ML20070M111

Motion for ASLB Conference to Identify & Specify cross-examination Topics for Torrey Pines Panel.Failure to Narrow & Define Issues Will Result in Extended Hearing. Certificate of Svc Encl

ML20070M111
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/07/1983
From:	Twana Ellis HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8301120286
Download: ML20070M111 (8)

Text

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LILCO, January 7,198{,gED L

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NUCLEAR REGULATORY COMMISSION I+drg;,;g(l,g.

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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)_ , , _ _

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MOTION FOR BOARD CONFERENCE TO IDENTIFY AND SPECIFY CROSS-EXAMINATION TOPICS FOR LILCO TORREY PINES PANEL This Motion, inspired by experience and by Rule 16, Fed.

R. Civ. P., seeks a conference with the Board for the purpose of narrowing, focusing and identifying with specificity the points or matters to be inquired into during cross-examination of the Torrey Pines panel.

Circumstances make unmistakably clear that failure to engage in a process to narrow and define precisely the issues to be litigated with respect to the Torrey Pines report may In the first place, result in extended and wasted hearing time.

the Torrey Pines report is voluminous; it includes over 200 discrepancy reports and a smaller number of potential finding reports, observations and findings, hundreds of pages of tech-nical detail, and numerous document references as well. Only 8301120286 830107 PDR ADOCK 05000322 O PDR Ds63 .

, i a small amount of this massive detail can be the legitimate- i focus of cross-examination.

Even as to that material, unless there is some pre-hearing identification and specification of the specific dis-crepancy reports, potential findings, findings or aspects of these to be used in cross-examination, the witnesses cannot reasonably be expected to be prepared to give prompt, informed [

The result of a failure to require specification of answers.

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the specific DR's, PFR's, findings, observations and indeed precise portions thereof will be wasted hearing time while wit- ,

nesses search for information and a record that reflects less the f acts of the report than the ability of counsel to surprise the witnesses.

Quite apart from the voluminous nature of the report, p the experience of the depositions confirms the need for the  !

conference sought in this Motion. Counsel for the County, i allotted a full day with Mr. Novarro, LILCO's executive contact with Torrey Pines, and another full day with Mr. Johnson, the l Torrey Pines project manager, spent almost all of each day exploring such matters as credentials, nagotiations that led to LILCO's retention of Torrey Pines and Torrey Pines' independence.

Little, if any, time was devoted to the real substance and con-clusions of the report. Notwithstanding the time already spent on the preliminary topics in the depositions, it seems clear that counsel for the County considers that it has far from com-pleted its questioning on these topics. Thus, unless a conference

a with the Board succeeds in focusing and narrowing the issues to be explored in cross-examination, or unless the Board places a limit on the number of days for the County to cross-examine the LILCO panel, the result is likely to be that the hearing time expended in this matter will far exceed the time

- now allotted by the Board. At present, the contemplated schedule is two days for cross-examination of the LILCO Torrey Pines panel and two days for cross-examination of the County Torrey Pines panel.--Given the ground covered in _the Torrey Pines depositions, this contemplated schedule, absent restric-tions, is likely to be several orders of magnitude off the mark.

The conference proposed in this Motion is, as noted, fully supported by judicial experience with Rule 16, Fed. R.

Civ. P., in federal practice.

Moreover, such a conference is 10 specifically authorized by the NRC's Rules of Practice.

CFR S 2.752 (a) . Both Rule 16 and 10 CFR S 2.752 (a) provide that the court or presiding officer may direct the attorneys for the parties to appear for a conference to consider, inter alia, the simplification of the issues. Decisions uniformly applaud Rule 16 conferences to specify and focus issues and prevent wasted trial time. Thus, Professor Moore, in his leading treatise, makes the following pertinent remarks:

One of the most important features of the pre-trial conference is the simplifica-tion of the issues. . . . The pre-trial con-ference enables the parties, under the mediation of the court, to crystalize these issues and eliminate those which are not really controverted or which use of O

the deposition and discovery procedure _has shown to be without merit. It thus serves '

a double purposes on the one hand it . ~

eliminates surprise and assists the parties in preparing for trial;'on the other hand, It avoids the necessity of preparing for trial upon nonexistent issues . . . .

l The value of pre-trial procedure in eliminating the necessity of preparation on uncontested issues was stressed by Judge Moscowitz: "If justice is to be speedy, efficient and inexpensive, justice requires that a party be relieved of the necessity n, g g,_

of elaborate preparation upon non-existent issues. Merely because the law places the burden of proof upon one party with respect to a certain issue is not reason for con-cluding that the other party cannot be asked whether he seriously intends to raise the issue."

3 Moore's Federal Practice 1 16.11, at 16-22 to -27 (1982)

(emphasis added) , quoting Lacanin_ v. Automobile Insurance Co. ,

41 F. Supp. 1021, 1022 (E .D .N .Y . 19 41) ; accord, 6 C. Wright &

A. Miller, Federal Practice and Procedure 5 1522, at 566-74 (1971).

The Fifth Circuit also acknowledged the value of pre-trial conferences in terms very pertinent here.

Rule 16, Fed. R. Civ. P., establishes a mechanism whereby the trial court can ex-pedite the just disposition of cases and reduce the costs of litigation. This mechanism consists of a pretrial conference and a re-sulting order. The pretrial conference is i

designed to restrict the scope of the trial by defining and therefore limiting the issues involved.- And as a necessary adjunct to this function it may also provide for the limitation on the number, type, and admissi-bility of exhibits and testimony.

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Hodges v. United States, 597 F.2d 1014, 1017 (5th Cir. 1979).*

These well recognized principles in federal litigation are particularly applicable here. The cross-examination of LILCO's Torrey Pines panel should not involve lengthy fishing expeditions into areas of.no particular significance to resolu-tion of the QA contentions. Nor should witnesses be unfairly surprised and required to take hearing time to search for answers they should have been advised of earlier so that the record - -

could b'e" fully and fairly informed. The inordinate time already spent on the QA contentions -- a period now entering its fifth month -- demands that every effort be made to identify, narrow

• See also Perfection-Cobey Co. v. City Tank Corp., 597 F.2d 419, 420 (4th Cir.1979) :

Pretrial orders are designed to expedite litigation and eliminate surprise by i framing the issues remaining for trial.

l And Elder-Beerman Stores Corp. v. Federated Department Stores, Inc._, 459 F.2d 138,150-51 (6th Cir.1972):

We are of the opinion that in protracted litigation . . . it would be advisable - ..-

for the trial court to hold one or more formal pretrial conferences, as provided by Rule 16 . . . . It would appear that formal pretrial orders resulting from such conferences could have substantially reduced the time required to try the case and might well have eliminated some of the time-consuming testimony which was irrelevant to the issues properly before the court. The witnesses, including the plaintiff's expert witness . . . , could have been confined to the issues before the court and jury and could have been prevented from digressing at length in l

' regard to matters unrelated to the issues, in response to questions both on direct exanination and cross-examination.

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and focus the remaining issues to be litigated, including Torrey Pines. I l

Accordingly, LILCO respectfully requests that the Board convene (either on or off the record) a conference of counsel Monday, January 10, 1983, and to require counsel at that time to identify with substantial specificity the issues they propose to inquire into in cross-examination. That process may well result in elimination of some issues and substantial focusing

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- of the remaining issues.-

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In the alternative, if the Board chooses not to convene a conference of counsel, LILCO respectfully requests that the examination of each Torrey Pines witness panel be limited to two days. Experience confirms that such limitations, firmly followed, promptly and sharply focus the issues. Dr. Johnson put it well many years ago when, in describing a man about to be hanged, he said the deadline " wonderfully concentrates the mind." J. Boswell, Life of Johnson (1934). - _ _

Respectfully submitted, LONG ISLAND LIGHTING

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COMPANY i 1[

T. S. Ellis, III Anthony ft Earley, Jr.

Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: January 7, 1983

' ' LILCO, Jcnu;ry 7, 1983 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 MOTION FOR BOARD CONFERENCE TO IDENTIFY AND SPECIFY CROSS-EXAMINATION TOPICS FOR LILCO TORREY PINES PANEL were served upon the follow-g_ ing 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  :

l 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 _

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m U.S. Nuclear Regulatory Board Panel _

U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Commission Washington, D. C. 20555 Dr. James H. Carpenter **

Administrative Judge Daniel F. Brown, Esq.

Atomic Safety and Licensing Attorney Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Board Panel '

U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Commission Washington, D. C. 20555 l

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

David A. Repka, Esq. Attn: Patricia A. Dempsey, Esq.

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

1900 M Street, N.W.

Cammer and Shapiro, P.C.

Washington, D. C. 20036 9 East 4Oth Street _ _ _ . _

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New York, New York 10016 Mr. Mark W. Goldsmith ~"-~

Energy Research Group Howard L. Blau, Esq.

4001 Totten Pond Road 217 Newbridge Road Waltham, Massachusetts 02154 Hicksville, New York 11801 MHB Technical Associates Matthew J. Kelly, Esq.

1723 Hamilton Avenue State of New York Suite K Department of Public Service San Jose, California 95125 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

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Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED: January 7, 1983

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