ML20087L601

Motion to Strike Direct Testimony of Cv Failla on Behalf of Ny State Re Contention 24.F.2.Agreement Re Notice of & Discovery on Intended Testimony Not Complied With. Certificate of Svc Encl.Related Correspondence

ML20087L601
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/24/1984
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
OL-3, NUDOCS 8403270292
Download: ML20087L601 (13)

Text

.

w-*

N ~[ REU\TED COnnESPONDENCE LILCO, g g 24, 1984 USHRC

'84 hAR 27 Al0:36 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

E.4khdhr5, Before the Atomic Safety and Licensing Board In the Matter of )

)

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

) (Emergency Planning Proceeding)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S MOTION TO STRIKE DIRECT TESTIMONY OF CHARLES V. FAILLA ON BEHALF OF NEW YORK STATE REGARDING CONTENTION 24.F.2 I. INTRODUCTION LILCO moves to strike in entirety the proffered " Direct Testimony of Charles V. Failla on Behalf of New York State Re-garding [ Group II.B] Contention 24.F.2," filed March 21, 1984.

The grounds for this motion are that this testimony is outside

[

the scope of New York State's stipulated direct testimonial h participation in the Group II hearings in violation of its Board-ratified agreement with LILCO and without notice to LILCO, resulting in unfair and prejudicial surprise to LILCO and needless disruption and complication of this hearing's progress. If LILCO had known that New York _ State intended-to file this testimony it would have timely undertaken discovery of New York State concerning it, and would have factored that discovery.into its own direct testimony.

8403270292 840324 PDR ADOCK 05000322 0 PDR ,.

Q

Y

! l I

I' l

} .

i i

If this testimony is admitted, LILCO will have to under-i take discovery after the fact and perhaps seek to file respon-l

} sive testimony, unfairly burdening it with a totally un-l j justified diversion from the business of preparing issues for

]

g trial at this hearing, and this Board with ruling on disputes J '

1 i enroute. Consequently, LILCO is filing this motion before the 1

E i .

deadline of March 27 in the hope of gaining an early decision on it and thus saving it the time, expense and burden of under-

{ taking the discovery ofsMr. Failla which will otherwise have to l

be undertaken. This motion must be ruled on well before Con-tention 24.F.2 is tried in order,to avoid LILCO's having to 4

l conduct discovery and conside'r whether to file responsive tes-

timony potentially needlessly.

f -

m i ,

II. ARGUMENT l

j When New York State became an active participant in this proceeding on January 17, its counsel, Mr. Palomino, stated that the State intended to designate;approximately 20 witnesses and that the State would designate Ahese witnesses soon enough-to permit discovery to be taken of them prior to the filing of testimony. These matters were discussed on the hearing record-4 on January 27 (Tr.'5638-48, esp.-3643244) as: well as off the - ~

record among counsel. Included in the' discussions.was the rec--

ognition of the need for discovery-to be taken prior to the filing of testimony, in order .to avoid the surprise and atten-i dant burdens and complications stemming from filing testimony e without discovery. < See Tr. 3641. ,

.- la.

1 14

+

y S

h' ,

. New York State's commitment at that time to make its wit-1 nesses available for discovery before the filing of its intend-ed testimony was a material and integral element in LILCO's agreement, at the January 27 discussion, to postpone the filing date for Group II issues, which at that point had been set for

> February 14 (see Tr. 3646 line 20 through 3648 line 9). In fulfillment of that agreement, New York State, by letter to

LILCO counsel dated February 6, designated 16 witnesses to tes-tify on 22 principal contentions and 11 additional specified portions thereof. Contention 24.F.2 was not among the conten-I tions as to which New York State indicated an intent to file testimony. Nor was Charles V. Failla designated as a witness.

Depositions of New York State's designated witnesses began on February 9 pursuant to agreement among counsel. On February 10, New York State counsel, by letter (Attachment 1) contracted the scope of the State's intended testimony to two issues, Con-tentions 67 and 97; this was confirmed by letter from LILCO counsel on February 13 ( Attachment 2), and further clarified by New York State the same day to include a third issue, Conten-tion 73 (Attachment 3). None of these letters mentioned any-

, thing about Contention'24.F.2. None of them hinted that New i

York State would later seek to re-expand'its intended scope of participation to encompass Contention 24.F.2, or indeed any  ;

i other contention beyond Nos. 67, 73 and 97.

1 i

LILCO conducted depositions and document discovery of each of New York State's witnesses on Contentions 67, 73 and 97 prior to the preparation and filing of testimony on them.

LILCO would have promptly conducted the same discovery of any additional New York State witnesses on additional issues if New l York State had designated any. However, New York State gave no notice whatever of its intent to file testimony on Contention 24.F.2 until the actual filing on March 21.

In a letter to LILCO counsel accompanying Mr. Failla's testimony (Attachment 4) counsel for New York State stated that l the State " determined for the first time on March 20, 1984 that l

it would submit Group II-B testimony concerning Contention 24.F.2 (prior commitments by bus companies to provide buses to school districts)." (emphasis supplied). This statement is inherently incredible: the State's testimony involves a de-tailed review of LILCO discovery answers and New York State records. These were not only available long before March 20, 1984, but would have to have been researched well before March

20. The State should have timely notified LILCO of its desire to change the commitments it had made on February 10 and 13, so ,

that LILCO could have conducted necessary discovery prior to filing its testimony.

New York's participation on Group II issues was based on a structure, arrived at on the record and implemented in detail by the parties, that witnesses and their intended scope of

testimony would be provided in advance, with the opportunity for needed deposition and document discovery provided to other parties prior to the filing of testimony. New York State has not attempted to justify its violation of this structure; in-deed it has utterly ignored it. This is not the first time the State, rather than taking the proceeding as it finds it, has tried to take the proceeding where it wants it to go. The State's initial testimony on Contention 65, filed on January 24, was reluctantly permitted by this Board to be filed even though it was several weeks out of time, because the State had just recently made the public decision to enter this case ac-tively. No such excuse is available this time, however. New York State has simply ignored the arrangement under which it was permitted to enter the proceeding at the eleventh hour and delay the entire process of getting to hearings on Group II is-sues. For the basic order and integrity of the proceeding, this flouting of important and specific understandings should not be permitted.

There is a second important reason why this testimony should not be permitted to be filed: unfair and unnecessary

. burden and surprise to LILCO. If this testimony is permitted to be filed LILCO will have to depose Mr. Failla and review the New York State documentation underlying his testimony. It may well turn out that if LILCO had had Mr. Failla's information in a timely manner LILCO could have written its direct testimony

e to address Mr. Fialla's arguments squarely; but of course LILCO lacked this information. If the testimony is admitted, LILCO will also have to determine whether to file supplemental testi-mony. Taking after-the-fact discovery and perhaps write addi-tional testimony not only diverts LILCO's resources from pro-ceeding toward hearing on this and other issues, but it ties up the Board with having to rule on any disputes which may arise along the way, as well as running the risk of again seeing is-sues broadened, unnecessarily, in mid-litigation. This should not be permitted to happen, particularly without justification by New York.

III. CONCLUSION This " Direct Testimony of Charles V. Failla on Behalf of New York State Regarding Contention 24.F.2" should be struck in entirety for failure to comply with the agreement regarding no-tice of and discovery on intended testimony, and because that failure is both prejudicial to LILCO and disruptive of this hearing's progress.

Respectfully submitted, LONG ISLAND LIGHTIN COMPANY

(')&

By .

' Donald P. Irwin HUNTON & WILLIAMS 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 24, 1984 i

l

8

. l l

l ATTACHMENT 1 6'

STAtc or NEW Yonn i

ExEcuTavs CHAMsER ALBANY 13224 February 10, 1984 Donald P. Irwin, Esquire Hunton & Williams P.O.Bos 1535 707 East Main Street Richmond, Virginia 23212

Dear Don:

In light of the current direction of this case, as well as scheduling conflicts, limitation onresour State of New York has determined that it will not by Messrs. Acquario, Knighton, Accordingly, Gibbon and the depositions on Contentions 67 and 97. scheduled for February 13, 15 an Let me reiterate, however, that New York State fully supports the position of Suffolk County and each of Intervenors' contentions in this procee i of the Group II issues. .

Sincerely, Fabian G. Palomino I:

. . _ , _ . _ , _ _ . - .- , ,e.. -

'l

. e.

ATTACHMENT 2 Huwrow & Vax.x.xAus 707 rAST Masm steert P.o. som Isas wasaiwoTo w. D. C. Ricassoars.visessna essas eu . 24566.000003 New Yonn.New Yo## 8357 LOS ANogLES, CALIFORNIA Tgtgpugwg gg4. ygg . sao o Rattiow,NomTH CamoLINA Noarota.VimointA -

MX 780

• S58 ' OO81 MugxvtLLt. TENNESSEE February 13, 1984 Fabian G. Palomino, Esq.

Special Counsel to the Governor BY TELECOPIER Executive Chamber, Room 299 State Capitol Albany, New York 12224 Dear Fabians j Thank you for your letter of February 10 regarding spon-

.. sorship of direct testimony by New York State witnesses. As I understand that letter, the only Group II contentions on which l

the State is sponsoring testimony are 67 and 97. In reliance on that representation, LILCO is willing to cancel the deposi -

tions now scheduled on the other Group II contentions.

Since the deposition on Contention 97 (snow removal) was

, already taken on February 9, I believe that the only contention on which a deposition remains is contention 67 (evacuation of persons without access to automobiles), with Messrs. Acquario,  ;

Albertin and Knighton on February 14. Thus, in addition to cancellation of the depositions on February 13, 15, and 17, as proposed in your letter, I think we can cancel the deposition j scheduled for the 16th. .

\

9 9 e

.r

- i

. . 1 Runrom 8: Wax.x.xAus I look forward to seeing you and Messrs. Acqu,ario, Albertin and Knighton at 10:00 tomorrow at the Governor's of-fices at Two World Trade Center.

i sy copy of this letter I'm notifying the other parties of the' change in schedule.

~

Sincerely yours,

_(

MM

^

- Donald P. Irwin 91/730 i cc By Telecopier Bernard M. Bordenick, Esq.

Stewart M. Glass, Esq.

('. ' -

Christopher M. McMurray, Esq.

P.S. As this letter was going out, Rick Eahnleuter telephoned to say that he believed that Messrs. Acquario, et al.

~

would also be sponsoring testimony on Contention 777 as well as 67. I asked him to confirm the matter in writing.

In any event, even if your letter of. Friday omitted men-i tion of Contention 73, the deposition schedule will not need to be revised further since Messrs.~Acquario, et al,.

are already scheduled for tomorrow.

a 4

0

l ATTACHMENT 3 l k

STAtt or NEw Yonn EXECUTIVE CHAMBER FABI AN PALOMINO f ALBANY 12224 Special Counsel to the Governer February 13, 1984 BY TELECOPIER l

Donald P. Irwin, Esq.

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

. Re: Docket No. 50-322-OL-3

Dear Don:

C? This is in response to the post script in your letter of February 13, 1984 to Mr. Palomino.

Please be advised that at this time the State intends to sponnor testimony on Contention 73., as originally specified in Mr. Falomino's letter to you of 'Fsbruary 6,1984.

~

i Sincerely, 19 1 z'gi) #5W

. Ls/

Richard . Zahnleuter, Esq.

Assistant to the Special Counsel to the Governor of the State of New York l

l l

cc: ALL BY TELECOPIER Bernard Bordenick, Esq.

Christopher McMurray, Esq.

Stewart Glass, Esq.

t, j

~~. .-

i ATTACHI'.ENT 4 svAvg or Nsw Yonn i ExrcuTivt CHAMBER ALsANYamaa4 March 21, 1984 Mr. Donald P. Irwin, Esq.

Bunton & Williams 707 East Main Street Richmond, Virginia 23219

Dear Don:

The state of New York determined for the, first time op March .20,1984 that it would submit Gioup II-B testimony concerning Contention 24.F.2 (Prior connaitments by bus cespanies to provide buses to school distri' cts).

The testimony consists of a concise discussion of certain officiel records of the New York State Department of Transportation. These records describe the number and type of buses bus companies on Long Island currently have in service.

The testimony is sponsored by Mr. Charles Failla. Mr.,Failla is the state employee who is the custodian of the official records mentioned above.

The records are located at the state office Building in Hauppauge, New York.

Should you wish to inspect these records, please contact me and I will make them available to you. In addition, Mr. Failla is stationed at the State Office Building in Hauppauge, New York. should you wish to depose him, please contact me and I will endeavor to accommodate your schedule.

sin rely, 4 uf

>uenA. d. .

{ Assistant to the special Counsel l to the Governor l l l cc: Mr. Class Mr. McMurray Mr. Repka l -

e 4

0 l_- .

l l

l LILCO, March 24, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

L (Emergency Planning Proceeding) Docket No. 50-322-OL-3 I

i I hereby certify that copies of LILCO'S MOTION TO STRIKE DIRECT TESTIMONY OF CHARLES V. FAILLA ON BEHALF OF NEW YORK STATE REGARDING CONTENTION 24.F.2 were served this date upon the following by first-class mail, postage prepaid, or by Fed-eral Express (as indicated by an asterisk).

James A. Laurenson,* Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission 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 1

Dr. Jerry R. Kline*

Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.

Bethesda, MD 20814 Bernard M. Bordenick, Esq.*

David A. Repka, Esq.

Mr.-Frederick J. Shon* Edwin J. Reis, Esq.

l Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission f 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 Stewart M. Glass,-Esq.*

Regional Counsel Eleanor L. Frucci, Esq.* Federal Emergency Management

. Attorney. Agency i Atomic Safety and Licensing 26 Federal Plaza, Room 1349 Board Panel New York, New York' 10278-U. S. Nuclear Regulatory Commission Stephen B. Latham, Esq.

East-West Tower,. North Tower Twomey, Latham & Shea 4350 East-West Highway 33 West Second Street

-Bethesda, MD -20814 '

Post. Office Box'398-Riverhead, NY~ 11901 i

, , - ~ . , .

,7

. - . - . -. -_. .= . . . .

}

1 Fabian G. Palomino, Esq.* Ralph Shapiro, Esq. '

Special Counsel to the Cammer & Shapiro, P.C.

Governor 9 East 40th Street j Executive Chamber New York, New York 10016

Room 229 i State Capitol James B. Dougherty, Esq.

8-Albany, New York 12224 3045 Porter Street Washington, D.C. 20008 Herbert H. Brown, Esq.* '

Lawrence Coe Lanpher, Esq. Howard L. Blau Christopher M. McMurray, Esq. 217 Newbridge Road Kirkpatrick, Lockhart, Hill Hicksville, NY 11801 q Christopher & Phillips 8th Floor Jonathan D. Feinberg, Esq.

1900 M Street, N.W. New York State Public Service Washington, D.C. 20036 Commission, Staff Counsel 3 Rockefeller-Plaza Albany, New York 12223 Mr. Marc W. Goldsmith Energy Research Group

4001 Totten Pond Road Spence W. Perry, Esq.

j Waltham, Massachusetts 02154 Associate General Counsel Federal Emergency Management

] MHB Technical Associates Agency 1723 Hamilton Avenue 500 C Street, S.W.

Suite K Washington, D.C. 20472 j San Jose, California 95125

! Ms. Nora Bredes i Mr. Jay Dunkleberger Executive Coordinator New York State Energy Office Shoreham Opponents' Coalition Agency Building 2- 195 East Main Street Empire State Plaza Smithtown, New York 11787 Albany, New York- 12223' Martin Bradley Ashare, Esq.

Gerald C. Crotty, Esq. Suffolk County Attorney Counsel to the Governor H. Lee Dennison Building Executive Chamber Veterans Memorial Highway State Capitol Hauppauge, New York -11788 Albany,'New York 12224 i

' Donald 'P . Irwin i Hunton & Williams 707 East Main Street

Post Office Box 1535 23212

~

Richmond, Virginia i -

DATED: March 24, 1984 I

w wywg=- y y--w'- 'T T' it9'1 99 =+ -W' - - - *y'T+ -TT"-S-40 " f 9 'T*T'* -- 5--" - * * *