ML20076F357
| ML20076F357 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/23/1983 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA-3, NUDOCS 8308260022 | |
| Download: ML20076F357 (18) | |
Text
8/23/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 84CKETED USNRC Before the Atomic Safety and Licensing Boqrd A5 25 Ali:03 o;
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In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Dock et No. 50-322-OL-3
)
(Emer?ency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY OBJECTION TO SPECIAL PREHEARING CONFERENCE ORDER On August 19, 1983, this Licensing Board issued a Special Prehearing Conference Order (the " Order"), which contained rulings on admissibility of emergency planning contentions and established a schedule for emergency planning discovery and other matters.
Pursuant to 10 C.F.R.
S 2.751a, Suffolk County hereby objects to that portion of the Order dealing with scheduling.
A separate objection regarding the Board's admissibility rulings will be filed within the time prescribed by the Rules.-1/
The Board ruled that all discovery must be completed by September.23, 1983.
Based upon the September 23 discovery 1/
The County is takf.ng the unusual step of filing separate objections relating to scheduling and admissibility of contentions because it is possible to prepare the scheduling objection much more rapidly.
Since modifica-tion of the Board's schedule would have the potential to impact ongoing discovery activities, the County believes it useful to file this scheduling objection immediately.
8309260022 830823 PDR ADOCK 05000322 G
PDR L) )
m completion date, the Board set subsequent milestones leading to a hearing beginning on November 14.
The sole Board explanation for this schedule was:
The Board finds that the subject of emergency planning for Shoreham should be treated efficiently and expeditiously to avoid delay in the final licensing adjudi-cation.
Accordingly, the Board orders a compact discovery schedule leading to commencement of a hearing on this pro-ceeding on November 14, 1983.
Order at 1.
Suffolk County strongly objects to the Board's ruling that all discovery must be completed by September 23.
There is no basis or justification stated by the Board for rejecting the discovery schedule proposed by the County.
Surely, the Board's citation of a mere abstraction -- i.e., efficiency and expeditiousness -- lacks validity when compared with the detailed justification for each step of discovery which the County has demonstrated to be essential to the presentation of its case.
Indeed, the County submits that its proposed discovery schedule is both expeditious and efficient in fact.
And, most important, the County's schedule is fair.
(1)
Suffolk County indicated to the Board in its August 4 filing and orally at the prehearing conference that it needed to take at least 20-25 depositions, many of which could not begin until requested documents had been produced by LILCO.
See August 4 Suffolk County filing, pages 11-15.
As explained in detail in the County's August 4 filing, these depositions are essential in order to inquire into LILCO's ability to implement its Transition Plan and also to assess FEMA's review of the Plan.
See August 4 Suffolk County filing, 2/
pages 2-3, 6-10.
Subsequently, in a letter to the Board which was hand delivered on August 17, the County advised the Board that LILCO has now asked to depose 21 County witnesses and other persons.-3/ That means that Suffolk County and LILCO wish to conduct between 40 and 50 depositions.
Pursuant to the Board's suggestion that the parties work out discovery problems informally among themselves, on August 18, 1983, counsel for the County and LILCO prepared a tentative deposition schedule to cover initial deposition discovery desired by both LILCO and the County.
The schedule covers the period from August 23 through October 7 and represents depositions by LILCO and the County of approximately 25 people.
About 25 additional depositions remain to be scheduled.
See Exhibit 2 hereto for details of that tentative schedule.-
The Board's Order that all discovery must be completed by September 23 means that the tentative deposition schedule 2/
The County does not foresee the Board's admissibility rulings reducing the number of depositions it needs to take.
-3/
On August 17, 1983, LILCO advised the County in writing regarding the 21 depositions it wished to take.
A copy of that LILCO letter is attached as Exhibit 1.
The County was informed orally by LILCO on August 18 of two additional depositions it wished to take.
_4_
worked out by the parties and described in Exhibit 2 is worth-less.
Indeed, in the time allotted by the Board for discovery
-- 24 business days, starting yesterday -- it is clear that only a portion -- probably less than half -- of the 40-50 depositions contemplated by the parties can in fact be taken.
Thus, the impact of the Board's ruling is to deny the parties the chance to prepare for trial in the manner they believe is necessary to make a legally sufficient record for review by this Board and, if necessary, other administrative and judicial reviewers.
Suffolk County respectfully requests that the Board particularize its response to the following questions:
Which of the County proposed depositions did the Board decide were unnecessary?
What were the Board's reasons?
How is the Board's schedule " efficient" when it precludes parties from pursuing much of the discovery which they think is necessary?
Within the " compact" discovery schedule ordered by the Board, did the Board assume that LILCO would take any depositions?
How does the Board expect parties to conduct all depositions by September 23 when at least some documents will not presumably be produced until September 16?
How did the Board balance the abstract concepts of efficiency and expeditiousness with the hard facts put before it by the County and with the practical dictates of fundamental fairness and due process?
The County does not know the answers to these questions because the Board did not provide even a cursory explanation of why the schedule proposed by the County in its August 4 filing (which called for depositions on virtually every business day between August 29 and October 21) was not wholly reasonable, 4/
efficient, and expeditious.-
The only seeming " reason" offered by the Board for its
,1 schedule is "to avoid delay in the final licensing adjudication."
Order at 1.
This unexplained phrase -- stated without any suggestion that the County's discovery schedule would cause undue delay -- is in sharp contrast to the oral' statement by the Board that its " goal is to conduct a full, fair, and expeditious hearing of the case."
Tr. 324 (emphasis supplied).
The Board does not explain how the County's schedule would not be full or expeditious; nor does the Board explain how fairness can be ensured when parties are denied the opportunity to pursue necessary discovery.
Further, the Board ignores the fact that this emergency planning proceeding is without precedent.
Not only the parties, but the Board itself will be treading new ground.
In this first-of-a-kind circumstance, does the Board believe that rejecting the scheduling necessities of a central party can somehow foster the public interest?
Indeed, is this what Congress had in mind in enacting Section 5 of the NRC Authorization Act, or what the Commission had in mind in 4/
The County's schedule was premised on only the County taking depositions.
Since LILCO now has indicated a desire to take numerous depositions, the County's schedule would need to be extended to allow for the LILCO depositions.
interpreting it so that LILCO could have its current
" opportunity" to prove the legitimacy of its so-called
" utility plan"?
hat of the County's opportunity to prove its contention that LILCO's plan is unworkable?
Never before has there been a case where a utility has attempted to create offsite preparedness by itself.
This LILCO effort raises unique issues of first impression, particularly when considered in light of the determination of the authorized local government that it is impossible to protect the public well-being in a Shoreham nuclear emergency.
These issues do not lend themselves to simple pro-forma checklist review of LILCO's plan against NUREG-0654, but rather demand in depth analysis to determine whether the plan can be implemented -- will it work; will it actually protect people?
However, the Board appears to treat this case as " business as usual."
By the ASLB's April 20 Order, as affirmed on May 20 by the Commission, LILCO was granted an " opportunity" to attempt to show its plan would work.
The County is now entitled to an opportunity to prove that LILCO's plan will not work.
To do this, however, a reasonable discovery opportunity must be afforded.
The schedule set forth in the Order is unreasonable.
The County is now also entitled to an explanation by the Board of why the County's proposed schedule and supporting arguments are unacceptable.
Indeed, the Board has an obligation to explain the bases for its rulings -- it is not enough
simply to state conclusions.
- See, e.g.,
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977).
The Board has failed to do so in this case.
(2)
The Board appears to base its schedule on the view t
that a hearing must begin on November 14 "to avoid delay in the final licensing adjudication."
Order at 1.
The County l
believes this " delay" conclusion is irrelevant; the parties are entitled to a fair opportunity, in light of the actual complexity of the issues presented in this proceeding, to prepare their cases.
However, since the Board refers to " delay," the County wishes to point out that the Board is factually incorrect.
A i
/
' hearing does not need to start on November 14, 1983, to avoid
" delay."
Due to the recent diesel generator failure at Shoreham, LILCO itself has stated, as documented in a LILCO i
Press Release which is Exhibit 3 hereto, that "under the most favorable assumptions," the earliest fuel load date which it can predict is the first quarter of 1984.
LILCO also stated t-l that "under more adverse assumptions, fuel loading will begin significantly later."-5/
Since fuel loading and low power f
testing generally take about 6 months, an emergency planning decision is "needed" no sooner than the third quarter of 1984 f
-5/
The County also has been informed by LILCO counsel that LILCO intends to file with the Brenner Board information concerning indications of a failure in the crankshaft i
portion of a second diesel generator.
If a second diesel has serious problems, the schedules for fuel loading could be further delayed.
I
7,
-- at the earliest.
Therefore, a hearing does not "need" to.
commence on November 14, 1983, in order for a decision to be reached by July-September 1984.
(3)
There is no basis for the Board's implication that a hearing commencing November 14 will-ba expeditious if discovery is arbitrarily cut off on September 23.
The County submits that the opposite is true.
Because the schedule deprives the County and other parties of reasonable discovery opportunities, the hearing will necessarily be longer and less focused than would otherwise be the case.
Thus, the opinions of and facts known by persons whom the County is unable to depose will be probed for the first time when those persons appear on the witness stand at the hearing, either as LILCO witnesses or when called to testify in response to County subpoena requests.
In short, the Board's schedule will prove to be counterproductive to its asserted goal of avoiding delay.
1 In view of the foregoing, the County respectfully requests j
that this Board:
1 (a)
Reconsider its schedule and adopt a new schedule consistent with the County's August 4 proposal, as extended j.
commensurately to provide time for LILCO to take the depositions it has requested.
(b)
If the Board does not adopt a schedule as requested by the County, then it should:
1 i
i
(i)
Provide detailed reasons for its actions; and (ii)
Pursuant to 10 C.F.R.
SS 2.751a (d) and 2.718 (i),
certify the matter to the Commission for decision.
Such certification is essential in this case of first impression so that the Commission, which by its May 12 Order directed the Licensing Board to proceed, may be fully apprised of the procedures which this Board is using to compile the " record" called for in that May 12 Order.
See CLI-83-13, May 12 Memorandum and Order at 4.
Respectfully submitted, David J. Gilmartin Patricia A.
Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 r h w/
Herbert H.
Brown
/
Lawrence Coe Lanpher Karla J.
Letsche KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County August 23, 1983 i
z 7o7 EAST Muse Sts;ccr P. o. Box 1535 EXHIBIT 1
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- Karla J.
Letsche, Esq..
Kirkpatrick, Lockhart,-Hi.ll,-
Christopher & Phillips Eighth Floor u
1900 M Street, NW..
Washington, D.C.
20036
Dear Tip':
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The following is a list of the persons LILCO wishes to depose during Phase II' emergency-planning discovery:
Inspector Richard C. Roberts, SCPD Inspector Joseph J. Monteith, SCPD Deputy Inspector Michael Turano, SCPD Captain Ed Michaels,'SCPD Captain Peter Cosgrove, SCPD Lt. John Fackler, SCPD Captain Snow, SCPD Deputy Inspector Regenscerg, SCPD Officer Vincent Stiles, SCPD I
Deputy Inspector Philip'McGuire, SCPD Phillip-B. Herr James H. Johnson Donald J. Zeigler Sissan Saegert Andrew Kanen Peter F. Cohalan,
Frank Jones Robert Budnitz Lee Koppelman.-
Laura Palmer Robert Meunkle Please do not hesitate to call me should you have any questions about this list prior to our meeting on Thursday.
Sincerely, V
4 A
t 301/869 Kathy'E. 8. McCleskey
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nrI c n.winIi (4RS) 886-8800 MEMORANDUM August 19, 1983 TO:
All Parties Shoreham Nuclear Power FROM:
Karla J.
Letsche Station Docket No. 50-322 0.L.
RE:
Partial Tentative Deposition Schedule During a meeting on August 18, 1983, counsel for LILCO and Suffolk County agreed to a partial tentative deposition schedule, running from August 23 through October 7, which takes care of about half the depositions which LILCO and the County tentatively propose to take.
There remain approximately 25 persons whose depositions still need to be scheduled.
We anticipate further meetings to schedule these remaining depositions for times after October 7.
Because the meeting of counsel was held prior to the issuance of the Board's ruling on schedule and contentions, the attached partial schedule is, of course, subject to revision.
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Service List Encl.
PARTIAL TENTATIVE DEPOSITION SCHEDULE Tentative Party Taking Witness Date Location Deposition Russell R.
Dynes August 23-24 Washington, D.C.
Suffolk County Dennis E. Mileti August 25-26 Washington, D.C.
Suffolk County G. Hoyt Whipple August 30 Washington, D.C.
Saffolk County Lnonard Hamilton August 31 Washington, D.C.
Suffolk County Captain' Snow Captain Peter Cosgrove Lt. John Fackler September 6-9 Long Island LILCO D:puty Insp. Regensberg Officer Vincent Stiles Edward Tanzman September 12 Washington, D.C.
Suffolk County Roger B. Kowieski September 13 Washington, D.C.
Suffolk County Fred Sharrocks September 13 Washington, D.C.
Suffolk County Thomas Urbanik, II September 14 Washington, D.C.
Suffolk County John Sears September 15 Washington, D.C.
Suffolk County Captain Ed Michaels Insp. Joseph Monteith Dsputy Inspector September 19-21 Long Island LILCO Philip McGuire Deputy Inspector
-Michael Turano Andrew Kanen/
September 22-23 Undetermined LILCO Peter Polk Donald J.
Zeigler September 26 Washington, D.C.
LILCO Susan Saegert September 27 Washington, D.C.
LILCO James Johnson September 28 Washington, D.C.
LILCO Inspector Richard Spetember 29 Undetermined LILCO C.
Roberts Philip Herr Week of October Undetermined LILCO Edward Lieberman 3-7 Suffolk County
AT M
N-U JAN K. HICKMAN Manager 3
k-250 OLD CO'.*NTRY ROAD 13161 228 2308 j
MINEoLA. N Y.11501
%f-3 EXHIBIT 3 2
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FOR IMMEDIATE RELEASE August 18, 1983 Long Island Lighting Co=pany today announced that it has increased from
$50 to $75 million the a=ount of a sale of preferred stock scheduled far August 22.
there is no new infor=ation available as to the status of At present, thm diesel generator which experienced a crankshaft failure during a pre-opsrational test. The Co=pany is today filing a Current Report on For=
8-K with the Securities and Exchange Co-4ssion to report on the recent The text of the developments at Shoreham regarding the diesel generator.
For= 8-E fellcws:
"On August 12, 1983, during testing, the crankshaf t of one of the three emergency diesel generators at Shoreham failed.
The crankshaft was initially thought to have been cracked, but was in fact broken.
Successful completion of testing of all three generators is a prerequisite for i
per=ission to load fuel and to begin low-power testing.
Although an analysis of the cause of the crankshaft f ailure has begun, until such analysis has been co=pleted, the Co=pany is unable to predict when fuel loading and coc=ercial operation will occur.
Under the most favorable l
circu= stances, correction of the da= age caused by the l
1 failed crankshaft as well as a deter =ination of the adequacy of all three diesel generators, in light of 1
such failure, could be acco=plished by late Novecher 1983.
1
-MORE-
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"Moreover, the Company does not know at pressnt to what extent there will be delays in the con =encecent of the diesel generator hearings by the Atomic Safety and Licensing Board that has been considering the Company's application for an operating license.
These hearings were to have begun en August 29, 1983, but have been suspended until addicional information concerning the crankshaf t f ailure is available.
The Company believes that the diesel generator hearings will be lengthier than originally conte = plated.
Thus the Company believes that, under the most favorable assu=ptions, fuel loading will not take place until some time during the first quarter of 1984.
Under more adverse assu=ptions, fuel loading would begin significantly later.
The Co=pany's previous esticates that the successful cocpletion of power ascension tests at Shoreham during the period between fuel load and coc=ercial operation would require approxi=acely six to nine =enths assu=ed timely authorization fro = the Nuclear Regulatory Co--4ssion to increase levels of power beyond 5%. While the Company believes that the emergency response planning hearings can still be conducted concurrently with those relating to the diesel generators, it cannot provide any t
I l
assurance that the commencement of the emergency response I
I planning hearings will not also be delayed.
Any delays in the receipt of such timely authorization or in the acergency response planning hearings may delay the date of coc=ercial operation.
The Co=pany believes that the likelihood of such delays has increased as a result of the develop =ents regarding the emergency diesel generators.
-MORE-
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"Bassd upon en cssu=ed cot::mercial operation date of May 1, 1984, the Company had estimated the total cost of the Shoreham unit at approximately $3.4 billion.
Under all assu=ptions, the Company now believes that coc=ercial operation by May 1, 198'4 is no longer achievable. Although the Cot::pany cannot provide an estimate of when coc=ercial operation will take place, it does esti= ate that delay in the cocmencement of co==ercial operation increases the cost of the unit approxi=ately $35 cillion to $45 million a month.
Any delay in the coc=arcial operation date of Shoreham and any change in its costs will affect the assu=ptions and therefore the relief which the New York Public Service Co-4ssion may grant in the Co=pany's pending electric rate case." l l
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UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
),
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY OBJECTION TO SPECIAL PREHEARING CONFERENCE ORDER, dated August 23, 1983, have been served this 23rd day of August 1983 by U.S. mail, first class, to the following, except as otherwise noted.
(o)
James A.
Laurenson, Chairman Ralph Shapiro, Esq.
(#)
Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C.
20555 New York, New York 10016 (0)
Dr. Jerry R.
Kline Howard L.
Blau, Esq.
Atomic Safety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Commission Hicksville, New York 11801 Washington, D.C.
20555 W. Taylor Reveley, III, Esq. (#)
( )
Mr. Frederick J.
Shon Hunton & Williams Atomic Safety and Licensing Board P.O. Box 1535 l
U.S. Nuclear Regulatory Commission 707 East Main Street Washington, D.C..
20555 Richmond, Virginia 23212 Edward M.
Barrett, Esq.
General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2 i
Mineola, New York 11501 Empire State Plaza Albany, New York 12223 Mr. Brian McCaffrey Long Island Lighting Company Stephen B.
Latham, Esq.
(g) l 175 East Old Country Road Twomey, Latham & Shea l
Hicksville, New York 11801 33 West Second Street Riverhead, New York 11901 i
1
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. - _ _, - - - _. ~. _ _,. _...
Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street Washington, D.C.
20555 Smithtown, New York 11787 Hon. Peter Cohalan Marc W. Goldsmith Suffolk County Executive Energy Research Group, Inc.
B.
Lee Dennison Building 400-1 Totten Pond Road Veterans Memorial Highway Waltham, Massachusetts 02154 Hauppauge, New York 11788 MHB Technical Associates Eleanor L.
Frucci, Esq.
1723 Hamilton Avenue Atomic Safety and Licensing Suite K Board Panel San Jose, California 95125 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Joel Blau, Esq.
New York Public Service Comm.
Ezra I.
Bialik, Esq.
The Governor Nelson A.
Rockefeller Assistant Attorney General Building Environmental Protection Bur.
Empire State Plaza New York State Dept. of Law Albany, New York 12223 2 World Trade Center New York, New York 10047 David J. Gilmartin, Esq.
Suffolk County Attorney Atomic Safety and Licensing H.
Lee Dennison Building Appeal Board Veterans Memorial Highway U.S. Nuclear Regulatory Comm.
Hauppauge, New York
.11788 Washington, D.C.
20555 Atomic Safety and Licensing Jonathan D. Feinberg, Esq.
1 Board Panel Staff Counsel, New York State U.S. Nuclear Regulatory Commission Public Service Commission Washington, D.C.
20555 3 Rockefeller Plaza P) Bernard M.
Bordenick, Esq.
David A.
Repka, Esq.
Stewart M. Glass, Esq.
U.S.
Nuclear Regulatory Commission Regional Counsel Washington, D.C.
20555 Federal Emergency Management Agency Stuart Diamond 26 Federal Plaza, Room 1349 Environment / Energy Writer New York, New York 10278 NEWSDAY Long Island, New York 11747 James B.
Dougherty, Esq. (*)
3045 Porter Street, N.W.
Washington, D.C.
20008 --
t Spence Perry, Esq.
Associate General Counsel Federal Emergency Management Agency Washington, D.C.
20472 Mr. Jeff Smith Shoreham Nuclear Power Station P.O.
Box 618 North Country Road Wading River, New York 11792
/2 W
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/
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E. --
Lawrence Coe Lang er KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATED:
August 23, 1983 t
l
(*) By Hand
(#) By Federal Express l L