ML20202D858
| ML20202D858 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/08/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#386-990 OL-3, NUDOCS 8607140235 | |
| Download: ML20202D858 (111) | |
Text
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ORIGI NA'_
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UN11ED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
50-322-OL-3 LONG ISLAND LIGliTING COMPANY l
(Shoreham Nuclear Power Station, Unit 1) j I
D 1.OCATION:
ilAUPPAUGE, NEW YORK PAGES:
16084 -
16192 DATE:
TUESDAY, JULY 8, 1986 h $/
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ACE-FEDERAL REPORTERS, INC.
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5
6
X 7
In the Matter of:
8 LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 (Emergency Planning) 9 (Shoreham Nuclear Power Station, Unit 1) 10
X 11 New York State Court of Claims 12 State Office Building, Room 3B44 Veterans Memorial Highway 13 Hauppauge, New York 14 Tuesday, July 8, 1986 15 The prehearing conference in the above-entitled 16 matter convened, pursuant to notice, at 9:30 a.m.
17 BEFORE:
18 MORTON B. MARGULIES, Chairman Atomic Safety and Licensing Board Panel 19 U.
S.
Nuclear Regulatory Commission Washington, D.C.
20555 20 JERRY R. KLINE 21 Atomic Safety and Licensing Board Panel U.
S.
Nuclear Regulatory Commission 22 Washington, D.C.
20555 J
23 FREDERICK J.
SHON Atomic Safety and Licensing Board Panel 24 U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 25 ACE FEDERAL REPORTERS, INC.
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APPEARANCES:
2 On Behalf of LILCO:
3 DONALD P.
IRWIN, ESQ.
W. TAYLOR REVELEY, III, ESQ.
4 KATHY E.
B. McCLESKEY, ESQ.
LEE B.
ZEUGIN, ESQ.
5 Hunton & Williams 707 Main Street 6
Richmond, Virginia 23212 7
ANTHONY F. EARLEY, ESQ.
General Counsel 8
Long Island Lighting Company 250 Old County Road 9
Mineola. New York 11501 10 on Behalf of Suffolk County:
11 HERBERT H.
BROWN, ESQ.
12 LAWRENCE C.
LANPHER, ESQ.
KARLA LETSCHE, ESQ.
13 Kirpatrick & Lockhart O-1900 M Street, N.W.
14 Washington, D.
C.
15 On Behalf of the Town of Southampton:
16 STEPHEN B.
LATHAM, ESQ.
17 Twomey, Latham, Shea & Kelly 33 West Second Street 18 Riverhead, New York 11901 19 On Behalf of the State of New York:
20 FABIAN G.
PALOMINO, ESQ.
21 RICRARD ZANNLUTER, ESQ.
Special Counsel to the Governor 22 Executive Chamber, Room 229 State Capitol 23 Albany, New York, 12224 24 25 O
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=^av a acaoaua. =so-New York State Department of Law 2
2 World Trade Center, Room 4614 New York, New York 10047 3
4 On Behalf of FEMA:
5 STEWART M. GLASS, ESQ.
Regional Counsel 6
Federal Energy Management Agency 26 Federal Plaza 7
On Behalf of the NRC:
9 BERNARD M.
BORDENICK, ESQ.
10 LINDY MCDONALD, ESQ.
Office of the Executive Legal Counsel 11 Nuclear Regulatory Commission Washington, D.C.
20555 12 13 14 15 16 17 le 19 20 21 22 23 24 25
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PROCEEDINGS 2
JUDGE MARGULIES:
Please come to order.
3 On June 6th, 1986 the Commissioner ordered an 4
expedited hearing on the results of the emergency plan 5
exercise conducted by the Federal Emergency Management 6
Agency for Shoreham.
7 We are the Licensing Board designated to conduct 8
that proceeding.
On my left is Judge Shon, on my right is 9
Judge Kline and I am Judge Margulies.
10 On June lith we scheduled a prehearing conference 11 for today to consider the matters at issue, the procedures 12 to be employed, the setting of schedules and other customary 13 topics to be reviewed before commencing the hearing.
()
14 We invited the parties to submit matters they 15 proposed for the agenda.
Responses were received from 16 LILCO, Suffolk County, the State of New York, the Town of 17 Southampton and NRC Staff.
18 The Board has reviewed the proposals and both 19 applicant and intervenors in one way or another seek to 20 create new practices and procedures for use in this 21 proceeding.
22 The Commission in its order of June 6th, 1986 23 called upon the Board "to expedite the hearing to the 24 maximum extent consistent with fairness to the parties."
25 If anything is to be considered different about ACE-FEDERAL REPORTERS. INC.
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I this proceeding, aside from the requirement of pleading the 2
fundamental flaws, it is this requirement for expeditious 3
handling.
There is nothing in using the present Rules of 4
Practice and Procedures that would impeded the Board from 5
accomplishing that goal.
6 The existing rules of Practice and Procedures were 7
designed to afford parties a full, fair and expeditious 8
hearing, and they should be employed to that end.
9 To bring about an expedited hearing requires the 10 setting of realistic schedules and adhering to them.
It 11 means sticking to the issues and not being distracted by 12 irrelevancies.
We already have the methods at hand in the 13 Rules of Practice and Accepted Procedures to provide the 14 type of hearing required.
15 The circumstances of this proceeding are not such 16 that the Board can start experimenting with new practices 17 and procedures that may well be in the long run more time 18 consuming and cause additional delay.
19 We thought you should be apprised of our views 20 before the start of the conference.
21 We will now take appearances.
l 22 Who appears for the applicant?
23 MR. IRWIN:
Thank you, Judge Margulies.
My name 24 is Donald Irwin from Hunton & Williams in Richmond, 25 Virginia.
Immediately to my left is Kathy McCleskey also of 4
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our firm, and immediately to my right is Lee Zeugin, also of 2
our firm.
I would also like to introduce to the Board my 3
partner, Taylor Reveley, who is also one of the counsel to 4
Long Island Lighting Company and Anthony Earley, who is 5
General Counsel of Long Island Lighting Company.
6 JUDGE MARGULIES:
Thank you.
7 Who appears for the intervenors?
8 MR. PALOMINO:
Fabian Palomino.
I appear for the 9
State of New York, and to my right is my assistant, Richard 10 Zahnluter, also appearing for the State of New York.
11 MR. EROWN:
I am Herbert Brown for the County of 12 Suffolk.
I am joined by co-counsel, which are Lawrence Coe 13 Lanpher and Karla J.
Letsche.
We are all of the law firm of 14 Kirkpatrick & Lockhart in Washington, D.C.
15 JUDGE MARGULIES:
Who appears for NRC Staff?
16 MR. LATHAM:
I think you missed one.
17 JUDGE MARGULIES:
I am sorry.
Excuse me.
18 MR. LATHAM:
Steven Lathan of the firm of Twomey, 19 Latham, Shea and Kelly on behalf of the Town of Southampton.
20 JUDGE MARGULIES:
Thank you, Mr. Latham.
21 Who appears for NRC Staff?
l 22 MR. BORDENICK:
Bernard M.
Bordenick of the Office 23 of General Counsel, Washington, D.C.
for the NRC Staff.
24 JUDGE MARGULIES:
Is FEMA represented here today?
25 MR. GLASS:
Yes.
Stewart M.
Glass, Regional O
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1 Counsel for the Federal Emergency Management Agency.
2 JUDGE MARGULIES:
Are there any other appearances?
3 (No response.)
4 We will start off with the proposed schedule 5
submitted by LILCO.
The Board has reviewed it.
6 We find the matters listed under Item 1, Proposed 7
Schedule, to be items placed on the agenda of course with a
the caveat that you heard in my introductory remarks.
9 Item 2 Hearing Location, will also be placed on 10 the agenda.
11 Moving on to the submittal by Suffolk County, 12 State of New York and Town of Southampton, the first item we 13 come to is the Nassau Colosseum.
Did the exercise involve 14 the Nassau Colosseum?
15 MR. BROWN:
Yes.
16 JUDGE MARGULIES:
Could you tell us what the 17 purpose of discussing the Nassau Colosseum issue would be, 18 Mr. Brown?
19 MR. BROWN:
Well, the overriding purpose is to 20 bring to the Board's attention and have the involvement of 21 the parties on an issue of the most profound relevance to 22 the proceeding.
The facts are dramatically different from 23 what they were at the time of the exercise and before that.
24 The Board might recall that LILCO has sought 25 repeatedly to identify a relocation center and it was
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I unsuccessful in doing that.
At one point this came to a 2
climax and, Judge Margulies, your predecessor, Judge 3
Lawrensen ruled that on behalf of the Board the finding was 4
that there was a " void in the record,"
that in, the void in 5
LILCO's plan.
There was no relocation center and no 6
compliance with the requirements of the Nuclear Regulatory 7
Commission and thus LILCO had failed to satisfy its burden.
8 LILCO made one more effort at that point to fill 9
the so-called void in the record, and it is did this with 10 the colosseum.
It did it over the objection of the 11 governments, but nevertheless it had a purported solution.
12 That purported solution has now evaporated.
13 The identical void in the record which occurred 14 prior to LILCO's identification of the colosseum once again 15 exists and, thus, there is a void in the record.
The 16 implications of such a void in the record I think would be 17 very appropriate for this Board and the parties to discuss 18 at some length because it may well be that those 19 implications have a sweeping and profound impact on the 20 further course of this hearing.
21 Incidentally, the events concerning the colosseum 22 occurred after the Commission's order.
So this was not 23 something that the Commission was aware of or indeed could 24 have even taken cognizance of for the purpose of formulating 25 whatever language it put forth in its order.
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1 I am sorry, Judge Margulies, counsel reminds me 2
that I perhaps should explain what the event was that would 3
have this sweeping effect, and that event was the 4
determination of the Board of Supervisors of Nassau County 5
that officially the colosseum could not -- it first 6
confirmed the fact that the purported agreement which LILCO 7
had sent in between the lessee of the colosseum, the Hyatt 8
Management Corporation, and LILCO was in fact a nullity.
9 This had been found by the attorney of Nassau 10 County to be a legally mandated conclusion and the Board 11 adopted that and further exercised its exclusive 12 jurisdiction in the area by asserting in a formal 13 resolution, a copy of which was sent to the Board, that the 14 colosseum shall not be a part of the LILCO plan.
There is 15 no authority to make it such, and any use of the colosseum 16 or consideration of use would have to be only after the 17 prior concurrence of the Board were given.
18 JUDGE MARGULIES:
Assuming its direct relevancy 19 and importance to the emergency plan exercise, shouldn't 20 this matter find its way into a contention?
21 MR. BROWN:
I don't think so.
I think it would 22 only find its way into a contention if we were to look upon 23 it as a cursory matter.
24 The fact is that when one takes a look at the 25 scenario and impact of the exercise of February of Febru_ary O
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1 13th, its ultimate purpose was single-fold.
It was really 2
to effect an evacuation to a particular relocation center at 3
which the argument could be made that the public was capable 4
of being protected.
5 There is no place in fact for the public to go, 6
and the extent to which people were directed to the 7
colosseum is an irrelevancy now of no consequence and the 8
impact on the exercise may be so sweeping as to render the 9
exercise itself in retrospect an entirely misguided event.
I 10 JUDGE MARGULIES:
Do you wish to be heard, 11 counsel?
12 MR. IRWIN:
Yes, I do, Judge Margulies.
13 Needless to say, LILCO has a consider' ably O
14 different view of the significance of the colusseum issue.
15 The purpose goes to the purpose of the exerreise and the 16 jurisdiction of this Board as well as to those issues which 17 this Board is looking at in this hearing.
18 This Board was constituted by the Commission to 19 review LILCO's proficiency in implementing its emergency 20 plan, but only one of the aspects of that implementation is_
l 21 staffing a relocation center.
It was, in fact, the staffing 22 and the agglomeration and implementation of equipment by 23 LILCO at that relocation center which was being examined.
24 Therefore, to the extent that the colosseum was a 25 part of that aspect of the plan, it was simply part of the l
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physical background.
Any comparable facility or combination 2
of comparable facilities could fill the function that Mr.
3 Brown has mentioned to the Board.
4 What was being tested on February 13 was that 5
given the existence of those kinds of facilities did LILCO 6
people and other members of LERO adequately perform their 7
jobs.
8 Secondly, even though the Nassau County Board of 9
Supervisors has issued a resolution, it is not totally clear 10 to LILCO or to anybody else in this room that in the event 11 of a real emergency public officials who are responsible for 12 protection of the public health and safety would arbitrarily 13 deny the use of facilities, whether or not specified in a C-14 given plan, to members of the public who needed them.
15 I should correct one or two things that Mr. Brown -
16 indicated on the record.
It is not fair to say that the 17 entire purpose of an emergency planning exercise or of an 18 emergency plan is to d'irect the entire population of the EPZ 19 to one facility.
20 The fact of the matter is that one is testing or 21 implementing a variety of functions, only one of which is 22 evacuation, and the portion of the public affected is only a 23 percentage, generally taken in this case to be on the order 24 of 10 to 20 percent, although that is now a matter before 25 the Appeal Board itself of evacuating population.
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The long and short of it is that LILCO does not 2
believe that the colosseum itself as distinguished from 3
LILCO's ability to use a colosseum or other kind of 4
relocation facility is a proper matter before this Board at 5
this point.
6 LILCO also agrees with what I sense was your 7
suggestion, Judge Margulies, that if Suffolk County or New 8
York State or any other intervenor wished to raise the issue 9
of the colosseum itself, they should do so by virtue of a 10 motion to reopen the record in a formal contention and not 11 by a four-line suggestion in a piece of paper followed up by 12 extemporaneous oral argument.
13 JUDGE MARGULIES:
I didn't say anything about 14 reopening the record.
My intention was to raise the 15 possibility of making it a contention in this proceeding as 16 part of the emergency planning exercise flaw.
17 MR. IRWIN:
My understanding, Judge Margulies, is 18 that that would lead you into exactly the trap you wish to 19 avoid, that of becoming diverted into 2 side issue, but that 20 is something obviously ---
21 JUDGE MARGULIES:
I am not passing on the 22 contention at this point.
I am just pointing out that that 23 may be an avenue of approach.
24 MR. BROWN:
May I reply to Mr. Irwin, please, 25 Judge Margulies?
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1 JUDGE MARGULIES:
Just let's hear Mr. Bordenick 2
and Mr. Glass and then we will come back to you, Mr. Brown.
3 MR. BORDENICK:
I do not believe that the Board 4
has jurisdiction to consider the recent events having to do 5
with the Nassau County Colosseum.
I think the Commission 6
was explicit in its memorandum and order, CLI-86-11.
It 7
said " continue to defer to the colosseum issue."
Therefore, 8
I don't see where it would be very fruitful to have a 9
discussion of the kind that has already taken place this 10 morning continue.
11 I agree with the Board that if the County wants to 12 submit a contention, we will look at the contention.
In the 13 abstract I can't say that a contention would be admissible 14 or not admissible.
I would have to see the contention.
But 15 that is certainly one avenue that is available to the County 16 and the other governments.
17 JUDGE MARGULIES:
Mr. Glass.
18 MR. GLASS:
FEMA has no comment at this time.
19 JUDGE MARGULIES:
Mr. Brown.
20 MR. BROWN:
I have several points.
Simply in 21 reply to Mr. Bordenick's comment, I think that verges on the 22 most extraordinary proposition that we might have heard in 23 this proceeding, that this Board would not have jurisdiction 24 to deal with the reality that conditions are different from 25 what they were and the Board ought to ignore them.
I don't O
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I think that is a tenable proposition and I don't think it 2
merits serious consideration.
3 To go to the comments of Mr. Irwin, the law of 4
this case, and we have been through this development of this 5
law specifically with respect to relocation centers and 6
indeed particularly with respect to the identification of 7
the colosseum, the law of the case is that there was a void 8
in the record and it had a preclusionary effect.
It meant 9
that the LILCO plan itself was devoid of content on its face 10 worthy of going forward.
LILCO had failed its burden of 11 going forward and its burden of proof in that this void 12 existed.
LILCO sought to fill that void and now LILCO has 13 seen that void evaporate.
C) 14 The identical void which occurred when Judge 15 Lawrenson ruled and expressed the law of the case that in 16 the absence of a relocation center there is a void, and we 17 believe that void necessarily means that it has a 18 preclusionary effect on the further evaluation of LILCO's 19 plan due to the shortcoming, is one that should have a 20 preclusionary effect on further activities in this 21 litigation.
22 I would point out that in fact roughly a hundred 23 thousand people were told in the make-believe environment of 24 the exercise to go to the colosseum.
It wasn't some side 25 issue.
It was the central feature of the entire day of the i
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i exercise, and without there there was literally no point to 2
that exercise.
It was a void in fact and indeed it is a 3
void in law for the very reason that it was earlier in this 4
proceeding when we were in an identical situation.
5 So I think the issue before the Board is how to 6
proceed on the basis of that reality, and I think the 7
preclusionary avenue is the appropriate one.
8 MR. IRWIN:
Judge Margulies. If I may, I think Mr.
9 Brown has just illustrated my point.
10 JUDGE MARGULIES:
I think we have heard enough 11 argument on this.
12 (Board conferring.)
13 JUDGE MARGULIES:
The matter of the Nassau 14 Colosseum as a reception center was previously before this 15 Board.
Our decision was appealed and it went up to the 16 Appeal Board and that particular issue was remanded.
The 17 remand is not presently in effect.
It has been suspended.
18 It is an issue that is not per se before this phase of the l
19 Licensing Board's hearing.
20 If intervenors feel that it plays a part in the l
21 emergency planning exercise, they may raise it as part of 22 their proposed contentions, and if they do so, we will 23 consider it as part of that submittal.
24 The Board finds that it is a matter not to be 25 placed on the agenda today.
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MR. BROWN:
Well, pardon me, if I might ask.
I 2
think you just made a ruling on it, but it is not on the 3
agenda and I am not certain that I understand.
4 JUDGE MARGULIES:
Well, the ruling is that we are 5
not going to discuss it.
If want me to terminate my ruling 6
at that point, I will do it there.
7 MR. BROWN:
We are not going to discuss the merits 8
of the issue today?
9 JUDGE MARGULIES:
That is correct.
10 MR. BROWN:
If I may ask, with all deference to 11 the Commission, is this something that we can establish a 12 schedule to brief?
13 This is such an underpinning of what is going O
14 forward and it has such a preclusionary effect as a matter 15 of logic in fact and surely as a matter of law, given the 16 prior experiences of the parties and the Board in this case, 17 that at a minimum we would ask leave of this Board that a 18 schedule be set for the briefing of this and the holding in 19 abeyance of other matters which we deem to be subsidiary to 20 it.
21 We think it would sell serve the interests of the 22 parties and the Board that we not rush head long into 23 something, a procedure which may well have no relevancy 24 whatsoever.
This is a matter on which we believe the proof 25 rests with the governments and we would believe it is in the O
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interest of the Board to have the benefit of the parties' 2
views, and surely our views we would like to submit.
3 (Board conferring.)
4 JUDGE MARGULIES:
The Board knows the extent of 5
its jurisdiction and we will not consider this matter 6
separate and apart from the emergency planning exercise 7
problem and not consider it as an independent matter.
8 As I stated before, if you propose to present it 9
as a contention, we will consider it under those 10 circumstances.
11 MR. BROWN:
Just so I understand thought, and I am 12 sorry, but just for my own purpose of understanding, we are 13 not permitted to raise this as a matter of law, but we would O
14 be permitted to raise this as a matter of fact through a 15 contention; is that correct?
16 JUDGE MARGULIEb:
I am not foreclosing your, Mr.
17 Brown.
You are a very experienced practitioner before the 18 Commission and there may be other avenues before the 19 Commission to bring it before the Commission, but in terms 20 of the Board hearing emergency planning exercise matters 21 concerning its fatal flaws, it does not have a part in it 22 per se as an independent matter.
23 MR. IRWIN:
Judge Margulies, excuse me.
I have a 24 housekeeping request which I could not have made before 25 now.
I would ask the Board's indulgence in asking that O
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1 microphones be removed from this table.
They are very live 2
microphones, and I am afraid it may interfere with my 3
ability to consult with co-counsel.
They were placed on the 4
table while I was actually speaking before, and I didn't 5
feel I could interrupt, but I was saying I just would feel 6
more comfortable if they were sitting a foot in front of 7
me.
I den't mind them being in the room obviously, but I 8
would them not just be sitting right in my face.
9 JUDGE MARGULIES:
I assume they belong to the 10 media.
11 MR. IRWIN:
Yes, sir.
12 JUDGE MARGULIES:
They they could move them back 13 that they are not right before counsel so that their 14 discussions will not be overheard.
15 (At this point the news media removed their 16 microphones from LILCO's counsel table.)
17 MR. BROWN:
Judge Margulies, I beg the Board's 18 indulgence, just to make certain that I understand the 19 ruling and that we not go off in the wrong direction, if I 20 might state my understanding, and if it is not correct, I 21 would appreciate the Board's correcting it.
22 The ruling is that we have other avenues available 23 through the Rules of Practice.
Am I to interpret that to 24 mean that the Board is referring to the fact that the 25 Commission's order binds it so as to prevent the Board from O
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i entertaining our request, and thus if we were to seek to 2
have this Board consider it, it would require our pursuing 3
an avenue of taking it directly before the Commission?
In 4
effect and in more simple words, simply that if we feel 5
strongly about this, we should go directly to the Cocaission 6
to lay the facts out there and seek to get the guidance of 7
the Commission for the benefit of any of the parties here 8
who share our interests?
9 JUDGE MARGULIES:
Mr. Brown, I am not going to 10 advise you how to conduct your practice.
As I said before, 11 you are a very experienced practitioner and you know the 12 Rules of Practice before the Commission and what the various 13 jurisdictions are of the various bodies before the O
14 Commission.
You may proceed in any way you may wish before 15 those other bodies.
I am saying we will not entertain it.
16 That is my final ruling on it.
17 Moving over to paragraph 2, Basis of Litigation, 18 the Board is at a loss as to what you mean by it.
Could you 19 give us some explanation, Mr. Brown, as to what your ---
20 MR. BROWN:
Mr. Lanpher is the appropriate counsel 21 to do that.
22 JUDGE MARGULIES:
Thank you.
23 MR. PALOMINO:
Judge Margulies?
24 JUDGE MARGULIES:
Yes.
25 MR. PALOMINO:
I have a matter also I would like, O
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I to raise that I think is dispositive and I think ought to be 2
discussed at this point, and that is in connection with the 3
letter I sent to the members of the Commission and to which 4
LILCO replied.
It involves a subsequent event that happened 5
last year, and that event was that the State of New York 6
made a solemn determination through legislation that it 7
wants to take over the Long Island Lighting Company through 8
a public power authority.
9 The State of New York has a long and successful 10 history with public power, and not only that and more 11 significant, this legislation specifically provides that 12 once they do acquire it, and they can acquire it either by a 13 takeover,* tender of f ers or by condemnation, that Shoreham O
14 shall not operate and that the Power Authority shall not be 15 able to operate any other nuclear plant, and that as a 16 result of that legislation, it is a determination that 17 Shoreham is not going to open.
18 I think that raises a question as to whether or 19 not we should proceed at all with these proceedings.
The 20 fact is and the reality is that the Governor has announced 21 publicly that he intends to promptly and vigorously pursue 22 negotiations to acquire Long Island Lighting Company and it 23 is a reality that we should not ignore by putting heads in 24 the sand like ostriches and has a complete and dispositive 25 effect on all these hearings.
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1 It seems to me it would be futile to go ahead in 2
light of this reality, and I was wondering whether the Board 3
felt that it was within its jurisdiction or is that 4
something else that we should possibly take up through other 5
procedures with the Commission?
6 JUDGE MARGULIES:
It is a matter that would be 7
outside the jurisdiction of this Board, Mr. Palomino, and if 8
you wish to take it up elsewhere, you may do so.
9 We will now move on to Item No.
2, basis ---
10 MR. BROWN:
Pardon me, Judge Margulies, I would 11 like to be heard on this before we go on to the next item.
12 JUDGE MARGULIES:
It is so far beyond our 13 jurisdiction that there is no comment needed.
O 14 MR. BROWN:
I think it is central to it, and I 15 would like to ---
16 JUDGE MARGULIES:
I have already rules, Mr. Brown.
17 Mr. Lanpher, may we hear from you on Item No.
2.
18 MR. LANPHER:
Judge Margulies, I have got to 19 clarify that ruling, that you are not going to allow Suffolk 20 County to make its views known on the question of the impact 21 of the public power legislation that was just enacted by New 22 York State?
23 JUDGE MARGULIES:
Mr. Lanpher, we are having one 24 counsel from one side on one item.
We are now on 2.
25 MR. LANPHER:
On the question of the basis of O
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litigation. I think maybe, Judge Margulies, it makes sense 2
to combine that also with Item 3 if that was your intention 3
to go seriatim through these because they are related, Item 4
3 being Revision 7 and 8 and the LILCO plan.
5 We have had a long history of moving targets in 6
this litigation, and as we get ready to perhaps implement 7
the Commission's order of June 6th, I think it is essential 8
that the parties know what the evidentiary bases are for 9
this litigation.
10 My first question and the reason that this was 11 posed is is it the intention of this Board to admit into 12 evidence the FEMA post-exercise assessment report from April 13 1986, and it is that one of the documents of the only O
14 document upon which subsequent litigation is going to be 15 focused?
16 In short, it is important to know with respect to 17 what parties are drafting contentions.
We also have a 18 moving target with respect to revisions of the LILCO plan.
19 The exercise, as I understand it, was based on Revision 6 of 20 the plan.
If we are supposed to be having a proceeding 21 about the results of the exercise, Revision 6 would appear 22 to be relevant, but there is no per se basis for bringing in 23 Revision 7 and 8, but recent correspondence indicates that 24 Revision 7 is a reality and Revision is coming some time in 25 the future.
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1 So if the Board is going to be considering 2
schedules and that kind of information later in this 3
prehearing conference, as it indicated earlier, I think it 4
is absolutely essential that we have a clear understanding, 5
all of the parties, of what the focus of the litigation is 6
going to be on.
7 So I go back to my original question to the 8
Board.
Is it the Board's intention that the FEMA post-9 exercise assessment will be admitted into evidence in this 10 proceeding?
11 JUDGE MARGULIES:
Do you wish to be heard?
12 MR. IRWIN:
Yes, I do, Judge Margulies.
Although 13 I don't hear a motion of any kind from Mr. Lanpher, I think O
14 maybe we can help here.
15 The focus of the litigation as I have understood 16 it is to determine on an expedited basis whether the conduct 17 of those events which took place on February 13 involving 18 LERO and observers of the exercise demonstrates a 19 fundamental flaw in a plan which has otherwise been found to 20 be largely acceptable by the Commission.
That is the 21 purpose.
22 Whatever documents exist and are relevant to that 23 purpose and are legitimately discoverable may be used, in my 24 view, by counsel to achieve whatever goals they wish to 25 achieve.
If Suffolk County wishes to use the post-exercise j
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1 assessment, I am not here to say that that would be 2
unreasonable.
In fact, I think we do intend to use it.
But 3
I don't think that anything other than the normal Rules of 4
Discovery, although conducted on an expedited basis, should 5
determine the limits of relevance of documents to be used.
6 In that sense, I think Mr. Lanpher is 7
fundamentally wrong about the exercise being a moving 8
target.
Let me explain a little bit about Revisions 7 and 8 9
and the suggestion that there is a moving target.
10 The post-exercise assessment had two degrees of 11 comments on the exercise other than approvals.
One was an 12 area called deficiencies.
With respect to those, the NRC 13 Staff asked for relatively expedited answers.
Those answers O
14 are contained in Revision 7.
15 The second area of comment in the post-exercise 16 assessment is what is referred to as ARCA's, or areas of 17 recommended corrective action or required corrective 18 action.
19 Those which are of a lesser degree of urgency are 20 what are contained in Revision 8.
Those revisions I suppose ___
21 might be thought to, depending on what use people wish to 22 make of them, or could contain material relevant to issues 23 being placed in this litigation because if there is an 24 allegation that the exercise was deficient or showed a 25 deficiency in LILCO's plan then a question might arise as to O
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I whether or not the content of those subsequent revisions to 2
the plan ought to be felt sufficient to correct whatever 3
deficiency there was.
4 It is within that narrow scope that I think 5
Revisions 7 and 8 might be relevant, but I don't think they 6
are moving targets.
They simply are filling, as it were, 7
the pot holes in a pretty good road.
8 MR. BORDENICK:
I have heard the moving target 9
argument since the first day I walked in this hearing 10 essentially, and I suppose I will hear it again.
11 The law of this case is that the Board will go 12 with whatever revision is in front of it.
As one of the 13 parties pointed out, and I think it was Mr. Lanpher, the 14 exercise was based on Revision 6.
15 I think it is grossly premature for any party to --
16 ask the Board to make a ruling or what is or what is not 17 admissible when no party has yet moved anything into 18 evidence.
19 MR. LANPHER:
Judge Margulies, maybe the FEMA 20 counsel wants to be heard on this.
21 MR. GLASS:
Not on this part.
22 MR. LANPHER:
First off, we are being asked to 23 draft contentions concerning the exercise.
Now there is a 24 wealth of information that slowly is being made available, 25 and we will get to that at a later time, the fact that much O
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's) 1 information still is not available.
2 But I think we should stop using these platitudes 3
about, oh, you put in contentions on what you think is 4
relevant.
Thst is just a trick, in my opinion, Judge 5
Margulies.
6 I think if the focus of this is to be the FEMA 7
Exercise Report we ought to just come out and say it.
Now 8
if LILCO is talking about these revisions subsequent to the 9
exercise, those aren't results of the exercise.
If LILCO 10 thinks those are relevant, I assume that LILCC is going to 11 be filing some contentions with respect to that.
12 The obligations of the parties should not be left 13 in a vacuum at this time.
This is a serious proceeding and O
14 there are a lot of citizens on Long Island that are very 15 concerned about it.
16 The question that was posed before is just a very 17 simple question.
Are we supposed to expect that the FEMA 18 Exercise Report is going to be in evidence in this 19 proceeding.
If it is, then that is a focus of the 20 litigation.
If it isn't, tell us and maybe we can ignore 21 portions of it.
But if that is all going to go into 22 evidence, then we have to focus on that.
23 In short, we have to know what to file contentions 24 on, Judge Margulies.
25 (Board conferring.)
O
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1 JUDGE MARGULIES:
The Board in considering Items 2 2
and 3 finds Mr. Bordenick's observation to be correct, that 3
these matters are premature and are not to be taken up at 4
this time.
5 MR. LANPHER:
Judge Margulies, we didn't complete 6
Item 3.
I hear your ruling, and I think it is incorrect, 7
but could I ask the Board's indulgence on portions of Item 8
3.
9 We ask that the Board inquire of the Staff and 10 FEMA and LILCO as to the schedules for, first, whether any 11 review of Revision 7 is going to be undertaken, what the 12 schedule is for that and LILCO's schedule for Revision 8, 13 which even Mr. Irwin says is probably relevant to this O
14 proceeding.
15 (Board conferring.)
16 JUDGE MARGULIES:
Mr. Lanpher, that would be a 17 proper matter for discussion in terms of when the applicant is proposes to come out with those documents.
So we will take 19 up that portion of Item 3 that deals with the scheduling of l
20 these documents.
21 MR. LANPHER:
And not just the applicant's 22 schedule, but as I said, the NRC Staff and/or FEMA 23 schedules?
24 JUDGE MARGULIES:
Exactly.
25 MR. IRWIN:
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I right now or should ---
2 JUDGE MARGULIES:
No.
Let's take these items up 3
in order.
4 As to Item 4, Burden of Going Forward, the 5
submittal says the governments believe that in light of the 6
current posture of this licensing proceeding, LILCO has the 7
burden of going forward in any additional litigation.
8 As to Item 4, it was raised before the Commission 9
prior to the issuance of its June 6th, 1986 order.
The 10 Commission in ordering the emergency planning exercise issue-11 for hearing rendered the argument in Item 4 moot.
12 What we have here is an ongoing application for an 13 operating license.
In an application for an operating O
14 license the scope of the Licensing Board hearing is 15 determined by the specific issues material to that 16 determination that are raised by the intervening parties.
17 The emergency planning exercise is but one of what have been 18 many issues raised in the proceeding.
19 In Commission proceedings for operating licenses 20 the intervenors have the burden of going forward and 21 establishing the issues for litigation.
That is 22 intervenor's responsibility here.
The Commission's decision 23 of June 6th, 1986 is wholly consistent with that practice.
24 Inherently the Commission's decision calls upon intervenors 25 to proceed for it discusses pleadings and practice standards O
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1 intervenors are to meet in establishing the issues for 2
litigation.
3 The Board will not consider the matter for the 4
agenda because it has already been decided.
5 MS. LETSCHE:
Judge Margulies, if I might just get' 6
a clarification of your ruling.
I heard you say that it is 7
the obligation of intervenors to raise issues which they 8
desire to have litigated in an ongoing licensing 9
proceeding.
10 The point which we intended to raise, and maybe it 11 wasn't clear in our proposed agenda, was the intervenors 12 have no need and no desire for any additional litigation in 13 this proceeding because the license has already been denied.
O 14 If there is any need or' desire for any additional 15 litigation in connection with this license application, that_
16 is something which presumably LILCO would want to request 17 this Board to pursue.
18 The point which we intended to make here was that 19 if there is to be additional litigation, the party which 20 desires to change the current status of the litigation, 21 which is that the full power operating license has been 22 denied, that party has the burden of setting forth what it 23 believes should be litigate and the basis under the 24 Commission's Rules of Practice for the entitlement to 25 conduct that additior.a1 litigation.
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1 So I really don't understand why it is in the 2
context of this proceeding that the intervenors would have 3
any obligation to raise issues with respect to this 4
exercise.
5 Can you clarify your ruling for me?
6 JUDGE MARGULIES:
Yes.
Your basic premise is 7
incorrect.
The application in this proceeding has not been 8
denied.
The matter of the application is presently 9
pending.
This Licensing Board came out with its decision 10 stating that the license should be denied, but that is not -
11 the final action of the Commission.
12 The matter continues to pend before the Commission 13 and all the issues are presently open.
O 14 MS. LETSCHE:
If I might respond, Judge 15 Margulies.
Under the Commission's case law, and I can refer 16 you to South Carolina Electric and Gas Company, which is the 17 Sumner Case, 16 NRC 958.
If a party has prevailed, even in 18 a Licensing Board decision, which is what happened in this t
19 case, that party is not in a position, according to that 20 decision and cases cited within it, to request or seek l
21 additional litigation because they have won.
l l
22 Now I understand your point that your decision, 23 which was affirmed by the Appeal Board, is pending before j
24 the NRC, but until that has been reversed, it is the ruling 25 and the law of this case that the license is denied.
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1 Under the Commission's own case law, we as the 2
prevailing party here are not in a position to request 3
additional litigation, and it is only the party who seeks to 4
change the results which is at that point in existence that 5
has the obligation and is entitled to at least attempt to 6
meet the Commission's rules and justify additional 7
litigation, and in this case that is LILCO.
8 If they believe that that exercise provides a 9
basis to change the result which now exists in this case, 10 then they have the burden of setting forth their basis for 11 that and why they believe they are entitled to litigation, 12 and that is really the point which is supported by the 13 Commission's own case law.
(
~
14 (Board conferring.)
15 JUDGE SHON:
Ms. Letsche, you sort of surprise 16 me.
It seems to me that in this rather special proceeding 17 the Commission has given you an opportunity to have, so to 18 speak, two strings to your bow. Should the presently 19 existing decision on this part of this Licensing Board to 20 deny the license be reversed by the Commission or by an 21 Appeals Board or by anyone else, you would still have an 22 opportunity to show that for some reason or other involving 23 a fundamental flaw this exercise that was conducted in 24 February showed that it was impossible to achieve a proper 25 emergency plan one way or another.
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1 Are you telling us now that you are not interested i
2 in that opportunity and that you don't want to take this up,
)
3 because if you are, you know, you save us a lot of trouble l
4 up here.
5 MS. LETSCHE:
Judge Shon, the premise of your 6
question was if there is a reversal and so there is some 7
need to proceed.
The present status of this case is that 8
this Board and the Appeal Board found a fundamental flaw in I
9 LILCO's plan.
It is the position of the governments that 10 that exercise is completely irrelevant with respect to that 11 fundamental flaw and did nothing to change it.
And in light 12 of that ruling, there is no need to spend anybody's time or 13 effort litigating what happened on February 13th when in i
(:)
14 fact none of that could ever happen in real life anyway.
15 Now if there were some ruling which said that 16 there was not already the most fundamental flaw in LILCO's 17 plan and that the Commission was nonetheless going to issue 18 a license, at that point clearly the governments would 19 continue to press their position which is that this plan 20 can't be implemented and the plan should not be licensed.
21 But until that condition happens, the burden to 22 seek any additional litigation or try to make any additional 23 record about the implementability of that plan under the 24 Commission's own case law is upon the applicant because they 25 are the party who have list and who wish to change the O
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1 result of the prior litigation.
2 The burden is not on intervenors to bid against 3
themselves essentially or to try to win two times.
This 2
4 Board and the Appeals Board have already found that the 5
LILCO has a fundamental fatal flaw, and that is the end of 6
it unless something changes it.
7 JUDGE SHON:
Are you telling me then that is how 8
you want to leave it, at that and you don't care to pursue 9
the matter further, that even given the opportunity, a very 10 unusual thing, that given the opportunity to litigate this 11 special phase, you would rather not do so because you feel 12 that confident?
13 MS. LETSCHE:
If this Board rules that LILCO in 14 fact, in your opinion, does not have the burden to go 15 forward with this litigati", but that instead the 16 intervenors have the burden of going forward, while we 17 believe that would be a clearly erroneous ruling as a matter 18 of law, we would proceed in compliance with the Board's 19 ruling.
20 The point made here in raising this as an agenda 21 item was to focus for this Board the Commission's own case 22 law and the status of this case and to urge you to recognize 23 that given this unusual circumstance, as you put it, Judge 24 Shon, where a plan has already been found to be fatally 25 defective, that there is no obligation on the part of the ace-FEDERAL REPORTERS, INC.
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1 intervenors to try to prove that a second time, and that in 2
fact the applicant, if they want to change that result, has 3
the burden of coming forward and identifying the issues and 4
attempting to have that additional litigation.
5 JUDGE MARGULIES:
The Board has ruled and stands 6
on its ruling.
7 VOICE FROM THE AUDIENCE:
What ruling?
8 JUDGE MARGULIES:
The ruling that it is not part 9
of the agenda that has already been previously decided.
10 No.
5, Data Requests, this is a matter that we 11 will place on the agenda.
i 12 No.
6, FEMA personnel and their availability, we 13 will place it on the agenda.
Perhaps it would be more O
14 effective to discuss it as part of scheduling rather than to 15 discuss it as a separate topic at the end.
16 No.
7, Limited Appearance Statemencs, we will put 17 that on the agenda.
18 Let's take a 15-minute recess.
19 (Recess taken.)
20 JUDGE MARGULIES:
Please come to order.
21 MR. LANPHER:
Judge Margulies, during the recess, 22 one of the persons who had hoped to address the Board later 23 in this session concerning the scheduling of limited 24 appearance statements informed me that one of the people has 25 to leave at 11 o' clock this morning, and if it is convenient O
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1 for the Board to take up that item of the agenda sometime 2
before 11, they would very much appreciate it.
3 JUDGE MARGULIES:
Let's take up the limited 4
appearance statement right now.
5 MR. LANPHER:
Thank you, Judge.
6 JUDGE MARGULIES:
Is there anything that you wish 7
to add to that Item 7, Mr. Lanpher?
8 MR. LANPHER:
All I would like to add is what is 9
stated there, that there is a need for limited appearance 10 statements.
Suffolk County strongly supports the requests 11 that I know people would like to make directly to the Board 12 today that limited appearance statements be scheduled at a 13 convenient time at convenient locations, and I believe there O
14 are three people who would like to briefly address the Board 15 on this matter.
16 JUDGE MARGULIES:
Mr. Irwin.
17 MR. IRWIN:
I take it these are limited appearance 18 statements about limited appearance statements.
LILCO 19 doesn't object in principle, although I don't know why we 20 need three people, as indicated.
21 JUDGE MARGULIES:
We haven't reached the point 22 where we are going to hear from these people, yet, Mr.
23 Lanpher.
24 MR. IRWIN:
LILCO doesn't object to the 25 consideration of limited appearance statements, although I f
()
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1 frankly believe that scheduling of them can be conducted 2
through counsel today.
Obviously Mr. Lanpher knows a good 3
deal about the plans of the people who would like to make 4
limited appearance statements.
He obviously knows more than 5
I do.
6 JUDGE MARGULIES:
Mr. Bordenick.
7 MR. BORDENICK:
The staff certainly has no 8
objection to the public making limited appearance statements 9
at the appropriate time.
Actually it would be my position 10 that that could have been discussed at a later prehearing 11 conference as to the actual dates and places and so forth.
12 I don't know what these people want to say ts.is 13 morning, but it is highly unusual to hear limited appearance
.O 14 statements at a prehearing conference.
15 MR. LANPHER:
Judge Margulies, it is my 16 understanding that these people do not want to address the 17 Board for the purpose of making limited appearance l
18 statements today.
They want to impress upon the Board the 19 need to schedule those and the need to schedule them at more 20 than one location because of the great interest in this 21 proceeding.
22 Now I don't like to summarize what I think they 23 are going to say because they haven't told me.
I would be 24 guessing.
So I think it would be appropriate for the Board 25 to hear very briefly from these representatives of the
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public.
2 (Board conferring.)
3 JUDGE MARGULIES:
The Board feels that limited 4
appearance statements are in order, and we will have limited 5
appearances in this proceeding at the appropriate time.
The 6
scheduling of limited appearances is not appropriate at this 7
time.
It is not customary to do so.
It is much too early.
8 VOICES FROM THE AUDIENCE:
When?
9 JUDGE MARGULIES:
If we are going to have comments 10 from the spectators group, we will have to have you removed, 11 sir.
12 MR. LANPHER:
Judge Margulies, I can understand 13 that you may not want to pick a precise date today.
I don't O
14 think it is too early at all.
These citizens wanted to make 15 their views known before FEMA right after the exercise and...
16 they were barred from having that opportunity, but I think 17 they should be scheduled as expeditiously as possible.
18 I also know that they want to impress upon this 19 Board the need to for at least three locations for limited 20 appearance statements, in Nassau County, in Western Suffolk 21 County, the Western EPZ, and in Eastern Suffolk County, the I
22 eastern portion of the EPZ.
I know at least those three 23 locations they would like to address the Board about.
24 Is it your ruling that these citizens cannot 25 address the Board today?
O i
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1 JUDGE MARGULIES:
That is correct.
That is not 2
the usual practice and we are not deviating from our usual 3
practice today.
4 MR. BORDENICK:
Judge Margulies?
5 JUDGE MARGULIES:
Yes.
6 MR. BORDENICK:
I would like to make a suggestion 7
to the members of the public.
They are certainly free to 8
write in to the Board and making suggestions, and I am sure 9
the Board will consider their suggestions.
10 MR. LANPHER:
Judge Margulies, when, without 11 setting a date today, when do you intend to reach a decision 12 on scheduling such statements?
13 JUDGE MARGULIES:
The scheduling of such O
14 statements will be in proximity to the holding of hearings, 15 and when that is to occur I certainly don't know today or at 16 this point anyway.
But limited appearances are welcome and 17 they will be welcomed orally or in writing, and if the 18 parties have any suggestions, they can write into the Board i
19 or apprise counsel for Staff as well as intervenors.
l 20 That disposes of Item 7.
21 JUDGE MARGULIES:
We move to Item Roman numeral 22 I(a) with a proposal that contentions be filed no later than 23 July 15th.
24 MR. IRWIN:
Judge Margulies?
25 JUDGE MARGULIES:
Yes.
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1 MR. IRWIN:
Let me make two suggestions with 2
respect to this overall schedule.
The remaining items from i
3 the paper filed by Suffolk County, et al.,
take up issues 4
which I think have corollaries in this schedule and it might 5
be useful to consider them as we get down this schedule.
I 6
The second matter I wish to suggest is that 7
although this schedule is laid out with a framework which 8
includes summary disposition motions and dealing with them 9
prior to trial, I would like to exclude the possibility that 10 there may be some issues as to which we believe that summary 1
11 disposition would not probably be productive and there is as 12 to them no reason to wait until the completion of the entire 13 summary disposition phase to proceed toward hearing.
O 14 This may not be the time to suggest what the 15 nature of that framework would be, but I would like the 16 Board to know and the other parties to know that we would 17 like to think about two kinds of parallel practices, 18 depending upon the nature of the issue, and we would be 19 happy to expedite the focusing of which issues we believe 20 fall into which category as soon as the Board rules on 1
21 contentions, but we could consider the nature of parallel i
22 schedules today.
1 23 JUDGE MARGULIES:
Let's take up Items (a), (b),
j 24 (c) and (d) all at once.
Mr. Lanpher, do you want to ---
25 MR. LANPHER:
Before getting to that, I think one O
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I thing that Mr. Irwin says is correct.
The items that you 2
decided that you would consider from our schedule that you 3
held over, and I guess a portion of Item 3 plus Items 5 and 4
6, which are the data requests and the FEMA personnel items, 5
those are really critical threshold matters that ought to be 6
dealt with before we get down to any nitty-gritties of a 7
schedule.
8 So I think we should take those up first and then j
9 come back to these other matters.
10 JUDGE MARGULIES:
Is there any objection?
11 MR. IRWIN:
Yes, because I think they all sort of 12 flow together, but it is not a serious objection.
13 '
MR. BORDENICK:
No objection.
O 14 (Board conferring.)
15 JUDGE MARGULIES:
Do you propose, Mr. Lanpher, 16 that we proceed with any individual item first?
17 MR. LANPHER:
Well, I guess whatever you deem to 18 remain from Item 3, Judge Margulies, and then go on to Items 19 5 and 6 from our agenda.
I believe what remains from Item 3 20 was that you were going to inquire of the Staff, FEMA and 21 LILCO about schedules for review of Revision 7 and the 22 submission of Revision 8.
23 JUDGE MARGULIES:
Yes, let's proceed with that.
24 MR. IRWIN:
With respect to Revision 7, as 25 everyone knows, LILCO has submitted that to the NRC Staff I
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1 believe about two to three weeks ago, and I am not sure 2
whether the staff has transmitted it to FEMA for its review.
3 One thing that should be not forgotten is 4
something I mentioned a little while ago, and that is that 5
the only revision that deals with what FEMA categorized as 6
deficiencies is Revision 7, and therefore LILCO's views on 7
the correction of those items are already in the public 8
domain.
9 Revision 8, which deals with the minor areas 10 requiring corrective action specified in the report will be 11 ready we believe by mid-September.
12 Now one thing that is worth bearing in mind is 13 that there is a matrix which has already been submitted by O
14 LILCO as a part I believe of its Revision 7 submission.
15 There is a matrix which outlines the areas for corrective 16 action and summarizes what LILCO intends to do.
17 So the parties are already on notice of not only 18 what FEMA things but what LILCO thinks is its response in 19 detail as to the deficiencies and in summary in the matrix 20 already submitted.
Therefore, when we are talking about 21 schedule, let's bear those facts of knowledge and notice in 22 mind.
23 JUDGE MARGULIES:
Mr. Bordenick.
24 MR. BORDENICK:
Mr. Irwin is correct.
The 25 Revision 7 was forwarded to the staff by LILCO several weeks O
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I I
ago.
I talked to the people whose responsibility it is to i
2 ask FEMA to make the review yesterday, and I was informed 3
that the formal request of FEMA to review Revision 7 was in 1
l 4
the process of going out or it may have already gone out, 5
and that FEMA would be asked to make the review in a timely 6
manner.
7 I think we would have to hear from Mr. Glass as to 8
when they would make that review.
9 MR. GLASS:
We have not of course gotten a copy of 10 that request yet.
I don't know what action, whether FEMA l
11 will agree at this particular juncture to undertake that 12 review considering other workloads, but they would need 13 approximately 75 days to complete a RAC review of that 14 revision.
15 JUDGE MARGULIES:
Well, while we have you here, 16 Mr. Glass, could you tell us what the situation is with FEMA 17 personnel?
18 MR. GLASS:
FEMA has just undergone a RIF, which
(
19 is a reduction in force that has involved voluntary early 20 retirements and a number of involuntary separations.
The 21 regional staff has gone from approximately 70 people down to 22 about 40 people.
The individual that most impacts upon this l
23 hearing is that Mr. Kowieski has been reassigned from his 24 present job to another function unrelated to radiological 25 emergency planning, and therefore we do not expect that he I
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1 would be available for this hearing.
2 We feel that the other three gentlemen probably 3
that have appeared in front of this body will probably be 4
available.
The only concern we will have to watch is the 5
scheduling since Mr. Baldwin is intimately involved also in 6
the Seabrook proceeding.
So if we can take light of that 7
fact, hopefully we will be able to proceed.
8 The impact of losing Mr. Kowieski should be I
9 minimal on the acti.vities that took place at the actual 10 exercise and the results of the exercise as there are other 11 people involved.
12 As to the material involving the preparations for 13 the exercise, Mr. Kowieski was intimately involved, and I do 14 think that there is anybody else who can take his place in 15 that particular area, nor do I think there is anybody else. _ _
16 who has information in that particular area.
I 17 We are also aware of the fact that we are closing 18 down as part of our budgetary problems all the regional 19 counsel offices.
Right now there are only two regional 20 counsel offices left.
Our two offices, mine included, are 21 scheduled to be closed October ist.
22 I have made a request to find out who will be 23 taking over for this hearing, and I have not been informed 24 yet, but I hope we will be able to handle an orderly 25 transition.
That may also indicate some of the problems O
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I that we are having with getting out some of the materials.
2 I know it is on another section here.
3 We have provided some materials.
We have already 4
sent out in May the controller and simulator plan for the l
5 Shoreham exercise.
We provided copies to Ms. Letsche and to 6
the others.
Last night I sent out 11 documents, one of 7
which was over 240 pages, to the parties.
8 The results are that in order to do this, I 9
Xeroxed it, I re-Dacted it, I collated it, I typed the cover 10 letter and I personally put it in the mail, and that is the 11 reason we have problems about gett ing things out.
12 I am also winding up the open litigation in our 13 region, and that is keeping me out of the office two days a
(
i 14 week because we are trying to close out as many cases as i
15 possible and we have had expedited requests in front of i
f 16 hearings and in front of various Federal Judges to 17 accomplish that goal.
So that is the situation that we are 18 involved in right now.
19 What would be helpful is if it could be agreed at r
20 least for the copies that I am making that if I could be l
l 21 limited to making one set for the intervenors and asking 22 them to share, it would be appreciated.
We did do that on I
23 one set of materials, and Ms. Letsche was very cooperative l
24 or taat, and LILCO was helpful in providing duplication on 25 those particular materials.
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1 The other materials, it is just the fact that I 2
had to do it last night myself that causes a problem, and if 3
they would consent to that, that would safe us some time.
4 JUDGE MARGULIES:
Are you saying, Mr. Glass, that 5
you will not be part of this proceeding as of October 1st?
6 MR. GLASS:
I don't intend to work for free.
7 (Laughter.)
8 Actually, I wouldn't even have authority to appear 9
because my job ---
10 JUDGE MARGULIES:
Well, I didn't know if you were 11 being transferred to headquarters.
12 MR. GLASS:
I am being eliminated.
I have not 13 gotten formal documentation of it, but the budget reports 14 indicate that and I have been told unofficially that we are 15 closing all regional operations.
We have already let go of.. _
16 two others in March and, as I say, myself and the gentleman 17 in Atlanta are the last two.
18 JUDGE MARGULIES:
Is there anything further in 19 these two areas that the parties wish to discuss?
20 MR. LANPHER:
Judge Margulies?
21 JUDGE MARGULIES:
yes.
22 MR. LANPHER:
It is my understanding, and maybe 23 Mr. Glass can answer this, it is my understanding that Mr.
24 Kowieski was the author of the FEMA Assessment Report.
Is 25 that correct.
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1 MR. GLASS:
He is one of the people involved, but 2
we had a number of people involved.
He did not do the 3
writing.
He reviews it afterwards.
We use other peop1'e to 4
help us write it.
5 MR. LANPHER:
But he was the lead FEMA person in 6
charge of ---
7 MR. GLASS:
He was the lead coordinator with Mr.
8 McIntyre.
We will have people who will be able to address 9
the issues as to the results and the findings of that 10 report.
The areas that we will not be able to address 11 without Mr. Kowieski deal with the material leading up to 12 the preparation of that exercise, for preparations for the 13 actual exercise itself, but the results, the review of the O
14 exercise and the materials as reviewed thereafter, we will 15 be able to provide a panel that will be knowledgeable and 16 will be able to answer those questions.
17 MR. LANPHER:
Mr. Glass indicated I believe that
)
18 seven documents were mailed out last night ---
19 MR. GLASS:
Eleven.
20 MR. LANPHER:
Eleven, excuse me.
Obviously, we i
21 haven't seen those.
So could he please describe what those 22 documents are?
23 MR. GLASS:
If you want, at the break I can give 24 you a copy of the letter.
If you want it on the record, I l
25 will give it to you on the record just to save time.
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1 JUDGE MARGULIES:
How extensive?
If it isn't very 2
extensive ---
3 MR. GLASS:
It is 11 items.
Basically the 4
itinerary for the Shoreham exercise, the control 5
organization management plan, the Shoreham exercise 6
evaluator organization, the evaluator assignment location 7
and structures instructions, the exercise evaluation 8
critique form, the maps and address directory, the 9
memorandum from Kowieski to the observers and controller 10 simulators, the emergency classification time line, the 11 messages that were planned to be used, the simulator siren j
12 failure, the impediment to evacuation, traffic control i
13 points, bus routes of evacuation if mobility impaired and i
I 14 the forms that were going to be used with those messages.
15 Those are the blank forms.
We do have other material, and 16 we are in the process, as I say, or I an in the process of 17 duplicating.
18 Do I have the parties' consent that I can send 19 just one copy to Suffolk County?
20 MR. LANPHER:
We have agreed to that from the 21 beginning.
22 MR. GLASS:
Thank you.
t 23 MR. LANPHER:
But just so I understand, none of 24 the logs were sent out yet?
25 MR. GLASS:
I am still going through them, and it
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I will probably be next week until I can get to those because 2
I am scheduled for I believe two meetings out of the office 3
this week.
4 MR. IRWIN:
Those are the FEMA logs you are 5
referring to, because I believe the LILCO logs have already 6
been transmitted some time ago?
7 MR. GLASS:
yes, it is the FEMA logs.
We have 8
already produced two or three boxes of the LILCO logs.
9 JUDGE MARGULIES:
Is there anythir.g further on 10 Items 3 and 67 11 MR. BORDENICK:
Judge Margulies, I just wanted to 12 add that I think Mr. Glass has explained the FEMA regional i
13 situation, and I just wanted to add the fact that the NRC 14 Staff has been in contact with the FEMA headquarters and of 15 course we will try to do everything possible to expedite and 16 facilitate the dealings between FEMA and the NRC absent the 17 past dealings with the region.
18 JUDGE MARGULIES:
Let's on to data requests.
i 19 MS. LETSCHE:
Judge Margulies, this is something 20 that we mentioned during the conference call and in some of 21 our prior filings and referred to by Mr. Glass, and I will 22 be very brief.
23 We have received from Mr. Glass copies of 24 documents which FEMA received from LILCO, and we received 25 from LILCO documents which they produced for FEMA.
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1 have got basically a duplicate set with some slight 2
differences of documents generated by LILCO, or at least a 3
part of the documents generated by LILCO.
4 There are two major sets of information, however, 5
that are outstanding, and the items which Mr. Glass 6
indicated he sent out last night do not deal with those two 7
areas.
8 They are, No.
1, FEMA generated documents, that is 9
documents generated during the exercise by FEMA, and we i
10 refer to those as logs.
I don't know exactly what was 11 generated, but I do know that there were at least simulator 12 logs, and presumably there were other logs kept by the FEMA 13 or other non-LILCO personnel, the observers and the 14 controllers of the exercise.
We have received no 15 documentation concerning what was happening on that end of 16 the exercise.
17 All we have is the recipient end, that is LILCO's 18 end of what they were generating during the exercise.
So 19 that is one big category of information which is missing, 20 and it makes it very difficult to understand and to evaluate 21 what happened during the exercise when you only know when 22 half of the communicating duo knew of something.
I 23 We need to know what it was that was being i
24 generated by the FEMA or other non-LILCO parties, and that 25 is information that we have been promised since before the O
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i exercise and have been trying to get since a week after the 2
exercise, that is beginning on February 20th.
3 There also is the matter of information from FEMA 4
concerning the preparation of the scenario and the pre-5 exercise preparation materials, which I gather we have now 4
6 heard are forever unavailable since Mr. Kowieski seems to be 7
the only person with knowledge of those and he has 8
apparently disappeared.
9 So that is a problem that I don't know how is 10 going to be dealt with and perhaps Mr. Glass has a 4
11 suggestion as to how we are ever going to obtain that 12 information which again was promised since before the 13 exercise and clearly is important in understanding the 14 scenario and figuring out what happened during the 15 exercise.
Those are the FEMA related documents that fall 16 under our category of data requests.
17 There is another area, the second area, which is 18 documents from LILCO.
We did receive, as I said, a number 19 or a large number of documents which were generated by 20 LILCO, various messages and things that were written by the 21 people who were " playing" during the exercise.
22 There is one big category, though, that LILCO has 23 refused to provide us, and those are the documents generated 24 at the EOF.
LILCO has taken the position that we are not 25 entitled to those documents because they call the EOF an O
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onsite area.
2 The fact is that during the exercise FEMA had l
3 observers at the F0F, There are objectives related to the 4
PEMA review of the offsite plan, related to what happened at 5
the EOF, including relationships between LILCO and the 6
simulators who were at the EOF, people who were purportedly 7
playing the rules of state and local governmental officials.
8 We have been denied those documents which are 1
I 9
clearly relevant to FEMA's observation of the exercise and 10 relevant in our evaluation of what happened offsite because i
11 the offsite LERO personnel who were doing all the dose 12 assessment work are, according to the LILCD offsite plan, 13 required to rely upon and deal with information generated by
. (:)
l 14 the EOF.
That is a very important link in the carrying'out 15 or implementing of this offsite plan and we have just been 16 just flat out denied any access to any of that data by 17 LILCO.
18 So those are the two categories of documents, one 19 batch from FEMA and one from LILCO that we have not 20 received, and we can't evaluate in any meaningful way what 21 went on during the exercise without either of those sets of 22 documents.
23 JUDGE MARGULIES:
Could you help us, Mr. Glass, 24 about making those documents available?
25 MR. GLASS:
As far as the logs, I will try to do O
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it.
As I say, I was there until 8:30 last night doing it 2
myself when the machine is~ free.
I mean there is only so 3
much I can do, and I am trying my best with limited 4
facilities, including the fact that we ran out of Xerox 5
paper.
We have problems.
]
6 I mean, it has just gotten to be a problem that 7
maybe you don't deal with in the private sector, but in the 8
government we do have these particular problems.
9 MR. LATEAM:
Mr. Glass, maybe you can make your 10 set available to us and we will copy them and save you the 11 aggravation of standing over a Xerox machine.
12 MR. GLASS:
Well, there are certain things that I 13 certainly as an attorney and you as an attorney know that I C
14 have to review and determine what we are doing, and 15 therefore, it is something that only I can do in regard to 16 that.
17 MR. LATHAM:
yes, but it is a matter that has been 18 going on for five months, and at least when you complete 19 that aspect of the work, then you need not be saddled with 20 the aggravation of doing the Xeroxing.
21 MR. GLASS:
Maybe we can work out a similar 22 arrangement that we worked out the last time.
The only 23 problem is the last time when it was sent out to be Xeroxed, l
24 that is when we had some problems about copies being messed i
25 up when they came back and having to be resorted.
So it
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does cause us some problems.
But I am willing to work with 2
you informally on any method that will expedite this.
3 We only got the particular logs back in about May, 4
or I got them in my hands, because up to that point they 5
were being used to prepare the post-exercise assessments.
6 JUDGE MARGULIES:
Mr. Latham has made an offer, I
7 and it is something that you should seriously explore.
j 8
MR. GLASS:
I certainly will, Your Honor.
i 9
MR. IRWIN:
Judge Margulies, I don't understand 10 Mr. Glass to be suggesting that he is to be doing anything 11 more than review these documents before they are copied.
We 12 obviously would be willing to help expedite their projection 13 also in any way we can.
O 14 As to two other categories of documents which were 15 mentioned by Ms. Letsche, the FEMA logs, I am not sure 16 exactly what she is referring to, although I understand them 17 to include logs kept by participants known as simulators, 18 participants who were simulating the roles of state and 19 county personnel during the exercise.
20 There were, as I understand it, only a relatively 21 small number of those logs, and maybe on the order of a 22 dozen or fewer such peopic, and the other end of 23 communications, i.e.,
the receiving end of communications 24 from them to exercise players are recorded in the player's 25 log.
So we are not totally bereft of knowing of what that
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small number of people were doing.
2 The long and short of it is that I hear Ms.
3 Letsche's suggestion that those are an insuperable obstacle 4
to proceeding with the framing of contentions, and I don't 5
think they would be.
6 With respect to the documents that relate to the 7
EOF, the EOF is an onsite facility.
It communicates with 2
8 offsite facilities, particularly the EOC.
Documents from 9
the EOC end of those communications are available.
10 Secondly, a major source of common information, namely, data 11 generated by a computer which is resident in I believe the 12 EOF also printout identically in the EOC.
So the data base 13 from which the missing end of those conversations would take O
14 place, or a significant portion of that data base is already 15 available.
16 The long and short of it is that if there are 17 problems with respect to production of EOC documents, my 18 suggestion is that we await the filing of contentions and 19
'see what kinds of data production with respect to them need 20 to be made.
21 Other than that, Ms. Letsche, LILCO has produced 22 all the documents, all the player and open documents from 23 the exercise.
24 MS. LETSCHE:
If I could just respond, Judge 25 Margulies.
I heard Mr. Glass talk about the logs that he is
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going to try to review.
I didn't hear any comment on the 2
other materials which apparently,Mr. Kowieski is the sole 3
responsible person who knows anything about them, and I 4
don't know what the status of those is.
5 MR. GLASS:
The other documents, Mr. Kowieski has 6
given me a set-of those, and I am reviewing them and I hope 7
to get them out for duplicating.
8 MS. LETSCHE:
In response to Mr. Irwin's comments 9
about the EOF documents, we have received dccuments from the 10 EOC and, frankly, we have tried to make some sense out of 11 them and what was going on.
We have been in informal 12 communication with counsel for LILCO to try to comprehend 13 these things, and we literally can't because there is an I
14 entire body of data out there, and apparently there were l
15 telephone calls and communications between the EOC and the.
16 EOF in which that data was discussed.
17 It is silly to talk about drafting contentions and l
18 then after we draft contentions figure out what other facts 19 we should have known.
20 The fact is that one of the things that was 21 evaluated in terms of offsite implementation by FEMA during 22 this exercise was the following objective, and I will quote 23 from the post-exercise assessment,
. whether or not at 24 the EOF they could demonstrate the ability to coordinate the 1
25 dose projections based on plant data and field measurements O
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I with county and/or state officials (role or state and/or 2
county officials will be simulated by FEMA designated 3
personnel)."
4 That was something that FEMA evaluated, and to 5
suggest that we are supposed to be litigating these exercise f
6 results without any of the data that came from that facility 7
which FEMA presumably had access to in order to make its 8
evaluation on whether or not this objective was met doesn't 9
make any sense.
That is the basis for our position that we 10 should receive that information if we are expected to file--
1 11 contentions on it.
12 MR. IRWIN:
I don't think it is fair that there is 13 a void or a vacuum of information on what happened at the qV 14 EOF or anywhere else to the extent that what happened is 15 even relevant to the offsite exercise because the EOF itself 16 is an onsite facility.
17 What is directly relevant is what happened 18 beginning at the EOC and other facilities with information 19 generated or messages which were transmitted from the EOF.
20 We have received some communication recently from 21 counsel for Suffolk County regarding a rather small sample l
22 of documents, about this large.
We responded to that in l
l 23 writing yesterday, and we are working with them on narrowing I,
24 areas where there are legitimate disputes.
25 My feeling is we may have document disputes later, O
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I but there is neither sufficient absence of information about 2
this facility or, more importantly, how the offsite players 3
reacted to information from it to give rise to an argument 4
that contentions can't be filed, nor is there an absence of 5
information sufficient to proceed generally on it.
6 JUDGE MARGULIES:
Yes, Mr. Latham.
7 MR. LATHAM:
Judge Margulies, I just wanted to 8
follow up with Mr. Glass on this question of Mr. Kowieski.
9 It seemed to be suggested that Mr. Kowieski will be, or some 10 formal determination has been made that he is entirely 11 unavailable for all aspects of the litigation in this 12 proceeding.
13 MR. GLASS:
What I said is Mr. Kowieski has been --
14 he has been replaced.
The way a government RIF works is 15 that certain peoples' jobs are scheduled to be eliminated.
16 These people based on seniority have then a right to bump 17 other people out of their jobs.
It has nothing to do with 18 the quality of work or performance.
19 What ended up happening is a gentleman with senior 20 seniority to Mr. Kowieski bounced Mr. Kowieski out of his 21 job, and Mr. Kowieski had to retreat into another position, 22 and that other position is completely unrelated to the 23 radiological emergency preparedness program.
He still is 24 employed by FEMA, but he has other duties at this particular 25 point.
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1 MR. LATHAM:
My question is other than perhaps 2
some scheduling constraints in terms of the normal discovery 3
process and his appearance at hearings, depositions and 4
other elements of this proceeding, is there any reason why 5
he will not be made available?
6 MR. GLASS:
Right now he is not too happy, and I 7
don't know if I can convince him to show ---
8 MR. LATHAM:
Well, his happiness is not terribly 9
relevant to the conduct of this proceeding, and I think that 10 people are more interested in finding out whether there is 11 some validity to this exercise.
12 MR. GLASS:
There may be ---
13 MR. LATHAM:
Let me just finish, Mr. Glass.
If he O
14 is deemed to be relevant to this proceeding, can we assume 15 that he will be made available and produce?
16 MR. GLASS:
At this point it is premature.
By the 17 time you get to it there will be a different attorney 18 handling it and I would rather leave it.
I am not trying to i
19 put you off.
There may be procedures whereby Mr. Kowieski 20 could be ordered to appear.
But you have to realize this is 21 a gentleman who has put a lot of work and a lot of 22 additional hours into the job and has done a very good job 23 at it, and was rewarded by being removed from the system.
24 MR. LATHAM:
But that has nothing to do with the 25 fact that FEMA had a responsibility and he had a i
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1 responsibility with regard to this exercise, and maybe we 2
ought to scrap that portion of FEMA's review and start j
3 again.
4 Judge Margulies, I wonder if we could get some 5
assistance perhaps in the form of a ruling from you.
6 MR. GLASS:
I think it is premature on the 4
7 question of producing Mr. Kowieski.
8 Judge Margulies, it is premature to ask for a 9
ruling at this time.
The agency is trying to see what can 10 be done.
Mr. Kowieski has an appeal pending for the fact 11 that he has been removed from his job, and there are a lot 12 of other factors that are ongoing well before we are ever 13 going to get to hearing where we may be in a position that 14 Mr. Kowieski will be back or we may have a situation where 15 Mr. Kowieski as a private citizen is not longer working far___.
16 the government.
I suspect one of those two will occur 17 bef' ore we are at hearing.
18 Therefore, it is premature at this time for any 19 sort of ruling in that regard to tell a federal agency who 20 they have to produce as their witness.
I think we have 21 already had, if you want, you know, argument on the merits, 22 I think we have already had the issue come up of whether 23 FEMA has the right to choose who its own witnesses are and I 24 think it has been upheld that FEMA does have the right to 25 choose its own witnesses.
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1 MS. LETSCHE:
Judge Margulies, if I might just 2
provide a little factual background because most of what Mr.
3 Glass is now referring to is history that we were all 4
involved in, but I am not sure you were.
S Mr. Kowieski has been the Chairman of the RAC, the 6
Regional Assistance Committee, which has been evaluating the 7
LILCO plan from the beginning back when it was Rev. 1 and 8
they are now up to Rev.
7.
Mr. Kowieski has chaired that 9
committee and, according to his prior testimony, he was 10 responsible for collating and organizing all the comments on-11 all the prior RAC reviews of the LILCO plan and was, as Mr.
12 Glass said, completely responsible for creating and 13 organizing this entire February 13th exercise and at least 14 in coordinating he obviously had some assistance from the 15 post-exercise assessment which is obviously is going to be 16 an important piece of this litigation.
17 I support Mr. Latham's request that we get some 18 kind of a ruling from this Board that Mr. Kowieski who is 19 the central figure in this whole FEMA event of February 13 20 be made available and that we not be asked to proceed alona 21 this path of filing contentions and taking lots of time and 22 filing lots of motions if it turns out that this central 23 character is never going to be available to deal with this 24 issue.
25 MR. GLASS:
No.
1, Judge Margulies, I again repeat ACE FEDERAL REPORTERS, INC.
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1 that this issue is premature.
If we are asked to deal with 1
2 the merits, there have been rulings in the past that FEMA 3
does have the authority to choose who its own witnesses are.
4 No.
2, FEMA has not determined yet what will be 5
done in regard to Mr. Kowieski, if there are other avenues-- -
6 open or whether we will even have jurisdiction over Mr.
7 Kowieski, if Mr. Kowieski is still employed and if he is 8
still dissatisfied over what has occurred in this situation.
9 We have indicated that Mr. Kowieski has been i
10 certainly actively involved in this events leading up to the 11 exercise, but he was not the only individual, and we 12 certainly will be able to be prepared to go forward on what 13 took place at the exercise and the impact.
Whether it is O
14 Mr. Kowieski or somebody else, it would only have an impact 15 on the weight to be given to the FEMA testimony.
16 (Board conferring.)
p 17 JUDGE MARGULIES:
The Board rules that it is l
18 premature at this time.
When appropriate we will take into 19 account the equities of the parties.
20 MR. BROWN:
Judge Margulies?
21 JUDGE MARGULIES:
Yes, sir.
22 MR. BROWN:
I was approached five or so minutes l
23 ago by an individual who introduced me to counsel for the 24 Nassau County Board of Supervisors who asked for leave of 25 the Board to make a brief statement on behalf of the Board
! (:)
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of Supervisors, if this Board would entertain that.
2 MR. IRWIN:
Judge Margulies, I object to that 3
request.
Nassau County is not a party to this proceeding.
4 The Board has already ruled on participation by entities not 5
parties, and it seems ---
6 VOICE FROM THE AUDIENCE:
Can you speak a little 7
louder.
We can't hear you.
8 MR. IRWIN:
I am addressing the Board ---
9 VOICE FROM THE AUDIENCE:
Well, you are addressing 10 the public, too.
I think we have a right to hear you.
11 MR. IRWIN:
My belief is that Nassau County, if it 12 wishes to participate may do so by the customary means of
~
13 filing papers in the customary fashion and that we should 14 proceed with the agenda established by the Board.
15 I have foregone from a lot of things that we might 16 otherwise have said this morning, but I think we have gotten 17 to the point.
18 MR. BROWN:
I think in our society, Judge 19 Margulies, oral communication is accepted just as much as 20 written communication when it is appropriate, and I see no 21 reason why Mr. Irwin would suggest something in writing and 22 seek to prevent something stated orally.
23 JUDGE MARGULIES:
Mr. Bordenick.
24 MR. BORDENICK:
I think in light of the Board's 25 earlier ruling the request would be out of order.
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1 MR. ZAHNLUTER:
Judge Margulies, I might add that 2
the State supports that request, and I would also ask you to 3
make deference to the fact that this person is a 4
representative of the Nassau County Government.
5 JUDGE MARGULIES:
The Board has already ruled in~~~
6 this matter and we are not making any special exceptions.
I 7
MR. CARROLL:
Excuse me, Your Honor.
My name is 8
Thomas Carroll, and I am Counsel for the Nassau County Board 9
of Supervisors.
I just would like to ---
10 JUDGE MARGULIES:
You are out of order here.
11 VOICE FROM THE AUDIENCE:
Let him speak.
He is s
i 12 supported by the public.
The public wants to hear him.
13 VOICE FROM THE AUDIENCE:
We want to hear him, O
j 14 Judge.
I 15 VOICE'FROM THE AUDIENCE:
Why the arbitrary and 16 capricious judgments?
I 17 (Disturbance from the audience not allowing the 18 proceedings to continue.)
1 19 JUDGE MARGULIES:
Let's take a 10-minute recess.
20 (Recess taken.)
21 JUDGE MARGULIES:
Back on the record, i
22 JUDGE SHON:
Mr. Carroll, I have a brief question 23 I personally want to ask.
I don't want to hear your 24 statement right now, but I want to know what the nature is 25 of the matter that you feel you wish to address at the
($)
1 1
1 I
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1 present moment.
What is its nature?
2 MR. CARROLL:
Your Honor, I just wanted to let the 3
Judges know what the position of the Board of Supervisors 4
was with respect to the use of the County facilities.
5 JUDGE SHON:
Okay.
There is provision in our 6
agency's regulations for an interested county or any agency 7
there of through its representative or attorney to make 8
known to the Board its position on any matter that pends 9
before the Board.
It is not even clear to me that the use i
10 of the Nassau Colosseum pends before this Board because we l
11 just ruled that it might or might not enter depending on the 12 contentions.
13 It seems to me appropriate that if you wish to do O
14 thaft, you should file an appearance before this Board and 15 appear at the hearing when the hearing is scheduled and not 16 at this prehearing conference the nature of which is simply 17 a talk to arrange when the hearings will be schedule.
In 18 other words, there will be a time for that later and we 19 would be delighted to hear you then.
20 Is that clear?
21 MR. CARROLL:
Yes, Your Honor.
Thank you very 22 much.
23 JUDGE MARGULIES:
Are we ready to proceed with 24 Items (a), (b), (c) and (d)?
25 MR. BROWN:
Judge Margulies, if the Board will O
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1 indulge, I have a preliminary matter which relates to items 2
(a), (b), (c) and (d).
3 I would like to see if a schedule could be set up 4
to deal with what I believe is the overriding issue that is 5
before the. Board and the parties, and I perhaps would hope ~
6 that the parties could stipulate to such a schedule so that 7
it could be done in an orderly fashion with concurrence of 8
the Board, too, and we could await an appropriate resolution 9
of the matters that I think ought to be addressed.
10 My understanding is that it is indeed going to be 11 treated as a fact issue, the status of the colosseum as a 12 fact issue and a topic for contentions and the Board did not 13 want here to get into the legal aspect of the conclusionary 14 effect of the action of the Nassau County Board of 15 Supervisors' action on the availability of the Colosseum 16 and, more importantly, the legal consequences of what the 17 Board has done, but that it would be dealt with by means of 18 contentions when that avenue was established.
19 Secondly, it is my understanding that the Long 20 Island Power Authority issue was one that the Board 21 determined was irrelevant on grounds because the board does 22 not have jurisdiction to consider the Long Island Power 23 Authority and its implications to this proceeding at this f
24 time or indeed in the future, that this is a matter left to i
25 the professional skills of counsel to determine how best to l
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go forward.
2 We have given some thought to what we would like 3
to do, and I would submit that it is the most reasonable 4
avenue for all the parties at this point.
5 The decision of the State of New York to create a 6
Long Island Power Authority is, in other words, to say that h
7 the Long Island Lighting Company will not exist any more.
8 Another provision of that law is that the Shoreham plant 9
will not be operated by the new company.
10 The effect of that is to eliminate from existence 11 a bona fide applicant to pursue an operating license shore 12 Shoreham.
LILCO itself won't exist to operate Shoreham and 13 LIPA, or the Long Island Power Authority is precluded by law
(*
14 from operating that entity.
15 So we are pushed into a situation which no one in 16 fact considered, neither the Commission, neither this Board 17 and, indeed, not the parties as ww move forward in 18 developing an agenda for this meeting and indeed the 19 comments that would be made pursuant to the agendao which we 20 submitted to the Board a week ago.
21 The Long Island Power Authority was created just 22 last Thursday I believe, Wednesday or Thursday of last week, 23 just before the holiday commenced.
24 What I would propose is the following, that the 25 Board, even though it is not going to consider it a matter O
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1 of its jurisdiction and take up the legal issue, recognize 2
that the creation of the Long Island Power Authority is 3
literally the most significant issue affecting electric 4
power on Long Island since the invention of the electric 5
light bulb and that it is not something that we can consider-6 a matter of irrelevance for purposes of the parties' 7
interest in this proceeding, and it is certainly nothing 8
that can be ignored when the public has depended upon this 9
solution and this event as something that relates in one way 10 or another to the efficacy of Shoreham's operation or 11 inefficacy of that and, indeed, to the direction in which 12 this proceeding is being headed.
13 I would thus propose that a procedure be 9m b-14 established and a schedule be set so that the moving 15 parties, and we would be movants here, and perhaps LILCO or..__1 16 the Staff would want to be a movant also, but we clearly 17 would be movants and would want to take these matters to the 18 authority before which it belongs.
And if that indeed is 19 the Commission, we would want to put that before the i
20 Commission and give them the justification for suspending this proceeding in light of the developments which have such 21 1
22 a potentially catastrophic effect upon decisions which were 23 made by the Commission prior to the occurrence of the l
24 legislation creating LIPA.
25 We accordingly would like to propose a schedule in W('J
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which any parties wishing to file briefs on the impact of 2
this most significant event and in fact set forth precisely 3
what it did and what its implications and then have a second 4
step which would be the filing of reply briefs 5
simultaneously and put those before the Commission for a 6
ruling.
7 We would want this proceeding held in abeyance, 8
suspended until we get an answer to that, and we would want 9
that done for the most practical reasons.
We believe that 10 the consequence of the legislation creating LIPA is to make 11 it, if not necessary as a matter of law, which it may well 12 be, sure necessary as a matter of discretion in this 13
- Commission's action pursuant to the public interest that a>
14 there be no continuation of these proceedings headlong 15 toward the issue of a license undor circumstances in which a 16 license surely could not issue, namely, the absence of a 17 bona fide application and the absence of any entity to be 18 qualified to operate the Shoreham plant.
19 Whatever the answer would be ultimately is 20 something which would have a fundamental impact, not only on 21 the structure of this proceeding, but on the very next step, 22 because if the ruling were what we have in our own judgment 23 determined to be appropriate, namely, the need for a l
24 suspension of this proceeding, it would save a great deal of 25 resources to a great number of parties.
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There has been an effort by the county and the 2
state and the town earlier in this-proceeding to bring the 3
proceeding to an end.
That matter was taken to the 4
Commission and the Commission decided not to terminate the 5
proceedings at that time because of the determination thr.'
6 there were fact questions as opposed to legal questions 7
involved.
8 We think this time there is a straightforward 9
legal question and we ask that this Board work with us in 10 order to get this matter before the Commission so that we 11 are not all headed down the road toward an issue which can 12 lead to no resolution of benefit to anyone.
13 The issue that will benefit the parties is to 14 determine whether this proceeding should be suspended in 15 full, and we believe that is what LIPA will demonstrate, and.J 16 that is precisely what we would like to have the opportunity 17 to move to achieve.
18 JUDGE MARGULIES:
Mr. Irwin.
19 MR. IRWIN:
I believe the Board has already ruled 20 on what Mr. Brown has just resuggested a couple of hours 21 ago, and that he is trying without requesting for the Board 22 to reconsider its ruling doing exactly that.
So I request 23 the Board to deny his motion.
24 I have just two observations.
One is that if Mr.
25 Brown is correct about the inexorability of a timetable, l
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then putting this proceeding in abeyance will in effect be a 2
taking right now of Shoreham.
I don't think he is proposing 3
to put $4.5 billion on his clients' shoulders this morning.
4 Secondly, just bear in mind that the effective 5
provisions of LIPA don't even come into being until January 6
15, 1987, and there is a lot of time between now and then.
7 Secondly, after LIPA comes into being it is going to have to 8
decide whether or not he can buy LILCO's assets or its 9
stock, and it can't do it unless it decides that he can 10 operate the company economically as defined in the statute.
11 There are a lot of things that have to happen between now 12 and then.
13 Finally, the Commission in CLI-86-11 told this cn-a-
14 Board to proceed and it recognized even as it did so that 15 there might be contrary rulings on other matters and it 16 nevertheless reached the decision it did.
So I request the 17 Board to stick to its prior decision.
18 l JUDGE MARGULIES:
Mr. Bordenick.
19 MR. BORDENICK:
I will be very brief.
The Board 20 has already ruled, and the state, the county and the town 4
21 are free to file whatever they want to file with the 22 Commitsion, but unless and until the Commission instructs l
23 this Poard not to proceed with this hearing, the Board is 24 under an obligation to proceed.
25 MR. BROWN:
I would like to reply there absolutely O
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1 is no such thing.
I don't know how people can take a simple i
2 statement and twist it to such a distorted end.
So I am 3
going to repeat it.
4 I brought this up in the context of a schedule.
5 We are not asking the Board to make a ruling on the merits
~-
6 at all.
The Commission never knew about this event, and 7
certainly the impressions of a person who sits at 1717 H l
8 Street in Washington doesn't include the crystal ball talent l
9 to know whether a piece of legislation in the future will i
4 l
10 pass or not.
11 The Commission had not the foggiest notion of what 12 would happen, nor did any of us here.
Now if something 3
i 13 happened which literally is the most significant event to a{
14 electric power generation, transmission and distribution in 15 the history of Long Island, I can't conceive of someone 16 sitting quietly, as Mr. Irwin did and Mr. Bordenick, and i
17 suggest that it be passed off because of some prior ruling.
l 18 This Board ruled, as it did before, that the i
i 19 content and the merits of the colosseum would not be looked i
1 20 into now because that was a matter to be dealt through the 21 factual issues of contentions.
j 22 I an here as a scheduling matter saying that the 23 merits of this issue, which Mr. Irwin argued in this reply, 24 that everything he said goes to the merits.
Well, we are 1
l 25 just not that capable of laying out all the merits off,the i
l i
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I tops of our heads.
This legislation is still warm and we 2
haven't fully considered it.
3 We believe that when you get the most important 4
piece of legislation which affects the structure of this 5
proceeding and its effect is potentially catastrophic, 6
namely, it would end or suspend these proceedings, one can't 7
dig a hole for oneself and pretend that that is not what the 8
real world provides.
9 What we are saying is that we wish the Board would 10 provide an opportunity for argument on the merits.
The-11 Board has said that it will not entertain that for a lack of 12 jurisdiction.
We are saying as a scheduling matter that 13 that should be the highest priority and first order of O
14 business, and we hereby more for the op-
.tunity to address 15 the merits before the very body which.his Board has said is 16 the appropriate body.
17 We see no point in not suspending this proceeding 18 and rushing headlong into a direction which has not 19 pertinence whatsoever when a more compelling priority is 20 before us and which requires our attention.
21 JUDGE MARGULIES:
There is no prohibition which 22 would limit the intervenors from proceeding on a dual i
23 track.
They can participate in this proceeding and, if they I
24 wish, bring the matter to the attention of the Commission.
25 We will proceed with this proceeding as directed 4
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i by the Commission.
2 MR. BROWM:
I am sorry, but I just have to get an 3
understanding so tha.t if we go to the Commission we know 4
what the basis of it is.
The basis of this ruling is that 5
we are going to proceed on a dual track?
6 JUDGE MARGULIES:
I said you have the option to 7
proceed if you so wish on that issue before the commission.
8 We are proceeding with this proceeding.
If you want to 9
institute or make additional filings before the Commission, 10 that is up to you.
But we are proceeding with this 11 proceeding and going ahead with the scheduling conference 12 today.
It doesn't limit you in any manner from taking any 13 other legal action before any other body or before the O
14 Commission.
15 MR. BROWN:
But my motion is that this proceeding.._.
16 be suspended so that our resources can be devoted to getting 17 a decision on what ought to preclude any continuation of the 18 proceeding.
19 JUDGE MARGULIES:
The Board denies the motion.
20 Do the intervanors wish to be heard on the dates 21 set forth in (a), (b), (c) and (d)?
22 MR. LANPHER:
We certainly do, Judge.
Obviously 23 the comments we make now are without any waiver of our view 24 that even consideration of this schedule is not proper, but 25 given your ruling, we will go ahead and give our comments.
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1 First, with respect to the filing date of 2
contentions, as my colleague, Ms. Letsche pointed out, we 3
are still lacking critical data.
I talked with Mr. Glass 4
during the recess and if a trial that he has scheduled for 5
next week is settled he believes that the data in FEMA's 6
possession can be provided by the end of next week through 7
the use of the Hunton & Williams office in New York City to 8
Xerox, et cetera.
If his schedule does not improve next 9
week, then we should have those FEMA documents no later than 10 the following week, which looking at my calendar means that 11 hopefully we have the documents no later than next Friday 12 the 18th, but there is an outside chance that they would not 13 be provided unti1 the 25th, which is the following Friday, O
14 the 25th of July.
15 Now from the earlier discussion that we had, Judge 16 Margulies, I believe there was no resolution of the matter 17 brought up by my colleague, Ms. Letsche, that LILCO has 18 refused to provide the critical EOF documents that we need 19 to review.
20 In recess Mr. Irwin confirmed that he is not going __
21 to provide those documents.
So I think before we get any 22 further into this scheduling and in order to provide the 1
23 comments that you have requested, I hereby move that you 24 direct Mr. Irwin or LILCO to provide the EOF documents that 25 they have withheld.
I don't think you need further argument O
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1 on it as we went over that before, but these are critical 2
data for us to have in order to prepare contentions.
So we 3
ask that you direct them to provide that.
4 MR. IRWIN:
Judge Margulies, I am not sure whether 5
additional argument will help, but I am willing to try.
6 JUDGE MARGULIES:
Mr. Lanpher, will you please 7
continue, or does that conclude your comment on (a), (b),
3 (c) and (d)?
9 MR. LANPHER:
Knowing whether LILCO is going to 10 provide those documents and, if so, whether they are going 11 to be directed to provide them and, if so, by what date is 12 critical to my comments on Item (a) and the things that 13 follow from Item (a).
O 14 No, I have not completed my comments, but I 15 thought it would be more orderly if we took one item at a._._
16 time or subitem.
This is really a preliminary matter to 17 that of when are we going to get the data?
18 (Board conferring.)
19 JUDGE MARGULIES:
May we hear your response, Mr.
20 Irwin.
21 MR. IRWIN:
Yes, sir.
It is LILCO's view that 22 access to the very small corner of documentary information 23 about which Mr. Lanpher is complaining is not necessary for 24 the filing of contentions.
25 Suffolk County has had since February 13 acces_s to O
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I the facilities at which the exercise was conducted.
They 2
had telephone linkups to their people out in the field.
3 They had copies of message forms simultaneously as they were 4
handed out.
They had significantly more observers in LILCO 5
facilities than have been granted at any otbor exercise ever 6
held.
They had, in addition, unnumbered numbers of Suffolk 7
County police in cars and helicopters during the conduct of 8
the exercise.
They have a large independent data base.
9 Second, since the exercise, the FEMA report, which 10 is the distillation of all the FEMA work and a fairly 11 detailed report as the Board and the parties know has been 12 produced.
13 LILCO has also produced every offsite p1&yer O
14 document.
They produced their player logs, literally dozens 15 of player's logs.
They have produced every LERO message.
16 They have produced every EBS message.
They have produced 17 every filled out check list.
They have produced every 18 filled out call-out list and log-in times.
They have 19 produced very dispatch form.
There is a monumental amount 20 of information there.
21 Suffolk County and other parties had observers 22 present at the EOF which is an onsite facility.
It is 23 relevant only because of an interface with the offsite 24 facilities.
They also had parties present at the offsite 25 facilities.
Everything that was received from the EOF has O
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1 already been turned over.
2 Suffolk County back before this Board ever had 3
jurisdiction over emergency planning matters sought to raise 4
onsite emergency planning matters, and they deliberately 5
defaulted and the Board threw those issues out and barred 6
them frce adopting further discovery or other litigation on 7
onsite emergency planning matters.
8 I don't know whether this is an effort to evade 9
the thrust of that ruling or whether it is simply a 10 legitimate exercise to obtain information with respect to 11 the interface between one particular onsite facility and the 12 offsite facilities.
13 LILCO will respond according to the rules with O
14 legitimate discovery requests after contentions are filed.
15 The rules don't give Suffolk County or any other intervenor 16 any discovery rights prior to the normal filing of 17 contentions, and they have received incredibly liberal 18 discovery already.
I just don't think it is necessary 19 before the filing of contentions, and I think that applies 20 equally to the remaining FEMA documents.
21 Once again, those are simply another layer of 22 primary information all going to the same point.
23 contentions can be filed now and the parties have been on 24 notice to that fact since at least the June 18th phone 25 conference call among the parties and the Board, and I just O
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1 don't think there is any basis for holding the process up.
2 MR. LANPHER:
Judge Margulies, may I be heard just 1
3 briefly.
4 JUDGE MARGULIES:
Wait, we have Mr. Bordenick.
5 MR. BORDENICK:
The motion is simply a request for j
6 discovery prior to the framing of issues and, as Mr. Irwin j
7 has aptly pointed out, it is not provided for in Part 2 and 8
it is inconsistent with CLI-86-11.
9 Based on the representations that have been made i
10 to the Board by Messrs. Irwin and Glass, I think that LILCO I
i 11 and FEMA have gone out of their way in an attempt to be I
12 cooperative with the county in supplying documents prior to 1
13 the fact, and I don't think the Board can or should order C:1 14 anything further at this point.
i 15 JUDGE MARGULIES:
Do you wish to be heard, Mr.
16 Glass?
t
)
17 MR. GLASS:
No, thank you, your Honor.
18 MR. LANPHER:
Judge Margulies, may I be heard just i
19 briefly?
20 JUDGE MARGULIES:
yes, Mr. Lanpher.
l 21 MR. LANPHER:
I resent very strongly Mr. Irwin's l
22 casting innuendoes here in saying that he doesn't know if
}
23 this is a legitimate effort to get information or to evade 24 some prior rulings.
Well, if he doesn't know, he shouldn't j
25 cast innuendo like that.
That is just out of place.
I C:)
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1 Second, Mr. Bordenick's comments, well, this is 2
discovery and you don't get discovery until after 3
contentions.
To my knowledge, this is the first full post-4 exercise litigation since the UCS case, and maybe there are 5
some others, but I am just not familiar with the details of 6
them, if so.
This is a situation that really is unique in 7
NRC practice.
l l
8 We have been attempting to get the data so that we 9
understand what happened.
To file contentions when you 10 don't understand what happened, that is not going to lead to 11 an expedited proceeding and that is not going to lead to 12 anything focused.
It is going to lead to a waste of time in 13 quibbling and argument.
O 14 I was at the EOF on the date of the exercise..
i 15 This suggestion that we had wonderful access and wonderful 16 information is just hogwash.
I was barred from going in and 17 seeing what was going on close up.
I don't know what i
18 happened there.
l 19 More important, though, our expert witness, or one j
20 of our expert witnesses has gone over the data that we have 21 received from LILCO, and LILCO has provided a good bit of l
22 information, and we thank them for that, but our expert has 23 told us I need the information from the EOF in order to l
24 assess this information.
i 25 Now if you want to call him a liar, fine, but no
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1 one has a basis for that.
So we are making a representation 2
that we need-this information.
LILCO doesn't know what we 3
need or what we don't need in order to frame contentions and 4
neither does Bernie Bordenick.
5 Finally, this continued talk about this being an 6
onsite facility, this was part of the exercise and something 7
that FEMA reviewed.
There are objectives relating to the 8
offsite emergency plan which were reviewed by FEMA relating 9
to the EOF, and to suggest that somehow that facility is 10 outside the the scope of this litigation I just think has no 11 basis.
12 JUDGE MARGULIES:
The Board will reserve decision 13 until after the luncheon recess.
O 14 We will recess for lunch until 1:15, 15 MR. LANPHER:
Judge Margulies?
16 JUDGE MARGULIES:
Yes, Mr. Lanpher.
l 17 MR. LANPHER:
There are people with some other I
18 schedules.
Is it possible that maybe we could just take a 19 10-minute recess now'and press through lunch?
I don't know 20 if other people would prefer that.
I know for Suffolk 21 County and the Town of Southampton we would much prefer to 22 continue and take a lunch at the end of the conference if 23 that is possible.
24 JUDGE MARGULIES:
We have been here since 9:30.
25 We have worked hard, and it is only appropriate to take
(
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lunch now.
2 MR. LANPHER:
Until what time?
3 JUDGE MARGULIES:
1:15.
4 (Whereupon, at 12:15 p.m.,
the hearing recessed, 5
to reconvene at 1:15 p.m.,
the same day.)
6 7
8 9
10 11 12 13 O
14 15 16 17 18 19 20 c
21 ka 22 23 24 25 O
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1 AFTERNOON SESSION 2
(1:15 p.m.)
3 JUDGE MARGULIES:
Back on the record.
4 The Board finds that the key pacing document for 5
the filing of contentions is based on the FEMA evaluation 6
report, which has been out for quite a number of months now.
7 Suffolk County, the State of New York and the Town 8
of Southampton recognized this fact in a pleading filed in 9
March.
The pleading is titled " Motion of Suffolk County, 10 the State of New York and the Town of Southampton for Ruling 11 Concerning Proceedings Related to the Shoreham Exercise."
12 On page 5 they say "The FEMA report constitutes the key 13 pacing item in the evaluation of the exercise."
(
14 We have recognized this previously when we held 15 our telephone conference on June 18th.
In our order 16 following the prehearing conference we said the time for the 17 preparation of contentions started to run from June 18th.
18 So our ruling is that the time for contentions has 19 already begun to run.
It started running June 18th, and it 20 would be proper to set a date today for the filing of the _
21 contentions.
21 MR. LANPHER:
Judge Margulies, I understand your 23 ruling, and it was our understanding that in getting into l
24 Items (a) through (d) that we were going to into filing of 25 contentions.
The Suffolk County prior pleading has to be O
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1 read in light of the fact that during the time that that 2
very pleading was pending, and I guess that was before the 3
Commission originally, and maybe it was the Appeal Board 4
first, we also were seeking these other documents at all 5
times.
6 So I don't want that statement read ou: of context 7
and to be taken to indicate that we ever believed that that 8
was the only document that was key to understanding the 9
exercise.
10 Leaving that aside, we still have the motion that 11 was argued before lunch to direct LILCO to provide us these 12 key documents regarding the EOF, and I didn't hear any 13 ruling on that from the Board in your previous statement.
O 14 JUDGE MARGULIES:
I will rule on it at this 15 point.
It would be premature to issue such a ruling at this 16 time.
Following the submission of contentions, it is then 17 when we take up the matter of discovery, and the matter that 18 you are directing your motion to is really directed to a 19 matter of discovery and a premature response.
20 MR. LANPHER:
Is it the Board's ruling then that 21 the Board has determined that we don't need those documents?
22 JUDGE MARGULIES:
No.
You make your own case.
We 23 don't make the case for you.
24 MR. LANPHER:
You have our representation that we 25 need those documents in order to prepare detailed O
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I contentions, but it is your ruling that we don't need those?
2 JUDGE MARGULIES:
No, that is not my ruling.
My
)
3 ruling is is the time to submit contentions started to run 4
from June 18th, and we will set the date for filing
)
5 contentions on that basis.
6 In terms of the other documents you seek, you have 7
to rely upon your own means of practice to obtain them.
)
8 MR. LANPHER:
Well, I made an oral motion earlier 9
this morning to obtain those documents, and that is the best 10 means I know how to do it, Judge Margulies, and you are 11 denying the motion?
12 JUDGE MARGULIES:
The motion is denied at this 13 time as being premature.
It is a matter that you may want O
14 to get into at the time for discovery.
It is premature to 15 hold discovery prior to the time of filing contentions.
16 MR. LANPHER:
Well, I would just like to make a 17 representation for the record then that the contentions that 18 will be filed on behalf of Suffolk County will be less 19 detailed than otherwise would have been possible given this 20 ruling, and I think that is unfortunate.
But since we don't 21 have those data, you can't expect us to include references 22 to those data in our bases, et cetera.
23 I don't think it furthers the proceeding, but if 24 that is your ruling, sobeit.
25 JUDGE MARGULIES:
That is the ruling of the Board.
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1 MR. LANPHER:
Judge, is it appropriate to give our 2
comments then on the -- I guess you were asking (a) through 3
(d) initially, on page 2 of LILCO's pleading?
4 JUDGE MARGULIES:
That is correct.
5 MR. LANPHER:
Is this the appropriate time to do 6
that?
7 JUDGE MARGULIES:
Yes.
8 MR. LANPHER:
LILCO suggested that we should have 9
a week from today to file contentions.
We think that that 10 is far too short, Judge.
We are still expecting those FEMA 11 documents and hopefully next week.
We would suggest a date 12 no less than two weeks after receipt of those FEMA documents 13 which they have promised.
O 14 We have been working diligently since your order 15 and actually before that we have been attempting to put 16 thinas together, and I am referring to your June 20th order 17 after the conference call, but it takes a great deal of time-18 to review the materials and to put it together.
It includes 19 the review of experts and getting their mat? rials, and you 20 have to recognize also that it involves coordination with 21 two other parties as well, the State of New York and the l
22 Town of South Hampton.
l l
23 It is our intention to put in a single set of 24 contentions rather than three sets of contentions, and 25 accordingly we would ask for contentions to be filed two O
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1 weeks after we receive the FEMA documents, which hopefully 2
would be two weeks from next Friday.
3 Do you want me to continue with (b), (c) and (d) 4 or do you want to stay on (a) for now?
5 JUDGE MARGULIES:
No.
Let's put a date on that.
6 MR. LANPHER:
Well, assuming that we get the 7
documents next Friday, Judge Margulies, that is the 18th of 8
July.
Two weeks from then is August ist.
9 JUDGE MARGULIES:
Okay.
Would you please continue 10 with the other subsections.
11 MR. LANPHER:
Yes.
Subsection (b), for the 12 benefit of the people in the audience, states " Parties 13 designed to respond to contentions must do so by no later O
14 than July 25."
15 I think if the intervenors are the only parties 16 submitting contentions that -- well, let me go back a 17 second.
That means one week after the submission of 18 contentions LILCO is suggesting responses to contentions.
19 If Suff Ik County is the only party filing 20 contentions, that$ provision is not a problem, and that would 21 be August 8th for responses.
22 I would like to make an inquiry though whether 23 LILCO intends to be submitting contentions or whether the 24 NRC Staff intends to be because that would affect our views 25[
on whether that is a reasonable amount of time.
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JUDGE MARGULIES:
Would you please respond.
2 MR. IRWIN:
My understanding of the structure of 3
this proceeding, Judge Margulies, is that the burden is on 4
the intervenors to go forward with contentions showing flaws 5
in our plan as revealed by the exercise.
So LILCO at this 6
point does not intend to file any contentions.
7 MR. BORDENICK:
That will also hold true for the 8
staff.
9 JUDGE MARGULIES:
Thank you.
10 MR. LANPHER:
Then Suffolk County has no objection 11 to a one-week period for the response -- or, no, that was 10 12 days.
Excuse me.
That was a 10-day period and I misspoke 13 before.
So instead of the 8th of August, that really would O
14 come to -- it ought to be the 12th of August to avoid Monday 15 deliveries.
That is just I think throughout this proceeding 16 it would be good to not have receive dates on Monday because 17 it makes it very hard for overnight mail service, et cetera.
18 MR. IRWIN:
We can live with Monday deliveries, 19 Judge Margulies.
We automatically build in a day when we 20 don't try and expedite things on a daily basis.
We both 21 have offices in Washington and computers and we both have 22 telecopiers that go at 20 seconds a page.
We can get things 23 to them and they can get things to us.
24 JUDGE MARGULIES:
Please proceed.
25 MR. LANPHER:
If I may finish what I am saying.
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1 Suffolk County would much prefer not to have Monday delivery 2
dates.
There are great difficulties with telecopying.
For 3
some reason our office and Mr. Irwin's office have had a 4
hard time communicating.
I think our secretaries have 5
finally learned how to coordinate some of that, but it is 6
difficult and it is much nicer to be able to do it by 7
Federal Express overnight.
8 Third, LILCO states that it proposes that any 9
replies to contentions be filed one week after the 10 responses.
We don't have an objection to that one-week 11 period.
12 We do have a comment on part (d).
We believe that 13 this proceeding would benefit from building into the
(
14 schedule oral argument on the contentions, and we would 15 suggest that approximately five days after receipt of the 16 final pleadings, the replies to objections, that the Board 17 schedule oral argument on Long Island and issue an 18 appropriate ruling thereafter.
19 So we would change Part (d) from "if the Board 20 desires to have oral argument" to building right into the. _ _ _
21 schedule at the outset that there will be oral argument.
22 JUDGE MARGULIES:
Does that conclude your 23 presentation on Items (a) through (d)?
24 MR. LANPHER:
yes, sir.
25 JUDGE MARGULIES:
Thank you.
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1 Mr. Irwin.
2 MR. ZAHNLUTER:
Excuse me, Judge Margulies.
3 JUDGE MARGULIES:
Oh, I'm sorry.
4 MR. ZAHNLUTER:
The State of New York joins in 5
that position.
6 JUDGE MARGULIES:
Thank you, Mr. Zahnluter.
7 MR. IRWIN:
Judge Margulies, I just have three 8
quick things.
9 One is that I still haven't heard anything from 10 Mr. Lanpher that suggests any reason why data which have 11 been available in large measure for several weeks and formal 12 notice of which has been around for three weeks can't lead 13 to the filing of contentions within about a week from O
14 today.
15 If there are matters, which as Mr. Lanpher 16 suggests that need to be subsequently revised or added to, 17 the rules provide for amending contentions or submission of 18 new contentions for good cause shown.
19 This is an expedited proceeding and it has 20 regrettably taken us almost a month to get together for our 21 initial confabulation since the Commission's order, and I 22 don't see any point in building in two weeks artificially at 23 the very start of the process.
24 Secondly, Mr. Lanpher is right in that Federal 25 Express is a better means, all else being equal, than O
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1 anything else.
However, I think it would be very useful for 2
us to stick to the notion of getting papers filed by hand 3
with each other on the date they are due and confirming 4
overnight by Federal Express.
5 It is very rare that a telecopier transmission is 6
so inadequate that it arrives on the evening of the date it 7
is due and is confirmed the next morning by Federal Express 8
that any substantial time or effort has been lost, and I 9
would suggest that as a compromise for both of us, but still 10 keeping the due dates on Monday and having the things 11 trigger off of that.
That is a more general observation 12 than just for these pleadings.
13 JUDGE MARGULIES:
We did have a problem with your O
14 July 1st telefax statement on the agenda.
15 MR. IRWIN:
I don't know where that got lost, 16 Judge Margulies.
Our operator verified it with the operator 17 out in Bethesda, but we can verify it with the Board's 18 secretary from now on and will do so.
19 I think what we need to do is make sure that 20 secretaries or the principles in fact talk directly to each _
21 other as well as the operators talking to each other on 22 that.
23 My third observation is just simply that oral 24 argument and the location of it, if held, are both for the 25 Board's convenience and that should remain a matter of the ACE-FEDERAL REPORTERS, INC.
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Board's decision.
2 JUDGE MARGULIES:
Mr. Bordenick.
3 MR. BORDENICK:
Judge Margulies, as I indicated in 4
my letter to the Board of July 1, 1986, the staff had no 5
objection to the schedule that LILCO had proposed on that 6
same date.
I am at a loss to understand why Mr. Lanpher 7
suggests a filing date keyed to two weeks after FEMA 8
provides its documents in light of the Board's ruling on 9
these document requests.
10 Finally, I have no problem with any Monday filing 11 dates.
I can meet those.
12 MR. LANPHER:
Judge, if I can just briefly respond 13 only to what Mr. Bordenick stated.
O 14 Your opening remarks, Judge, in the afternoon 15 session were keyed to the FEMA assessment report.
The date 16 that we are expecting from FEMA is data which is directly 17 related to that FEMA assessment report.
18 Mr. Glass had been kind enough to promise that he 19 will get those documents to us just as soon as possible.
If I
20 they get here sooner than next Friday, fine.
We are willing 21 to work hard.
It takes time to review the materials.
We i
22 are still in the process of reviewing the materials we have 23 gotten from LILCO.
It is a very time consuming process to 24 do it.
25 I don't know if Mr. Bordenick has been through the t
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1 documents that LILCO has provided to us.
If he has, I think 2
he will find what a time consuming difficult process that 3
is.
4 So we need some additional time to get these 5
contentions in shape, and that is why we came up with the 6
two weeks after receipt of those FEMA documents.
7 JUDGE MARGULIES:
Could you give us an idea for 8
the number of documents you are speaking about in toto in 9
terms of what you are working with presently?
10 MR. LANPHER:
Could I ask Ms. Letsche to do that.
11 MS. LETSCHE:
The documents that we are received 12 which, as I explained before, are basically one half of the 13 action that went on during the exercise, are I guess roughly O
14 two boxes, two Xerox size boxes full of documents give or 15 take some, and those are the things generated by the LILCO 16 players.
I 17 I don't know the volume of documents that FEMA i
l 18 generated, but what they are are the messages that led to l
l 19 the LILCO players generating all their things.
Presumably 20 it is going to be less because there were more LILCO people 21 involved than there were controllers and observers and 22 simulators.
23 But the information that we are still in a 24 complete vacuum about is what the simulator knows he said as 25 opposed to what the LILCO person might have heard him say O
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when the simulator said it, according to the simulator, as 2
opposed to the LILCO player so that we can figure out how 3
quickly those messages were transmitted and reacted to and 4
all of that stuff.
One whole end of it we don't have, and I 5
don't know the volume of that.
l 6
MR. GLASS:
I think there are a couple of things 7
that we discussed before that should be verified.
The logs 8
were kept in certain locations, but there were not 9
necessarily full sets of lots kept with every discussion 10 that took place in the EOC, and I think we had spoken about t
11 the differences between what took place say in the EOC with 12 the simulators versus what took place from the Command Cell, 13 and that is where the logs were kept.
So they are not a O
14 voluminous nature, and they are certainly not going to show 15 every portion of.the other side, and I hope Ms. Letsche is 16 not expect that because we did discuss that before.
It does 17 not cover every discussion.
18 MS. LETSCHE:
They are what they are.
I haven't 19 seen any of them.
The fact is that we don't have any, and I 20 can't create them if they don't exist.
But our position is 21 that we at least need to know what there is out there so we 22 can try to make some sense out of the other half of the 23 interactions that we do have information about.
24 MR. IRWIN:
Let me ask a point of information, 25 Judge Margulies, if I may.
I keep hearing that suffolk O
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1 County believes they don't know what happened in enough 2
detail to file contentions.
3 As I understand it, they already have the messages 4
from FEMA both ordinary messages, triggering responses and 5
messages from simulators.
The only thing they are lacking 6
is the independent corroboration at the sending end that the 7
messages were in fact sent.
They already have the LILCO 8
logs at the receiving end verifying when the messages were 9
received.
10
-The scenario for the exercise contains a time line 11 which includes an entry with a time at which a message is 12 supposed to have been sent.
So they know when the message 13 is supposed to hatte been sent, they know the message and.
14 they know when LILCO says they received it.
15 The only thing missing, if indeed it matters at 16 all, is when the FEMA notetakers say they sent it.
It just 17 strikes me as an issue at best for discovery, and I am 18 willing to concede that that is what it is in principle, but 19 I think it is a red herring at this point.
20 MS. LETSCHE:
If I could just respo'.id to one 21 thing.
The scenario does not include any information about 22 what the simulators were doing because it is my 23 understanding that that was one thing that LILCO didn't I
i 24 write in the scenario.
They wrote the rest of it, but they 25 didn't even know what the simulators were going to do.
l l
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1 So with respect to that we are completely in the 2
dark.
There is information on LILCO message forms that 3
supposedly the LILCO player received from the simulator, but 4
whether or not that message might have written two hours 5
after the simulator told some other LILCO person the 6
message, which would be a very significant fact in terms of 7
whether that procedure was being implemented appropriately i 8
something that we don't know without getting the information 9
from the horse's mouth, and that is from the people who 10 produced those simulator messages.
11 The other matter of correction I think to what Mr.
12 Irwin said is although we did receive many messages that 13 were in the scenario or free-play messages from FEMA, we 7-
~
14 don't know from FEMA when in fact those things were 15 delivered, and the scenario, as Mr. Irwin said, lays out 16 when things were supposed to have been sent.
~
17 What we need to know is when in fact they were 18 sent during that exercise so we can evaluate LILCO's 19 response to it.
20 MR. GLASS:
One thing that I think should be 21 corrected is on May 6th, 1986 you were sent a copy of the 22 controller simulator plan for the Shoreham exercises.
23 MS. LETSCHE:
That's true, but that was again just 24 sort of general instructions that this is what you are 25 supposed to do.
It was none of the specifics as to what O
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happened.
2 MR. GLASS:
It did not show when the documents 3
were transmitted.
4 MS. LETSCHE:
That is right.
5 MR. GLASS:
But you were provided that.
You 6
referred before with the other plan that you did not have 7
the information about the simulator role.
You were provided 8
that plan.
9 MS. LETSCHE:
The general instructions, that is 10 true.
11 JUDGE MARGULIES:
The Board will take several 12 minutes to confer and come up with a decision.
13 (Brief recess.)
O 14 JUDGE MARGULIES:
On the record.
15 The Board will set the date for the filing of 16 contentions now based on any contingency.
The pacing 17 document was the FEMA report.
If documents come to light, i
18 they may very well raise the possibility of additional 19 contentions being filed at a later date.
20 We will set and we do set August 1st as the date l
21 for filing of contentions.
22 We set August lith as the date for filing the 23 reply, and August 18th as the date for the filing of a 24 response.
25 We set August 26th as the date for hearing oral
($)
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argument on the contentions.
Most likely the place of 2
hearing will be in this area.
3 That covers items (a) through (d).
4 The dates given for the filings are the dates for 5
the documents to be received in the hands of the Board and 6
of the parties.
7 Let me make one comment in reference to filings in 8
this proceeding.
It would be helpful if we designate future 9
filings in this proceedings as EP Exercise so we can keep a 10 separate file on the documents rather than using the 11 emergency planning designation we had used previously.
12 MR. LANPHER:
The same docket number?
13 JUDGE.MARGULIES:
And the docket number, and have O
14 in parentheses instead of emergency planning underneath the 15 docket number, EP Exercise.
16 It also would be quite helpful if the parties s
17 would place the date of the document on the front page of 18 the document if it runs more than a single page.
19 VOICE FROM THE AUDIENCE:
Judge Margulies, are the 20 people from Nassau County going to be allowed a limited 21 appearance hearing in Nassau County on the 26th?
22 JUDGE MARGULIES:
Madam, we ruled on that 23 previously earlier this morning.
It was one of the first 24 things that we ruled on.
We will permit limited 25 appearances.
We have not set the time and place, and we are O
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1 aware of the request to hold a limited appearance session in 2
Nassau County.
3 VOICE FROM THE AUDIENCE:
Thank you.
4 JUDGE MARGULIES:
We next come to the matter of 5
motions for summary disposition and discovery.
6 You have heard the comments of the Board at the 7
beginning of the proceeding that we are not in favor of any 8
novel approaches.
We think the current rules are good 9
enough to proceed by and very adequate to proceed by.
10 With that, I throw the discussion open.
i 11 MR. IRWIN:
Judge Margulies, I did not intend in 12 these suggestions to depart in any way that conflicts with 13 the rules.
We have tried to observe the structure of the O
14 rules and bear in mind simply the need and the goal of 15 expedition of the proceeding.
16 The difficulty with a normal pace toward hearing 17 as set up by the rules is that it is very difficult, 18 frankly, to get to a hearing from the time of a prehearing 19 conference such as less in less than about six or seven i
l 20 months, and that is just simply longer than we believe the l
21 Commission has in mind.
22 I don't want to do violence to the fabric of it, 23 but I believe that, first of all, the events at issue here, 24 namely, the conduct and exercise on one day are considerably 25 narrower than those of an application at large.
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1
' Secondly, there has been a great deal of voluntary 2
anticipatory discovery.
3 Third, the parties are all quite expert.
4 Fourth, the fact here are basically historic and 5
readily ascertainable.
6 I believe from past experience in this case as 7
well that the parties are capable of moving pretty fast.
8 What I was trying to do here was, keeping these 9
background factors in mind, think of what would be realistic 10 and reasonable time frames in which to try to do something 11 and, in addition, try to build in a way of dealing with the 12 problem that often a Board or parties are confronted with on 13 summary disposition motions, namely, that of dealing with O
14 where the respondent does not have sufficient information to 15 answer the summary disposition motion.
16 I think the Commission's order, CLI-86-11,
~
17 contains at page 6 a pretty halpful test for determining 18 what is information that is required but not available.
It 19 is a pretty narrow needle's eye for a respondent to get 20 through.
The sponsor of that kind of argument must convince 21 the Board that discovery is necessary and likely to produce 22 evidence supporting the existence of a genuine issue of 23 material fact.
24 My sense is that given the background of this 25 narrow proceeding there are not going all that many such O
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1 issues.
I concede that this structure is not required by 2
the regulations, but I don't think it is inconsistent with i
3 them and certainly LILCO is not going to go howling into the 4
wilderness if the Board does not adopt it literally.
I do 5
believe, however, it would work and would expedite things.
6 JUDGE MARGULIES:
Do you wish to be heard, Mr.
7 Bordenick?
8 MR. BORDENICK:
I would just simply say I did not 9
view anything that the applicant has suggested by way of the 10 schedule proposal to be a departure from what was provided 11 for either in the rules or in the Commission's decision in J
12 this case.
13 JUDGE MARGULIES:
Intervenors?
O 14 MR. LANPHER:
Judge, I prepared some views on this 15 given your comments that you are not favorably disposed, but 16 I don't want to take a lot of extra time.
I don't think 17 that LILCO's proposal will in fact lead to a savings of 18 time.
If LILCO wants to go that way and the Board thinks 19 that makes sense, sobeit.
I think it is going to lead to 20 arguments, do you have things or don't you have things.
I 21 The documents are not all self-explanatory.
We 22 have innumerable questions that are arising out of documents 23 we have seen already.
So I think it is leading to the 24 potential for the kinds of affidavits that LILCO is talking 25 about saying we cannot respond to this summary disposition
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1 motion because we have not had an opportunity for discovery.
2 I must say that LILCO's what I would call note in 3
their pleading, they make it sound benign enough, but if you 4
go and look at the case law, there are no NRC cases on this 5
that I know of.
This is a pretty novel approach.
NRC 6
decisions indicate that where there is no NRC president that 7
you go to the Federal Rules of Civil Procedure, and I don't 8
think this stands up under the Federal Rules of Civil 9
Procedure.
10 I am happy to give case cites if you wish it.
I 11 think we should follow the rules.
If you want to get into 12 specifics, LILCO talks about shortening the time for i
13 responses.
Before contentions have even been filed and
(
14 before motions are filed, how anyone can say that it would l
15 be in the interest of fairness, and that was a word that the 16 Commission used at page 6 of their June 6th order, it would 17 be in the interest of fairness to shorten these times, 18 before anything is done, none of us have that kind of 19 wisdom.
We don't know that.
20 So really probably the thing that makes the most 21 sense, Judge, is that this time just to say we are going to 22 follow the rules.
It is questionable whether we should even 23 be going beyond the schedule which you announced 10 minutes 24 ago.
After the Board rules presumably subsequent to August 25 26th, at that point we can set a schedule based upon the l C)
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1 discovery that is needed and build in summary disposition 2
after discovery, which is the normal practice in NRC 3
proceedings, and get on with things and we will know what we 4
are dealing with at that point.
5 JUDGE MARGULIES:
Mr. Irwin, any response?
6 MR. IRWIN:
Yes, sir, two points.
7 We agree with the Board's suggestion earlier this 8
morning that it is important to try to set schedules as far 9
ahead and in advance as possible, make sure they are 10 reasonable and stick to them.
11 There is obviously a lot of discretion invested in i
12 a Board and LILCO is willing to abide by the Board's 13 discretion in this matter in the interest of setting a O
14 framework that we live with and stick to later.'
15 I do think though that if we take a schedule which 16 is geared to the typical dates that are set forth in the 17 regulations for summary disposition, I think it that will 18 lead to a longer progress toward hearing on those issues 19 that were covered by summary disposition than the one that I i
20 have set out in our paper.
21 We should also bear in mind that we may want to 22 establish a parallel track for some issues as to which we 23 should go straight to hearing because we recognize that they 24 cannot be summarily disposed of.
25 So bearing that caveat in mind, we are willing to O
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1 abide by the Board's judgment as it sees the lay of the land 2
on this issue.
3 We are interested in getting to a hearing in a 4
sound fashion as quickly as possible.
There is an obvious 5
incentive for LILCO to finish this proceeding and I won't 6
belabor it, but it is there.
7 MR. LANPHER:
Judge Margulies, if I may be 8
permitted to say something.
If you are going to go with 9
LILCO's proposed schedule here, and let me just give the 10 specific comments, we have no problem with two weeks after 11 rulings for the filing of summary disposition motions.
We 12 have a very big problem with this idea of Part (f) that 13 there are only two weeks to respond to summary disposition O
14 motions.
Again, you don't know in advance how many motions 15 or what the subjects and all that.
16 We should just follow the rules.
2.749 allows 20 17 days.
If LILCO wants to build in an automatic opportunity 18 for a reply, that is not provided for in the rules.
What 19 ought to be provided for is someone wants to file a reply, 20 they file a motion for leave to reply, and if you want to 21 set a time limit within which that has to be done, that is 22 fine, but let's once again follow the rules.
23 We would propose, similar to our earlier proposal 24 on the contentions, that you set a time subsequent to 25 replies, if any are filed, for oral argument.]
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1 (Board conferring.)
2 JUDGE MARGULIES:
On the matter of summary 3
disposition, the Board rules that the procedures provided 4
for in the Rules of Practice will be followed in this 5
proceeding.
4 6
On the matter of setting a discovery schedule, it 7
would be premature at this time.
We don't know how many 8
contentions we will have to deal with or what is involved.
9 We will probably set the discovery schedule at the 10 time of holding the oral argument on the contentions.
11 It is also premature to rule on the filing of l-12 direct testimony and as to when the evidentiary hearing is 1
l 13 to begin.
14 We next come to the matter of the hearing 15 location.
16 Is there anything you wish to add to that, Mr.
17 Irwin?
18 MR. IRWIN:
Judge Margulies, LILCO has simply the j
19 concern that hearings be held in a secure location and that 20 they not be disrupted.
21 We have found that there are places on this Island 22 that although they are owned by governments that does not l
23 necessarily guarantee that the proceedings will be orderly.
24 Our witnesses, our documents and our case in the process as i
25 a whole will be aided if they are orderly.
l (:)
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1 Our experience in this building until this 2
morning, quite frankly, was that security was adequate 3
here.
The Board has broad powers of its own to enforce 4
discipline.
5 There are three federal, facilities that we are 6
aware of on the Island which we believe would be adequate.
7 We frankly desire to have our issues in an impartial forum, 8
and that includes not only the Board but to some extent the 9
atmosphere, and the buildings in which we have sat are those 10 owned and run by governments that are implacably hostile to 11 us.
12 We would be happier in a federal forum.
All we 13 ask is that the Board wherever we hold the hearings try to O
14 enforce order, and that is all we are asking.
15 JUDGE MARGULIES:
Mr. Bordenick.
16 MR. BORDENICK:
Members of the Board, normally the 17 Staff does not take a position as to where a hearing should 18 be held.
We appear when and where the Board orders the 19 hearing to be held.
20 However, in this proceeding we support the 21 applicant's request that hearings be held in a federal 22 facility, and as I understand it, there are three of them on 23 Long Island, and we believe, as does the applicant, that 24 holding the hearing, which after all is before a Federal 25 Board, in a federal facility will be more conducive to an ACE-FEDERAL REPORTERS, INC.
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1 orderly hearing.
2 JUDGE MARGULIES:
Intervenors.
3 MR. BROWN:
Yes. I am perplexed by what is the 4
patent silliness of what I heard through innuendo alone in 5
Mr. Irwin's comments, and I think that what would be most 6
important is for him to give us the particulars as to what 7
he is afraid of.
8 I know that we have had many, many hearings in 9
county facilities where county policy officers have been 10 made available I think at no charge.
They have done, I 11 would suspect this Board would agree, just an exceptional 12 job.
13 The state facilities have been made available and i (:)
14 people have bent over in ways far beyond that which would 15 expected by any government to make accommodations available.
16 I think the appropriate words from Mr. Irwin might 17 be thank you at this point rather than silly innuendo.
18 I mean I don't know what threat he is talking 19 about.
Is he saying that there is a threat of terrorist 20 attack here?
Is he saying somehow he is afraid or his life,.
21 is threatened or mine is?
I would like to know if he knows 22 something that we ought to know.
23 If his concern though is simply that people spoke 24 out of order here and thus speaking out of order is 25 justification to call upon the use of a federal facility O
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which is neutral in all kinds of fundamentally silly words 4
2 that add no content whatsoever, I think he ought to spell it 3
- out, i
1 4
As far as I am concerned and speaking for the 5
Country and I think I express the views of Mr. Latham, and-6 the State will speak for itself, we under no circumstances-7 would consent to doing anything at Brookhaven National 8
Laboratory.
Why that would be a joka extordinaire.
People
~
9 at that laboratory repeated sued Suffolk County, and if the i
i 10 thesis of Mr. Irwin is somehow there is an abstract 11 neutrality that one can sense from the air, that is one d
12 abstraction we can do without.
4 l
13 Now could we settle for a facility in Nassau I' O 14 County, because it is the custom and practice of the NRC 15 since 1954 that hearings are in the " vicinity of the 16 plant."
17 So if there were some facility other than a county j
18 or a state facility in Suffolk County, and not Brookhaven 19 National Laboratory, which were convenient to the parties i
20 and to the Board, we wouldn't object.
But we certainly
{
21 aren't prepared to' sit by and listen to silly talk be made r
22 aboud some kind of sub rosa or subsilential threat that he y
i 23 perceives of people coming over the wall after us.
i And aus' for, the concurrence of Mr. Bordenick, I j
24 J-25 don't know if he has the foggiest notion of why he even s
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1 agreed, and I would love to know what his rationale is.
2 JUDGE MARGULIES:
Well my observation, Mr. Brown, 3
was that of a bunch of disorderly spectators here today 4
waving signs, speaking out of turn, shouting out and placing-5 signs up here on the bench.
6 Based on the prior history of this facility the 7
Board did not arrange for security because the past history 8
has been one of proper decorum in this hearing room, but 9
certainly what went on today wasn't representative of what 10 could or should be expected in any hearing room in which any-11 proceed.ing is conducted.
12 It may be possible to obtain adequate security to
~
13 prevent that from happening again here.
But wherever we do O
14 hold our hearings, we will assure that the facility is 15 secure and not disrupted.
16 Our preference is to hold proceedings in'a federal 17 courthouse where that is possible.
The next step down has 18 been to hold hearings in a state courthouse because of the 19 security that can be provided.
20 Our intent is to see that security is provided for__
21 everyone, the parties, the Members of the Board as well as 22 the spectators and we will do what is necessary to obtain 23 such a facility.
24 Is there anything further?
25 (No response.)
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5 1
There being nothing further, the conference is 2
closed.
3 (Whereupon, at 2:10 p.m.,
the prehearing 4
conference in the above-entitled matter concluded.)
s 5
6 7
8 9
10 11 12 13 (Q./
14 15 16 17 18 19 20 21 22 23 24 25 O
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CERTIFICATE OF OFFICIAL REPORTER O
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
DOCKET NO.:
50-322-OL-3 PLACE:
HAUPPAUGE, NEW YORK i
DATE:
TUESDAY,~ JULY 8, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
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(sigt)/
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(TYPED) b' Official Reporter Reporter's Affiliation f
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