ML20094A004

Notice to ASLB Re Schedule for Hearing Strike Issues. Schedule Too Rigorous for Parties to Meet.Truly Full & Fair Hearing May Require More Realistic Schedule.Certificate of Svc Encl

ML20094A004
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/31/1984
From:	Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:
References
OL-3, NUDOCS 8408030074
Download: ML20094A004 (13)

Text

^ ^

[ - QQ

+-L i i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION EC D4?r.,

u ;?;*w-Before the Atomic Safety and Licensing Board b A3] ~~2 RI:31

) ,,

In the Matter of ) n

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUFFOLK COUNTY'S NOTICE TO BOARD l REGARDING SCHEDULE FOR HEARING THE STRIKE ISSUES On July 10, 1984, LILCO's union employees, who comprise the

substantial majority of all LERO personnel, initiated a strike and uithdrew from LERO. The strike has not yet been settled.

After seeking the parties' views of the implications of the strike on LILCO's ability .to implement its emergency response plan,1! the Board on July 24, 1984 issued a Memorandum And Order Determining That A Serious Safety Matter Exists (hereinafter,

" Memorandum And Order"). The Board acknowl, edged in its Memoran-r dum and Order that the current strike, as well as the LERO work-ers' ability to strike in the future, raised "a serious question

'r '

affecting the public , health and safety." Idj , at 3. .Thus, the

• 6 ,

Board admitted sua sponte the following three issues: '

5 1/ A discussion of the matter took place on July 19, 1984 during the course of the hearings.

i 8400030074 840731 ' CL f () ff PDR ADOCK 05000322 O PDR

t. (jV . \ hb()'h f

3-t . ,

d 1.. Whether LILCO's ability to implement its offsite emergency preparedness plan would be-impaired by a strike involving the majority of its LERO workers.

2.- Whether LILCO should be required to place-the reactor'in col'd shutdown,in the event of a strike by LERO workers.

3. Whether placing the reactor 'in cold shut-down during a strike by LERO workers,.

after the reactor has operated at full power, would give " reasonable assurance that adequate protective measures can and will be taken in the event of a radiolog-ical emergency."

The Board's Memorandum and Order establishes a schedule ,

which-gives the parties three weeks (from Ju,1y 24 to August 14) to conduct all discovery, with the parties exp cted to give "an oral report on the status of this matter" on Adgust 14. Id., at

3. The schedule further calls for the striRe issues to be heard .

during the hearing week commencing on August 28, 1984. Id., at

4. Pursuant to the Board's Memorandum and drder, each party's t

w 1

N\

I W

?

I i

---

_____----___-___--__-----_________n__--.

G . _ _ _ _ _ _ _ _ _ _ - _ _ _ . _ _ . _ . - - -

V

3. ,

direct. case will be presented orally through-its witnesses, rather than~by the usual NRC practice of submitting written test-imony. Id.

The County' fully supports the Board's decision to hear the three strike issues it has raised. -Quite clearly, the LILCO strike and the right of LERO personnel to strike in the future-highlights even further LILCO's inability to implement its emer-l gency plan. Indeed, the strike issues go to the heart of one of the key questions underlying this litigation'-- this is, whether a private organization can command, control and implement an emergency response that can protect the public health and safety.

NRC regulations (see, e.g., 10 CFR $ 2.714, 2.718, 2.743 and

. 2.760a) and fundamental fairness require a full and true airing of the facts underlying these issues. Accordingly, each party must be given an adequate opportunity to discover,_ develop, and present those facts to the Board. Only then can the Board attempt to determine whether the " reasonable, assurance" standard

! of 10 CFR 550.47(a) has been met.

• 1 i *e.

In light of the importance of these ispues to the Board's decision-making process, theCountywishes,t6blringtothe a Board's attention the existence of circumstances which may deny

the parties their right to a full and fair hearing of the issues i athd9 4h4ch may preclude the development of a useful record under the Board's current schedule. The issues raised by the Board in 6

^'

-a .

y 4-its Memorandum and_ Order are not simplistic and have not pre-viously been focused upon by the Board or tP, parties. The facts to be developed and the expertise required to present the County's case span a wide ra'nge of disciplines. By its Memoran-dum and. Order, the Board has effectively established a three-week period'(July 24-August 14) within'which the parties'must locate I

and obtain expert witnesses, conduct discovery, and develop a direct case. The Board has also established a schedule for hear-L ing the strike issues, commencing on August 28, without consult-l ing the parties. The County may be unable to comply with this schedule for several reasons.

First, since the issuance of the_ Board's Memorandum and i order on July 24, the County has undertaken ~a diligent search for l

L experts. Of course, this . search could not have commenced prior i

to July 24 since the parties had no notice of the Board's inten-l tions cn: the issues it intende_d to admit prior to that date.2/

Obviously, the task of locating and obtaining experts is not one that can be accomplished instantaneously. Rhther, substantial j time and effort are required. This is especial'ly,true since the e'

Board has scheduled discovery and the bearing of the strike -

'ssues i for the middle of summer, when manyI people are unreachable or have made plans to be out of town. The County" has already l 2/ Thes county is not criticizing the Board for any lack of notice since the decision to raise strike issues was fostered by very l recent events. The County is merely noting that under the cir-cumstances, it could not have commenced its search for witnesses

. prior to _ the Board's July 24 ruling.

experienced extreme difficulty in attempting to reach some of its experts and potential witnesses who left for vacation without notice of the Board's intentions to hear the strike issues.

Thus, the County cannot guarantee that it will be able to obtain its witnesses and make them available for discovery by August 14.

In addition, even if the County were able to obtain witnes--

ses immediately, it is questionable whether the County could develop its case properly in the short amount of. time allotted by the Board. As mentioned earlier, locating expert witnesses takes time and the unique nature of the strike issues makes it neces-sary for the County to seek some experts who have not previously appeared before this Board. It is not simply a matter of recon-tacting former witnesses. Moreover, once the witnesses have been obtained, they must be bro,ught up to date with the facts, given time to develop opinions, and made available for deposition --

again, all within the three weeks allotted by the Board. Circum-stances would appear to indicate that the Board's expectations in this regard are unrealistic. Some of the County's experts made commitments prior to last week's Memdorandum an'dworder which bar

q. -

them from devoting substantial time to casa preparation.and dis- .

covery within the next three weeks. Likewise, counsel for the County themselves made non-Shoreham-related commi'tn. ants prior to "tha, Board's ruling of last week, and in reliance on adherence to the usual schedule, which must be honored. Even more compelling, however, is the fact that the three-week period of July 24. August o

-__---_____-_-___-_-_--___ n __-_ - ---__ _- _ _ _ __

14 is concurrent with a scheduled break between trial sessions in the ongoing emergency planning proceeding.2! As this Board knows, such breaks from trial invariably require counsel for the parties to this proceeding to prepare pleadings, testimony and cross-examination for the next trial session. This break has been no exception. Indeed, prior to the issuance of the Board's Memorandum and Order, the emergency planning hearing schedule had already placed heavy demands upon the time of the County's counsel over the very three-week period during which the County is expected to prepare its case on the strike issues. For exam-ple, items already on the agenda which require County counsel's attention over the three-week break include:

1. Review of Revision 4 of the LILCO Plan to evaluate its impact on contentions and .

previously , filed contentions;

2. Preparation of the County's Offer of Proof and Motion For Reconsideration of the Board's Order Limiting .the County's Cross-Examination of the FEMA panel (scheduled Tr. 13,069); .,

3. Preparation of the County's testimony on Contention 16.E (scheduled Tr. 13,028-32); *~

r' 1/ TheCountyrecognizesthatthebreakwasextendedbyNnewook due to the shortening of July's trial session by bne week.

. Nevertheless, the extra week had to be devoted to the review of Revision 4 of the LILCO Plan which was issued without adequate notice to the parties on July 3 -- one week before the resumption of trill -- and which could not be reviewed by counsel during the course of the trial. Thus, counsel for the County could not begin review of Revision 4 (a document of appr,oximately 800, pages) until last week.

kl

-__.___-__--_________________________---___--_x________-

a k.

L V

i.

k

4. Revision of the County's testimony on contentions 85 and 88 and modification of contention 88 to reflect Revision 4 of the LILCO Plan, including preparation of the County's Motion to admit such testi-mony and the proposed modified Contention (scheduled Tr. 13,310);

5. Review of LILCO's new testimony on relo-cation centers (scheduled Tr. 12,829-34);

6. Deposition of LILCO's new witness on the relocation center issues:

7. Review of the FEMA training testimony to be received on August 6 (scheduled Tr.

13,028-32);

8. Deposition of the four FEMA witnesses on their training testimony (scheduled Tr.

13,028-32);

9. Development among parties of a joint agreement on the scheduling of remaining ,-

emergency planning issues (scheduled Tr.

13,819);

10. Discussions,among the parties about, and development of, a joint table of contents for the parties' findings briefs (scheduled Tr. 13,816);

11. Preparation for cross examination of the FEMA witnesses, presently scheduled to commence on August 14; ,

12. Preparation of cross-examination,' plans for the FEMA panel; -

t'

13. Preparation of oral motions to strike ..

LILCO's Contention 16.E testimony; 1

14. Preparation of the County's Witnes,ses on contention IC.E for cross-examination;

~ and, 8 F G

O

15. Preparation for cross-examination of the LILCO witnesses on Contention 16.E, now scheduled for August 14.

t

'The County is also engaged in an appeal to the Appeal Board of i this Board's July 10 oral Order denying, inter alia, the pro-duction of certain FEMA documents. That action necessitated the filing of one brief last week. Further, pursuant to the Appeal Board's July 27 Order, the County must prepara and filo an addi-tional brief tomorrow.

The Board should also recognize that the two wooks between August 14 and August 28 afford the County little or no opportun-ity to prepare its case on the strike issues. As the Board knows, the omorgency planning hearings resumo on August 14. At this timo, it appears that the trial of the contentions presently romaining before the Board,will take the full two wocks from August 14-August 28. The only counsel for the County who are knowledgeable about and available to participate in that hearing will thus be unable to devoto any meaningfu,1 timo to preparation of the County's case on the striko issues.d/*

A# The Shoreham litigation prosently involvos throo trLals beforo -

throo separato panels of the Atomic Safoty,and' Licensing Board.

Bosidos the instant proccoding, attorneys for the County'aro cur-rently appearing boofro the Millor Board on 4ho low power issuo

, (trial bogan on July 30, 1984) and beforo the Dronnor Board on the diosol issues (tontimony was filed today with trial scheduled to ccmmence on September 5, 1984). In addition, there are related actions pending in both stato and federal courts. As the County has already informod the Board on the record, the extent dnd intensity of the prosent 11gitalon procludos asutgnmont of more attornoys to represent the County boforo.this Board on.the omorgency planning issues.

.c___

. W Finally, by establishing an August 28 hearing dato (now only four weeks away) without prior consultation with the parties, the Board has put the County in a difficult position. The hearing wook chosen by the Board immediately procedes the Labor Day wook-ond. Some of the County's exports have made unbreakable profes-sional and/or personal commitments for that wook. Indcod, at least two of the County's exports have indicated that while they can provido useful testimony on the striko issues, they have mado previous professional commitments which make their appearanco during the wook of August 28 impossible. Other witnesses have indicated that personal plans mado prior to last wook's Memoran-dum and Order also preclude their attendanco during the August 28 wock. In short, it appears that the Board has established a schedule under which the County may be precluded from presenting an offoctive caso.

All of the above circumstancos load the County to conclude that the schedulo established by the Board may bo too rigorous for the parties to moot and that a truly full and fair hearing of the important safety matters recognized by tho Bqard may requiro a more realistic schedulo. The requiremontf of duo pro,cosa nhould not be nubordinated to any desiro to fininh thono hearings by an arbitrary dato, nuch an Augunt 31.

s.

'M i

. F G

k 1

The County will continue to keep the Board advised on the circumstances surrounding the strike issues and the County's ability to prepare and present its case as the County becomes aware of any relevant information not made known to the Board in this Notice. In any event, the County will be prepared to report on circumstances regarding the Board's admission of the strike i

issues more fully on August 14, 1984, as ordered by the Board.

l Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney r

H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788

_!_ / ,

Karla J. LerschB Michael S. Miller Christopher M. McMurray KIRKPATRICK, LOCKilART, llILL, ,

j CHRISTOPHER 4 PHILLIPS '

l 1900 M Street, hW ,

Washington, DC 20036 Attorneys foi"Suffolk County Dated: July 31, 1984

• l i . ., ..

l l

{

l 1 >

0 58

[

UNITED STATES OF A85RICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board -

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) ) '

)

CERTIFICATE OF SENVICE I hereby certify that copies of SUFFOLK COUNTY'S NOTICE TO

• BOARD REGARDING SCHEDULE FOR HEARING THE STRIRE ISSUES dated July 31, 1984, have been served to the following this 31st day of ,

July 1984 by U.S. mail, first class, except as otherwise noted.  ;

1 James A. Laurenson, Chairman

• James B. Dougherty, Esq.

Atomic Safety and Licensing Board 3045 Porter Street, N.W. -

U.S. Nuclear Regulatory Commission Washington, D.C. 20008 Washington, D.C. 20555 i Mr. Jay Dunkleberger l Dr. Jerry R. Kline

• New York State Energy Office .

Administrative Judge Agency Building 2 i Atomic Safety and Licensing Board Empire State Plaza l U.S. Nuclear Regulatory Commission Albanyy New York 12223 l Washington, D.C. 20555 W. Tayl6r Reveley, III, Esq.9 Mr. Frederick J. Shon

• Hunton & Williams -

Administrative Judge P.O. Box l'536 Atomic Safety and Licensing Board 707 Empt Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia.23212 .

Washington, D.C. 20555 ,

i

• 4 o Edward M. Barrett, Esq. Spence' Perry,, Esq.

General Counsel Associate General Counsel o Long Island Lighting Company Federal Emergency Management  ;

'250 ,Old Country Road Agency Minookg, New York 11501 Washington, D.C.

20472 '

e I

_______n

7 8

Mr. Brian McCaffrey Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham a Shea Shoreham Nuclear Power Station P.O. Box 398 P.O. Box 618 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Marc W. Goldsmith Executive Coordinator Energy Research Group, Inc. Shoreham Opponents' Coalition 400-1 Totten Pond Road 195 East Main. Street Waltham, Massachusetts 02154 smithtown, New York 11787 MHS Technical Associates Joel Blau, Esq.

New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany New York 12223 Hon. Peter F. Cohalan suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 l Veterans Memorial Highway Hauppauge, New York 11788 Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Aegulatory -

Panel , Comminsion U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section Jonathan D. reinberg, E4q.

Office of the Secretary 8tsff Counsel U.S. Nuclear Regulatory Commission Nuw Yofk State Public 1717 H Street, N.W. Service Commission Washington, D.C. 20555 3 Rockefeller Plaza Albany, Nd,w York 12223 ,

Bernard M. Bordenick, Esq. * -

David A. Repha, Esq. StuarteDiamond Edwin J. Reis, Esq. Business / Financial. -

U.S. Nuclear Regulatory Commission New York Times Washington, D.C. 20555 229 W.*43rd Stroot '

New Yofk, New York 10036 l

Stewart M. Glass, Esq. # Eleanor L. Frucci, Esq.

• Regignal Counsel Atomic Safety and Licensing redera4 Emergency Management Board Panel  :

Agency

• U.S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission Washington, D.C.

Now York, New York 10278 20554

r Fabian Palomino, Esq. 0 Special Counsel to the Governor Executive Chamber, Room 229 State Capitol Albany, New York 12224 Christopfler M. McMurray l XIRKPATRICK, LOCKHART, HILL,

, CHRISTOPHER A PHILLIPS l 1900 M Street, NW, Suite 800 Washington, D.C. 20036 Dated: July 31, 1984 l

• By Hand

1. By Federal Express G

h e

e o

em 4 %

4 4

4 I

e i

. e l e

---_----_________m____.___-___________ ._