ML20076G855
| ML20076G855 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/29/1983 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL-3, NUDOCS 8309010146 | |
| Download: ML20076G855 (15) | |
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Before the Atomic Safety and Licensing Board! Or~ :
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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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LILCO'S RESPONSE TO SUFFOLK COUNTY OBJECTION TO SCHEDULING ORDER OF AUGUST 19, 1983 This pleading is filed in response to the Board's August 24 Order inviting comment on the "Suffolk County Objection to Special Prehearing Conference Order" of August 19. First, it will respond to selected aspects of that paper. Second, it will apprise the Board, in light of numerous discussions which have taken place between counsel for LILCO and the County since the Order's issuance, of the existence of an impasse with respect to scheduling depositions and will inform the Board of a possible solution which, while not optimal from either LILCO's or the County's standpoint, and not actively endorsed by either, at least is feasible within the logistic constraints surrounding any voluntary agreement with the County. LILCO, mindful of the Board's admonitions with respect to discovery contentions, brings this matter to the Board's attention reluc-tantly, but feels that addressing this problem sooner is preferable to addressing it later.
8309010146 830829 PDR ADOCK 05000322 G PDR 3
O I. RESPONSE TO THE COUNTY'S OBJECTION TO THE BOARD'S SCHEDULING ORDER A. The Discovery Schedule Set By the Board Was Reasonable When Established The County takes the Board to task in its " Objections" for setting a six-week limit on further discovery from the date of its Order, because the Board rejected the County's arguments for a significantly longer schedule, and did so without extend-ed discussion.
That the Board's August 19 Order was reasonable in form and substance in light of the facts then known to it (and remains reasonable still) does not require extended analysis.
With respect to scheduling, it is an interlocutory procedural order, and such orders are not typically exercises in extended discussion. Its directness and brevity were appropriate.
The substance of the August 19 Order -- setting a five-week period to complete remaining discovery -- was likewise reasonable. Substantial document and deposition discovery on emergency planning, involving even some of the same witnesses on both sides are now sought, took place during " Phase I" in the summer and fall of 1982, until the County's default in December 1982.1/ Document and interrogatory discovery formally 1/ Document discovery in Phase I expressly covered both Phase I and Phase II issues. While deposition discovery was supposed to be restricted to Phase I issues, questions on Phase II issues were commonly asked and answers taken over objection.
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l resumed in June of 1983, almost immediately following issuance of the LILCO Emergency Plan, and have been continuing apace ever since. A great deal of discovery has already been conducted.
Further, discovery serves a somewhat different function in this type of proceeding than it does in ordinary civil litiga-tion. By contrast with such litigation, discovery in this type of proceeding is not the last defense against surprise in a live witness' testimony: after completion of discovery, pre-filed written testimony and the opportunity to file written mo-tions to strike are still available prior to hearing to elimi-nate surprise and further distill issues. In addition, the ac-tive participation of the Staff and of the Licensing Board in the fact-finding process provide further buffers not available in ordinary civil litigation. Thus, discovery, particularly deposition discovery, while important, is not the uniquely valuable tool it is in conventional civil litigation.
Given these facts, LILCO believes that the Board's sched-ule was prima facie reasonable, especially since formal discov-ery resumed with the August 9 prehearing conference, thus mak-ing the period over six weeks long.
The difficulties that have developed with the schedule are not inherent in the schedule but result from three facts: (1)
Suffolk County and LILCO, even after paring their initial lists
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I of deponents, still wish to depose, all told, more persons than can be accommodated by September 23 if no more than one deposi-tion is held at any give time; (2) the County has taken the po-sition that it will not participate, unless ordered to do so by the Board, in a schedule that requires more than one deposition at a time (the Board's August 19 Order does not contain any such requirement); and (3) the County, wishing to conduct its discovery prior to September 23, has asked for depositions of LILCO and government witnesses on 18 of the 24 working days available between the actual start of depositions and September 23, thus leaving LILCO with potentially six days to conduct depositions, only five of which could be scheduled. This
, impasse and a potential means of addressing it are discussed substantively in Part II of this Response.
B. The Diesel Crankshaft Failures Do Not Affect the Desirability or Feasibility of Sticking to the August 19 Schedule Suffolk County asserts (Objection at 7-8) that the recent failures of the diesel generator crankshafts at Shoreham obvi-ate any need for a decision on emergency planning issues before some time in the third quarter of 1984, and thus, implictly, that there is no longer any reason to adhere to the current i
schedule or anything close to it. The County is wrong on both scores. The diesel failures do not provide a basis for objec-tion to the current schedule. Despite the resulting delay in
1 fuel load until, probably, late in the first quarter or perhaps early in the second quarter of 1984, emergency planning is still the pacing issue in this proceeding.
First, LILCO's schedule for fuel loading and low-power testing is 51 days, not six months as the County suggests. If fuel load were to begin late in the first quarter of 1984 (say in mid-March) and if all went smoothly with low-power testing, then Shoreham would be ready to go above 5% power in May 1984.
Even if fuel load were delayed further, until the end of April, ascension above 5% power could begin in June.
The County has stated from the outset that it regarded emergency planning as the most important issue in this case, and there is no gainsaying its complexity. Nor is there any gainsaying the likelihood of, at the least, attempts to pro-tract hearings on this issue. In the closest analogue to date in this proceeding, trial of quality assurance issues, the County estimated about one week into its cross-examination of LILCO witnesses that it would need approximately two weeks fur-ther. The issue ultimately required approximately five months of nearly continuous hearings, the vast majority of them con-sisting of cross-examination by the County, to complete. Even so, the County complained to the last of inadequate opportunity to explore issues of interest to it.
Incomplete litigation of emergency planning stands as a barrier between Shoreham and a full-power operating license.
There is simply no reason, regrettably, to believe that even if fuel load does not occur until, for instance, March 1984, there is time to spare this proceeding, given the necessity not only for conduct of a hearing but for post-hearing briefing a'nd preparation of a Partial Initial Decision as well.
C. This Case Is Not Unique In Any Way Pertinent to a Discovery Schedule Beginning on page 5 of its Objection Suffolk County repeats a theme it has sounded before -- that this proceeding is "without precedent" (p. 5). Because of assertedly " unique issues of first impression" (p. 6), the County argues that a lengthy period of discovery is necessary.
The County makes no attempt to support its argument with specifics. What are these " unique issues of first impression"?
While the County does not say, it means, of course, that never before has a utility had to overcome the sudden opposition of a local government, after years of cooperation, in order to secure an NRC operating license. However, the County fails to specify how this fact translates into litigable issues that re-i quire months of additional discovery in addition to months of hearing.2/
, 2/ In fact, offsite emergency plans are commonly prepared in i
much the same way as the current one, with the utility sup-(footnote continued)
In fact, most of the County's contentions appear to be of the type that could be raised in any proceeding.3/ Of the ad-mitted contentions, the issues brought about solely by the fact that a utility rather than a local government is doing the local emergency plan appear to be the legal authority issues (contentions 1-10), which require little if any discovery, and the credibility issue (contention 15).4/ Most of the others (footnote continued) plying the bulk of the resources, including consultants to help prepare the plans, equipment, and training for offsite person-nel. Thus the bright line between utility actions and local government actions which the County seeks to draw is not, in fact, so bright.
3/ For example, for " role conflict," see Pacific Gas & Elec.
Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-82-70, 16 NRC 756 (1982); Cincinnati Gas & Elec. Co.
(William H. Zimmer Nuclear Power Station, Unit 1), ALAB-727, 17 NRC __, slip op. 19 (May 2, 1983). For the " shadow phenomenon" see Diablo Canyon, supra; Louisiana Power and Light Co.
(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC
, slip op. 42-44 (June 29, 1983). See also Consolidated Edison Co. of New York (Indian Point, Unit 2), ASLBP 81-466-03 SP, slip op. 5-7 (Feb. 7, 1983); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 NRC 1211, 1560-69 (1981).
4/ There may be a handful of others, such as perhaps Conten-tion 11 (utility conflict of interest) and 44.F (need for inde-pendent observers). But this is speculation, because the County does not state which issues it believes are " unique."
The County's claims that people will not believe or obey utili-ty personnel, and that government employees have experience that utility employees do not, may be implicit in many of the contentions. However, the repeated illustration of the same issue in numerous contexts does not mean that each of them re-quires exhaustive discovery.
are run-of-the-mill contentions seen in most NRC proceedings --
contentions about communications equipment, evacuation time estimates, and so on. The fact that the intervenors are alleg-ing that LILCO has too few tow trucks (contention 66.A) instead of that the local government has too few tow trucks hardly makes this a " unique" issue.
In short, LILCO thinks a bill of particulars is required and should have been presented by the County before this Board should be expected to grant a claim that extraordinary time for discovery is needed. Mere generic reference back to the Coun-ty's August 4 paper is no more adequate now than that paper itself was when first filed. The County has the burden of showing how this case departs from otherwise normal circum-stances for purposes of discovery, and has not met that burden.
D. Conclusion Neither the discovery discussions with the County to date nor the problems with the diesel generators nor the intrinsic nature of this case warrant, in LILCO's judgment, any departure from the schedule set by the Board on August 19 after consider-ation of the parties' papers before, and their arguments at, the August 9 Special Prehearing Conference.
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~II. THE CURRENT DISCOVERY IMPASSE At present, discovery is scheduled to end on September 23.
An impasse now exists between LILCO and the County with respect to this schedule because more depositions are desired by both parties than can be held before September 23 without holding more than one deposition at a time, and Suffolk County has stated that it is unwilling to conduct simultaneous depositions unless ordered to do so by the Board. In addition, the explo-ration of available dates for potential deponents which took place on August 18 resulted, as it happened, in the significant majority of the time (18 of 24 week days) before September 23 being committed to depositions by Suffolk County.5/ Thus, LILCO, unless it counters by refusing to produce its own wit-nesses, thereby compounding problems with discovery timing, finds itself in the position of either doing without needed discovery of persons to whom it has had no previous access; or seeking a reallocation of time before September 23, which the County will not concede; or engaging in more than one deposi-tion simultaneously, which the County has declined to do volun-tarily; or extending the schedule.
5/ The scheduling discussions which took place on August 18 were detailed and in good faith. However, they were not only
" tentative" as the County suggests, but also purely hypotheti-cal since the Board's scheduling Order, establishing a frame-work for discovery, had not yet been issued.
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O For the reasons stated in Part I LILCO believes that the Board's discovery schedule was reasonable when established and that nothing since has affected its reasonableness. Thus LILCO is not affirmatively requesting this Board to select an exten-sion of the schedule as a means of resolving the impasse. Fur-ther, LILCO believes that the County has been unreasonable in refusing to conduct more than one deposition at a time when at least eight attorneys from its outside law firm and two from the Suffolk County Law Department have entered appearances in this case (LILCO does not know how many of these attorneys are currently assigned to emergency planning issues), and in in-sisting on 18 of the 24 available days before September 23.
However, LILCO also believes that resolution of the impasse is important to all concerned, and that the Board should know these additional facts in reaching its decision:
- 1. Despite the differences described above, deposition discovery commenced last week with four days of depositions of LILCO witnesses and will continue this week with three days of depositions of County witnesses and one or two of LILCO wit-t nesses. Counsel have been cooperating on a day-to-day basis, though the urgency of resolving the impasse increases daily.
- 2. The impasse could not have been predicted until issu-ance of the Board's August 19 Order. Since that time counsel for LILCO and the County have examined their desired lists of
B potential deponents and have conferred by telephone several times in good-faith efforts to resolve the impasse. Neither side is fully satisfied with any changes whatever from their original requests for depositions (in the County's case, 27 depositions estimated to require between 27 and 42 days (with an apparent best estimate of 32 days); in LILCO's case, 23 dep-ositions (10 of them County police officials proposed as wit-nesses) estimated to require about 23 days). However, discus-sions since issuance of the August 19 scheduling Order have taken place in a framework which tentatively assumes approxi-mately 20 depositions by the County requiring approximately 18 days, and approximately 16 depositions by LILCO requiring ap-proximately 12 to 15 days.
- 3. Unless the Board requires the holding of more than one deposition at a time the pared-down list referred to in the previous paragraph cannot be accomplished by September 23; and of those days, all but 5 or 6 are tentatively allocated to dep-ositions by Suffolk County. With a one-week extension it appears that the schedule could be accomplished with a minor amount of simultaneous depositions.6/ With a two-week exten-sion, it appears that the schedule could be fully implemented 6/ At least two deponents, and perhaps more, in addition to Thomas Potter, may be subject to motions for protective order.
If none of these witnessses are ultimately deposed, the sched-ule could probably be completed in one extra week with no simultaneous depositions.
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with no simultanous depositions. Counsel for LILCO and the County hsve hypothetically discussed such a schedule and it l ,
appears preliminarily that there are not only enough days'but enough open days in deponents' schedules to accomplish the task.
- 4. LILCO and the County have examined the internal sched-ule between the_close of discovery and the commencement of hearings, and agree that there is relatively little room for tightening it up. Hence, if the Board were inclined to order an extension of the discovery schedule of the length discussed in the preceding paragraph, a day-to-day postponement of all subsequent events through the start of the hearings would be appropriate.
LILCO is willing to proceed on any reasonable basis to hearing. LILCO is willing to conduct simultaneous depositions as necessary to meet the present September 23 schedule. LILCO would not oppose a one-week, or even two-week, extension of it by the Board. The only configuration LILCO believes is inequi-table is the current one, with the County insisting on 18 of the 24 available days and unwilling to take simultaneous depo-sitions.
O CONCLUSION LILCO believes that the discovery schedule was reasonable
.s when set and that-it remains reasonable. LILCO recommends that the Board take either of the following actions: (1) require the current schedule to be maintained, with an order to both sides to perm'it more than one deposition at a time to take place.and to make witnesses available as necessary to accom-plish that goal; (2) extend the schedule by one, or even two, weeks with the same injunction to all parties as to witness availability, recognizing that its necessity will diminish as the length of the extension increases. If the Board extends the discovery schedule, LILCO also recommends a day-for-day postponement of the start of the hearing, to either November 21 or November 28.
~ Respectfuly submitted, LONG ISLAND LIGHTIN COMPANY
( . A W. Taylor Reveley, III James E. Farnham
- Donald P. Irwin James N. Christman Hunton & Williama 707 East Main Street P.O. Box 1535 Richmond Virginia 23212 DATED
- August 29, 1983
i LILCO, August 29, 1983 CERTIFICATE CF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Fower Station, Unit 1)
Docket No. 50-322 (OL)
I, Donald P. Irwin, hereby certify that copies of LILCO's Response to Suffoll: County Objection to Scheduling Order of August 19, 1983 were served this date upon the follow-ing by first-class-mail, pastage prepaid, or by hand (as indi-cated by one asterisk), or by Federal Express (as indicated by two asterisks).
James A. Laureneon,* Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Comnisaion Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555 Dr. Jerry R. Kline* '
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Revtlatory U.S. Nuclear Regulatory Commission Commission Enct-West Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
David A. Repha, Esq.
Mr. Frederick J. Shon* Edwin J. Reis, Esq.
Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD 20814
l Eleanor L. Frucci, Esq.* Stewart M. Glass, Esq.**
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel . Agency U. S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B. Latham, Esq.**
Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street i David J. Gilmartin, Esq. P.O. Box 398 Attn: Patricia A. Dempsey, Esq. Riverhead, New York 11901 County Attorney Suffolk County Department Ralph Shapiro, Esq.**
- of Law Cammer & Shapiro, P.C. ,
Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New York 10016 Herbert H. Brown, Esq.* James Dougherty, Esq.**
Lawrence Coe Lanpher, Esq. 3045 Porter Street Christopher McMurray, Esq. Washington, D.C. 20008 Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L. Blau 8th Floor 217 Newbridge Road 1900 M Street, N.W. Hicksville, New York 11801
- Washington, D.C. 20036 Jonathan D. Feinberg, Esq.
Mr. Marc W. Goldsmith New York State Energy Research Group Department of Public Service 4001 Totten Pond Road Three Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W. Perry, Esq.**
1723 Hamilton Avenue Associate General Counsel Suite K Federal Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.
Mr. Jay Dunkleberger Room 840 New York State Energy Office Washington, D.C. 20472 Agency Building 2 3 Empire State Plaza Ms. Nora Bredes Albany, New York 12223 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smi<htown, New Yo: k 11787 I I .
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Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 29, 1983
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