ML20087P852

Response Opposing Lilco 840324 Motion to Strike Direct Testimony of Cj Failla on Behalf of State of Ny Re Contention 24.F.2.Certificate of Svc Encl.Related Correspondence

ML20087P852
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/04/1984
From:	Zahnleuter R NEW YORK, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
OL-3, NUDOCS 8404090430
Download: ML20087P852 (8)

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DOLKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 84 APR -9 mt :07 ATOMIC SAFETY AND LICENSING BOARD crr y 37$[ ggt 7p Before Administrative Judges 00CriTING & sEpvp ,

James A. Laurenson, Chairman BRANCH Dr. Jerry R. Kline Mr. Frederick J. Shon

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In the Matter of )

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LONG ISLAND LIGliTING COMPANY )

Docket No. 50-322-OL-3 (Shoreham Nuclear Power * #E " Y """ "E "E Station, Unit 1) ) April 4, 1984

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RESPONSE OF GOVERNOR MARIO CUOMO, REPRESENTING THE STATE OF NEW YORK, IN OPPOSITION TO "LILCO'S MOTION TO STRIKE DIRECT TESTIMONY OF CllARLES V. FAILLA ON BEHALF OF _

NEW YORK STATE REGARDING CONTENTION ,

24. F. 2. "

Governor Mario Cuomo, representing the State of New York, hereby oppos : LILG8s motion of March 24, 1984 to strike the direct testimony of Charles V. Failla (hereinafter, "LILCO's motion").

Mr. Failla's testimony has been submitted on behalf of the State of New York. It pertains to Group II-B Contention 24.F.2. The testimony, which is two and one-half pages long, shows that if a nuclear accident were to occur during school sessions, seven of the bus companies under contract to LILCO could in fact provide LILCO with only 69 buses. This

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figure represents approximately 10% of the number of buses nominal y committed by the seven bus companies to LILCO.

LILCO's motion claims that the State's testimony on Group II-B Contention 24.F.2 unfairly surprises LILCO and disrupts the progress of this licensing proceeding. For the reasons set forth below, LILCO's claims are untrue.

With respect to LILCO's first claim of surprise, it should be noted that the State filed its testimony in a timely manner. LILCO does not refute this. In addition, as is evident from the State's cover letter of March 21,19d4 to LILCO (attachment 4 to LILCO's motion), the State offerred to provide LILCO with an opportunity to inspect the official New York State Department of Transportation records relied on by Mr. Failla.

By letter of March 26, 1984, LILCO requested a copy of these records, and, indeed, the State has already provided a copy of the records to LILCo.

The State's cover letter of March 21, 1984 to LILCO (attachment 4 to LILCO's motion) also offerred to make Mr. Failla available to be deposed.

Such a deposition would be convenient for LILCO because Mr. Failla works in the State Office Building in liauppauge. The official New York State Department of Transportation records relied on by Mr. Failla are also located in the same place. Ilowever, as of April 3, 1984, the State has received no request from LILCO to depose Mr. Failla. Thus, the State has been reasonable in accomodating LILCO's requests for discovery concerning the testimony.

The State's cover letter of March 21, 1984 (attachment 4 to LILCO's motion) stated that 2

"The State of New York determined for -

the first time on March 20, 1984 that it would submit Group II-B testimony concerning Contention 24.F.2 (prior commitments by bus companies to provide buses to school districts),"

LILCO describes this statement as " inherently incredible." liowever, the State of New York did determine for the first time on March 20, 1984 that it would submit testimony concerning Contention 24.F.2.

As LILCO admits in the last two sentences of the first paragraph on page three of its motion, the State never had any plans prior to March 20, 1984 to file testimony on Contention 24.F.2, nor did the State have any plans orior to March 20, 1984 to engage Mr. Failla as a witness.

It was only on March 19, 1984 that counsel for the State learned that the New York State Department of Transportation in Hauppauge possessed precise inventories of the number and condition of private school buses on Long Island. (Counsel for the State was in llauppauge at that time in anticipation of the commencement of hearings on March 20, 1984.)

The official records were not gathered until March 20, 1984. At that time, the official records were compared to the number of buses private bus companies had already committed to schools. This information was set forth by LILCO in a numerical listing in an answer to one of Suffolk County's Interrogatories. The official records were also compared to the number of buses private bus companies had committed to LILCO. This information was set forth by LILCO in tabular form on pages six and seven of its Group II-A testimony on Contention 24.F.1, 4 and 5. Thus, it was on March 20, 1984 that the State determined it would file testimony 3

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. 1 showing that if a nuclear accident were to occur during school sessions, seven of the bus companies under contract to LILCO could in fact provide LILCO with only 10% of the buses nominally committed by the seven bus I

companies to LILCO.

With respect to LILCO's second claim that the State's testimony will disrupt the progress of this licensing proceeding, it should be noted that Contention 24.F.2 is a Group II-B contention. The schedule for testimony on Gr' II-B contentions has not been established yet and there will be at least one month before testimony on Group II-A contentions will be completed. Accordingly, there is an abundant amount of time available before trial for LILCO to evaluate the State's two and one-half pages of testimony.

If LILCO then determines that it has a need to present additional testimony, the Board may permit LILCO to present such additional testimony, after showing good cause in a timely motion. It may not be said that the existence of that procedure unnecessarily broadens issues in mid-litigation, as LILCO has asserted on page six of its motion.

In addition, if LILCO were to attempt to present additional testimony on Contention 24.F.2, LILCO would be in a position no different than the State is now in concerning LILCO's testimony on Group II-A Contention 24.I.

The State found out for the first time when LILCO filed its testimony on Contention 24.I that many of the " transfer points" designated in the Plan were eliminated and were replaced with other facilities at different locations.

If the State determines that it has a need-to present additional testimony on Contention 24.I, the State will seek to present such additional testimony 4

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after showing good cause in a timely motion. Rather than disrupting the progress of the hearing, as LILCO claims, this procedure facilitates the efficient receipt of relevant new information.

For the reasons set forth above, the State requests that the Board deny LILCO's motion to strike the State's testimony on Group II-B Contention 24.F.2.

Respectuflly submitted, MARIO CUOMO, Governor of the State of New York FABIAN G. PALOMINO, ESQ.

Special Counsel to the Governor of the State of New York BY: ,.

RICliARD J. ' Hi1 @T H. ESQ.

Assistant to e Special Counsel to the Governor of the State of New York Hauppauge, New York 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ETOMIC SAFETY AND LICENSING BOARD Before Administrative Judges James A. Laurenson, Chairman J

Dr. Jerry R. Kline Mr. Frederick J. Shon

) "h .}

In the Matter of )

) Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY ) (Emergency Planning Proceeding)

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(Shoreham Nuclear Power Station, ) April 4, 1984 Unit 1) )

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CERTIFICATE OF SERVICE I hereby certify that one copy of the RESPONSE OF GOVERNOR MARIO CUOMO, REPRESENTING THE STATE OF NEW YORK, IN OPPOSITION TO "LILCO'S MOTION TO STRIKE DIRECT TESTIMONY OF CllARLES V. FAILLA ON BEllALF 0F NEW YORK STATE REGARDING CONTENTION 24.F.2" d has been served to each of the following this 4th day of April, 1984 by U. S. Mail, first class, except as otherwise noted:

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, I;ew York 10016 Dr. Jerry R. Kline

• Howard L. Blau, Esq.

Administrative Judge 217 Newbridge Road Atomic Safety and Licensing Board Hicksville, New York 11801 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 W. Taylor Reveley III, Esq.

• Hunton & Williams i4r. Frederick J. Shon

• P. O. Box 1535 Administrative Judge 707 East Main Ctreet Atomic Safety and Licensing Board Richmond, Virginia 23212 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 .

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Mr. Jay Dunkleberger Marc W. Goldsmith New York State Energy Office Energy Research Group, Inc.

Agency Building 2 400-1 Totten Pond Road Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates James B. Dougherty, Esq. 1723 Hamilton Avenue, Suite K 3045 Porter Street, N. W. San Jose, California 95125 Washington, D. C. 20008 Honorable Peter F. Cohalan Mr. Brian McCaffrey Suffolk County Executive Long Island Lighting Company H. Lee Dennison Building Shoreham Nuclear Power Station Veterans Memorial Highway P. O. Box 618 Hauppauge, New York 11788 North Country Road Wading River, New York 11792 Ezra I. Bialik, Esq.

Assistant Attorney General Martin Bradley Ashare, Esq. Envirommental Protection Bureau Suffolk County Attorney New York State Department of Law

h. Lee Dennison Building 2 World Trade Center Veterans Memorial Highway New York, New York 10047 Hauppauge, New York 11788 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Stewart M. Glass, Esq.

Docketing and Service Section Regional Counsel Office of the Secretary Federal Emergency Management U.S. Nuclear Regulatory Commission Agency 1717 H Street, N.W. -

26 Federal Plaza, Room 1349 Washington, D. C. 20555 New York, New York 10278 Bernard M. Bordenick, Esq.

• Nora Bredes gj David A. Repka, Esq. Executive Dirgptor U.S. Nuclear Regulatory Commission Shorehan Opponents Coalition Wasnington, D. C. 20555 195 East East Main Street Smithtown, New York 11787 Stuart Diamond Environment / Energy Writer Eleanor L. Frucci, Esq.

NEWSDAY Atomic Safety and Licensing Long Island, New York 11747 Board Panel U.S. Nuclear Regulatory Commission Stephen B. Latham, Esq. Washing ton, D. C. 20555 Twomey, Latham & Shea P. O. Box 390 33 West Second Street Riverhead, New York 11901 1

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3-Herbert H. Brown, Esq.

• Lawrence Coe Lanpher, Esq.

Karla J. Letsche, Esq.

1900 M Street, N. W., Suite 800 Washington, D. C. 20036 Spence Perry, Esq.

Associate General Counsel Federal Emergency Management Agency Washington, D. C. 20472

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l RICHARD J. ZJQiyLEUJER Assistant to the Special Counsel to the Governor of the State ,

of New York Executive Chamber '

State Capitol Albany, New York 12224

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• By Hand Also I

• • By Federal Express

• • • By Telecopier

• • • • By U.S. Express Mail Hauppauge, New York '

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