I believe I set out our 8 position before and as far as what Mr. Irwin said, we agree 9 with LILCO, that largely the amendment in this case consists L 10 of the addition of a lot of boilerplate language which 11 reiterates the standard set forth in ALAB-903, but doesn't 12 aid in the analysis of the contentions.
13 For that reason, we believe that our previous 14 objections still hold and even the additional objections 15 that we made on the basis of ALAB-903 are not cured by the 16 amended contentions.
17 JUDGE FRYE Mr. McMurray?
18 FR. MCMURRAY: Yes, Judge Frye, I really do take 19 exception to the characterization of our amendments as just 20 being formalistic. What they do is exactly what ALAB-903 21 says needs to be done. That is, to address the two-prong 22 test that the Appeal Board set out there.
23 That io, to state that an essential element has 24 failed and then to allege that there needs to be some sort 25 of substantial effort to correct that. And that it must be Heritage Reporting Corporation (202) 628-4888
100 1 pied in detail, and that is what we've done.
() 2 Now, we were prepared at the November 22nd 3 conference of counsel to argue that our contentions without 4 being amended met ALAB-903 because really they did in every t
5 case address an essential element. We set out the -
6 regulations that it followed, we set out the FEMA objective 7 that weren't met, we set up a NUREG 0654 sections that L
8 hadn't been met and the local plan sections themselves that 9 hadn't been met.
10 How, if that doesn't set out violation of an 11 essential element, then I don't know what does.
12 What we've done now is to make sure that with 13 respect to that particular prong, there is absolutely no
, 14 doubt that we are alleging failure of an essential element.
(} 15 16 Also, now, where delays have been alleged, wa have made clear that it's our contention that those delays would
)
17 resuJt in delays with the public receiving protective action
}
! 18 recommendations and taking action on those recommendations.
! 19 So there again, we have met the requirements of.
20 ALAB-903. And it's clear from the bases that those 21 statements, if true, would show a fundamental flaw. It's j 22 also true that our original contentions, as set out, were 23 tremendously detailed, which is what 903 requires.
24 I don't think there are contentions I've ever seen l 25 before that are as detailed. We haven't really added any
\
! Heritage Reporting Corporation I (202) 628-4888 4
101 1 detail because no more detail needs to be added to meet 2 ALAB-903's requirements.
3 Mostly, the amendments are meant to do what 4 ALAB-903 said needs to be done, which is to identify how the 4
5 two-prong test has been met. That's what we've done.
6 That's all that ALAB-903 requires.
7 JUDGE FRYE Mr. Zahnleuter?
8 MR. ZAHNLEUTER: LILCO inviten the Board to adopt 9 a test of "piercing analysis." And Mr. McMurray has just 10 explained why the governments advocate a position of a test 11 of whether or not the contention addresses the two-prong l 12 test that ALAB-903 sets forth.
13 And it is ALAB-903 that controls. And ALAB-903 on l 14 page 8 of the Slip Opinion uses the word, address, and does 15 not use the piercing analysis language that LILCO quotes.
O 16 So therefore, Mr. McMurray is correct and the i 17 contentions as we have set them out do meet the test of 903.
18 Thank you.
! 19 JUDGE FRYEt Well, that was short and sweet.
l 20 I do have one question that I would like to throw out for 21 you all, particularly with regard to the Red Cross. I 22 forget which specific contention raises the fact that the 23 Red Cross did not participate. But I believe both LILCO and 1
24 staff have indicated that that should be excused under
! 25 5487 (c) .
t i
Heritage Reporting Corporation (202) 628-4888 O
102 1 And while that argument may go to the merits, I 2 would be interested in having your reaction to the question 3 of whether the Red Cross is a government within the concept 4 of that regulation?
i 5 MR. IRWIN: Judge Frye, the American Red Cross is l 6 as I believe this Board will recall from the first round of L
7 this proceeding, an organization which functions under a i
, 8 Congressional Charter which provides it certain privileges t 9 and puts upon it broadly stated obligations. It has a, as a i 10 result at least governmental sanction and to some extent and 11 in a quasi-official position in the hierarchy of response to l 12 catastrophes of all kinds throughout the United States.
13 It is privately ft.:ded in large measure. In fact, 14 it may be an entirely privately funded organization, but it I
- 15 clearly has more than voluntary status. And its 16 Congressional charter does impose duties on it that I 17 believe would warrant the Board's treating it as a 18 Governmental entity which one could count on to respond in j 19 the event of an emergency.
20 JUDGE FRYEt When you say, obligations, are you 21 taking the position that the Red Cross is required to i
! 22 respond by its charter?
l 23 MR. IRWIN: Yes, sir.
24 JUDGE FRYEI I see.
25 MR. IRWIN In fact, let me read from a May lith I
J Heritage Reporting Corporation (202) 628-4888 O
103 1 letter from Mr. Reis to Mr. Cumming referring to the Red
() 2 Cross and the necessity of letters of agreement. This 3 letter is the first attachment to LILCO's responses to 4 intervenor's contentions and the second paragraph of the 5 letter bears on it, and it reads as follows:
6 "The Commission in Long Island Lighting Company, 7 CLI87-5, 25 NRC 884 at page 888, recognized that the 8 American Red Cross Charter from Congress and its national 9 policy require that the American Red Cross provide aid in 10 'any radiological or natural disaster,' whether or not there 11 are letters of agreement with the American Red Cross in 12 connection with a particular emergency plan."
13 So that is the basis on which we believe that this 14 Board would be warranted in treating the Red Cross as a
(} 15 16 quasi governmental organization which could be counted on to respond.
17 MR. CUMMING: Judge Frye, I'd just like to make 18 one comment on the record. All funds administered by the 19 American Red Cross are not derived solely from private 20 contributions. An example would be their Federal Emergency
- 21 Management Agency has an emergency food and shelter program 22 under the Stuart B. McKinney Act, and they're on the board, 23 national board which helps to distribute that money. T!st's i
i 24 my belief. And that comes from government obligated monies, j 25 appropriated funds.
4 i Heritage Reporting Corporation
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i
104 1 JUDGE FRYE: I see. Now would that food? Food, I
() 2- believe you said?
3 MR. CUMMING: Food and shelter.
4 JUDGE FRYE: Food and shelter provided with those 5 monies would be required to be available in a radiological 6 emergency, is that your point?
7 HR. CUMMING: I'm not making that direct analogy 8 but based on the qualifications, that is certainly a 9 function of that Board to insure that whatever American 10 citizens need that emergency food and shelter would in fact 11 gain that appropriate assistance.
12 JUDGE FRYE I see.
13 MR. CUMMING: I believe the other Board Membere 14 are, for example, National Catholic Charities, I believe 15 United Jewish Appeal has been on there from time to time,
~}
16 most of the Salvation Army and other eleemosynary 17 organizations or the equivalent.
18 JUDGE FRYE And the Board is not the Red Cross 19 Board but a different Board? - a 20 MR. CUMMING: It's a Board chartered pursuant to
(
21 the Stuart B. McKinney Act. l t
22 JUDGE FRYE: I see. i 23 MR. CUMMING: And I don't purport to be an expert 24 on the Red Cross' arrangements. For example, they have a f
25 Staff member permanently assigned to each FEMA region. Ar.d l I
t Heritage Reporting Corporation ;
(202) 628-4888 !
O I 4
. - + - .
,,,,, - , - , . - _ _ - . - _ , _ _ , , . _ . . - - _ _ _ . - _ - - _ . , . , _ _ , = , , , , . , , ,,, , , , ,
105 1 there is assistance to the Red Cross to maintain those staff 2 positions, an ext.mple, integration of the Red Cross with O 3 normal on going emergency management activities. That's all ;
4 a matter of public record.
5 JUDGE FRYEt Ms. Clark?
6 MS. CLARK Well, as that letter from Mr. Reis 1
7 indicates, the staff is also of the view that the American
- 8 Red Cross should be treated as a governmental entity.
9 JUDGE FRYEt For the same reason, I guess? I 10 MS. CLARK Yes.
11 MR. MILLER: If I may, just briefly.
12 The Board question is should the Red Cross be ;
13 treated as a governmental entity. Mr. Irwin has recast the l 14 question is should the Red Cross be treated as private l
- 15 governmental entity.
16 In response to the Board's question, the Red Cross (
17 should not be treated as a Governmental entity, and it is 18 not a governmental entity. There are many organizations and 4
j 19 entities that are quasi-governmental in nature. Amtrak is j e l l 20 quasi governmental. Amtrak has a governmental charter. So
- 21 what? It wouldn't be bound to follow LILCO's plan, and it I i
22 would not be treated as a governmental entity in a j r
, 23 proceeding before this Board.
24 Mr. Reis' letter that's been referred to does not [
i 25 constitute logal authority of any kind. It's Mr. Reis' l I
i Heritage Reporting Corporation j (202) 628-4888 l O !
106 1 opinion. It's worth Mr. Reis' opinion.
(} 2 3
I would suggest that perhaps the Board may want to look at I believe it's ALAB-905 which was recently issued 4 and that was the decision where the Appeal Board reversed 5 the Licensing Board decision approving LILCO's reception 6 center scheme. My tucollection is that in ALAB-905, the 7 Appeal Board does address the Commission's realism rule and 8 talks specifically in terms of that rule not being a 9 panacea, I believe the Appeal Board said, that LILCO would 3 10 want it to be. And that may be worth reading.
i
] 11 I guess also, Judge Frye, my reaction to why the 12 Red Cross is not a government, a government to me is a body 13 by which there are elections by the general population or
! 14 which the entity has authority over the general population j 15 or over which the entity has either passed laws or regulate 16 conduct. That is not the Red Cross. And I think for the 17 reasons set forth in our response to LILCO and the Staff
! 18 objections to our contentions at pages 65 and 66, this Board i
19 should not conclude that che Red Cross is a governmental -
20 entity.
l 21 JUDGE FRYEt Let me ask you a question, Mr.
22 Zahnleuter. And I take it you're in agreement, generally?
I 23 MR. ZAHNLEUTERt Yes. Thank you. But I have l 24 nothing to add.
l 25 JUDGE FRYE Let i3 ask you a question, and I i
l Heritage Reporting Corporation l (202) 628-4888 l
()
1 1
107 1 think I know the answer to thi s already, but I' d like some 2 einberation. Do you think thero is any relief that should
-O 3 be afforded LILCO because an organization, which is not a 4 governmental organization, refused to participate in the 5 exercise?
6 MR. MILLER: That's a tough question, Judge Frye, 7 to answer in the abstract. I guess I would want to know the 8 circumstances as to why the entity did not participate, what 9 LILCO did 114 its efforts to try to get the organization to 10 participate, why the organisation refused to participate.
11 JUDGE FRYE Well, let's just assume thA LIIC0 i n, no, 12 said, please, wa need you to participate, and they sa 13 we won't.
14 MR. MILLER: Then it seems to me that among other 15 things, the Board has to inquire into the necessity of that 16 entity's participation under LILCO's pl.a and what the lack
- 17 of that participation means in assessing the 18 implementability of LILCO's plan.
19 JUDGE PARIS: Did the Red Cross give you a reason l
20 for its refusal to participate, or any intimation as regards
! 21 to why it did not participate.
22 MR. MXLLER: Judge Frye, I would defer to LILCO on i
23 that.
24 MR. IRWIN: Yes, sir, they did. And let me quote l 5 to you from their response which is in Attachment 5 to our l Heritage Reporting Corporation (202) 628-4888 0
108 1 objections to the Intervenor's Interrogatories.
2 It's a recitation in the letter from Douglas
( })
3 Crocker, who's a local employee to Mr. Peter VonBarg, who is 4 the Executive Director of the American Red Cross, 11assau 5 County Chapter, dated April 27, 1988.
6 The reason recited by the Red Cross and 7 memorialized by Mr. Crocker is that the Red Cross responds 8 in emergencies but only to State requests for participation 9 in exercises. In other words, when a State requests 10 participation, the Red Cross complies.
11 And of course, under the Realism Rule, cne is 12 entitled to presume that a State government would respond in 13 an emergency, and one is therefore entitled to presume that 14 the Red Cross would comply.
15 Let me just add one other comment on Mr. Miller's
(
36 comparison of the Red Cross to Amtrak. Amtrak isn't 17 obligated under its charter to respond in radiological 18 emergencies; the Red Cross is.
19 MR. MILLER: I've no response, Judge Frye, other 20 than again to reiterate that the Realism Rule, the 21 Commission's new rule, only applies to governmental entities 22 and the Red Cross is not such an entity.
23 JUDGE FRYEt In short, I think you're caying to me 24 that if a non-governmental entity refuses to participate, 25 there should be no relief for LILCO if that participation a
Heritage Reporting Corporation (202) 628-4888
l' 109 1 were important to an assessment of the plan in the exercise? -
() 2 MR. MILT.ER: That would be the Government's 3 position. And the Realism Rule does not afford such relief.
4 JUDGE FRYEt I see.
5 Mr. Irwin, do you? ;
6 MR. IRWIN: Judge Frye, I think I've already 7 anticipated tnat in the letter of Mr. Crocker sent to the !
i 8 Red Cross. ;
9 JUDGE FRYEt No, I'm not talking about the Red .
10 Cross now. I'm talking about my hypothetical organization, 11 whatever it may be, volunteer fire squad, etcetera, doesn't ;
12 participate.
13 MR. IRWIN: Well we have to again, I have to think 14 about this, but one has to break down response organizationc i
{} 15 16 from everything else. There are lots of entities out there in the world whom one likes to have play in an exercise ;
17 because they may have one kind or passive role or another i 18 role. If it is a response organization, clearly one needs
! i
- 19 to have them respond. If they're not a response -
i 20 organization, there is a presumption that one does not [
21 mandate public participation and non-response private 22 organizations are presumptively out there in the general 23 public and their participation is not required, 24 JUDGE FRYE Ms. Clark? [
, 25 MS. CLARK: Thank you, f
J l Heritage Reporting Corporatiora i n (202) 628-4888 ,
i U
110 1 I would just like to point out that in terms of 2 scope, LILCO is only required to test those portions of the 3 plan which are reasonably achievable. If a non-governmental 4 entity refu:ses to participate, clearly, that's not going to 5 be a deficiency in the exercise, since it cannot be 6 reasonably achievable.
7 JUDGE FRYE But can, are we permitted to do that, 8 following ALAB-900? ALAB-900, we had originally said the 9 lack of school participation in the '86 exercise, or their 10 refusal to participate meant that their participation wasn't 11 reasoncbly achievable.
12 And I read 900 as saying our rationale was wrong.
13 That if it's excused, it's excused under 5047(c). l 14 MS. CLARKt That's true, but --
15 JUDGE FRYEt Now, if that's correct, then I'm not O
\> 16 sure that we would be able to apply that reasonably 17 achievable argument to a non governmental entity.
18 MS. CLARK: Well, I believe that the 19 Appeal Board was saying that we were putting too much 20 emphasis on that section of the Regulation talking about 21 mandatory participation. But I still believe that under 22 that decision if LILCO goes out and attempts to get 23 cooperation and cannot get it because, and in this case with 24 the American Red Cross, as a direct result of the State's 25 refusal to participate in the exercise, that this would not Heritage Reporting Corporation (202) 628-4888 O
111 1 be a flaw in the exercise. First, because it's not only a
(} 2 portion which cannot be reasonably achievable, but secondly 3 because even if the American Red Cross itself is not a state 4 governmental entity, it's refusal to participate is a direct 5 result of the state's refusal, and therefore it should be 6 considered in that vein.
7 JUDGE FRYE Okay.
8 MR. CUMMING: May I make a brief comment?
9 JUDGE FRYE Surely.
10 MR. CUMMING: The scope of 5047 (c) (1) aside, as 11 currently amended, the history of CLI 8705 is that FEMA had 12 ruled that there was a plan inadequacy in that there were no 13 letters of agreement with the local Red Cross. And the full la Commission determined that the plan was in fact adequate
{} 15 16 based on its analysis of the charter.
The charter argument it seems to me is crucial.
17 We agree with that position of the Commission, now, and it 18 seems to me that it's not the licensing board which would be 19 in the position to decide that the Charter dictated other--
20 than that there would be an appropriate response.
21 I mean, you're obviously obligated to integrate 22 that with the regulatory scheme, but that's a separate 23 argument from the technicalities of the current language of 24 the regulation, based on the Commission's analysis of the 25 Charter.
Heritage Reporting Corporation >
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4 112 1 I don't know how you would rebut that
() 2 determination other than have a Federal Court construe the
- 3 Charter of the American Red Cross or to have the Board of i
i 4 Directors approve a resolution of the American Red Cross 5 saying that they read their Charter so as not to dictate a
- 6 response.
7 MR. MILLER: Judge Frye, my only comment is that
! 8 my recollection is that the very arguments made by Ms. Clark j 9 were presented to the Appeal Board and in ALAB-900, the j 10 Appeal Board disagreed with the position now being taken by i
- 11 the Staff and the Appeal Board clearly said that the not J
12 rer.sonably achievable language cannot be applied to afford I
i 13 relief to LILCo with respect to non-governmental entities.
14 That's the way I think you have got to read 15 ALAB-90^
16 JUDGE SHON: I'd like to have everyone I think 17 address a sort of second order look at this thing. The I
18 matter alleges, the contentions allege that a particular
! 19 aspect of the plan wasn't tested. Now, that can only be of l
i 20 significance to us here if that omission could hide a 21 fundamental flaw.
22 And a fundamental flaw cgain has to be something 23 that's not easily corrected. I think it might be arguable l 24 that since the Red Cross is expected only to do things they l
25 regularly do in an emergency, there is no way that a Heritage Reporting Corporation (202) 628-4888
113 1 fundamental flaw could be hidden in not testing the Red
() 2 Cross. I 3 I'd like to hear you address that, and perhaps you 4 first, Mr. Miller? l 5 MR. MILLER: Well, my response would be that I 6 believe it would be a disservice for this Board or any other j 7 tribunal to make that sort of assumption. When it comes to 8 the sort of matters that are involved in the exercise of an r 9 offsite utility plan as we have in this case, i
10 It may be true that the Red Cross as a matter of 11 routine goes out and provides services to the public in f 1
12 disasters and emergencies, and knows how to hand out food l 13 and provide clothing and thi. ,gs of that sort.
14 But here we have a specific LILCO plan and as FEMA 15 is fond of saying, the purpose of an exercise is to test the
{
l 16 workability of a plan to see that if in the real world, that i i I 17 plan is workable and can implemented.
18 There's no real world experience to lead to a 1
19 conclusion that the Red Cross would know how to perform ~ ,
20 under LILCO's plan interface with LILCO personnel and [
21 perform in a way which would adequately protect the public [
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22 haalth and safety. ;
23 Those are matters which I think require f 24 demonstration and a test of the workabill' ' of LILCO's plan i i 25 with respect to the Red Cross. And if the Red Cross did l l
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k 114 1 not participate in the implementation or the test of that
() 2 plan, as they did not in this exercise, then I think there's !
3 deficiency of the scope of the exercise, which does lead to 4 a fundamental flaw conclusion.
i 5 MR. CUMMING: Judge, may I make a quick comment 6 before Mr. Irwin? ,
7 I think your remark is perceptive, because the 8 NUREG basically indicates that reception centers would be 9 established. The LILCO plan, as you are well aware, splits ;
i 10 the reception center function into two: a congregate care j 11 function as well as a monitoring decontamination function.
12 The monitoring and decontamination function is not 13 at issue. It basically is the congregate care, the normal 14 food, shelter function the Red Cross performs. So in fact, 1
(} 15 16 Mr. Miller's argument is not apropos at all.
exactly doing what they do traditionally, providing social They're 17 services in a mass care situation with the unique 18 requirements that are dictated by a radiological emergency.
, 19 MR. IRWIN: I have nothing to add except that the 20 ratic- 's of Mr. Miller's argument is to suggest that the l l 21 etate or county can induce a fundamental flaw any time they j I
22 want by knowing that a private organization or quasi-governmental organization or any kind of organization will 24 respond only when they call it, and they refuse to call it.
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j 25 I don't think that's the way that the Realism Rule J ,
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115 1 was set up to operate. But Mr. Cumming's accurately 2 described the Red Cross' functions here, and they're simply O 3 its ordinary functions.
4 JUDGE SHON: Mr. Zahnleuter?
5 MR. ZAHNLEUTER: I think we should remember that 6 the Red Cross itself, especially in Long Island, does not 7 have congregate care centers itself. In other words, it is 8 not in the business of owning and maintaining congregate 9 care centers.
10 Those congregate care centers exist by way of 11 agreements with other entities. And it might very well be 12 that a fundamental flaw is hidden in the Red Cross element 13 in the plan if there are no congregate care center owners, 14 no voluntary businesses or no facilities that allow the Red 15 Cross to use the buildings or whatever they have in the 16 event of a Shoreham emergency.
17 I think what the ramification of that is is that 18 we're getting closer and closer to an evidentiary question.
19 For example, had the Red Cross participated, would have -
20 congregate care centers been made available by enough 21 facilities in a Shoreham emergency. And we're at a second 22 level then of extension.
23 And that might more properly be decided in an 24 evidentiary context rather than at a contention 25 admissibility stage.
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116 1 MR. INiIN: Let me just add that the issue of
()
2 congregate care centers has been litigated as an evidentiary 3 matter and decided at least once by this Board.
4 JUDGE SHON: Ms. Clark, did you have anything that 5 you wanted to say?
6 MS. CLARK I have nothing further to add.
7 JUDGE FRYEt Let me ask you generally whether --
8 and this doesn't go to specific contentions, but to 9 contentions in general, I suppose -- well, I take that back.
10 Conceivably it does go to a specific contention which I will 11 let you identify.
12 Do you think any of th( record which was compiled 13 on the '86 exercise would be relevant to this exercise, and 14 I'm thinking specifically in terms of experts talking in
{} 15 16 more general terms, or giving their conclusions in more general terms.
17 MR. MILLER: I'll bite the bullet first, Judge 18 Frye.
19 It's a good question. I would think that there-is 20 a possibility that your question would have some merit and 21 that there are in a general sense perhaps expert testimony 22 offered in 1986-87, could be relevant to the upcoming 23 proceeding.
24 I certainly think that the prior litigation is 25 relative to this proceeding from the standpoint of, for Heritage Reporting Corporation (202) 628-4888
117 1 example, there were fundamental flaws identified last time 2 and to the Government's way of thinking, that raises the 3 standard of what LILCO should have to demonstrate in this 4 proceeding. And it may make it more difficult for LILCO to 5 demonstrate that it has overcome the fundamental flaws 6 previously identified in its plan. And with respect to 7 whether a matter is easily correctable or not, if the 8 governments can allege, as they have, that problems existed 9 in 1988 that also existed in 1986, and in fact were 10 identified as fundamental flaws previously by this Board, 11 that in and of itself demonstrates matters are not easily 12 correctable, at least by LILCO.
13 So there's clearly a relevance, to me, to the 14 prior litigation. I gather your question really goes more 15 in terms of the evidentiary record from --
16 JUDGE FRYE I was thinking more on those terms, 17 yes.
18 MR. MILLER: The evidentiary record from the last 19 proceeding and can that record somehow be used in the up-20 coming proceeding?
21 JUDGE FRYE Portions of it.
22 MR. MILLER: I would think that there's a 23 possibility that in a general sense, maybe background 24 matters, things of that sort. I mean, that's on the record.
25 It would depend on whether the plan has changed. There have Heritage Reporting Corporation (202) 626-4888 O
118 1 been revisions to the plan since 1986-1987. I guess there's
() 2 a possibility. I can't really think off the top of my head 3 of an example where I would say for certain that it would be 4 doable.
I 5 MR. IRWIN: I can't answer your question 6 categorically, Judge Frye. My instinct is that certainly 7 exercise specific facts are different in 1988 than those in 8 1986.
9 JUDGE FRYE Obviously.
10 MR. IRWIN: Therefore, the possible set of
, 11 testimony or opinion would be a fairly small one.
j 12 JUDGE FRYE The contentions, though, in many 13 instances are similar to the contentions that were raised in
- 14 '86, in the '86 exercise. And that's what led me to wonder 1
() 15 16 whether there was some expert testimony that might apply in the '88 situation, given the fact that the facts are 17 obviously different.
I
- 18 MR. IRWIN: I'm hesitant simply because experts 19 generally testify on the basis of assumed or known facts.-
20 JUDGE FRYE Specific facts, yes.
21 MR. IRWIN: I think I'd prefer to reserve that 22 until a specific instance came up.
23 JUDGE FRYE Sure, sure. Fair enough.
24 Well, I don't believe we have anything further for f 25 you at this point. So unless you have something further, l
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119 1 any of you --
2 MR. MILLER: Not from the county.
O 3 JUDGE FRYE -- to be raised?
i 4 HR. IRMIN: Judge Frye, I have something further.
5 JUDGE FRYEt Surely.
6 MR. IRMIN: And that is this we are obviously in 7 ti.; position of litigants who are anxious for a licensing a 8 decision to be reached as soon as practicable consistent 9 with due process.
10 The circumstances surrounding this hearing are l
11 known to everybody; they're not garden variety 12 circumstances. And we urge expedition on the Board wherever 13 possible.
! 14 I do believe that one circumstance where the board 1
l 15 may be able to help the parties themselves go to work, as it
] O- 16 were, on the case, and help advance the ball is if the Board j
17 would consider rendering summary rulings with respect to I 18 admission of the contentions quite soon, following up with a 19 Memorandum Decision, later. But letting the parties then 20 get to work on preparing their testimony and following that 21 schedule set out by the Commission.
f 22 The Commission set a whole series of intervals i 23 that's approximately 120 days long and the only undefined l 24 interval there is the interval between this Board's I 25 prehearing today and your decision on the contentions. The Beritage Reporting Corporation (202) 628-4888 O
120 1 only guidance we have there is that it must be expeditious.
() 2 'I am requesting that the Board consider issuing 3 summary rulings so the parties can start on their testimony.
4 JUDGE FRYE Well, we're going to rule, as I 5 indicated earlier, we're going to rule as expeditiously as 6 we can.
7 For your guidance, I think given the posture of 8 this and given the detail of the contentions, I think that i 9 the earliest that could occur would be shortly after the 4
10 first of the year. And that will be our target.
)
l 11 Now, let me say in that regard, that I would urge 12 the governments -- of course, how they conduct their 13 business is their business and not mine -- but I would urge 14 you to be thinking in terms of the witnesses you want to 1
i 15 retain now, and net waiting until the ruling of the i 16 contentions comes out.
17 Because you can always, I would think, perhaps 18 more easily say, well, as it tur.ns out, we don't need you, l: 19 than it would perhaps be to scramble around and find someone
- 20 that you needed at the last misute.
I 21 MR. IRWIN: I don't want to revisit anything more 22 than I'm invited to, but these contentions have been before 23 us all for over, in the case of the contentions, a month ....
i 24 a half; our responses over a month, and if it is possible to 1 25 get decisions out before the holidays, we would appreciate i
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1 121 i
1 it. We're otherwise just going to be sitting, spinning our '!
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I 2 wheels for another month. They're going to be contracting 3 for experts but we're going'to be spinning our wheels.
. 4 JUDGE FRYEt I understand. I understand the f 5 situation. !
6 Well, if there's nothing further, we are l j 7 adjourned.
8 (Whereupon, at 2:10 p.m., the hearing in this (
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9 matter was concluded.) j i
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1 CERTIFICATE 2
3 This is to certify that the~ attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of 5 Name: Long Island Lighting Company 6
7 Docket Number: 50-322-oL-5R 8 Place:
. Bethesda, Maryland , ,
9 Date December 6, 1988 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenogrcphically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a 15 true and accurate record of, e o og ing proe dings.
16 /S/ hk - CW f x 17 (Signature typed):
Khalid C. Sekander 18 Official Reporter 19 Heritage Reporting Corporation 20 21 22 23 24 25 l
l l
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