ML20055A935

Response to Util 820709 Motion to Compel Suffolk County to Produce Documents Requested in Util 820602 Submittal.Request Should Be Considered Informal Request & Parties Should Agree on Schedule for Compliance.W/Certificate of Svc

ML20055A935
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/16/1982
From:	Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8207200145
Download: ML20055A935 (7)

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9' 07/16/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG ISLAND LIGHTING COMPANY DocketNos.50-322(OL)

(ShorehamNuclearPowerStation, Unit 1)

NRC STAFF RESPONSE TO LILCO'S MOTION TO COMPEL DISCOVERY ON EMERGENCY PLANNING On July 9, 1982, the Long Island Lighting Company (LILCO) filed a motion seeking an order compelling Suffolk County (the County) to produce the documents requested in "LILCO's First Request to Suffolk County for Production of Emergency Planning Documents," dated June 2, 1982. On July 1, 1982, the County submitted its response to the LILCO document request which essentially objected to the discovery request on the ground that the Board's Prehearing Conference Order of April 20, 1982, divided emergency planning issues into two categories -- those pertaining to the LILCO plan, and those pertaining to the County plan -- and established a schedule for the submission of emergency planning contentions based on LILC0's emergency plan. Order, p. 7. The Board's Order also stated:

"All discovery of existing documents related to emergency planning should be completed as soon as possible, and no later than June 22." Order at 8; See also Tr. 804.

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The sum and substance of the dispute between LILCO and the County on this matter appears to be that LILCO has interpreted the Board's order literally as requiring all discovery of existing documents related to emergency planning (both LILC0 and County plans) to be completed by June 22, 1982, whereas the County has interpreted the Board's order in conjunction with its bifurcation of the emergency planning issues and believes that discovery should commence only with respect to the LILC0 plan.

The Staff normally does not take a position regarding discovery disputes between other parties. However, in this instance the dispute involves an interpretation of a Board order and a Comission regulation.

Acco-dingly, we believe our comments might aid the Board in its resolution of the dispute.

Since the Board has bifurcated the emergency planning issues and established a schedule for the submission of contentions and testimony on LILC0's emergency plan only, it appears reasonable to the Staff that the Board's direction that "all discovery of existing documents related to emergency planning should be completed as soon as possible, and no later than June 22" referred to formal document discovery of LILC0's plan to ensure that the established schedule relating to those issues was met.

This interpretation is also reasonable in light of the fact that contentions with respect to the County plan have not been formulated or ruled upon by the Board. Pursuant to 10 C.F.R. 5 2.740(b)(1), discovery "which is relevant to the subject matter involved in the proceeding . . .

l shall begin only after the prehearing conference . . . and shall relate l

only to matters in controversy which have been identified by the l

O Commission or the presiding officer in the prehearing order . . .".

Similarly, " discovery will not be permitted until the matters in controversy have been preliminarily identified." Statement of Consideration, 37 Fed. Reg. 15127, 15128 (July 28, 1972). Accordingly, the Staff's interpretation of this regulation and the Board's Prehearing Conference Order, would lead us to conclude that only matters pertaining to LILC0's emergency plan have been preliminarily identified at this juncturd/ and that discovery could commence on those issues. Indeed, it is not certain at this point (at least in Staff's mind) what issues will be framed by intervenors with respect to the County plan. Therefore, any discovery pertaining to the County plan could theoretically have no metes or bounds since there are no matters in controversy. This being so, there is no way that the Board can rule on any objections on the grounds of relevancy.2_/

-1/ We recognize that the Board's Order of April 20, 1982, did not rule upon any emergency planning contentions. However, the Board's Order (p. 7) did preliminarily identify potential subject matter pertaining to LILC0's plan and it is certain that contentions on LILC0's plan would be formulated in time for the Board to rule on discovery objections.

-2/ As stated in Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 at 492 (1977)

(citing Broadway & Ninety-Sixth Street Realty Co. v. Loew's Inc.,

21 F.R.D. 347, 352 (5.D.N.Y. 1958):

practical consideration [s] dictate that the parties should not be permitted to roam in shadow areas of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.

This is not to say, however, that informal discovery procedures should not be utilized in the absence of admitted contentions. In fact, the Board encouraged the parties to use such procedures. See Order,

p. 8. Thus, under our interpretation of the Board's Order and 10 C.F.R. 6 2.740(b)(1), LILC0's request for production of documents should be considered an informal document request and the parties should agree upon a reasonable schedule for compliance without the Board's intervention.1/

If the documents are still not produced when County emergency planning issues are formulated, LILC0 at that time can seek a Board order compelling production.

Respectfully submitted, Richard L. Black Counsel for NRC Staff Dated at Bethesda, Maryland this 16th day of July, 1982.

-3/ At this point, the Staff would rather have the County concentrate its efforts on completing its emergency plan by the October 1,1982 established schedule, than on time consuming document searches.

However, the County should recognize the legitimate need of all parties to have copies of pertinent material and information as it becomes available in order to ensure a timely completed hearing process. Thus the County should release documents pertaining to its emergency plan when they are completed without a formal request.

O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Ma+.ter of LONG ISLAND LIGHTING COMPANY Docket No. 50-322 (0L)

(Shoreham Nuclear Pcwer Station, Unit 1)

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO LILC0'S MOTION TO COMPEL DISCOVERY ON EMERGENCY PLANNING in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nucle 6r Regulatory Commission's internal mail system this 16th day of July, 1982.

Lawrence Brenner, Esq.* Ralph Shapiro, Esq.

Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street U.S. Nuclear Regulatory Commission New York, NY 10016 Washington, D.C. 20555 Dr. James L. Carpenter

• Administrative Judge Howard L. Blau, Esq.

l Atomic Safety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Commission Hicksville, NY 11801 Washington, DC 20555 Dr. Peter A. Morris

• W. Taylor Reveley III, Esq.

Administrative Judge Hunton & Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission Richmond, VA 23212 Washington, DC 20555 Cherif Sedkey, Esq.

Matthew J. Kelly, Esq. Kirkpatrick, Lockhart, Johnson Staff Counsel & Hutchison New York Public Service Commission 1500 Oliver Building 3 Rockefeller Plaza Pittsburgh, PA 15222 Albany, NY 12223

Stephen B. Latham, Esq.

John F. Shea, III, Esq. Herbert H. Brown, Esq.

Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq.

P.O. Box 398 Kirkpatrick, Lockhart, Hill, 33 West Second Street Christopher & Phillips Riverhead, NY 11901 1900 M Street, N.W.

8th Floor Washington, D.C. 20036 Atomic Safety and Licensing Board Panel

• Docketing and Service Section*

U.S. Nuclear Regulatory Comission Office of the Secretary Washington, D.C. 20555 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel

• U.S. Nuclear Regulatory Commission Washington, DC 20555

%Wk Rictard L. Bla/k Counsel for NRC Staff i

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. COURTESY COPY LIST Edward M. Barrett, Esq. Mr. Jeff Smith General Counsel Shoreham Nuclear Power Station Long Island Lighting Company P.O. Box 618 250 Old County Road North Country Road Mineola, NY 11501 Wading River, NY 11792 Mr. Brian McCaffrey MHB Technical Associates Long Island Lighting Company 1723 Hamilton Avenue 175 East Old Country Road Suite K Hicksville, New York 11801 San Jose, CA 95125 Marc W. Goldsmith Hon. Peter Cohalan Energy Research Group, Inc. Suffolk County Executive 400-1 Totten Pond Road County Executive / Legislative Bldg Waltham, MA 02154 Veteran's Memorial Highway Hauppauge, NY 11788 i David H. Gilmartin, Esq.

Suffolk County Attorney Mr. Jay Dunkleberger County Executive / Legislative Bldg. New York State Energy Office Veteran's Memorial Highway Agency Building 2 Hauppauge, NY 11788 Empire State Plaza Albany, New York 12223 I

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