ML20083Q915

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Memorandum Explaining Suffolk County Discovery Requests Re FEMA 840419 Testimony.Notices of Depositions,Motion to Compel,Application for Subpoenas & Request for Production of Documents Encl.Related Correspondence
ML20083Q915
Person / Time
Site: Shoreham File:Long Island Lighting Company icon.png
Issue date: 04/20/1984
From: Letsche K
KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:
Shared Package
ML20083Q918 List:
References
OL-3, NUDOCS 8404230382
Download: ML20083Q915 (6)
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DOLKETED UNITED STATES OF AMERICA 7N U NUCLEAR REGULATORY COMMISSI,0N Before the Atomic Safety and Licensk g @b b d rr r 0F SECRETAf'f ditts & SEFV:(

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY - ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

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MEMORANDUM EXPLAINING SUFFOLK COUNTY' DISCOVERY PEQUESTS RELATING TO FEMA Suffolk County is filing today several discovery pleadings relating to the FEMA testimony which was if'le'd in this proceed-ing on April 19, 1983. Specifically, the County is filing the following pleadings:

1. Notices of Deposition of FEMA witnesses (Kowieski, McIntire, Baldwin and Keller);

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2. Suffolk County Motion to Compel the Separate Appear-ance for Depositions of the FEMA witne'sses;
3. Suffolk County Request for Production of Documents by FEMA;
4. Notices of Deposition of FEMA personnel involved in the FEMA RAC review (Acerno, Jackson and Lawless);

8404230382 840420 .

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5. Suffolk County Application for Issuance of Subpoenas -

to RAC members (Melina,'Fishi Bernack.i, Olmer, Feldman and Lutz), wi.th accompanying Subpoenas and Notices of Deposition;

6. Notices of Deposition of NRC RAC members (Gordon and Bores);
7. Suffolk County Motion to Direct Appearance of NRC Personnel for Deposition; and
8. Suffolk County Request for Production of Documents by NBC.

As we explain below, the County.is filing several of the above pleadings -- specifically, Items 4-8 -- at this time as-a-precaution only; the County will inform the Board if Board action is necessary with respect to any of items 4-8.

The discovery sought by the County relates to the FEMA testimony which-was filed on April 19, 1984. The FEMA witnesses, Messrs. Baldwin, Keller, Kowieski and McIntire, at-tached a document to that testimony ent,itled "LILCO Transition Plan for Shoreham -- Revision 3, Consolidated RAC Review, Dated February 10, 1984," '(hereinafter, the "RAC Review"), and rely throughout their. testimony upon th'e facts found by the FEMA e

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i Regipnal Assistance Committee ("RAC") and set forth in the RAC Review. They also discuss in their testimony the review

, comments of the RAC members, a RAC meeting, and discussions among RAC members that apparently were part of the process of producing the RAC Review.

Because the RAC Review will thus'be offered into evidence, and the facts contained therein are relied upon as the bases for the opinions and conclusions expressed in the FEMA testimo- ,

ny, Suffolk County's cross-examination of that testimony must necessarily explore the facts set forth in the RAC Review, the bases for those facts, and the process by which those facts were identified. Such cross-examination cannot be conducted effectively without prior discovery of relevant documents and information possessed by knowledgeable individuals.1/

FEMA counsel has agreed to the County's request to depose the four FEMA witnesses. Such depositions have been tenta-tively scheduled for. May 8 and 9.2/ The County has also

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1 The County has never had discovery of FEMA witnesses or personnel concerning FEMA's RAC review. The limited FEMA discovery last Fall preceded that review, and with one exception (Mr. Kowieski) none of the FEMA personnel de-posed by the County turned out to be sponsors of FEMA tes-timony or involved in the RAC review. Further, at the time he was deposed, Mr. Kowieski had in fact not reviewed even the prior versions of LILCO's Plan.

2/ The only matter relating to the depositions of the four FEMA witnesses which requires'the Board's attention. is the (Footnote cont'd next page)

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informed FEMA counsel of its desire for documents related to .

the RAC review, and FEMA counsel has stated that he may produce some, but has not yet identified what he.will produce. Follow-ing further discussions, counsel will inform the Board if its intervention is necessary with respect to the document request directed to FEMA.

The County intends to pursue during its FEMA witness depo-sitions the areas identified above which are necessary to en-able us to conduct effective cross-examination of the FEMA direct testimony. If the four FEMA witnesses are able to respond to the County's questions on the RAC review upon which they rely, and if the County's Request for Production of Documents to FEMA results in the provision of all materials the County desires, it will not be necessary to pursue additional -

discovery with individual RAC members or with additional FEMA personnel (i.e., Items 4-8 above), and those pleadings will be wi thd r' awn . If, however, the FEMA witnesses are not able to provide the information requested by the County, or if FEMA ei-ther does not have in its custody, or refuses to produce (Footnote cont'd from previous page). ,

Motion to Compel the Separate Appearance of those witnesses. Counsel have agreed to work out among themselves the dates, times, and locations of those depo-sitions following the Board's ruling on that Motion.

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pert,inent documents related to the RAC review, it may be necessary for the County'to pursue the additional discovery de-scribed above directed to individual RAC members, the NRC, and other FEMA personnel. FEMA counsel has indicated that he will not agree to such addicional discovery. We intend to ask the NRC Staff to agree to the requested Staff discovery if it be-comes necessary to pursue it.

Thus, the only pleading which requires the Board's atten- ,

tion at this time is Item 2 above -- the Motion to Compel the Separate Appearance for Depositions of the four FEMA witnesses.

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The County intends to pursue its discovery requests directed to individual RAC members (including the two NRC members), the NRC, and FEMA personnel other than the four FEMA witnesses, (i.e., Items 4-8 listed above) only if its depositions of the four FEMA witnesses and Request for Production of Documents to FEMA do not produce the information necessary. The County will inform the Board immediately after the FEMA witnesses'are de- -

posed on May 8 and 9 as to whether the requested su.bpoenas and

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orders are in fact nece'sary, s and whether the County seeks to compel responses to its document requests or the appearance of other FEMA personnel at depositions. However, because cross-examination of the FEMA witness panel is currently scheduled to 1

begin on May 29, and therefore the necessary discovery would i 1

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~i have'to take place.during the period May 10-18, the County is .

submitting the Subpoena Application and Moti,on .to Direct Ap-pearance of NRC Witnesses at this time'so the Board can give those matters its prompt attention should the nee'd arise.

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Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law j Veterans Memorial Highway Ha'uppauge, New York 11788

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l- j dL c 19(AGh Her'bert H. Brown Lawrence Coe (an [pher Karla J. Letsche John E. Bir'kenheier KIRKPATRICK, LOCKHART, HILL,

-CHRISTOPHER & PHILLIPS 1900 M. Street, N.W.

Washington, D.C. 20036 Attorneys for Suffolk C'ounty Dated: April 20, 1984

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