ML20023A765

Response to Suffolk County 821002 Motion to Suppl QA Witness Panel.Request Is Out of Time,Is Impermissible Attempt to Suppl County Direct Testimony & Is Different from Earlier Approved Panel Suppls.Certificate of Svc Encl

ML20023A765
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/14/1982
From:	Twana Ellis HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8210200003
Download: ML20023A765 (12)

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. / .;9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

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(Shoreham Nuclear Power Station, )

Unit 1) }

s LILCO'S OPPOSITION TO SUFFOLK COUNTY'S MOTION TO SUPPLEMENT ITS QA WITNESS PANEL On October 2, 1982, LILCO received a Suffolk County motion to supplement its OA witness panel with Messrs. Inskeep and Bland. LILCO opposes this motion.

The County's request should be denied because:

(1) it is grossly out of time; (2) it is an impermissible attempt to supplement the County's direct testimony; and (3) it is distinguishable from the sup-plementation of LILCO's witness panels approved by the Board during the early stages of this proceeding.

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I.

The Motion is Grossly Out of Time Suffolk County filed its QA testimony on June 29th.

Thus, it has waited over three months to file the present motion seeking to supplement its OA panel.1/

Earlier in this proceeding, there was supplementation of certain panels and much Board guidance on how it should be accomplished. On July 27, the Board noted that " hopefully we 1/ On July 29, counsel for the County vigorously opposed sup-plementation of the Staff's ATWS panel (a supplementation that the Staff did not altimately seek to make). Mr. Lanpher stated:

With respect to the staff's situation, we strongly oppose the addition of other witnesses at the last minute, and this is really the very last minute they have had.

I suppose it may be prompted by Mr. Minor's testimony and some of the PRA things that are mentioned in that that the staff would want Mr. Thadani. I am not sure. This is the first, literally the first I have heard. But that testimony by Mr. Minor has been filed since, I guess, the 29th of June. It is just too late, and so in~

advance you have our position. I have gone through this a lot of times before. This strikes me as one of the latest times we have gotten such notice . . . .

Tr. 8343 (emphasis added). Like the ATWS testimony to which Mr. Lanpher referred, LILCO's and the County's QA testimony was also filed on June 29. The County's motion to supplement comes even two more months out of time than the Staff's, however, and after two weeks of testimony by LILCO's OA panel. In Mr.

Lanpher's terms, "It is just too late . . . ."

are now past the catch-up mode for everyone, and parties can use the break to assess what is coming ug and make a determination as to which panels the party wishes to supplement, if any, and advise everyone promptly." Tr. 7924 (Brenner, J.) (emphasis added). Despite the fact that the County's proposed QA witnesses were in its employ in late July

-- when the foregoing Board guidance was given -- the County waited eight weeks to file a motion seeking to add them to its-QA panel. ,

Accordingly, the County has not " advise [d] everyone promptly" of its desire to supplement. SC has known the cur-

, rent composition of its QA panel for over three months. It heard the Board's guidance of July 27th. It had already then

.n engaged the two people whom it now seeks to add to its OA panel. Equally unfortunate, the County waited to file its motion until it had completed two weeks of cross-examinat ion of LILCO's QA panel. It follows that the County's request is prejudicially late; it would not be fair to permit a party' to l

let events progress to the point they have progressed in the QA context and then add witnesses to its direct testimony.

l Significantly, SC has offered no explanation why the untimeliness of its motion is acceptable. It has offered no explanation despite the Board's direction on July 27 that, henceforth, any party seeking to supplement a panel must l

provide its " reason as to why earlier notice could not have been given." Tr. 7924. The County's silence in the face of this requirement is telling.

II.

The County Seeks Impermissibly to Supplement its Direct Testimony We believe that the purpose of the County's motion is to add witnesses to its QA panel to address matters not included in the County's prefiled direct testimony. First, the County points to the fact that the proposed witnesses have been reviewing QA materials since late July. Among those spe-cifically mentioned are engineering assurance audits and field quality control audits. Yet the County's direct testimony I

makes no mention of these documents. Second, only recently has the County begun to state, with some particularity, what it meant by its allegations that " patterns" of "QA breakdowns" exist. We believe the County hopes that adding these witnesses will give them the opportunity to address these alleged " pat-terns of QA breakdowns" and the related documents without having filed any written testimony on tl.e subject. Third, as noted already, the County's motion was filed against the back-ground of two weeks of testimony by LILCO's QA witnesses.

Thus, italsoseemslikelythattheproposedSCwitnesseswoulf focus on the testimony given by LILCO's witness panel. In I

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Other words, the County seeks to give rebuttal testimony without leave of the Board and without giving LILCO the benefit of prefiled written testimony. Consequently, the County's request is unfair and improper.

III.

LILCO's Supplementation of its Witness Panel is Distinguishable 4 The instances in which LILCO supplemented its witness l

l panels can be distinguished from the County's pending motion.

Most important, LILCO's motions involved the addition of wit-nesses who had direct and substantial knowledge of the facts i

set out in the prefiled direct testimony. The Shoreham plant I is a complex undertaking with scores of people in'volved in each aspect of the project. Thus, no one person is uniquely knowledgeable about any particular aspect. Since, in most cases, the County's contentions cut across several disciplines, LILCO's original witness panels generally involved engineers with broad responsibilities in the subject matter of a conten-tion. When the Board made known its desire to have witnesses with more detailed knowledge of the subject matter, specialists were added to panels. In other words, all of LILCO's witnesses had direct knowledge of the facts contained in the prefiled direct testimony but the new witnesses added the capability to respond to the Board's and County's questions in substantially greater detail than had previously been the case.

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An example may be illustrative. Mr. John Eigert sub-mitted prefiled testimony on SC Contention 2 7 -- Regulatory Guide 1.97. Mr. Rigert is the engineer responsible for the overall implementation of Regulatory Guide 1.97; he is a member of the BWR Owners' Group Committee on Regulatory Guide 1.97.

Thus, his testimony was based on his knowledge of all aspects of the guide. When LILCO supplemented the Regulatory Guide panel, it merely added specialists who had been involved in particular aspects of Regulatory Guide 1.97 implementation.

Mr. Kreps, a plant operating consultant, had been involved in assessing the need for new instruments from an operational standpoint. Mr. Baron was the engineer in charge of the design and procurement of radiation monitoring systems. And Mr.

Schmitt was responsible for instrumentation used in assessing radiation releases from the plant. Thus, LILCO added witnesses with direct knowledge of particular aspects of the plant --

aspects already included in the direct testimony.

Supplemental witnesses of the sort proposed by the County are not the sort of witnesses offered by LILCO and described by the Board when it called for supplementation on June 2, 1982. As Judge Brenner stated:

We believe . . . that not all the right witnesses have been here. . . .

- - - - . , , , , . - ..n

Y We are not talking about new direct testimony. We are talking about sit-uations where the conclusions and perhaps some aspect of the analyses are already in the direct testimony, but they are there because a witnese in some other discipline helped supply that piece of the picture . . . to the named witness.

Tr. 3136.

Messrs. Inskeep and Bland do not qualify under these criteria. They do not have direct knowledge of OA matters at Shoreham. Nor were they involved in the development of any information that formed the basis for Mr. Hubbard's testimony.

Instead, their basic function would be to add new testimony to Mr. Hubbard's June 29th effort, and much of the new testimony would be rebuttal in nature.

Judging by their statements of qualifications, neither l

Messrs. Inskeep nor Bland had anything whatsoever to do with nuclear power plants until 1979. Rather, Mr. Inskeep's experi-ence seems to be in the area of procurement quality assurance l

for the manufacture of aerospace equipment. None of Mr.

Hubbard's testimony deals with procurement QA for the <

manufacture of equipment for Shoreham. Thus, there is no clear link between Mr. Inskeep's experience and Mr. Hubbard's testi-i mony. Moreover, as far as can be determined from his resume, Mr. Inskeep has no experience in the development or imple-mentation of a OA program for a nuclear power plant, or any other major construction project.

. . 1, Similarly, nothing in Mr. Bland's credentials makes obvious what, if any, portions of Mr. Hubbard's testimony he is qualified to sponsor. Like Mr. Inskeep, Mr. Bland has no expe-rience in the development or implementation of a OA program for a nuclear power plant, or any other major construction project.

In short, the County has not approached a showing that its pro-posed witnesses are needed to support Mr. Hubbard's testimony

-- or, indeed, are even qualified to support it. Indicatively, we have received no answers from the County to pertinent t inquiries made in the attached letter.

Conclusion For the reasons stated above, Suffolk County's motion to supplement its OA witness panel should be denied.

Respectfully submitted,

, LONG ISL D LIGHTING COMPANY l

l J Ub T. S .V Ekbls, III Anthoa 'F. Earley, Jr.

Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: October 14, 1982 HU NTON Sc WILLI AM S 707 EAST MAIN sintci P. o. Box 1535 e o . t .unoisse Rxcuwown, VznorwrA nacta .... ,cun.,ty.. avc = u c, n. w.

m o. .on so. P. o. .ox i.aao satcion, NomTM samouMA 37..a waswehotoN, a c. aooa.

c as. .a.. . a r s TELEPHONE 804-788-6200 aca.aaa..oso rei.? vlAGINIA .ANA Towch

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October 12, 1982 o .cc, o..o no. ... r.. 8453 BY HAND Lawrence Coe Lanpher, Esq.

Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.

Washington, D.C. 20036

Dear Larry:

Please provide the following information to us in writing tomorrow so that we can adequately respond by Thursday to the County's motion to supplement its OA witness panel with two additional witnesses:

1. When were each of the new proposed witnesses contacted and when were they retained by the County or its agents or attorneys?

2. Were either of the two proposed witnesses retained to participate in the preparation of the County's pre-filed QA testimony?

3. Did either proposed witness actually l participate in the preparation of the County's pre-filed QA testimony?

4. For what purpose did the County retain each of the proposed witnesses?

5. If either or both witnesses did not partici-pate in the preparation of the County's pre-filed l

QA testimony, is either witness required to support  !

Mr. Hubbard's testimony or can Mr. Hubbard ade-quately support his own testimony?

l

6. If either proposed witness is required to support any portion of Mr. Hubbard's testimony, identify each such pcrtion.

l IIUNTON Oc WILLIAMS l

l Lawrence Coe Lanpher, Esq. I October 12, 1982 Page Two

7. Identify each portion of the County's pre-filed testimony that each witness will sponsor.

(You may just wish to confirm, as I believe your motion states, that both witnesses adopt the entire testimony.)

8. Do either of the witnesses have first-hand knowledge concerning QA matters at Shoreham and, if so, identify such knowledge and the source of such knowledje.

9. Do either of these witnesses have any factual knowledge regarding Shoreham QA matters that Mr. Hubbard does not have and, if so, identify such factual knowledge.

10. Has either of the proposed witnesses ever visited Shoreham or inspected any portion of Shoreham?

11. Did either of these proposed witnesses participate in a review of the LILCO audit docu-ments now being used in cross-examination and, g! if so, when were these proposed witnesses first 96 given this information and when did they first review it?

We appreciate your prompt response to this request so that we can accurately present our position to the Board on the County's motion.

Best wishes. .

Sincerely, T. S. Ellis, III 75/403 bc: Mr. Brian R. McCaffrey

CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 (OL)

I hereby certify that copies of LILCO'S Opposition to Suffolk County's Motion to Supplement its OA Witness Panel were served upon the following by first-class mail, postage prepaid, by Federal Express (as indicated by an asterisk), or by hand (as indicated by two asterisks):

Lawrence Brenner, Esq.** Secretary of the commission Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory Dr. Peter A. Morris ** Commission Administrative Judge Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory

! Washington, D.C. 20555 Commission I Washington, D.C. 20555 Dr. James H. Carpenter **

Administrative Judge Daniel F. Brown, Esq.

Atomic Safety and Licensing Attorney Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D.C. 20555

Bernard M. Bordenick, Esq.** David J. Gilmartin, Esq.

Richard L. Black, Esq. Attn: Patricia A. Dempsey, Esq.

David A. Repka, Esq. County Attorney U.S. Nuclear Regulatory Suffolk County Department of Law Commission Veterans Memorial Highway Washington, D.C. 20555 Hauppauge, New York 11787 Herbert H. Brown, Esq.** Stephen B. Latham, Esq.

Lawrence Coe Lanpher, Esq. Twomey, Latham & Shea Karla J. Letsche, Esq. 33 West Second Street Kirkpatrick, Lockhart, Hill, P. O. Box 398 Christopher & Phillips Riverhead, New York 11901 8th Floor 1900 M Street, N.W. Ralph Shapiro, Esq..

Washington, D.C. 20036 Cammer and Shapiro, P.C.

9 East 40th Street )

Mr. Mark W. Goldsmith New York, New York 10016 l Energy Research Group 4001 Totten Pond Road Howard L. Blau, Esq.

Waltham, Massachusetts 02154 217 Newbridge Road Hicksville, New York 11801 MHB Technical Associates 1723 Hamilton Avenue Matthew J. Kelly, Esq.

Suite K State of New York San Jose, California 95125 Department of Public Service Three Empire State Plaza Mr. Jay Dunkleberger Albany, New York 12223 New York State Energy Office Agency Building 2 Empire State Plaza Albany, New York 12223 I

T. S/ s, III Anth ny F. Earley, Jr.

Hunton & Williams 707 East Main Street

• P.O. Box 1535 Richmond, Virginia 23212 DATED: October 14, 1982 L . . . .