ML20094C243
| ML20094C243 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/03/1984 |
| From: | Mark Miller KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8408070424 | |
| Download: ML20094C243 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION UmCd Of Eb d Before the Atomic Safety and Licensiinfi gpfEPM '
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In the Matter of
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Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY
)
(Emergency Planning)
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY'S MOTION FOR RECONSIDERATION OF BOARD'S JULY 24 ORDER REGARDING SCHEDULE FOR HEARING AND PROllIBITING WRITTEN TESTIMONY ON THE STRIKE ISSUES On July 24, 1984, the Board issued a Memorandum and Order Determining That a Serious Safety Matter Exists (hereinafter,
" Order").
In its Order, the Board stated that it finds "that the issue of whether the current strike (by LILCO's union employees]
and the potential for further strikes by union members of LERO impair the ability of [LILCO) to impicment a response to a radiological emergency is a serious question affecting the public d 50)
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2.if Consequently, the Board healti.,h and,saffety."
Order, at w*'
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idmi'tted _sd_7. sponte the 'following three. issues:
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,,lbrWhether LILCO's ability to implement its
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--offsite emergencycersparedness plan would be N-impaired by a strike involving the majority of its LERO workers.
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Whether LILCO should be rsquired to place the
, N,j M d M reactor in cold shutdown in the airent of a 4
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%ntrike~-by LERO workers.
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Wiiethes placing the1 reactor in cold shutdown "dIring a strike by LERO workers, after the
~,;EM%4 MYAa'ctor has operated at full power, would give g.
,,~m re,asonable assurance that 'ade,quate protective
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. measures can>and will;be taken in the event of
-mMIN" Ja'.radioloU]ical emergency."
' pp,a M J s g Ol' der 7 at f}3M The+Doard's Order stated that. 'no written testimony 1
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jXgand~diqcctedthe. parties to be prepared "to present oral testi-
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-mony onithisfmatter beginning on Tuesday, August 28, 1984."
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'..-On-July'31, 1984, the County informed the Board'and the N U M f.4 y<_
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fik W[P.ar, ties lti' at the schedule. es'tablished by the Board might be too h
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a full and fair hearing
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g _ f Tj-~ D 2,BoardNoted in. sits Order that,.according to counsel for i: F 4
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- sLILCo.and'Suff61hfCounty, "approximately one-half to two-thirds
.of'the11800;LERO.>workefsNare. union employees of LILCO," that, jpc ".gsince - July 110; i.984,. "all" union employees of LILCO have been on f[Mtrik'e,"MvM bither'nithdrdwn or resigned f rom LERO. "Order, at 2.
To andJthat,.,during the-strike, "all' union members of LERO
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- iakadthe record clear, iti^ is the County's understanding that, of hkQ theMroximatSly :18.00 members of.LERO, approximately 1200 were 4, munion.' employees who hrc, now od strik,e and have withdrawn or gg q^ resigned fromSLERO..
Tr. 13,289-90.
At this time, the strike has
@ A,c,1 :not b'een.cettled.'
'It must be' understood,~however, that in the
[],g@ 'Counti.y'..siv'iev,f t.he selious safety concerns raised by the Board in Q "'($ p eyen'should!; Odder would not'be alleviated or mitigated in any way A
M its* July 24 the. pre'sant strike" settle.
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.of:.the.important issues raised by the Board would likely require a:more realistic.and flexible. schedule.
See Suffolk County's t~~
Notice to Board Regarding Schedule for Hearing the Strike Issues, dated-July;31, 1984 (hereinafter, " Notice").
We will not repeat
'here the reasons underlying the' County's filing and the concerns held byLthe County;regarding the Board's proposed schedule at the time that-filing was made;,they are set forth in the County's O
lNo'ticeLand'are-incorporated herein by reference.
However, since
' July 31, the County's concerns regarding the Board's proposed
-schedule and the impact of that schedule on the County's ability
.to'present its case.on.the strike issues have increased.
- Indeed, at this-time it would appear: that the County would be essentially 3
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precluded from presenting any case on the strike issues under the
~ Board's proposed schedule.
Therefore, the County requests that the Board reconsider the hearing schedule proposed in the Board's July 24 Order and that the Board establish a. schedule under which hearing on the strike issues would commence no earlier than Tuesday, September 18.
This.three-week extension of the Board's proposed hearing schedule would permit the County sufficient time to prepare its case, including the preparation of written testimony on the
- issues -- anLessential element of the hearing process, for which the County is also seeking reconsideration.
Moredver, as
' discussed below, the September 18 date proposed by the County is theJearliest time that the County can present its case on the strike' issues, due to the availability of the witnesses the u
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County presently intends to rely upon for testimony and the need 7to. work with and prepare such witnesses prior to the time they testify.
It must be understood that where, as here, the facts are evolving, the adjudicatory process by its very nature requires that sufficient time be built into the hearing schedule.
This
' fact was recognized by the Licensing Board in the Indian Point
' proceeding:-
[If] a Board determines that it is desirable to hear testimony on'a new issue (or on a new factual development), it must anticipate a delay on the order of months.
The parties must-be permitted to find and prepare witnesses; discovery may be necessary; the Ltestimony must be prefiled (10 CFR S 2.743(b)); arrangements for the hearing facilities must be made; the actual testimony and' cross-examination must-be heard; and
-finally, supplemental proposed findings may be desirable U
Consolidated Edison Company (Indian Point), LBP-83-68,~18 NRC
'811, 845,
- n. 12-(1983).
In this case, of course, some of the factors-listed by.the Licensing Board in the Indian Point l proceeding may not be applicable.
For example, arrangements for the. hearing facilities have presumably been made-and supplemental proposed' findings will not be necessary, since, at this time,
-proposed findings of fact have not been filed.
Indeed, at this
- time,.the evidentiary hearings have not concluded and the record
..therefore has not:been closed.
Nevertheless, most of the factors listed'by the Indian' Point' Board must be taken into account by this Board in determining a schedule for the strike issues, since
'those issues-have been raised by this Board on the basis of a new e
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,h factual development, i.e.,
the LILCO strike.
Viewed in this context, it-must be concluded that the schedule suggested by the 1 Board in 'its : July 2:4 Order does not permit sufficient time for the parties, among other things, to find and prepare witnesses and take discovery.
Therefore, the County requests that the Board' modify its July 24. Order by extending the hearing date for "the strike' issues from August 28 until September 18.
The need for the extension requested by the County is based on the
'following facts.
First, the County can now advise the Board that it has identified and presently intends to rely upon at least four witnesses for testimony on the strike issues.
These witnesses are as follows:
Deputy Inspector Peter F.
Cosgrove, Lieutenant
' John'L. Fakler, Professor David J. Olson and Mr. Gregory C.
Minor.- All these witnesses have previously testified before the
- Board Jon other ' matters.
At this time, the County intends to
.present testimony from Deputy Inspector Cosgrove, Lieutenant
'Fakler, and Professor Olson on the first issue admitted by the
-Board's July 24' Order.
Mr. Minor will address primarily the second'and third' issues admitted by the Board.
While the County is continuing its efforts to obtain the
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services of other-witnesses to testify on the strike issues,2/
st These other' witnesses include experts in the field of labor psychology and sociology and would present testimony critical to
-the Board's resolution of the strike issues.
Howe /er, such witnesses would'not eliminate or mitigate in any way the need for
. testimony on the issues admitted by the Board from the witnesses
-identified above. n
'h i
the witnesses identified above will form an integral and essen-tial part of the County's case.
They offer considerable experi-
~ence and expertise in areas concerning and directly relating to the strike i'ssues present in this case, and their participation atLtrial will, in the County's view, significantly contribute to any determination of the issues which have been raised by the Board.
However, because of prior commitments and scheduling
- conflicts, nonc of.these individuals are available to testify during the week of August 28.
Most are also unavailable for
- discovery purposes'within the time frame contemplated by the Board's July.24 Order -- that is, between now and August 14.
. 1ndeed, the first week that the County's prospective witnesses
- are all available is the week of September 101 Because"the County would need some time to work with the witnesses and to prepare for the hearing contemplated by the Board's Order, the
- County proposes that the Board extend the August 28 hearing'date until~ Tuesday, September 18.
4 Second, the September-18 extension requested by the County r.
i:s necessary-in order to permit-sufficient time for the parties to conduct discov'ery on the strike issues.
Thus far, almost two weeks of'the time allotted by the Board for discovery has
_ elapsed.
Despite'a. request by counsel for the County to counsel for LILCO on July. 7 that LILCO identify. the ~ witnesses it intends 2
.to present on t e s rike issues, LILCO, as of this time, has h
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failed to identify any witnesses or potential witnesses.
On 1
August 2, the County informed LILCO of the witnesses the County
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. presently' intends to rely'upon for testimony on the strike issues
,(the..same' witnesses identified herein).
Further, on August 1, New-York State and the County jointly requested LILCO to furnish information pertaining _to the strike issues.
However, at this time, the' County has received no. response by LILCO to the f.'
August:lirequest. _ With only one week remaining before the U
discovery period contemplated by the Board in its July 24 Order
- {C expires, fit would appear that additional time for discovery needs to'bd built into the schedule on the strike issues admitted by
_the Board.
Finally, the extension of time requested by the Board is necessary:in order to-permit sufficient time for the County to prepare: written testimony on the strike issues, should this Board
-grant-the County's request and decide to permit written testimony to be filed by the parties.
The County is aware that the Board's
-July 24 Order precludes the filing of written testimony..
The County' assumes that the Board's decision in this regard was based on the-Board's-proposed hearing date of August 28 and its desire, previously stated'on the record and in the Board's Order (see,
'e.g.,
Order, at-3) to finish the emergency planning hearings by August.31'.
The interests of a fair hearing process, however, e
should not be subordinated to a desire to finish these hearings by'the arbitrary date of August 31.
Thus, the Board should reconsider.its ruling prohibiting the filing of written testi-mony.
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In' fact, under the Commission's Rules of Practice, the parties to a_ licensing proceeding are required to submit the Ldirect testimony of witnesses in' written form, unless otherwise
, ordered by the presiding officer on the basis of objections presented. -10 CFR 2.743(b).
Here, none of the parties has
-objected to.the submission of written testimony on the strike issues admitted by the Board.
Rather,,the Board, sua sponte, has prohibited the filing of written testimony.
The County submits thatithe Board's action in-this regard was error.
In addition to the fact that prefiled direct testimony is explicitly contemplated by the Commission's regulations, such testimony.is essential to both the Board and the parties in preparing for hearing and serves as a means to facilitate and focus _the hearing process, hor this reason, Licensing Boards have previously denied requests by parties to present oral direct testimony.
For example, when confronted by an intervenor's request to." submit concise direct testimony on [its) contentions atithe public hearings -- extemporaneously," the Licensing Board Lin the Susquehanna' licensing proceeding made clear its dis-approval:
This approach'is not only inconsistent with the general thrust of NRC rules (10 CFR Section 2.743(b)) but with our previously
. expressed-goal.of avoiding " trial by surprise."
It would make it most difficult for the Board to formulate informed questions for the witnesses and hence to be adequately prepared for hearing.
Clearly it raises a question whether that Intervenor, at least, looks upon a-licensing proceeding as a forum for resolving technical questions in the,..
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p-fairest and most comprehensive manner, or l
alternatively, whether it views this pro-ceeding merely in terms of'a podium for (k
soapbox l oratory.
We need scarcely add that
.this latter. approach is intolerable and will h) not be countenanced by this Board.
-Pennsylvania Power and Light Company (Susquehanna), LBP-79-31, 10 NRC 597, 602 (1979).
lUnderithe circumstances of this case, the Board's prohibi-tion "against prefiled written testimony will almost certainly lead to:the " trial-by_ surprise" which the Commission's Rules of
' Practice seek to avoid.
One of the purposes underlying written testimony'is to enable the Board and the parties, prior to hearing, to become aware of the positions that will be advocated
'at the hearing on the various issues in controversy.
The issues in controversy here are complex and significant.
In fact, as this Board has recognized, the offsite response plan for Shoreham is "significantly different from that of any other operating Lnuclear plant" in this country, with LILCO relying primarily upon its employees to perform offsite emergency response functions.
Order, at 1.
Thus,-the-Board should reconsider whether to permit the
- parties to file written testimony.
Should the Board decide that
.the1 Commission's explicit requirement regarding prefiled direct testimony is to be followed (see 10 CFR 2.743(b)), the September
- 18 hearing date proposed by the County would provide adequate time for-submission of such testimony; in this regard, the County would suggest that written testimony by all parties be filed on 9-
o-September 11, with motions to strike such testimony, if any, argued orally at the commencement of the hearing on September 18.
Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law H.
Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Herbert H.
Brown Michael S. Miller Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.
Washingt,on, D.C.
20036 Attorneys for Suffolk County Date:
August 3, 1984 9 - -
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r-I' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CJC kC" Before the Atomic Safety and Licensing B$ard I
'84 A30 -6 P 3 :15
)
In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No".""5'0-3 2 2-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of Suffolk County's Motion for Reconsideration of Board's July 24 Order Regarding~ Schedule for Hearing And Prohibiting Written Testimony on the Strike Issues have been served to the following this 3rd day of August, 1984 by U.S. mail, first class, except as otherwise noted.
- 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
- Dr. Jerry R. Kline Marc W. Goldsmith Administrative Judge Energy Research~ Group, Inc.
Atomic Safety and Licensing Board 400-1 Totten Pond Road U.S.
Nuclear Regulatory Commission Waltham, Massachusetts 02154 Washington, D.C.
20555
- W.
Taylor Reveley, III, Esq.
- Mr. Frederick J.
Shon Hunton & Williams Administrative Judge P.O. Box 1535 Atomic, Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C.
20555 Mr. Jay Dunkleberger New York State Energy Office Edward M.
Barrett, Esq.
Agency Building 2 General Counsel Empire State Plaza Long Island Lighting Company Albany, New York 12223 250 Old Country Road Mineola, New York 11501
P::
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Mr.1 Brian McCaffrey Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & 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
'Joel Blau, Esq.
MHB Tecnnical Associates 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 Veterans Memorial Highway Hauppauge, New York 11788 Stuart Diamond Business / Financial Atomic-Safety and Licensing New York Times Board Panel.
229 W.
43rd Street U.S.
Nuclear Regulatory Commission New York, New York 10036
! Washington, D.C.
20555 m
Atomic Safety and Licensing Docketing and Service Section 10ffice of the Secretary Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory
.1717 H Street, N.W.
Commission
- Washington, D.C.
20555 Washington, D.C.
20555 Bernard M'.
Bordenick, Esq.
Jonathan D.
Feinberg, Esq.
-Edwin J. Reis, Esq..
Staff Counsel 0
U.S.zNuclear Regulatory Commission New York State Public Washington, D.C.~20555 Service Commission 3 Rockefeller Plaza
- Stewart M. Glass, Esq.
Albany, New York 12223 Regional Counsel ~
Federal'-Emergency Management Nora Bredes Agency-Executive Director 26 Federal Plaza, Room 1349 Shoreham opponents Coalition New York,~New York 10278 195 East Main Street
~
Smithtown, New York 11787
- Eleanor L..Frucci, Esq.
Spence Perry, Esq.
LAtomic-Safety and Licensing Associate General Counsel Board. Panel Federal Emergency Management U.S.
Nuclear Regulatory Commission Agency Washington, D.C.
20555 Washington, D.C.
20472
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4 t** Fabian Palomino, Esq..
lSpecial Counsel.to'the Governor Executive Chamber-State Capitol-1
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-Room.229-
.~ Albany,fNew York 12224 Michael S.
Miller KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS
- l. up 7~.
1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 U
.Da t'e d :
August
.3, 1984 1
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