ML20148K388
| ML20148K388 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/23/1988 |
| From: | Taylor J KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | LONG ISLAND LIGHTING CO. |
| References | |
| CON-#188-5961 OL-3, NUDOCS 8803310119 | |
| Download: ML20148K388 (15) | |
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00LKETED USHHC
,f March 23, 1988 10 mm 28 P4:09 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE CF Si Jt1W' 00CXEiiHG A,Lsvirr~
Before the Atomic Safety and Licensina Board BRANCH
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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RESPONSE OF SUFFOLK COUNTY TO LILCO'S MARCH 11, 1988 MOTION TO COMPEL ANSWERS TO CERTAIN INTERROGATORIES AND REOUESTS FOR PRODUCTION OF DOCUMENTS Suffolk County ("the County") hereby responds to "LILCO's Motion to Compel Answers to Certain Interrogatories and Requests l
for Production of Documents" ("Motion"), dated March 11, 1988.
In its Motion, LILCO seeks to compel the County to provide additional responses to LILCO Interrogatories Nos. 23-26, 30 and 35-37.
The Motion must be denied for a simple reason:
the additional information and documents sought by LILCO do not l
l exist.
Moreover, as the County has now informed LILCO at least t
l three times, neither the County, nor its designated witnesses, possess documents or information, not already provided to LILCO, that are responsive to the Interrogatories at issue.1/
In short, 1/
On January 13, 1988, LILCO filed its "Second Set of Interrogatories and Requests for Production of Documents (footnote continued) 8803310119 880323 PDR ADOCK 05000322 O
PDR 3sv()
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.9 the documentation and additional information sought by LILCO does not exist and thus, there is nothing to compel the County to produce.
In addition, LILCO's Motion is untimely as LILCO filed its Motion well after the 10 day period provided in 10 CFR S 2.740(f) for the filing of motion to compel.
I.
LILCO'S MOTION IS UNTIMELY Notwithstanding the fact that on the merits there is nothing to compel Suffolk County to produce, LILCO's Motion is untimely and in violation of 10 CFR S 2.740(f).
Accordingly, the Board should not even consider it.
(footnote continued from previous page)
Regarding Role Conflict of School Bus Drivers" ("LILCO's Second Discovery, Requests"), seeking much of the information sought in its Motit,n.
The County's Response dated January 27, 1988 informed LiLCO that the County possessed no information or documents responsive to LILCO's Requests.
On January 27, 1988, LILCO filec its "Third Set of Interrogatories and Requests for Production of Documents" ("LILCO's Third Discovery Requests"),
seeking some of the infetmation sought in the Motion.
In its Response dated February 10, 1988, the County again informed LILCO that the County possessed no information or documents responsive to those Requests.
By letter from M. Leugers to M. Miller dated February 24, 1988, LILCO again requested the County to produce information and/or documents responsive to Interrogatories Nos. 23-26, 30, and 35-37.
The County informed LILCO, again, by letter from M.
Miller to M.
Leugers dated March 3, 1988, that the County possessed no information or documents responsive to those LILCO Interrogatories.
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t Section 2.740(f) governing motions to compel discovery provides:
If a deponent or party upon whom a request for production of documents or answers to interro-gatories is served fails to respond or objects to the request, or any part thereof, or fails to permit inspection as requested, the deposing party submitting the request may move the presiding officer, within ten (10) days after the date of the resoonse or after failure of a party to respond to the request, for an crder compelling a response or inspection in accordance with the request.
(Emphasis added).
LILCO Interrogatories Nos. 23-26 and 30 first appeared in LILCO's Second Discovery Requests, to which the County responded on January 27.
Under Section 2.740(f), a timely motion to compel concerning responses LILCO felt were incomplete would have had to have been filed by February 8.
LILCO's March 11 Motion was, accordingly, 31 days overdue.
Similarly, the County responded to LILCO's Third Discovery l
Requests, including LILCO Interrogatories Nos. 35-37, on February 10.
If LILCO was dissatisfied with the County's answers to those Interrogatories, Section 2.740(f) dictates that LILCO was required to have filed a motion to compel by February 22.
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l LILCO's March 11 Motion was 18 days overdue.
Furthermore, LILCO's letter of February 24 requesting that the County "update" its discovery responses, including its
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responses to LILCO Interrogatories Nos. 23-26, 30, and 35-37, cannot be construed to have somehow "tolled" the 10-day period prescribed.by Section 2.740(f).
There is no basis in the regulations or elsewhere for suggesting that a letter from counsel could negate or supercede the 10-day time period for the filing of motions to compel mandated by Section 2.740(f).
Furthermore, upon receipt of additional information previously requested by LILCO, the County has p*
mptly and regularly supplemented its prior responses, in ract, to date, the County has proviced LILCO with six supplements to its previously-filed discovery responses, each one filed promptly upon receipt of new information.2/
The County's regular practice of promptly supplementing its discovery responses, whenever appropriate, should have indicated to LILCO that there wan no additional information or documentation to be produced in this case.
In any event, even if viewed as purporting to contest the adequacy of the County's supplemental discovery responses, LILCO's Motion k/
Egg Suffolk County's Supplemental Response to LILCO's First Set of Interrogatories and Requests for Production of Documents, dated January 27, 1988; Second Supplement to Suffolk County's Answers to LILCO's First Set of Interrogatories anc Document Requests Regarding Role Conflict of School Bus Drivers, dated February 15, 1988; Third Supplement to Suffolk County's Answers to LILCO's First Set of Interrogatories and Document Requests Regarding Role Conflict of School Bus Drivers, dated February 17, 1988; Suffolk County's Fourth Supplemental Response to LILCO's First Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of School Bus Drivers, dated March 3, 1988; Suffolk County's Supplemental Response to LILCO's Second Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of School Bus Drivers, dated February 26, 1988; Suffolk County's Second Supplemental Response to LILCO's Second Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of School Bus Drivers, dated March 3, 1988.
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must be found to be_ untimely.
All but two of those responses were filed substantially more than 10 days prior to March 11, and I
none of them involved any of the Interrogatories at issue in LILCO's Motion.
For all these reasons, the Board should not even consider LILCO's Motion, which was filed in violation of the plain requirements of Section 2.740(f).
II.
LILCO'S MOTION MUST BE DENIED ON THE MERITS SINCE THE INFORMATION SOUGHT DOES NOT EXIST LILCO seeks the production of information and documents relating to three categories of information:
examples known to Suffolk County of bus drivers experiencing role conflict; an indication as to whether family members of school bus drivers reside within the Shoreham 10-mile EPZ; and documents and information relating to training by school districts of school bus drivers on how to deal with role conflict during emergencies.
Notwithstanding LILCO's argument about the alleged relevance of these inquiries, its Motion must be denied:
it is premised on l
LILCO's refusal to accept the fact that no resconsive information l
bevond that already orovided exists.
l Several facts must be stressed at the cutset.
First, as noted, whenever appropriate the County has promptly supplemented l
its discovery responses.
LILCO may not like the fact that the
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- t County is unable to supplement any further, but such an inability is no basis for a motion to compel.
Second, the County has expressly told counsel for LILCO, on several occasions, that additional information cannot be provided by the County because such information does not exist.
Again, LILCO's displeasure with that fact is no basis for a motion to compel the County to do that which is impossible.
Third, as LILCO acknowledges, it has deposed every one of the County's school official witnesses.
LILCO thus had the opportunity to make direct inquiries about the information it seeks in its Motion.
On a few occasions, LILCO did ask the County's witnesses the right questions, and it received whatever answers those witnesses were able to give.
Furthermore, as discussed below, although under no obligat.on to do so, counsel for the County, following the depcaitions of its witnesses, inquired of those officials LILCO neglected to ask during depositions, and determined that they had no responsive information.
Again, LILCO may not like this state of affairs, but LILCO must accept reality.
We discuss each of LILCO's requests briefly below.1/
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The County is only addressing those portions of LILCO's Motion that need be addressed in order for the Board to reach an opinion.
Thus, the County is not addressing numerous unsupported accusations and misrepresentations made by LILCO in its Motion.
The County's silence, however, should not be construed as l
indicating in any way agreement witn LILCO's accusations and misrepresentations. _-
A.
Interrocatory No. 23 Interrogatory No. 23 (Motion at 2-3) seeks examples of emergencies such as floods, fires, snowstorms or hurricanes where buses were used to transport people "either to their homes or places of safety away from their homes."
The County objected to the relevance of the information sought by this Interrogatory; a non-radiological emergency such as a nurricane or snowstorm is in no way analogous to a radiological emergency and thus, informa-tion regarding the use of buses following a non-radiological emergency is not relevant to the issues presented in this proceeding.
Notwithstanding this objection, however, the County has informed LILCO that it has no responsive information or documents beyond that already provided.
Suffolk County's Answers to LILCO's Second Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of Bus Drivers
("Second Response") dated January 27, 1988 at 2-3.
Counsel for LILCO had ample opportunity to explore this subject in the many depositions that have taken place of the school officials designated as witnesses by the County.
In some cases LILCO's counsel did so, or at least the general subject was discussed by the witnesses in response to other questions.
To the extent the County's witnesses were questioned on this matter, LILCO received their responses.
Moreover, although under no obligation to do so, counsel for the County has since the close of the discovery period asked each of its witnesses if they have
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e any additional information or documents which are responsive to Interrogatory No. 23.
Based upon these inquiries, it can be stated that the County's witnesses possess no additional responsive information or documents.
B.
Interrocatorv Nos. 24, 35-37 These Interrogatories seek information regarding instances known to the County in which bus dr. vers attended first to the needs of their families before rcporting to perform their bus driving duties.
Motion at 3, 4.
The County responded that with the exception of information set forth in testimony during the emergency planning proceedings of 1983-84, the County is not aware of any additional information or documentation within its possession, custody or control that is responsive to this Interrogatory.
Second Response at 4; Suffolk County's Answers to LILCO's Third Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of School Bus Drivers to i
Suffolk County and New York State ("Third Response") dated February 10, 1988 at 4-5.
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Counsel for LILCO requested information responsive to this Interrogatory during the depositions of County witnesses'. Robert Petrilak, Edward Doherty, Anthony Rossi, and Drs. Nick Muto, Bruce Brodsky and Richard Suprina.
(No such request was made 1
l during the depositions of County witnesses Thomas Smith or Dr. Howard Koenig).
The witnesses answered to the best of their abilities; indeed, several of the witnesses responded by providing information to LILCO regarding instances known to them in which bus drivers had attended to the needs of their families before performing their bus driver duties.
In addition, although under no obligation to do so, counsel for the County, since the close of the discovery period, separately inquired of all the school official witnesses, and were informed that no documentation or additional information responsive to this request is within their possession, custody or control.
C.
Interrocatory No. 25 This Interrogatory seeks information regarding whether the families of school bua drivers reside within the 10-mile Shoreham rez.1/
l Since LILCO claims information responsive to this l
Interrogatory is "highly relevant to the issue in this l
proceeding" (Motion at 7), it is difficult to understand why l
LILCO failed to ask any one of the eight school officials designated as witnesses by the County for such information during l
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LILCO contends in its Motion that "if the school bus drivers family members are ne'. in the zone of danger, there can be no role conflict," and thus, the information requested by this l
Interrogatory is "highly relevant to the issue in this l
proceeding."
Motion at.7.
The County does not concede the accuracy of this LILCO contention.
In the event of a Shoreham l
emergency, school bus drivers may experience role conflict and not be available to perform driving duties as a result of concern for family members, friends and loved ones whom they believe may 1
be in danger regardless of their residence or actual location, as-well as concern for their own safety.
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their depositions.
Nevertheless, although under no obligation to compensate for LILCO's failure in this regard, counsel for the County has.made inquiry of eacn of its witnesses.
They do not possess the information or documents requested by LILCO.1/
The County has also informed LILCO that the County does not possess any information or documentation regarding the location of the residences of family members of school bus drivers.
Second Response at 4.
D.
Interrocatory No. 26 This Interrogatory seeks information regarding training of school bus drivers on the subject of role conflict during emergencies.
The County has informed LILCO that it has no information or documentation responsive to this Interrogatory.
Second Response at 3-4.
Although in some depositions LILCO's counsel questioned the County's witnesses in general terms about training provided to school bus drivers, counsel for LILCO never requested from any of the County's witnesses information responsive to this Interrogatory.
Although under no obligation to do so, counsel for the County has made such inquiries of its school official witnesses.
None of the witnesses has information or documents that are responsive to this Interrogatory.
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Officials of the Longwood, Middle Country and Riverhead School Districts did indicate, however, that the vast majority of the drivers for each of those districts live in the district. -
In its Motion, LILCO asserts that if "role conflict is the serious concern that these school officials now maintain, that should be.gvident in their approach to bus driver training."
Motion at 7.
Again, LILCO misconstrues the issue by equating a radiological emergency with a non-radiological emergency.
E.
Interrocatory No. 30 This Interrogatory seeks documents used to answer Interrogatories Nos. 23-28.
As discussed above, no such documents exist.
Thus, there is nothing to produce.
III. CONCLUSION For the foregoing reasons, LILCO's Motion should be denied in its entirety.
Respectfully submitted, E. Thomas Boyle l
Suffolk County Attorney Bldg. 158 North County Complex
(
Veterans Memorial Highway Hauppauge, New York 11788 l
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S M
er J.
Lynn Taylor Counsel for Suffolk County Kirkpatrick & Lockhart 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 March 23, 1988 l
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COLKEif0 LbHRC March 23, 1988 UNITED STATES OF AMERICA 18 Nm 28 P4 :09 NUCLEAR REGULATORY COMMISSION
'Defore the Atomic Safety and Licensino Bd[Ih k N $ffi[.f, BRANLH
)
In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF SUFFOLK COUNTY TO LILCO'S MARCH 11, 1988 MOTION TO COMPEL ANSWERS TO CERTAIN INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS have been served on the following this 23rd day of March, 1988 by U.S.
mail, first class, except as otherwise noted.
James P. Gleason, Chairman Mr. Frederick J.
Shon Atomic Safety and Liccasing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commisston Washington, D.C.
20555 Washington, D.C.
20555 James P.
Gleason, Chairman William R. Cumming, Esq.
513 Gilmoure Drive Spence W.
Ferry, Esq.
Silver Spring, Maryland 20901 Office of General Counsel Federal Emergency Management Agency Dr. Jerry R. Kline 500 C Street, S.W.,
Room 840 Atomic Safety and Licensing Board Washington, D.C.
20472 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 W.
Taylor Reveley, III, Esq.
Hunton & Williams Fabian G.
Palomino, Esq.
P.O. Box 1535 Richard J.
Zahnleuter, Esq.
707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 State Capitol Albany, New York 12224
Joel Blau, Esq.
Anthony F. Earley, Jr.,
Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq.
M3. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr.
L.
F.
Britt Stephen B..Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Hoad Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 Alfred L. Nardelli, Esq.
Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H.
Lee Dennison Building Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger George E.
Johnson, Esq.
New York State Energy Office Edwin J.
Reis, Esq.
Agency Building 2 Office of the General Counsel Empire State Plaza U.S. Nuclear Regulatory Comm.
Albany, New York 12223 Washington, D.C.
20555 l
David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial l
1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street l
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Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 7#dM7w Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 l
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