ML20091K612

Motion for Protective Order & Motion in Limine for Discovery Requests Re Security Contentions.Certificate of Svc Encl. Related Correspondence

ML20091K612
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/02/1984
From:	Rolfe R HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20091K613	List: ML20091K612 ML20091K621
References
OL-4, NUDOCS 8406070151
Download: ML20091K612 (13)

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,s LILCO, June 2, 1984

{dAJEu w . . . u. .uc.nq 09,WETED v3hPC UNITED STATES OF AMERICA 'g4 NUCLEAR REGULATORY COMMISSION O '6 PQ.Of Before the Atomic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

MOTION FOR PROTECTIVE ORDER AND MOTION IN LIMINE On numerous occasions, Suffolk County has indicated its belief that security issues are material to resolation of LILCO's request for a low power license and accompanying Application for Exemption. Because there are no pending contentions concerning security and because all security issues are covered by an agreement between the County and LILCO, time-consuming litigation of security issues in this proceeding is neither necessary nor appropriate. Accordingly, LILCO moves for an order precluding all discovery requests whose relevance is to the issue of security and for an order in limine that any evidence whose sole' materiality is a question of security is inadmissible.

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This issue is ripe for decision and it is important that the Board decide it at this stage of the proceedings. The County has repeatedly indicated its intent to pursue the security issue in this proceeding. E.g., Suffolk County's Preliminary Views on Scheduling Regarding LILCO's New Motion, March 26, 1984, W 2f; Transcript April 4, 1984 Oral Argument at 122; Request for Production of Documents, April 11, 1984, V 17; April 20, 1984 letters from Lawrence Lanpher to Board; Joint Response of Suffolk County and the State of New York to the Commission's Order of April 30, 1984, filed May 4, 1984, at 8, 11, 26, 36. Most recently, the issue arose when the County resumed its discovery on May 24 by inspecting LILCO's AC power facilities at Shoreham using 3 lawyers and 8 consultants. The County asked to inspect LILCO's security measures for these facilities. Though the inspection of security facilities was permitted, LILCO reminded the County of its objection to the materiality and relevance of security issues. See Lanpher to Rolfe letter May 23, 1984; Rolfe to Lanpher letter May 23, 1984 (attached).

Since the Board has set a thirty-seven day schedule for discovery, the parties need a ruling on this question to avoid wasting valuable discovery time and spending unnecessary resources on issues not material to this proceeding. As

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important, the risk of dilatory discovery disputes -- perhaps leading to the delay of hearings -- should be eliminated by early resolution of the issue. And, the parties should be spared the uncertainty and potential waste of resources in preparing testimony for hearings.

1 The reasons for this immateriality are several.

First, the Part 73 security issues.to which the County hac repeatcdly alluded do not fall within the rubric of " common defense and security" to which 10 CFR 50.12(a) expressly refers. "The term ' common defense and security' means the common defense and security of the United States," 42 U.S.C.

$ 2014(g). See Siegel v. Atomic Energy Commission, 400 F.2d 778, 784 (D.C. Cir. 1968). There is no suggestion that LILCO's request for a low power license implicates the defense and security of the United States. The question which the County seeks to raise is not one of threats to the security of the nuclear fuel.1/ The issue involves only the.. security of AC power facilities which, even if attacked, pose no threat to national security.

1/ Nor could it legally raise such an issue. As noted below, all issues relating to the physical security of the plant have been resolved by a comprehensive settlement agreement.

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e Second, there are no pending contentions concerning security. As well established by precedent, filing of a request for a low power license is not an appropriate opportunity for filing new contentions. E.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 803 n.78 (1983). This Licensing Board's April 6 Memorandum and Order recognized the inappropriateness of security issues by excluding them from the statement of pertinent issues in this proceeding. And, LILCO has introduced no security issues by modifying its request for a low power license in seeking an exemption. LILCO seeks no exemption from any security requirements. The offsite power sources are not subject to Part 73 requirements. Safety Evaluation Report (Supp. 5), NUREG-0420 at 13-3 (April, 1984).

Third, there is in effect an all-encompassing Final Security Settlement Agreement for Shoreham signed by LILCO, Suffolk County and the NRC Staff. This Agreement, dated November 22, 1982, and classified ac Safeguards Information, applies to all aspects of the operation of Shoreham without qualification or exemption. The Agreement was arrived at in complete settlement of all security-related contentions raised by Suffolk County in this proceeding. It was ratified on December 3, 1982 by the Atomic Safety and Licensing Board which

t had been constituted to try the security issues raised by SC.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum and Order Canceling Hearing, Approving Final Security Agreement, and Terminating Proceeding (Dec. 3, 1982)

(unpublished). Not only did the Agreement resolve all exist 1ng security contentions, it also contains mechanisms for resolving security-related aspects of future changes in plant design.

Fourth, as LILCO has demonstrated in its affidavits and prefiled testimony, security for the AC power sources is not a health and safety concern. Except in the event of a LOCA,2/ the plant has more than 30 days to restore AC power.

One or all of the AC power facilities could be lost by sabotage, yet repaired, replaced or substituted for in 30 days.

And, the redundancy of LILCO's multiple AC power sources make it extremely unlikely that any security threat would successfully debilitate all of its offsite power sources. In sum, any safety concerns relating to the sabotage of LILCO's AC 2/ The single failure criterion does not require LILCO to

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postulate a LOCA, a loss of normal offsite power and the

~ ' successful sabotage of all of its black start AC power sources simultaneously. Common sense also dictates the conclusion that it is not credible to assume that a potential saboteur could choose the precise moment of a LOCA, itself highly unlikely, for his attack. Nor would it be credible or legally permissible to postulate that the LOCA is sabotage-induced since the plant is protected by an approved security plan.

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power system are adequately covered by the analyses of the loss of offsite power event at 5% power. It would be pointless to permit speculative inquiries into the various potential causes (e.g. sabotage, weather) of such an event.

Accordingly, the Board should grant LILCO's motions and order that (1) there shall be no discovery in this proceeding of matters whose sole relevance is to security issues and (2) no evidence whose sole materiality is security shall be admissible in the hearings in this proceeding.

Respectfully submitted, L " ^ND LIGHTING COMPANY

;%[I R% ert M. Rolf

• Anthony F. Earley, .

Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: June 2, 1984

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• Attachment A KIRKPATRICE, lodKILuff. HILL, CHRISTOPHER E PLUM.U% -

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Robert Rolfe, Esq.

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

Dear Bob:

I a vicit talked several times yesterccy with Tony Earley regs.rding 24, 1984.to the Shoreha:a sito set for 10:30 a.=. on Thurcday, 4ay

/ Morin. When we arrive at the site, we will ask for John thus requestdiscuased As with Tony, we intend to take picturae and

( that the apprcpriate passec be provided.

l'irst, the people who will be en the visit are as fellows $

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Lawrence Coe Lanpher Karls J. Letsche 223-60-9267 John S. Birkenheier 223-80-0246 Gregory C, ninor 368-62-4504 Dale G. Bridenbaugh 562-48-6919 .

Rebort Weatncrvu 503-62-5691 M. M. El-Gasseir 562-62-5591 Dennis Sley 560-02-2069 Ancosh Bakshi 143-74-7297 '

Richard Roberts # 167-62-3119 .

• Phillip McGuire 047-20-6801 Christian Meyer 123-26-4859 560-32-661B Thosobymarked Herin Tony. with an actarisk u n net on the lict given to Jcha list, vill not bePlease note that Dr. Roesset, who was on Tcny's attending.

1 outlined to Tony'the areas which we want to visit.

Obvi-ously, the primary a:eas are the povar cources and a:sociated ce=ponents rolled upon by LILCO for icw power cperatien, and also ,

the ensite relied uponpower sources but for the 'IDI(TDI dicssia) that would have been problems. The cpecific areas which we can identify in advanco are set forth below.'.I note, howcVer ,

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EnarmAezzer, h*ar, EzLL, Czazarrwxan & Pan.Las Robert Rolfe, Esq.

May 23, 1984 Page 2 have conferred further.that other areas may also need to be visited once ou tified are At any rate, the areas aircady iden-1 the 4 SND mobile diesels and fuel supplies and cable / conduit to the plant; the associated co I

20 MW gas turbine and associated com;cnents, fuel .

circuits the 138 and 69 KV switchyards; the Nild-supplies, cables; the 69 r/ bypass; the TDI diesels; thewood Station emergency and non-emergenc t

the Shoreham control room.y switchgear rec =s; and i

Hessrs. Roberts and M:Guire, both county Pollec Officers

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t will bsproposed canta attending for Acw the site powervisit to assess the security arrange operation.

tour the entire They will li.4ely need to described above. protected area boundary, as well as the locations .

i operations center after the site tour. Sone County persennel also int -

The County appreciates Tony's efforts to Errange for thia Sincerely yours, 1,avrance Coe Lanphcr LCL/dk '

cc: John Morin Edmund Reis, Esq.

Fabian Pele:sino, Ezq.

Steven Latham, Esq.

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Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.

Washington, D.C. 20035 Long Island Lighting Company Shoreham Nuclear Power Station Docket No. 50-322-OL-4 (Low Power)

Near Larry:

discovery This will address several matters concerning incident Operating License and Application for Exemptionto LILCO's Supplemen .

1.

At your request, a visit been arranged for tomorrow, to atthe10:30 Shoreham

. letter of May 23 May 24, 1984 a.m. site Ycur has the County.

State wished Itoassume attend, that if any representative of New York through you. he would have coordinated his request There are provide the site tour.three caveats to LILCO's willingness to First, will not be permitted both because of work going on in theinspection area o

and because issues in this they have no relevance to the health and safet proceeding. In any event, y previously Second, inspected the diesels and their installatienthe County has .

intend toaccompanying " assess you will be two County police officers who power operation." the security arrangements proposed for low LILCO does not agreeTheir thatattendance will be permitted, material to any issue beforesecurity issues are relevant though or willingness the Licensing Board. LILCO's see the areas identified in your letter is notto afford ty to the police o in any way as a waiver of LILCO's positio to be construed n that security issues

HuxTox & WILLI A>ts Lawrence Coe Lanpher, Esq.

Page 2 May 23, 1984 are immaterial and irrelevant. Third, no photographs will be permitted in vital areas or in the normal switchgear room.

Also before taking any photographs, the County must sign a nondisclosure agreement and agree that a copy of any photographs taken will be provided LILCO.

2. Enclosed is LILCO's Request for Production of Documents to the County. We request that the documents be produced in Hunton & Williams' Richmond Office no later than June 6, 1984.

3. Between June 7 and June 22, LILCO will depose the following persons:

(a) Robert K. Weatherwax; : ~

(b) George Dennis Ely; '

(c) Aneesh Bakshi; (d) Dr. Christian Meyer;

l (e) Gregory C. Minor; c,

(f) Professor Jose M. Roesset; -

(g) Dale Bridenbaugh; (h)

Richard Hubbard;-

(i) Mohamed M. El-Gasseir; (j) Stanley Christensen.

~~LILCO will also depose during that period any additional consultants retained by the County, but not yet identified. We ask that you identify any such consultants as quickly as possible so that they may be deposed during the anticipated discovery period.

Without waiving its objection to the raising of any security issue, LILCO will also depose Officers Roberts and McGuire during this time period if it is determined that security is an issue.

Rather than specify dates for the depositions of particular individuals, we have suggested a range of times to

. allow you maximum flexibility to arrange the depositions at a M '

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si HuxTox & WILLIAns Lawrence Page 3 Coe Lanpher, Esq. ,

May 23, 1984 I

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convenient time for 30, the deponents.

at the latest, suggested dates for these depositions.Please let us k I

I look forward to your prompt response.

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ly yours, f ,# ,

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ob'ert M. R'Ife 177/643 Enclosure cc: Fabian Palomino, Esq.

( Edward J. Reis, Esq.

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_%s-N, LILCO, June 2, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-4 (Low Power)

I hereby certify that copies of MOTION FOR PROTECTIVE ORDER itND MOTION IN LIMINE were served this date upon the following by Federal Express as indicated by an asterisk and otherwise by first-class mail, postpage prepaid, on June 4, 1984:

Judge Marshall E. Miller

• Chairman Fabian Palomino, Esq.*

Special Counsel to the Atomic Safety and Licensing Governor Board U.S. NRC Executive Chamber, Room 229 State Capitol 4350 East-West Highway Albany, New York 12224 Fourth Floor Bethesda, (North Tower)

Maryland 2C814)

Judge Glenn O. Bright

• Herbert H. Brown, Esq.*

Atomic Safety and Licensing Lawrence Coe.Lanpher, Esq.

Board -

U.S. NRC Kirkpatrick, Lockhart, Hill, 4350 East-West Highway Christopher & Phillips 1900 M Street, N.W., 8th Floor Fourth Floor (North Tower)

Bethesda, Maryland Washington, D.C. 20036 20814 Judge Elizabeth B. Johnson

• Oak Ridge National Honorable Peter Cohalan Laboratory Suffolk County Executive P.O. Box X County Executive / Legislative Building 3500 Building Oak Ridge, Tennessee 37830 Veterans Memorial Highway Hauppauge, New York 11788

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Eleanor L. Frucci, Esq.* Martin Bradley Ashare, Esq.

Atomic Safety and Licensing Suffolk County Attorney Board H. Lee Dennison Building 4350 East-West Highway Veterans Memorial Highway Fourth Floor (North Tower) Hauppauge, New York 11788 Bethesda, Maryland 20814 Edwin J. Reis, Esq.* Jay Dunkleberger, Esq.

U.S. Nuclear Regulatory New York State Energy Office Commission Agency Building 2 7735 Old Georgetown Road Empire State Plaza Bethesda, Maryland 20814 Albany, New York 12223 Attn: NRC 1st Floor Mailroom Stephen B. Latham, Esq. James Dougherty, Esq.

John F. Shea, Esq. 3045 Porter Street ,

Twomey, Latham & Shea Washington, D.C. 20008 33 West Second Street Riverhead, New York 11901 Mr. Martin Suubert Docketing and Service Branch -

c/o Congressman William Carney Office of the Secretary 1113 Longworth House U.S. Nuclear Regulatory Office Building Commission Washington, D.C. 20515 Washington, D.C. 20555 ha RFoert M. Rolfe

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Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: June 2, 1984 l

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