ML20080L588

Rept to ASLB Re Suffolk County 830826 Motion to Compel Ongoing Discovery on Diesel Crankshaft Failure.Explains Why Util Response to Discovery Did Not Satisfy Motion & Why Discovery Necessary.Certificate of Svc Encl

ML20080L588
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/27/1983
From:	Dynner A KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:
References
ISSUANCES-OL, NUDOCS 8309300377
Download: ML20080L588 (13)

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September 27, 1983 l 00CKETED UNITED STATES OF AMERICA US?IRC NUCLEAR REGULATORY COMMISSION T3 EP 29 R2:18 Before the Atomic Safety and Licensing Board

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i In the Matter of )

)

LONG ISLAND LIGHTING COMPANY )

) Docket No. 50-322 (O.L.)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

)

SUFFOLK COUNTY'S REPORT TO BOARD REGARDING MOTION TO COMPEL ONGOING DISCOVERY CONCERNING DIESEL CRANKSHAFT FAILURES I. Introduction This report is filed pursuant to a request by Judge Brenner communicated to the parties' counsel by Judge Brenner's secretary in a telephone conference call on Friday, September 23, 1983. Because no member or other representative of the Board was involved in the call, no explanation or elaboration of the request could be obtained by counsel for Suffolk County.

On August 26, 1983, Suffolk County filed a Motion to Compel Discovery, with regard to the County's August 18, 1983 Request for Discovery, on an ongoing basis, of matters concerning I the emergency diesel crankshaft failures and the attempt to determine the cause (s) of the failures. On September 12, 1983, LILCO filed a Response to Suffolk County's Motion to Compel (the "LILCO Response"), opposing the County's Motion to Compel 8309300377 830927 PDR G ADOCK 05000322 PDR

. Discovery but agreeing to certain limited and narrowly defined discovery. During the September 23 conference call, Judge Brenner's secretary requested the parties to file a joint state-ment to the effect that this discovery dispute has been resolved, presumably by the LILCO Response. Counsel for the County expressed shock and surprise at this request. Even a cursory reading of the County's Motion and the LILCO Response clearly shows a broad gulf between the County's requested discovery and LILCO's agreement to provide narrow and limited discovery.

After counsel for Suffolk County protested that the LILCO Response would not provide adequate discovery, Judge Brenner's secretary stated, as we understand, that the County should file a report showing why the LILCO Response did not satisfy the County's Motion to Compel Discovery, and explaining why the discovery requested by the County and denied by LILCO is necessary.

This report is filed in response to that request. However, the County must register a protest over the manner selected by the Board to deal with this discovery dispute.

First, it is clear from the County's August 18 Request for Discovery and its August 26 Motion to Compel Discovery that as prompt as possible attention by the Board to this discovery 1

dispute was warranted. The discovery sought by the County is obviously intended to permit the County's diesel experts to monitor and observe the ongoing efforts to determine the cause(s) of the crankshaft failures,which both the County and the NRC

Staff believe may be related to, and thus relevant to, the County's diesel contentions. LILCO's September 21 Diesel Generator Status Report (received by the County on September 22) indicates that many tests, examinations and analyses which the County sought to witness have already been completed. Thus, the Board's delay in addressing the discovery dispute has had the de facto effect of denying portions of the County's request.

Second, the County's Motion to Compel Discovery is entitled to more serious and judicious consideration by the Board than an erroneous assumption that a clearly inadequate discovery agreement by LILCO was an acceptable substitute for the discovery requested by the County.

Third, the second-hand request for this report through Judge Brenner's secretary is apparently for information already contained in the County's Motion to compel Discovery and the LILCO Response, and could not be explained to counsel. If the Board needs further explanation or argument of the Motion to Compel Discovery, it would seem more useful to the Board and the parties, as in the past, to have a conference among the parties and the Board in person or by telephone. Of course, we recognize and do not challenge the Board's right to adopt whatever procedures it chooses in deciding upon a motion.

But we have some concern over the significance of the departure in this case from past practices.

Fourth, the test for discovery is relevancy, a test clearly met by the County's discovery request. The Board now

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appears to require the County to meet another test -- that the discovery is necessary. Such a test is not required by the regulations or case law.

II. Discussion The differences between the discovery requests of Suffolk County and the limited discovery agreement by LILCO, and why the latter is inadequate and the former appropriate and necessary,

! are summarized hereafter.

A. Documents County's Request:

That LILCO promptly provide the County with topies of all documents (as defined in the County's Request) , whether preliminary or final, as and when they come into LILCO's possession or under its control, pertaining to the crankshaft failure [s] or the attempt to determine the cause (s) of the failure [s]. See County's August 18, 1983 Request for Discovery, 13.

LILCO Agreement:

a. Diesel Generator Master Plan (which has already been provided) and the revisions to the plan, if any.

b. Failure Analysis Associates' (FAA's) interim report on the results of the metallurgical examinations of the diesel generator 102 crankshaft.

c. Any other technical interim reports on the crankshaft failure issued by FAA.

, d. The final report of Failure Analysis Associates.

e. FAA Report concerning the torsional stress tests on Emergency Diesel Generator 101.

See LILCO Response, $t a-e, pp. 3-4.

Comments:

Aside from the Master Plan, LILCO would restrict document discovery to certain interim and final reports of Failure Analysis Associates ("FAA"). This deprives the County of discovery of all original and background documents necessary to evaluate the FAA reports; for example, the procedures used l l

to carry out tests, examinations and analyses; checklists, reports or memoranda showing all results of tests, examinations and analyses; and documents which ma; show what potential failure causes were suspected, and why they were rejected, or how they were pursued. In addition, according to the LILCO Master Plan, entities besides FAA, such as Transamerica Delaval, Stone &

Webster, and LILCO itself, are involved in and have responsibility for the failure analysis process. LILCO objects to supplying any documents from those sources, yet such documents pertaining to the cause(s) of the crankshaft failures are clearly just as relevant as documents generated by FAA.

B. Notifications, Witnessing and Meeting Attendance County's Requests:

1. That LILCO promptly notify the County of its plans (and any changes thereto) to determine the cause(s) of the crankshaft failure [s], including the kinds of examinations, tests

. and analyses it will carry out, the schedules for them, and the identification of persons who will be involved in the failure analyses and their responsibilities.

2. That LILCO give the County reasonable advance notice of all examinations, tests and analyses to be carried out in connection with the attempt to determine the cause (s) of the crankshaft failure [s], including without limitation any diesel engine tear-down, and permit representatives and consultants of the County to witness such examinations, tests and analyses.

i 3. That LILCO give the County reasonable advance notice of all meetings concerning the crankshaft failure [s] which are to be attended by NRC Staff personnel, or to which such Staff personnel are invited, and that representatives and consultants of the County be invited to attend such meetings.

4. That LILCO promptly notify the County be telephone of any and all significant developments in the attempt to determine the cause (s) of the crankshaft failure [s]. See County's August 18, 1983 Request for Discovery, $1 1, 2, 4 and 5.

LILCO Agreement:

1. LILC0 periodic status report every two to three i

weeks.

2. LILCO will permit the County to visually inspect and photograph the removed crankshafts on diesels 101 and 103 (diesel 102 crankshaft already visually inspected and photographed).

3. "LILCO will give the County access to the disassembled 1

portions of Emergency Diesel Generator 102 and Emergency Diesel l

Generators 101 and 103 once those engines are disassembled."

4. "LILCO will permit the County to attend meetings with the NRC Staff for which the Staff has issued a meeting notice."

See LILCO Response, pp. 4-5.

Comments:

The LILCO status reports set forth only what LILCO chooses to tell the County, when it chooses to do so. They are thus no substitutes for the documents sought by the County, nor for notice of and witnessing tests, examinations and analyses to determine what is actually being done and how it is being done. For example, the September 21 LILCO Status Report, at page 3, states as to diesel 103 that

. . . analyses show there are no operating mechanisms which cause these cracks [in the base plate] to be of concern.

There is no description of exactly what analyses were performed, how, and what the bases are for the stated conclusion.

Another example is that no mention is made as to whether the cylinder heads on the diesels were examined, and if so, how, and what were the results.

A visual inspection of the broken r.nd cracked crankshafts, while useful, is insufficient discovery. The County's diesel experts should be given the opportunity to witness the examina-i tions and tests performed on the crankshafts, to determine  !

exactly what is being done and how. Unfortunately, much of l the testing of the diesel 102 crankshaft has apparently been completed or will shortly be completed (see LILCO Status Report at 1).

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, Despite its promise to do so, LILCO has failed to give the County a reasonable opportunity to inspect the disassembled portions of diesels 102 and 103.- LILCO did not notify the County of the status of those diesels or invite the County to inspect them while disassembled. On September 22 the County learned from the Status Report (at pp. 2 and 4) that diesels 102 l

and 103 were about to be reassembled, and immediately wrote by telecopier to LILCO's counsel requesting the right to inspect those diesels while disassembled, as LILCO had promised (a copy of that letter, dated September 22, 1983 is attached as Annex 1 hereto). In a telephone conversation with LILCO's counsel on September 23, the County's counsel learned that diesel 103 would have a new crankshaft installed and the engine block replaced ,

by September 25, and that diesel 102 would be released for reassembly on September 23 or 24. Explaining that the County's chief diesel expert, Professor Christensen, was out of town until September 27, County's counsel requested that LILCO defer reassembly until his return and inspection, and LILCO refused.

Respectfully submitted, David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppau , New York 11788

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Herbert H. Bpw( /r Lawrence CM Lanpher Alan Roy Dynner KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS W shi gton D$C bO36 1

September 27, 1983 Attorneys for suffolk County l

ANNEX 1 KIRKPATRICK, LOCKHART, lITT.T , CHRISTOPHER & PHII. LIPS A Parrwsmome IncLuotwo A PaorsesionAL ComponAnon 1900 M Srazer, N. W.

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202/452-7044 (By Telecopier)

Anthony F. Earley, Jr., Esq.

Hunton & Williams P.O. Box 1535 j 707 East Main Street l Richmond, Virginia 23212 l l

Dear Tony:

I We received today a copy of LILCO's Diesel Generator

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Status Report, dated September 21, 1983. I was surprised to note in the report that LILCO expects to begin re-assembling diesel generator 102 today, and that diesel generator 103 was to be released for reassembling on or soon after September 20, 1983.

In LILCO's Response to Suffolk County's Motion to Compel discovery, dated September 12, 1983, LILCO states:

LILCO will give the County access to the disassembled portions of Emergency Diesel Generator 102 and Emergency Diesel Generators 101 and 103 once those engines are dis-assembled. Such access will be scheduled to avoid interfering with diesel generator activities. (p. 5).

Until we received LILCO's Diesel Generator Status Report today, the County had no information concerning the state of disassembly of the diesels. We assume, in accordance with the position taken in your Response, that you will telephone me so that arrangements can be scheduled for o

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ErmarArancx, LOCKHART, HILL, Cumisfornza & Puru.IPS I

Anthony F. Earley, Jr., Esq.

September 22, 1983 Page 2 -

the County's representatives to inspect the disassembled diesels prior to the time that reassembly commences.

Sincerely yours, 2 __

Alan Roy Dy er ARD/dk cc: Lawrence J. Brenner, Esq.

Dr. George A. Ferguson Dr. Peter A. Morris Richard J. Goddard, Esq.

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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 (0.L.)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of "Suffolk County's Report to Board Regarding Motion to Compel Ongoing Discovery Concerning Diesel Crankshaft Failures" were sent on September 27, 1983 by first class mail, except where otherwise noted, to the following:

Lawrence J. 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. George A. Ferguson

• 217 Newbridge Road Administrative Judge Hicksville, New York 11801 Atomic Safety and Licensing Board School of Engineering W. Taylor Reveley III, Esq.**

Howard University Hunton & Williams 2300 6th Street, N.W. P.O. Box 1535 Washington, D.C. 20059 707 East Main Street Richmond, Virginia 23212 Dr. Peter A. Morris

• 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 By Hand

• Federal Express **

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Mr. Brian McCaffrey Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea 175 East Old Country Road P.O. Box 398 Hicksville, New York 11801 33 West Second Street Riverhead, New York 11901 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 1

Joel Blau, Esq. M3B Technical Associates New York Public Service Commission 3 723 Hamilton Avenue The Governor Nelson A. Rockefeller Elite K Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter Cohalan l Suffolk County Executive l David J. Gilmartin, Esq. H. Lee Dennison Suffolk County Attorney Building H. Lee Dennison Building 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 l 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 i Bernard M. Bordenick, Esq.* Commission David A. Repka, Esq. . Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jonathan D. Feinberg, 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 Stewart M. Glass, Esq. James B. Dougherty, Esq.

Regional Counsel 3045 Porter Street, N.W.

Federal Emergency Management Washington, D.C. 20008 Agency 26 Federal Plaza New York, New York 10278 l

$lall. W Michael S. Miller KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: September 27, 1983 4

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