ML20063G868
| ML20063G868 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/30/1982 |
| From: | Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8209010191 | |
| Download: ML20063G868 (23) | |
Text
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h UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 12 A80 30 g(
StC t,:
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 0.L.
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(Emergency Planning (Shoreham Nuclear Power
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Proceedings)
Station, Unit 1)
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RESPONSE OF SUFFOLK COUNTY TO THE NRC STAFF'S AND LILCO'S OBJECTIONS TO PHASE ONE CONSOLIDATED EMERGENCY PLANNING CONTENTIONS On July 27, 1982; the Board ordered the intervening parties to submit by August 20, 1982 revised Phase I Emergency Planning Contentions reflecting the County's review of LILCO's revised emergency plan (submitted to the NRC on June 28, 1982) and the Board's request for consolidation and further particu-larization of some contentions.
Pursuant to the Board's Order, counsel for Suffolk County met on June 26, 1982 with counsel l
for LILCO, the NRC Staff; SOC and NSC in a meeting lasting the 1
entire day.
During that meeting; the parties discussed in de-l tail a majority of the emergency planning contentions.
At an-other meeting held on the afternoon of August 3, counsel for Suffolk County and LILCO met again to discuss the remaining contentions.
r209010191 820830 PDR ADOCK 05000322 O
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As a result of those meetings and further conversa-tions among counsel for intervening parties, the Phase I emer-gency planning contentions underwent substantial revision and consolidation.
In addition; based npon review of LILCO's re-vised emergency plan of June 28 and documents obtained during discovery, Suffolk County dropped contentions concerning the Safety Parameter Display System (SPDS), human factors and a mobile radiological laboratory.
As the Board ordered; counsel for Suffolk County transmitted a draft of the revised contentions to counsel for LILCO and the NRC Staff on August 16.
The County submitted its Phase I Emergency Planning Contentions on August 20, 1982.
LILCO and the Staff filed their objections to that pleading on August 24.
The Board has ' requested that the County limit its instant Response in order to avoid rearguing points that have previously been argued.
In that spirit, this Response will address generally some recurring themes in LILCO's and the Staff's objections and meet only a limited number of specific objections which raise argaably new matters.
With respect to the former, the County takes issue with LILCO's suggestion (LILCO Objections at 2-5) that the County has been dilatory in pursuing settlement and that, as a result, certain contentions deemed by the Board to be susceptible to settlement (see, e.g.,
LILCO Objections to EP 2D and ED 2E) should be struck.
In so doing; LILCO has mischarac-terized its actions and the County's posture with respect to settlement.
The County has received draft settlement proposals from LILCO on several contentions.
None of those proposals has yet been accepted by the County; not for the reasons for dila-tory practice which LILCO implies; and not for lack of interest in resolving those issues that can be resolved.
Indeed, the County precipitated a number of LILCO's proposals by requesting revised settlement language in LILCO's plan at the meetings discussed above.
The County has expressed to LILCO several times in recent weeks that while the County was interested in pursuing resolution of issues, the virtually full-time deposition sched-ule established by the parties; calling for depositions every day from August 6 through August 27 (sometimes with two deposi-tions running simultaneously), would preclude the careful re-view that such proposals required until after completion of the depositions.
As the County informed counsel for LILCO, every attorney for the County involved in emergency planning was tak-ing a deposition or preparing for one almost every day during that period of time (including Saturdays and Sundays).
- Thus, it was obviously necessary to defer settlement discussions until the parties completed depositions. w
Moreover, and despite knowing full well of the prac-tical considerations which stood in the way of settlement meet-ings, LILCO's counsel persisted in sending letters to the County complaining that the County wss not pursuing settlement at a pace satisfactory to LILCO.
Those letters were compiled and attached to LILCO's objections, thus raising the question whether the letters were written more for the purpose of creat-ing a paper record than of seeking meaningful settlement of the issues.
It is noteworthy that LILCO did not include in its attachments the County's letter of August 23 which proposed a date certain for settlement discussions to begin; an offer which LILCO has accepted.
Rather, LILCO relegated the County's offer to a footnote (LILCO Objections at 3) stating, "We do not find it necessary to attach this letter to the pleading
" The County has attached its August 23 letter to this plead-ing.
The County intends to pursue settlement discussions with LILCO, or any other party where the County perceives the other party to have a reasonable position and an inclination to reach a settlement consistent with the interests of the County's residents.
With a new interim testimony filing date of October 12, the emergency planning schedule should offer sufficient time for such discussions.
Nevertheless, in recog-nizing that some issues may be susceptible to settlement, the Board should not base the admissibility of a contention on such a consideration.
Whether a contention may be settled or not is irrelevant to its admissibility, and LILCO ci'tes no authority to the contrary.
A contention is admissible if it is relevant, particularized, and not a challenge to the regulations.
Indeed, if a contention were not admitted because it appears likely to settle, LILCO would have little incentive thereafter to enter into a settlement on that issue.
The County therefore respectfully submits that LILCO's assertions that contentions should be struck merely because the parties have~ not yet reached agreement on those issues is_ illogical, and without
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legal. basis.
LILCO also states in its Objections at 4 that the emergency planning " contentions have hardly changed from the original contentions the County filed two months ago."
Even a cursory glance at the contentions filed on August 20 reveals that LILCO's complaint is without merit.
As noted above, the
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contentions have undergone substantial changes in language to meet the Board's standards of particularization and consolida-tion.
In fact, some contention ~s were dropped based on contacts between the parties.
Where a contention has not undergone sub-stantial narrowing, it is based on the County's belief that the contention adequately states the issue and that all of the par-ties understand the nature of the contention.
A number of
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LILCO's objections on grounds of particularity imply that without further particularity it cannot understand the conten-x_
tion.
It is' clear; however, that LILCO understands quite.well
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the thrust of the County's contentions.
Indeed, if LILCO
's really had not under stood a number of the contentions due,to 'a.;
s.
perceived lack of particularity; it would have been in ne posi-
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tion to offer settlement language on those precise contentions.
/1 While LILCO and the Staff suggest that a number of si the contentions remain insufficiently particularizech'some of their comments suggest that they are using the concept of par-I ticularization to eliminate, rather than refine, the County's contentions.
As an example, LILCO's Objections at 11 state that Contention 2D should be more particularized to list "the facilities the County alleges are to be notified through tone alerts.
As LILCO knows, the facilities'are listed in
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LILCO's own report prepared by Wyle Labs.
In fact, LILCO' (through Wyle Labs) designed the tone alert system.
Thus, the objection clearly lacks merit.1/
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l In addition to the above general responses, the County responds to particular objections as follows:
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If LILCO truly needs to know where the tone alerts'are to be installed, the County hereby directs LILCO's a?tention i
to the LILCO's own Wyle Report at H-1 through H-8.
f s
e x
N EP 1 LILCO -and the Staff complain that EP 1, which alleges
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at length that the plan as a whole is flawed for not being cap-able of implementation, is still overly broad and lacking in parti culari ty.
Their comments miss the point of EP 1.
Whatever breadth EP 1 has mirrors the breadth of the flaw in LILCO's plan.
That is, nowhere is'it apparent that LILCO has developed its plan with consideration of the local conditions which the County has enumerated.
It is not possible to cite a page or a paragraph Which is the " smoking gun" in LILCO's plan.
The plain fact is that LILCO ignored the real conditions and real behavior of people on Long Island when it prepared its plan.
Its error, therefore, is more in What it left out of its plan than Whst it put in.
In' developing a plan that fails to take into account the social and behavioral characteristics of the people of Long Island and the environment within Which they reside, LILCO has failed to addrera'locai conditions which have an impact upon l
protective ' action recommendations (particularly evacuation i
. E-s versus sheltering), notification of the public, public educa-tion, and ' radiation monitoring systems, among others.
The con-tention as it now exists has further defined with particularity the local conditions that LILCO has ignored and explains the impact of their absence upon emergency planning for Shoreham.
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Any further particularity would change EP 1 from a contention to a detailed brief, which is not required under any rules of pleading.
Thus, the objections of LILCO and the Staff on grounds of particularity are without basis.
LILCO and the Staff further suggest that the County has not tied EP 1 to any particular emergency planning stan-dard.
That suggestion; however; is inaccurate.
Section 50.47(a) of 10 C.F.R.
sets forth the standard that emergency plans must give " reasonable assurance that adequate protective measures can and will be taken in the, event of a radiolocical emergency."
Furthermore, an applicant's plan must offer rea-sonable assurance that it "can be implemented." EP 1 alleges with specificity that LILCO's plan does not meet these regula-tory standards.
Finally; LILCO argues that EP 1 is redundant to other contentions.
This objection ignores the thrust of EP 1.
No other contention takes issue with LILCO's methodology in pre-paring its emergency plan in ignorance of the actual local con-ditions and human behavior of the public which would be affec-ted by an accident at Shoreham.
The County believes that the LILCO plan, as a whole, should be rejected by the Board and that LILCO should be ordered to prepare a plan which takes into account the real conditions in which Shoreham exists.
In l
short, the mere " paper plan" which LILCO has prepared is l
l unworkable in the real world of Long Island.
Without taking into account the conditions that the County has detailed, LILCO's plan will be neither capable of being implemented nor a basis for integration with the County's plan, as required by 50.47.
EP 5 The Board at Tr. 9716 asked the County to address the following sentence which appears in EP 5:
In addition, LILCO has not assessed the relative benefits of various protective actions under the particular conditions existing in the Shoreham vicinity.
Contrary to LILCO's assertion (LILCO Objections at 17) that the preceding sentence is vague, in fact it specifically points out a vital flaw in LILCO's plan.
Nowhere in LILCO's plan are pro-tective actions discussed in the context of conditions existing on Long Island.
For instance, nowhere is the feasibility of I
l evacuation discussed in terms of the actual topography of Long Island, and there is no discussion of the evacuation shadow phenomenon.
Nor is there a discussion of the relative benefits 1
of sheltering in the types of homes found on Long Island.
Without knowing the shelterino characteristics of houses as built on Long Island, LILCO cannot determine the adequacy of 4
shelter that such houses will afford.
Thus, it cannot offer adequate, protective action recommendations to State and County authorities as required by $50.47(b)(10).
Without considera-tion of such conditions, LILCO's plan is fatally flawed.
EP 13 In EP 13A the County has asserted that there is miss-ing information in specific EALs.
The Staff has responded (Staff Objections at 7) that "most of the blanks relating to instrumentation will be filled in later as a result of start-up testing fThus] the assertions fail to establish a litigable concern of safety significance because the informa-tion must be provided prior to fuel load."
The County has dis-cussed this issue with the Staff and LILCO and related its willingness to resolved the issue subject to a commitment by LILCO that all blanks and missing information in the EALs be completed prior to commencement of fuel load.
The Board should admit the contention, however, pending final resolution among the parties.
With respect to 13B, the Board has noted that there are two references to FSAR Section 15.1.13.
This was a typo-graphical error, and one of those references should be changed to Section 15.1.12.
I l
EP 14C Pursuant to an earlier resolution of contention f
28a(iii) (Iodine Monitoring), the County introduced in its August 20 filing a new iodine monitoring contention _(EP 14C).
The main issue in EP 14C is that the stack iodine sampling sys-tem is subject to large errors during the important period of release following an accident.
The periods of inaccuracy may be as long as 1-200 hours.
This is shown graphically, in the LILCO settlement report on 28(a)(iii), in the graph marked
" transmission factor."
Specifically, figure 2 of that agree-ment shows the results of a concentration of iodine at the inlet to.the stack in terms of the iodine collected and moni-tored for use in emergency planning decisions.
The curve shows iodine as an increasing function which peaks at approximately 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> after the initiation of the accident Whereas the ratio of the quantity of iodine collected to the iodine at the inlet of the sampler approaches unity only after more than 200 hours0.00231 days <br />0.0556 hours <br />3.306878e-4 weeks <br />7.61e-5 months <br />.
The delay is several days; far more than should be allowed if timely decisions are going to be based on this data.
LILCO plans to use a correction factor Whereby they will multiply the reading by a factor of 7 or 8 to correct for these inaccuracies due to plateout.
In some cases this may result in excessively conservative reactions and ultimately cause more public disrup-tion than is necessary.
A further concern is the uncertainty of the " fudge" factor. _
The accuracy of the iodine monitoring system is prop-erly the subject of an emergency planning contention.
As stat-ed in the June 11; 1982 agreement signed by LILCO, the Staff, SOC and.the County:
It is understood that this resolution is without prejudice to the right of SC or SOC to submit a con-tention in the emergency planning proceeding which would contest the adequacy of the accuracy of iodine monitoring at Shoreham.
Assuming LILCO performs steps 1-3 above in accordance with this resolution, SC and SOC agree that the scope of an iodine monitor-ing contention in the emergency planning proceeding would not contest the details of the iodine monitor-ing system or LILCO's compliance with NUREG-0737 cr Regulatory Guide 1.97 with respect to iodine monitor-ing but rather may allege that the accuracy achieved in iodine monitoring is not satisfactory to meet the requirements of 10 CFR Sec. 50.47, Part 50, Appendix E or NUREG-0654.
LILCO has offered (LILCO Objections at 21) additional language to EP 14C "because it does not adequately reflect the parties' settlement agreement on the iodine monitoring issue."
The contention, it asserts, should be rewritten to state:
Even though the equipment intended for use by LILCO to monitor iodine released to the environment ir. the case of a radiological accident meets the specifica-tions of NUREG-0737 and Regulatory Guide 1.97, the accuracy of the equipment is not satisfactory to meet the requirements of Tspecify the requirement] because
[ explain why].
According to this language, LILCO would have the agreement be read to oblige the County to state affirmatively in any future iodine monitoring contention that LILCO's iodine monitoring system complies with NUREG-0737 and Regulatory Caide 1.97..
Such a reading of the agreement; however, does not comport with its true meaning.
The agreement as written states only that Suffolk County will not contest the compliance of the iodine monitoring system with NUREG-0737 and Regulatory Guide 1.97.
In accordance with that agreement, Suffolk County has not ques-tioned LILCO's compliance with those provisions, but rather, as stated in the preamble to EP 14, has contested the iodine moni-toring system's compliance with 10 C.F.R. 50.47(b) (8) and (9).
Thus, the language as put forth by Suffolk County com-ports with the agreement among the parties and should not be revised as requested by LILCO.
EP 14D In EP 14D, the County points out that many of the EALs in Chapter 4 of the plan state that readings from certain effluent radiation monitors will be utilized in deter-mining what EAL exists.
The EALs do not, however, provide spe-cific information as to which effluent monitor will provide those readings and, as LILCO appears to concede in its Objections at 21; a number of such monitors exists.
The County's objective in this contention is to have LILCO identify which effluent monitor will provide a reading for any particu-lar EAL.
Furthermore, contrary to LILCO's assertion, the County has provided appropriate regulatory cites (10 C.F.R. 50.47(b)(2),(4),(8),(9) and (10)) in the preamble to EP 14.,_-
EP 21 The County is still in the process of reviewing LILCO's EPIPs for completeness.
However, as'noted above, the EPIPs are not complete because the EALs (SP 69.020) contain numerous blanks and missing information as described in EP 13 and EP 14C.
If the County's review reveals that the EPIPs are complete and approved; and if it receives adequate assurances that the information described above will be supplied; EP 21 may then be resolved.
EP 22 LILCO has incorrectly objected to EP 22 (LILCO objections at 25) by stating that the County is attempting to relitigate Contention 7B.
That is not the thrust of this con-tention.
Rather; the County has noted that for the various accidents identified in Chapter 4, emergency levels depend in many cases on readings from a variety of instruments.
The EALs do not specify which of these instruments are safety-related and which are not.
Thus, it cannot be determined, in evaluat-ing whether an emergency action level exists, whether the instrumens oroviding that information is reliable under emer-gency conditions.
If it is not reliable, the County contends that the uncertainty inherent in depending upon a non-safety-related instrument to evaluate emergency conditions -.
should be taken into account when evaluating whether a particular emergency action level exists.
The County's con-cerns are thus unrelated to Contention 7B.
EP 24 The County reserved the right in its July 6 filing to file contentions regarding the Technical Support Center (TSC).
In its August 20 filing it elected to exercise that right, as-serting the specific concern that the TSC would not be func-tional by fuel load.
Though the contention stated that fuel load was projected for September 20, 1982, LILCO's own project-ed fuel load date has now been moved back to November 1982.
Nevertheless, the thrust of the County's contentions remains -
i.e.,
that the TSC will not be functional by fuel' load even if i
in November.
As so stated, it established a specific question of fact which is litigable.
If LILCO or the Staff believes the contention to be factually in error; the County is ready to discuss the matter.
Nevertheless; it should be admitted as a contention pending resolution, if any, by the parties.
Conclusion The County's contentions are adequately particular-ized and consolidated and, as such; should be admitted by the Board.
This is so whether or not the issues may appear appro-priate for settlement among the parties..
4 Respectfully submitted; David J.
Gilmartin Patricia A.
Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
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Herbert H.
Brown Cherif Sedky Christopher M.
McMurray KIRKPATRICK; LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
8th Floor Washington, D.C.
20036 Attorneys for Suffolk County Dated:
August 30, 1982 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 (0.L.)
(Shoreham Nuclear Power Station,
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Response of Suffolk County to the NRC Staff's and LILCO's Objections to Phase One Consolidated Emergency Planning Contentions" were sent on August 30, 1982 by first class mail, except where otherwise noted, to the following:
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, New York 10016 Washington, D.C.
20555 Howard L.
Blau, Esq.
Dr. James L. Carpenter
- 217 Newbridge Road Administrative Judge Hicksville, New York 11801 Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission W. Taylor Reveley III, Esq.**
Washington, D.C.
20555 Hunton & Williams P.O.
Box 1535 707 East Main St.
Mr. Peter A. Morris
- Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Mr. Jay Dunkleberger Washington, D.C.
20555 New York State Energy Office Agency Building 2 Edward M.
Barrett, Esq.
Empire State Plaza General Counsel Albany, New York 12223 Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Stephen B.
Latham, Esq.
Twomey, Latham & Shea Mr. Brian McCaffrey Attorneys at Law Long Island Lighting Company P.O.
Box 398 175 East Old Country Road 33 West Second Street Hicksville, New York 11801 Riverhead, New York 11901
- By Hand
- By Federal Express
Marc W.
Goldsmith Mr. Jeff Smith Energy Research Group, Inc.
Shoreham Nuclear Power Station 400-1 Totten Pond Road P.O.
Box 618 Waltham, Massachusetts 02154 North Country Road Wading River, New York 11792 Joel Blau; Esq.
MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A.
Rockefeller Suite K Building San Jose; California 95125 Empire State Plaza Albany; New York 12223 Hon. Peter Cohalan l
Suffolk County Executive David H.
Gilmartin; Esq.
County Executive / Legislative Suffolk County Attorney Building County Executive / Legislative Bldg.
Veterans Memorial Highway Veterans Memorial Highway Hauppauge, New York 11788 Hauppauge, New York 11788 Ezra I.-Bialik, Esq.
Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S.
Nuclear Regulatory Commission New York State Department of Washington, D.C.
20555 Law 2 World Trade Center Docketing and Service Section*
New York, New York 10047 office of the Secretary U.S.
Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S.
Nuclear Regulatory Bernard M.
Bordenick; Esq.*
Commission David A.
Repka, Esq.
Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Matthew J.
Kelly, Esq.
Staff Counsel, New York Stuart Diamond State Public Service Comm.
Environment / Energy Writer 3 Rockefeller Plaza NEWSDAY Albany; New York 12223 Long Island, New York 11747 Cherif Sedky, Esq.
Kirkpatrick, Lockhart, Johnson & Hutchison 1500 Oliver Building Pittsburgh, Pennsylvania 15222 A
r'istopher K. McMurray KIRKPATRICK; LOCKHART, HILL, CHRISTOPHER & PHILLIPS DATE: August 30, 1982 1900 M Street, N.W.,
8th Floor Washington, D.C.
20036
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.g KInKrATRIcx, LOCKHART, HILL. CHRISTOPHER & PnILLIPs
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1900 M SrazzT, N. W.
WASHINGTON, D. C. 20o06 r2Larnows (mos) ass-rooo anFmanemos August 23, 1982
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c4ar: mF=2 TELEX 440Moe NTFR CI 8600 01JYEE SUI 12DIO WAITEOD DIRECT DIAL NCNBER FITT53CEOM.FENNETLVAN1a lates (4&B) 868-8600 (202) 452-8391 (BY TELECOPY)
James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
Hunton & Williams P.O. Box 1535 707 East Main. Street Richmond, Virginia 23212
Dear Ms. McCleskey and Mr. Christman:
The following replies to your correspondence of August 5, 13, 16 and 17, 1982.
August 5, 13 and 17 Your le'tters of August 5, 13 and 17 contained proposals for a settlement of various emergency planning issues, as well as a total of eighty-eight (88) informal interrogatories.
With respect to LILCO's settlement proposals, as we have stated to you by phone, the County is quite willing to enter into settlement discussions with LILCO.
Our initial reading of your proposals suggests that many of them (e.g., old EP 3(C) and EP 6 (C), old EP 7(B), old EP 17 and old EP 18) look promising for settlement.
Others (e.g.,
old EP 12(A) and (C) and old EP 16) are going to require more intensive discussion and negotiation.
You must recognize, however, that you have chosen to submit your proposals during an intensive period of discovery involving at least one deposition, and often two depositions, a day.
This schedule has placed a demand on the County's time that has precluded counsel from devoting itself to the thorough and thoughtful review that such proposals require.
In light of the compressed discovery schedule, counsel for the County is unable to participate in settlement discussions with LILCO until the current depositions have been completed.
Furthermore, to engage in settlement discussions prior to the end of l
depositions may have the effect of denying both sides a good
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XINEPATRICK, LOCMMART, H LL, CuxzeTornan & PHILLIPS James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
August 23, 1982 Page Two deal of relevant information that could prove useful in narrowing and focusing the issues.
Therefore, settlement discussions should be more fruitful af ter the depositions are complete.
As you are aware, the last deposition (other than that of Frank Jones on September 1) is scheduled for August 27.
Af ter that date, we will be pleased to sit down with you and engage in serious discussions which, hopefully will lead to the production of an onsite plan that will assure the health and safety of the residents of Suffolk County.
To help move things along, and as a sign of the County's good faith, we propose a meeting of the parties on Tuesday, September 7,
- 1982, at which time we can begin to discuss your proposals and put forth the County's position with respect to them.
These discussions may take longer than a day, but on September 7 we can establish a further schedule for ongoing discussions.
We hope that you will accept this of fer in the same good faith with which it is presented.
We further believe that many, if not all eighty-eight of your informal interrogatories, can be answered during the settlement discussions.
Therefore, and in light of existing time constraints, we are unable to answer them in writing at this time.
August 13 Besides containing draft settlement proposals and interrogatories, your letter of August 13 contained text with which the County must take exception.
First, you imply there that the meetings of July 30 and August 3, in which the parties met in an endeavor to particularize further the emergency planning contentions, were not productive.
We strongly disagree.
Our meetings with you covered several hours of intensive discussions, most of which were attended by counsel for the North Shore Committee and the Shoreham Opponents Coalition who appeared in Washington though it was not convenient for them t
to do so.
As a result of those meetings, the County and the other intevenors have submitted new consolidated emergency planning contentions which incorporate virtually all of the revisions suggested by counsel for LILCO, as well as those suggested by the Board.
l Next, your letter attempts to make the County appear dilatory in pursuing settlement discussions with LILCO.
Let i
us suggest that your own client caused any delay in discussing l
settlement or revised emergency planning contentions when it i
KrRxPATRICX, LOCMHART, HILL, CHRIT.TOPHER Sc PHrLLrPs James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
August 23, 1982 Page Three surprised the County with seven volumes of totally revised emergency planning materials in mid-July.
That action required Suffolk County's experts and counsel to expend a great deal of time and effort reading the new plan and comparing it with the old plan.
Those efforts were ongoing during late July and August -- at the same time you were presenting your proposals and seeking draft contentions.
Therefore, it should be little wonder that the County was not in a position to send you draft proposals or contentions before completing its review of those materials.
Moreover, ycu did receive draft contentions through our computer systems on Monday, August 16, 1982, eight days before your response to them was due.
While you imply that the County was somehow committed to producing new draft contentions by July 30, we were in fact under no commitment to do so that early, especially in light of the fact that the Board's written order, explaining in detail its concerns with the contentions, appeared only three days earlier -- that is, on July 27.
The County sent you its draf t contentions with ample time to review them, which was clearly within the letter and spirit of the Board's Order of July 27.
Finally, your letter of August 13 proposes settlement discussions on. Phase II issues.
In light of the time constraints imposed by the Board, we are simply unable to address the resolution of Phase II issues at this time.
We are sure, however, that there will be ample time to attempt resolution of Phase II issues as the time for litigating these issues approaches.
August 16 In your letter of August 16, you ask to be directed to the Board's request that the parties propose a new filing date for emergency planning testimony on August 3, 1982 -- the date Mr. Black of the NRC informed the Board.of the Staff's new l
onsite appraisal date.
That request appears in the transcript at 8698.
The County has proposed November 1 as the new filing date, which is consistent with the Board's original criteria for setting September 14 as the initial date for filing testimony -- that is, November 1 is approximately thirty days from receipt of the Staff's appraisal report.
As you know, the Board has previously recognized the importance of the appraisal report to the parties, especially its ability to adduce facts that will assist in narrowing and focusing the l
4 4
LaxPATurex, LocanAnT, Han, Cuxastorunn & PsutLrrs James N. Christman, Esq.
Kothy E.B. McCleskey, Esq.
August 23, 1982 Page Four issues before the Board.
The importance of the report has not diminished, and the County will still require thirty days to evaluate its results.
You state in your letter that November 1 is, under any circumstances, unacceptable to LILCO, and that LILCO is prepared to file on September 14.
We find that position puzzling in light of the f act that the emergency planning hearings are unlikely to go forward much before November.
It hardly seems practical to file testimony on September 14 as the issues are not going to be litigated until well over a month later.
We therefore request that you reconsider your intransigence on this point and that you agree with us that November 1 (or thirty days af ter receipt of the NRC Staff appraisal) is a practical and realistic date for the filing of Phase I emergency planning testimony.
August 13 (II)
In another letter dated August 13, you complain that our letter of August 11, 1982, which described the discovery materials which the County was withholding on the basis of privilege, "does not provide any information regarding the basis for your claim of privilege.
It merely lists the documents you have refused to produce to LILCO."
We believe our letter clearly sets forth three separate bases for a claim of privilege and, under each basis, describes the documents withheld by date, parties, and subject matter.
Furthermore, your letter states, with respect to discovery of the County's documents, that "it was our understanding that you were producing any remaining documents on Friday, August 6."
Whatever " understanding" you had to this effect was erroneous.
l As we have repeatedly told you, you have sought a wide range l
of documents existing in the files of dozens of County agencies.
l Naturally, to respond to such a request. takes some time, and l
you were told explicitly that the County could not commit to j
producing all documents by a date certain.
The County is proceeding in producing documents with all deliberate speed.
Let us remind you that the County sought to expedite l
document discovery in its letter of July 26, 1982, which l
requested that LILCO narrow its request so that the County would l
not be searching for, copying and producing material pertaining to clearly irrelevant emergency procedures.
In your letter of August 5, however, you explicitly refused to do so.
- Thus,
(
(
KraxrArnicx, I.oCXHANT, HILL, CHRISTOPHER & PHII. LIPS James N. Christman, Esq.
Kathy E.B. McCleskey, Esq.
August 23, 1982 Page Five yo6r own unreasonable refusal to help expedite-discovery with more focused requests ~is at the heart of any delay in, document production.
In any event, you have received to date several boxes of documents.
Though you describe this effort as " piecemeal,"
what it truly reflects is the County's good faith effort to produce documents as soon as they are pulled from County files and processed, rather than waiting until all documents have been compiled.
We are rather disappointed that LILCO has chosen to disparage the County's efforts rather than applaud them.
August 13 (III)
In yet another letter dated August 13, you requested that the County identify its expert with respect to (old) EP 19 (A),
(B) and (F), EP 25, EP 26 or EP 27.
This response will memorialize our subsequent conversations with you and Jeff Edwards in which the County informed you that Greg Minor of MHB Associates is the County's expert with knowledge on those issues.
As I understand it, LILCO thereafter deposed Mr. Minor on August 19.
Mr. Minor and/or other experts may submit written testimony on one or more aspects of the foregoing contentions.
I believe that we have now responded to all of your correspondence to date.
We look forward to meeting with you shortly to begin discussions with an eye towards settlement of some issues and narrowing of others.
In the meantime, feel free to contact us should you have any questions regarding this letter.
Yours truly,
/
Cherif Sedky Christopher M. McMurray l
l