ML20090A889
| ML20090A889 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/09/1984 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20090A860 | List: |
| References | |
| OL-3, NUDOCS 8407120160 | |
| Download: ML20090A889 (26) | |
Text
F fiELATED '
7'CEin LILCO, July 9, 1984 OC UNITED STATES OF AMERICA O
NUCLEAR REGULATORY COMMISSION 81 n.
E, Il pI ?!
Before the Atomic Safety and Licensing Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning (Shoreham Nuclear Power Station, )
Proceeding)
Unit 1)
)
LILCO'S REPLY TO SUFFOLK COUNTY MOTION CONCERNING FEMA DISCOVERY I.
Introduction In the afternoon of Friday, July 6, LILCO counsel received a motion from Suffolk County,1/ renewing Suffolk County's earlier demands for production by FEMA of privileged documents relating to the RAC review of the Shoreham Transition Plan, requesting issu-ance of subpoenas for individual RAC members, and requesting post-ponement of cross-examination of the FEMA witnesses currently (and long since) scheduled to begin the following Tuesday, July 10.
1/
"Suffolk County's Motion to Compel Production of Documents by FEMA, and to Postpone the Cross-examination of FEMA's Witnesses, and for Issuance of Subpoenas to the Members of the RAC," July 6, 1984 (hereinafter, the Motion).
The copy received by LILCO on Friday did not include attachments; they were not received until Saturday morning.
8407120160 840709 PDR ADOCK 05000322 Q
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. The Motion should be rejected in its entirety for the follow-ing reasons:2/
1.
The Motion is, under the circumstances, inexcusably tardy.
2.
The Motion confuses inquiry into the substance and pro-cess underlying the RAC's institutional conclusions and FEMA's in-stitutional findings with open-ended inquiry into the specifically identified individual views of individual RAC members.
The former was permitted by the Appeal Board's Decision in ALAB-773; the lat-ter was not, absent a showing by Suffolk County that FEMA witness-es could not adequately support those institutional views and con-clusions without identifying individual views.
3.
The Motion seriously misrepresents the substance of the depositions of the four FEMA witnesses.
Actual review of the transcripts (to that end, LILCO has felt it us lul to make avail-able, and includes, a full set of the transcripts for the Board) discloses that the witnesses presented -- particularly Messrs.
Kowieski, Keller and Baldwin -- were fully able to explain both the substance and the basis of the specific individual RAC conclusions and the RAC process.
Such review also discloses that Suffolk County spent, relatively speaking, little time in each 2/
This response is a preliminary one:
the response time forced by the County's having filed the Motion on Friday afternoon, with hearings to begin Tueaday morning on Long Island, is inadequate for a full response.
i.
deposition on this area, and that the only area in which the wit-nesses did not provide answers concerned the views of individual RAC members individually identified (by name or agency).
Such re-view also discloses unequivocally, and in total contradiction to the Motion's claims and suggestions, that (a) the usual RAC review l
process, including a review of and comment on the Plan by each RAC f
member, a meeting to discuss and resolve initial comments, and the issuance of a RAC report, was followed without deviation for l
Shoreham; (b) the FEMA witnesses Baldwin and Kowieski were the i
primary authors of the RAC report, and therefore were intimately j
t knowledgeable, as was witness Keller, about individual NUREG-0654 items as applied to the.LILCO Plan, and how the group came to a i
finding of " Adequate" or " Inadequate" on each item; (c) there were no disagreements among RAC members at the end of their January 20, i
i 1984 meeting as to which rating the LILCO Plan should receive on i
i each NUREG-0654 item; (d) at no time during discussions was the
. opinion of a RAC member expert in a particular field overridden by others not expert in that field; and (e) while FEMA witnesses were prepared to discuss the basis for the RAC's conclusions, Suffolk County spent little time, if any, probing that basis.
In short, the FEMA witnesses were thoroughly prepared to tes-tify, and were forthcoming, on the matters agreed by the Appeal l
Board to be relevant to this proceeding:
the details and basis for the RAC's institutional judgments on the Shoreham Transition i
i 4
s
. Plan.'s consistency with NUREG-0654.
None of the preconditions to further discovery set by the Appeal Board, ALAB-773 at 25, was met.
Unless one disbelieves the sworn testimony of each of the FEMA witnesses, there were no differences of final opinion among members of the RAC on important issues affecting the adequacy of the Transition Plan, and Suffolk County's assertions to the con-trary are simply false.
The FEMA witnesses were able to defend and explain adequately -- in detail -- the underlying bases for FEMA's determinations, though they were not asked in detail about many, if any, of these conclusions.
Nor were the FEMA witnesses' views inordinately derivative of others' views:
while individual RAC members have their areas of expertise, several RAC members commented on each NUREG-0654 item and at least one of the FEMA witnesses was familiar at first hand with each item.
There is no basis for either further discovery or for delaying the resumption of hearings.
II. Argument 1.
The Motion is, under the circumstances, inexcusably tardy.
The depositions of the FEMA witnesses were taken June 27 (McIntire, Keller) and 29 (Baldwin, Kowieski).
The Motion was not filed until Friday, July 6, a full week after completion of the last deposition, with barely one full working day (and one inter-vening summer weekend) before necessary travel enroute to
f
. resumption on July 10 of the hearings which the Motion seeks, in effect, to enjoin.
Counsel for Suffolk County received, to LILCO's information and belief, the deposition transcripts on Monday, July 2.
LILCO counsel telephoned Suffolk County counsel that day to inquire whether the County intended to file any papers concerning further FEMA discovery; counsel for Suffolk County replied that he was not sure and that Mr. Miller, who had taken the depositions, was out of the office that day.
LILCO counsel requested Suffolk County counsel, given the shortness of time and the general press of work, to inform LILCO as soon as the County determined to file any further papers; Suffolk County counsel agreed.
However, the first notice LILCO received of the Motion came late Friday morning, not from the County, but from FEMA coun-sel, who had begun to receive the Motion over his telecopier.
This combination of dilatoriness in filing, shortness of time to respond before the resumption of hearings, and ignoring of the re-quested notice is, in LILCO's view, inexcusable.
2.
The motion seriously mischaracterizes the purpose of discovery permitted by the Appeal Board's June 13 Decision, ALAB-773.
The thrt.st of the discovery sanctioned by the Appeal Board was "to permit a genuine probing of the bases for the FEMA find-ings and th3 RAC's collegial conclusions," ALAB-773 at 15.3/
3/
See also ALAB-773 at 16:
"[The FEMA witnesses] may be exan-ined as to the soundness and reliability of the scientific assump-(footnote continued)
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Thqiproblem which The' requested disclosure of 3
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views of individual RAC members -- was squarely before the Appeal 7p_
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In oral argument, as ALAB-773 notes (and as the County re-peats, Motion at 7), counsel for FEMA represented that his wit-N; nesses would be "forthcomilig."' However, as the Appeal Board con-s 1
s.'"41nued (and as the Motion'does not repeat), FEMA's primary concern
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I wasin"protectingthe}x dentity of those RAC members who articu-q i
lated certain views, rather (.hpn the existence or substance of
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ALAB-773 at C 17; As the Appeal Board also noted,
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. distinction, and one which the County either misunderstands or ig-nores:
the Motion, in attempting to argue that the FEMA witnesses were unable to defend or articulate the bases for RAC views, cites
~
two instances in the depositions of Messrs. Baldwin and Kowieski where the gist of the interrogation concerned not the substance of a given view, but identification, pure and simple, of its proponent.5/
The FEMA witnesses were in fact prepared to respond to substantive inquiry, as is shown in more detail in Part 3.
below.
However, the arguments advanced in the Motion, and the two transcript citations illustrating it, go to the far different mat-
-ter of identification of specific agencies and specific in'dividual RAC members.
This is a fundamentally different inquiry from that approved by the Appeal Board and fundamentally different from that represented before the Appeal Board as being desired by Suffolk County.
Second, and equally important, the views into which the Ap-peal Board contemplated primary inquiry were the institutional views of the RAC --
i.e.,
the final views, as expressed in the RAC Report.
It is those views whose substance and basis are most S/
The excerpt from Mr. Baldwin's deposition (Mocion at 10-11) involves this question:
"Are you able to tell me which five agencies or individuals provided this comments [ sic] on Element A.1.A?" and "[A]re you able t' cell me
. which agencies or-individuals of the RAC were at least initially in the minority.
. ? ';
Similarly, with respect to Mr. Kowieski:
"Now, I would like you, Mr. Kcwieski.
to tell me the members of the Committee who believed that the rating [etc.]
Motion at 11-13.
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important since<they are in fact the views of the RAC which are of a
p relevance as'a " rebuttable presumption" in NRC proceedings.
The d
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d' preliminary views of individual members may be of intellectual in-l}
.,/
,terest,.and of relevance if there is evidence either of continuing l
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0" substantial disagreement within the RAC or of overriding of expert s"
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judgrients on less qualified bases.
However, there is no showing 1.
that dither such condition' occurred with respect to the RAC review of the' Shoreham Plan, and the County's virtually exclusive focus
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on prel,iminary views is misdirected.
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The. RAC,pr6ce s's, and specific aspects of it as revealed by a,
the Fd$h witndsses,.are treated in detail in Part 3.
Neverthe-
'd lesa, a brie 5 summary here may be useful.
The Region II RAC is an
-l l
experienced, committee,,,all of whose members have reviewed more than onejemergency plan, and some of whom have reviewed several.
The Committee has worked together before on emergency plan revi-(
sions.
The RAC commenced its Shoreham review on Rev.
1, and com-plet,ed it on Rev. 3 (including Rev. 2 by implication).
Individual
/
1members', review assignments were allotted by a standard FEMA re-view memo according to areas of agency expertise supplemented by prior RAC experience.
In Region II, members are encouraged to comment not only on those areas set out in the basic memo, but on other areas within their knowledge as well.
The individual RAC members reviewed the Shoreham Transition Plan and sent their com-ments to Mr. Kowieski, the RAC Chairman; as the notet of Messrs.
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Keller and Baldwin show, at least three comments were received on each NUREG-0654 element and four or five on most.
The Region II RAC consists of six members -- Mr. Kowieski from FEMA and one rep-resentative each from five other agencies -- plus two consultants, Messrs. Keller and Baldwin.
On the basis of these individual com-ments, Mr. Kowieski, with the help of Mr. Baldwin, prepared two documents in preparation for the January 20 meeting:
(1) a flip-chart compilation of each individual comment, NUREG-0654 item by NUREG-0654 item; and (2) a preliminary working draft document with the structure of a RAC report.
As Mr. Keller's and Mr. Baldwin's notes show, there was unanimity, or near-unanimity, on most areas even in the initial comments.
The preliminary " working draft" g'nerally reflected the prevailing view.
On January 20, 1984, the e
RAC met for an all-day session.
Each NUREG-0654 item on which initial views had not been unanimous was discussed.
In each case,
' initial differences of view on any NUREG-0654 item were recon-ciled, in a professional peer discussion, on professional grounds:6/
the RAC Report represents true consensus among the 6/
The FEMA WLLsiesses testified that the most typical reason for an individual member's recession from his initial view was that he had simply missed a point caught by another reviewer.
There were-no formal votes on each item; none, apparently, were needed.
Rec-ognized expertise was the general reason for the prevalence of a given view.
Indeed, in at least one case, the final RAC view had been advocated at the outset by only a minority of the RAC, which had convinced the majority.
In no case, the FEMA witnesses testified, did a RAC member continue to disagree actively with the prevailing view but recede simply in the interest of ending de-bate.
F
. RAC's members on each item.
The notes of Messrs. Keller and Baldwin document this process in detail, including the breakdown of initial views and the basis for initial differences of view among RAC members before the January 20 meeting.
The Appeal Board's Decision, ALAE-773 at 25, provides three bases for reopening discovery:
1.
The existence of substantial disagreement on important issues respecting the RAC's institutional views -- i.e.,
the final RAC views expressed in the RAC Report; 2.
Inability of the FEMA witnesses to articulate the bases for, or defend, those views --
i.e.,
the RAC's final views; 3.
Inordinate reliance by the FEMA witnesses on others for the basis or rationale of these views -- i.e.,
the final RAC views.
With respect to the final RAC Report, the FEMA witnesses passed each of these tests.
As shown in detail in Part 3 below, there was no disagreement within the RAC on its final views.
FEMA wit-nesses were ready to defend and articulate the basis for those views; and this knowledge was not inordinately derivative, but rather rested adequately within their collective areas of ex-pertise.
3.
The Motion ceriously misrepresents the substance of the depositions.
There is a regular process followed by the RAC for evaluating emergency plans, for receiving, evaluating, and reconciling com-ments, and for preparing a RAC report.
Keller Dep. p.
8, lines i
K
. 11-20; p.
16, lines 9-22; p.
18, line 16 through p. 24, line 11; p.
56,- line 9 through p.
60, line 18; McIntire Dep. p.
108, line 10 through p.
112, line 5; Baldwin Dep. p.
13, line 19 through p.
14, line 2; p.
169, lines 3-11; Kowieski Dep. p.
15, lines 6-18;
- p. 20, line 12 through p.
21, line 5.
That procedure was followed at Shoreham with no deviations.
The FEMA witnesses, particularly the participants in the RAC process (Messrs. Kowieski, Baldwin and Keller) were intimately knowledgeable about the individual NUREG-0654 items evaluated in the RAC review, and Messrs. Kowieski and Baldwin were the primary authors of the RAC report.
Messrs. Keller and Baldwin each passed out detailed personal notes summarizing the results of the RAC process, showing, as to each individual NUREG-0654 item: (a) the author's individual initial rating of it; (b) the FEMA witnesses with primary responsibility for it; (c) the number of comments re-ceived and their division as to adequacy or inadequacy cf the items; (d) a shorthand statement of the basis for inadequacy, if any such views were expressed; and (e) the final RAC evaluation of the item.
Keller Dep. pp. 28-35, 43-56; Baldwin Dep. pp. 311-123; p.
130, line 21 through p.
153.
These note sheets, which were explained at length during the depositions but were not attached by Suffolk County to its Motion, are Keller Ex. 1 and Baldwin Ex.
2 to the depositions, and are attached hereto.
They show, in ad-1 dition to the information outlined above, that the RAC discussion
m
. process was a live one:
of the 108 criteria elements for NUREG-0654, the final rating on 9 elements changed as a result of the RAC meeting to discuss individual comments.
E.g.,
Keller Dep. p.
52, line 16 through p. 53, line 16.
Each of the witnesses was asked, and each testified, that there were no disagreements among RAC members on any NUREG-0654 item at.the end of the January 20 RAC meeting.
Keller Dep. p.
35 lines 1-6; p.
38 lines 1-12; p.
103 line 15 through p.
106 line 11; McIntire Dep. p.
112, lines 6-11; Baldwin Dep. p.
170, lines 3-6; Kowieski Dep, p.
60, line 21 through p.
61, line 6.
Initial divergences of view were reconciled in discussions at that meeting on professional bases.
Recognized expert views were not overridden in any case.
Keller Dep. p.
38, line 14 through p.
41, line 10; p.
127, lines 11-21; Baldwin Dep. p.
172, lines 4-10.
All of the RAC members subsequently expressed their agreement with the RAC report.
Keller Dep. p.
41, lines 11-20; Kowieski Dep. p.
139, line 17 through p.
142, line 13.
The FEMA witnesses were prepared to discuss the basis for the RAC's institutional conclusions.
See, for example, Keller Dep.
pp. 67-69, discussing the RAC's decision on how to rate criteria element C.2.A.; Keller Dep. pp. 90-95, discussing the RAC's deci-sion on element J.11; and Baldwin Dep. pp. 142-43, discussing the RAC's decision on element A.2.A.
Suffolk County spent very little time probing these conclusions on specific NUREG criteria,
. choosing instead to discuss with each of the four witnesses the RAC process generally and the process for preparation of FEMA tes-timony.7/
FEMA witnesses in some cases could not, and in other cases were instructed not to, identify individual RAC members who held initial views that diverged from the final RAC conclusion on indi-vidualiNUREG-0654 items.
However, these witnesses had set out the shorthand substantive basis for initial divergences on their per-sonal note sheets (Keller Ex. 1 and Baldwin Ex. 2) and could, and, on request, did discuss them.
An identification of individuals would serve no purpose since initial opinions were reconciled on
. professional grounds, the final consensus was real, and no expert views were overruled.on non-expert grounds.
'~
Finally, contrary to the County's representation at 17-18, the deposition of Mr. Kowieski was not improperly terminated pre-maturely.
Suffolk County counsel, budgeting his own time, chose to interrogate each FEMA witness separately and chose not to begin Mr. Kowieski's deposition until approximately 4:00 p.m.; it ran into the evening, until 7:22 p.m.
Suffolk County counsel at that time. refused a final further orfer to extend the deposition.
7/
Suffolk County went through these processes with each of the
'four witnesses, obtaining from each similiar accounts as to how matters proceeded.
To the extent that the County now complains it did not have sufficient time to depose these witnesses, it is
' worth noting that counsel for FEMA offered repeatedly, both before and during the depositions, to make the witnesses available as a panel to save time and repetitive inquiry.
The County, inexplicably, repeatedly declined those offers.
T
. III.
Conc,'lmion For the reasons stated above, Suffolk County requests for (a) privileged documents from FEMA, (b) the issuance of subpoenas for individual RAC members, and (c) postponement of cross-examination of FEMA witnesses scheduled to begin tomorrow should be denied.
In the event that the Board wishes to consider further any of the County's discovery requests, LILCO asks that cross-examination of
[
the FEMA witnesses go fcrward as planned this week, to be supple-mented if additional discovery is granted and warrants further questioning.
Respectfully submitted, LONG ISLAND LIGHT NG COMPANY I
/
4, Tm Donald P.
Irwin i
Kathy E.
B.
McCleskey Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATE:
July 9, 1984
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d LILCO, July 9, 1984 T
CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Powcr Station, Unit 1)
(Emergency Planning Proceeding)
Docket No. 50-322-OL-3 I certify that copies of LILCO'S RESPONSE _TO SUFFOLK COUNTY'S MOTION TO STAY THE EMERGENCY PLANNING HEARINGS IN LIGHT OF THE SUBMISSION OF REVISION 4 and REPLY TO SUFFOLK COUNTY MOTION CON-CERNING FEMA DISCOVERY were served this date upon the following by first-class mail, postage prepaid, or by hand (as indicated by one asterisk), or by Federal Express (as indicated by two asterisks).
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 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.*
Oreste Russ Pirfo, 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 Stewart M. Glass, Esq.**
Regional Counsel Eleanor L.
Frucci, Esq.*
Federal Emergency Management Attorney Agency 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 John F.
Shea, Esq.
4350 East-West Highway Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O.
Box 398 Riverhead, NY 11901
( Fabian G.
Palomino, Esq.**
Ralph Shapiro, Esq.**
Special Counsel to the Cammer & Shapiro, P.C.
Governor 9 East 40th Street Executive Chamber New York, New York 10016 Room 229 State Capitol James B.
Dougherty, Esq.*
r Albany, New York 12224 3045 Porter Street Washington, D.C.
20008 Herbert H. Brown, Esq.*
Lawrence Coe Lanpher, Esq.
Jonathan D.
Feinberg, Esq.
Christopher M. McMurray, Esq.
New York State Public Service Kirkpatrick, Lockhart, Hill Commission, Staff Counsel Christopher & Phillips 3 Rockefeller Plaza 8th Floor Albany, New York 12223 1900 M Street, N.W.
Washington, D.C.
20036 Spence W.
Perry, Esq.
Asscciate General Counsol MHB Technical Associates Federal Emergency Management 1723 Hamilton Avenue Agency Suite K 500 C Street, S.W.,
Rm. 840 San Jose, California 95125 Washington, D.C.
20472 Mr. Jay Dunkelberger Ms. Nora Bredes New York State Energy Office Executive Coordinator Agency Building 2 Shoreham Opponents' Coalition Empire State Plaza 195 East Main Street Albany, New York 12223 Smithtown, New York 11787 Cerald C. Crotty, Esq.
Martin Bradley Ashare, Esq.
Counsel to the Governor Suffolk County Attorney Executive Chamber H.
Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788
^h Donald P.
Irwin Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
July 9, 1984 l
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