ML20149F149
| ML20149F149 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/08/1988 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5565 OL-3, NUDOCS 8802120044 | |
| Download: ML20149F149 (47) | |
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DCCKETED USNRC Februarv 8, 1988
'88 FEB 10 P2:13 UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION OfflCE OF HULTAuY 00CKETING 4 Sif VHJ Before the Atomic Safety and Licensinc BoardANCH
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
GOVERNMENTS' RESPONSE TO LILCO'S MOTION IN LIMIME AND MOTIONS TO SET HEARING SCHEDULE, AND REQUEST FOR M EGARDING PENDING DISCOVERY MATTERS i Suffolk County, the State of New York, and the Tovn of Southampton (hereafter, the "Governments"), hereby respond to LILCO's Motion in Limine and Motion to Set a Hearing Schedule, dated January 25, 1988 (hereafter, "Motion in Limine") and LILCO's Motion to Set Hearing Schedule and to Prohibit the Desig-nation of Additional Witnesses on "Role Conflict," dated February 5, 1988 (hereafter, "February 5 Motion").1/ In addition, with this Response the Governments request the Board to clarify and 1/ LILCO concedes that its February 5 Motion amends its earlier Motion in Limine. February 5 Motion at 1. - Therefore, the Governments ordinarily would not be required to respond to either LILCO's Motion in Limine or its February 5 Motion until February
- 16. Given, however, the need to resolve the issues raised by LILCO's motions, to obtain Board clarification of matters related to the remanded Contention 23.C. proceeding, and to resolve pending discovery disputes in that proceeding, the Governments have decided to respond at this time.
8802120044 880200 PDR ADOCK 0 % y2 0303
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e resc1ve pending discciyry mattera related to the remanded Con-tention 25.C proceedi6g.
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'. I. Summary f.
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'LILCO's Motion ins Limine essentially seeks two things from the Board. First, LILCO asks that the Board rule that' three a
r school-related issues (namely, the availability of buses, recep-
'* tion centers for scho'ol children, and evacuation time estimates) are not within the scope of the remanded Contention 25.C pro-
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ceeding. Second, LILCO seeks the immediate imposition of a i hearing schedule.
LILCO's February 5 Motion modifies LILCO's second request, but only with respect to postponing by two weeks the schedule for trial originally proposed by LILCO -- a change made necessary by this Board's January 28 decision to extend the discovery period from February 3 until February 19. Sag,Tr. 19,278 (transcript of January 28 telephone conference call); agg also Confirmatory Memorandum and Order (Governments' Motion for Extension of Dis-covery on Role Conflict of Bus Driver Issue), dated February 1, l
1988. In Jddition, LILCO asks the Board to prohibit, retroact-ively from February 3, the designation of any additional wit-nesses in the Contention 25.C remand proceeding, unless the Bodrd's ruling on LILCO's Motion in Limine turns out to be con-trary to LILCO's position regarding the scope of that proceeding.
February 5 Motion at 2 .}.
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None of LILCO's requests can be granted by the Board.
First, the implementability and adequacy of LILCO's new school evacuation proposal -- designed to ddress the lack of buses and bus drivers necessary to implement protective actions for school children, as raised by Conten. ion 25.C --
cannot be addressed without consideration of the three issues which are the subject of LILCO's Motion in Limine. Thus, LILCO's proposal for limiting the scope of the remanded Contention 25.C proceedir.g must be rejected because it would not permit the Board to rule on the issues presented by the remanded Contention 25.C: whether, in light of role conflict which would make buses and bus drivers un-available, the protective actions of early dismissal and evacua-tion could be adequately implemented for school children.
Furthermore, the premise of LILCO's Motion in Limine argu-ment that bus availability, reception centers, and evacuation time issues must be excluded from this remand proceeding on LILCO's new school evacuation proposal is fundamentally wrong.
The issues LILCO seeks to have excluded were ngi delegated to the Staff by this Board; such delegation would violate the very pre-cedent LILCO cites, and given the nature of the issues and the history of this proceeding (including extensive litigation con-cerning the availability of necessary transportation resources and the adequacy of relocation facilities), it is preposterous to assert that they are insignificant "details" requiring only "con-firmation."
U Second, LILCO's attempt to have this Board set a hearing schedule is grossly premature and improperly seeks to impose LILCO's views of what the scope and schedule of this proceeding should be upon the Board and other parties. Further, LILCO's proposed schedule ignores the press of other work that has to be performed by the parties and the Board. The substantial workload in this proceeding was recognized by the Board when it recently extended the discovery period on the Contention 25.C remand issues from February 3 until February 19. Eggt Tr. 19,277 (Judge Gleason). That workload has not abated, and fundamental fairness therefore precludes the kind of trial schedule proposed by LILCO.
Indeed, even without the press of other work, LILCO's schedule fails to provide sufficient time to the parties to prepare their respective cases. Thus, the Board should reject LILCO's proposed trial schedule. Rather than going forward on the basis of LILCO's conception of what makes sense, the Board should take control of the proceedings before it and convene a conference of counsel at the conclusion of the discovery period, so that the views of all the parties can be heard and a schedule fair for all the parties can be determined. Until then, the Board is in no position to set a hearing schedule.
Third, LILCO's request that the Board prohibit the designa-tion of any additional witnesses in the Contention 25.C remand is so patently absurd that only brief response need be made.
LILCO's apparent basis for its witness prohibition request is that the Governments "should have been required to designate
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their witnesses by February 3, the original end of the discovery ,
period." February 5 Motion at 2. This argument makes no sense whatsoever. First, the Governments were never required to desig-
.nate'their witnesses by February 3. In fact, the Board has never established a cut-off date for the designation of witnesses.
Second, since the Board moved the end of discovery from February 3 until February 19, there clearly is no reason to con-clude that the Governments are now barred from naming additional witnesses. The fact that February 3 has come and gone is simply irrelevant to when the Governments -- or any other party -- must designate their witnesses. In this regard, the Governments note that counsel for FEMA advised the Board on February 5 that, upon completion of FEMA's review of Revision 9 of LILCO's Plan, that agency will sponsor witnesses on FEMA's findings from its review.
Clearly, the issues raised by LILCO's new school evacuatioa pro-posal, including LILCO's reliance upon its employees to serve as "auxiliary" school bus drivers, fall within the scope of FEMA's review of Revision 9, and it therefore must be assumed that eot just the Governments, but PEMA as well, likely will designate additional witnesses in the Contention 25.C remand proceeding.
In short, the requests made by LILCO in its Motion in Limine ,
and in its February 5 Motion are without merit and must be re-jected.
Other matters, set forth below, must also be addressed by the Board, however. In brief, the Governments request the Board
to do two things: .(1) clarify the scope of permissible discovery in the Contention 25.C remand proceeding, particularly with re-spect to the Board's Memorandum and Order (Ruling on Suffolk County's Motion for Order to Compel LILCO's Responses to Inter-rogatories), dated February 3, 1988 (hereafter, "February 3 order"); and (2) take charge of this proceeding by convening a conference of counsel, at the end of the discovery period, so that argument and discussion of what is fair for all the parties
-- not just LILCO -- can be heard.
II. Backaround A. C2ntention 25.C's History Contention 25.C alleges that the LILCO Plan fails to take into account the role conflict that would be experienced by school bus drivers during a Shoreham emergency and that, as a re-sult, neither sufficient numbers of school buses nor school bus drivers would be available to implement the protective actions for school children (i.e., early dismissal and evacuation) pro-posed in the LILCO Plan. When the parties submitted written evi-dence on this contention in late 1983, included in Suffolk County's testimony were the results of two surveys. The first was a survey of school bus drivers in the Shoreham EPZ, which in-
dicated that significant role conflict would likely occur. Cole, ff. Tr. 1216, at 7.2/ This survey was admitted into evidence by the Board.
The necond was a survey of volunteer firemen in the EPZ, which indicated that, in the event of a Shoreham emergency, large numbers of these trained emergency workers would also resolve role conflict in favor of ,first attending to their families.
Cole, ff. Tr. 1216, at 12-16, 18; Erikson and Johnson, ff.
Tr. 1455, at 24-26, 28, 30.3/ Although LILCO's Plan did not rely upon volunteer firemen, the County's testimony explained why the survey results were highly probative of how other workers relied upon by LILCO would respond to role conflicts. Nonetheless, upon motion by the NRC Sttff, the Board ruled that this testimony was irrelevant and refused to admit it into evidence. Tr. 792; Order Confirming Changes in Schedule with Regard to "Group II" Conten-tions and Rulings on Motions to Strike, dated December 2, 1983, at 4. Suffolk County asked for reconsideration of this ruling,i/
but the Board declined to reverse itself and eventually the 2/ The survey demonstrated that only 24 percent of the surveyed bus drivers responded that they would report to work. I l
Sixty-nine percent responded that they would first look after the health and l safety ot their families and thus would not be available promptly to perform their driving responsibilities. Cole, ff. Tr' 1216, at 7-8.
3/ The firemen survey demonstrated that only 21 percent of the volunteer firemen surveyed would report to work. Sixty-eight !
percent responded that they would first make sure their families were safely out of the EPZ. Cole, ff. Tr. 1216, at 10-11, 13-14. I 1/ Suffolk County Objections to Prehearing Conference of .
Counsel Orders and Motion for Reconsideration, dated December 8, 1 1983, at 18-22.
g school bus J driver role conflict issue raised .by. Contention 25.C f was resolved in LILCO's favor in the Board's Partial Initial Decision (the "PID"). Lono Island Liahtina Co. (Shoreham Nuclear i Power Station, . Unit 1), LBP-85-12, 21 NRC 644, 675-76, 679 l (1985).1/ .
i Following the Board's decision, the Governments appealed to the Appeal Board. 333 Suffolk County, State of New York, and Town of Southampton Brief on Appeal of Licensing Board April 17, '
1985 Partial Initial Decision on Emergency Planning, dated [
October 23, 1985, at 58-62. The Appeal Board agreed with . the j I
Governments that this Board had erred in excluding the testimony related to the survey of volunteer firemen. In addition, the ;
Appeal Board indicated its' disagreement with the Board's finding in the PID that the survey of school-bus drivers in the Shoreham EPZ, which had been admitted into evidence, was entitled to i little, if any, predictive value.1/ As a result, the Appeal Board remanded the issues raised by Contention 25.C for further ;
evidentiary hearings. Lona Island Lichtina Co. (Shoreham Nuclear !
Power Station, Unit 1), ALAB-832, 23 NRC 135, 152-54 (1986). In i
remanding, the Appeal Board reasoned as follows:
We agree with the intervenors that the Board i erred in excluding the testimony related to the '
survey of volunteer firemen. While the applicant :
1/ Although the Board resolved the role conflict issue in !
LILCO's favor in the PID, it agreed with Suffolk County that !
there was no reasonable assurance that tnere are enough school i buses available to LILCO to accomplish an evacuation of school i
. children f rom within the EPZ in an adequate and timely manner. [
PID, 21 NRC at 872-74 (Contention 71.B.2).
l 1/ Sig PID, 21 NRC at 675-76.
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does not rely on volunteer firemen to implement protective actions in the event of a Shoreham emer-gency, that fact alone was insufficient to deny admission of the testimony. In our view, the re-sults of a survey as to the potential for role con-flict among firemen, if they had been part of the emergency response, would provide insight into the likely course of conduct of school bus drivers.
Stated in its simplest terms, if a trained professional emergency worker such as a fireman would put family obligations ahead of the discharge of any Shoreham emergency duties that might be assigned to him or her, it is a fair inference that an individual not in such a line of endeavor would encounter at least as great role conflict. It is thus unsurprising that, in the consideration of emergency planning in Zimmer, we found that surveys of volunteer life squadsmen and firemen concerning the role conflict they would encounter raised "a serious question as to whether bus drivers could be depended upon to carry out their responsibilities" in the event of an accident at that plant. We further determined there that those surveys pre-cluded, on the evidence of record, a finding that the school bus drivers would respond promptly.
On the record now before us, we similarly can-not make a finding that a sufficient number of school bus drivers can be relied upon to perform their duties if an accident occurred at Shoreham.
Therefore, we are remanding this matter to the Licensing Board for further exploration. . . .
ALAB-832, 23 NRC at 153-54 (footnotes omitted).
LILCO petitioned the Commission for review of the Appeal Board's decision, but the Commission declined to take review.
Commission Order , dated September 19, 1986. Accordingly, pur-suant to the Appeal Board's decision in ALAB-832, the issue of '
whether there would be a sufficient number of buses and school bus drivers to implement protective actions for school children under LILCO's Plan was remanded to this Board.
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-3. LIrro's New School Evacuation Fronosal On October-22, 1987, LILCO moved for summary disposition-of 1
. Contention - 25.C.7./ LIn doing so, LILCO put forth an entirely new
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approach to the evacuation of schools during a Shoreham emer- j gency.
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It also revealed for the first time a completely new or-- l ganization, personnel'and operational structure and-method'of im-plementing an evacuation of school children. ~
F In all previous litigated versions of'its' Plan, LILCO pro-posed that the protective action of evacuation for school ,
c children would: be implemented by individual schools or school districts, using their own resources. Specifically, LILCO relied I
'upon the regular ochool bus drivers already employed by or under '
t
- contract to the school districts to transport the school children
! f rom the schools to unidentified reception centers outside the
- EPZ. Since, according to LILCO, there are only about 340 such !
l bus drivers (att LILCO's October 22 Motion at 13), LILCO relied 1 I ,
I upon these drivers to make multiple trips into and out of the l potentially contaminated EPZ to accomplish this task. LILCO's f t
response to the fact that no schools had prepared, adopted, approved, or agreed to implement any plan to evacuate children in
- f the event of a Shoreham emergency was to assert that its evacua- l tion proposal would rionetheless be implemented by the schools !
through some kind of school-implemented ad has modification of I
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! 7/ LILCO's Motion for Summary Disposition of Contention 25.C i ("Role Conflict" of School Bus Drivers), dated October 22, 1987
( (hereafter, "LILCO's October 22 Motion"). .
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.. - , . _ . . - . - - - , . - _ . - - = - _ , . - _ _ - . _
early dismissal plans the schools had adopted to transport children from schools to their homes during snow storms (called "take-home" plans). Eg.g. cenerally Cordaro et al., ff. Tr. 9154 (1984 OL-3 trial transcript).8_/
In its October 22 Motion, LILCO revealed for the first time a radical' change in its plan for evacuating school children: a proposal to evacuate all schools within the EPZ in a single wave.
To implement this plan, LILCO estimated that approximately 562 school bus drivers (with the same number of school buses) would be needed. It assumed that the approximately 340 regular school bus drivers would be able to accomplish a portion of this task; each of these drivers would, however, be "backed up" by a LILCO-employed LERO driver. Further, to complete the staffing of its proposed one-wave evacuation, LILCO proposed to have 222 addi-tional LERO drivers act as primary bus drivers to drive 222 addi-tional buses necessary to accomplish the single-wave evacuation.
According to LILCO, these 222 primary drivers would function side-by-side with the 340 regular school bus drivers (or a com-bination of the regular school bus drivers and some of the 340 LEhO backup drivers, since at least some of the regular school bus drivers would experience role conflict)'.
Thus, in seeking summary disposition of Contention 25.C, LILCO concocted a totally new scheme for implementing the pro-a_/ The adequacy and implementability of this original LILCO proposal was litigated under Contentions 70 and 71 in the 1983-84 plan proceeding. The text of these contentions is set forth in the PID, 21 NRC ac 1016-17.
O tective action of evacuation for school children in the EPZ --
one that differs dramatically and sharply from previous versions of LILCO's Plan. Most importantly, LILCO now proposes for the first time to use LILCO employees to transport school children out of the EPZ and to conduct a school evacuation in one wave:
at least 222, but as many as 562 LERO bus drivers, will serve as primary drivers; any LERO drivers not needed as primary drivers will serve as backup drivers C. This Board's December 30 Memorandum and Order In its December 30, 1987 Memorandum and Order (Ruling on Applicant's Motion of October 22, 1987 for Summary Disposition of Contention 25.C Role Conflict of School Bus Drivers) (hereafter, "December 30 Order"), the Board found that LILCO's new school evacuation proposal, "presenting a new arrangement for the supply of bus drivers," necessitated an evidentiary hearing so that the "material issues" raised by LILCO's proposal could be resolved.
December 30 Order at 5 (emphasis added). Thus, while the Board considered the "basic issue to be explored by the Board (to be]
whether, in light of the potential for role conflict, a suffi-
! cient number of school bus drivers can be relied upon to perform ,
t emergency evacuation duties" (14.), it also acknowledged that other issues were likely raised by LILCO's proposal. In the interest of expediting the resolution of these other "emergency planning issues concerning the evacuation of school children," ;
the Board made clear its preference to resolve such outstanding
issues in the remanded Contention 25.C proceeding. 151. a t 6. To achieve that end, the Board set forth the scope of discovery on LILCO's new school evacuation proposal:
It will suffice for our purposes that an oppor-tunity to confront this plan (i.e., LILCO's new proposal) be provided and a period for discovery gn the olan's dimensions be authorized . . .
December 30 Order at 5 (emphasis added).
III. Scope of the Contention 25.C Romand Clearly, there is a sharp difference of opinion between the Governments and LILCO about the scope of the remanded Contention 25.C proceeding: LILCO's Motion in Limine underscores that difference of opinion. In the Governments' view, a significant number of issues, beyond the issue of how many school bus drivers could potentially be available, are raised by LILCO's new pro-posal to address the protective action implementability issue raised by Contention 25.C. Further, as Contention 25.C itself makes clear, the availability of school bus drivers cannot be ,
analyzed, reviewed, or evaluated in a vacuum. Rather, whether a sufficient number of drivers are available to permit implementa- ,
tion of protective actions for school children can only be addressed intelligently and meaningfully in the context of what duties they are expected to perform, and how, by what means, and when they are to perform them.
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'O-e Thus, the "dimensions" of LILCO's new proposal, in the con-text of the issues presented by Contention 25.C, include the
-following - whether school districts or superintendents would, or could, permit LILCO employees to transport school children or to drive school-contracted school buses; whether, and how, a "single wave" evacuation could be implemented by LILCO workers; whether such a proposal is adequate or implementable when it relies upon "reception centers" that, by virtue of Nassau County resolutions, are not available to LILCO for that purpose; how would LILCO employees responsible for transporting school children obtain 562 buses, how would they or could they get them to the schools, and how long would it take; how would LILCO's employees be notified and mobilized at preassigned bus yards; the impact on the im-plementability of other portions of LILCO's Plan of having 562 additional emergency workers to mobilize, dispatch, communicate with, supervise, coordinate, and otherwise control; the adequacy of facilities, equipment and other LERO staff to accommodate, service and manage 562 aeditional workers; the adequacy, lega-lity, and efficacy of LILCO's proposed training of school bus drivers; the value, if any, of LILCO's "commitment" to offer training, equipment and compensation to school bus drivers; how, if at all, LILCO's new proposal addresses the impact of role con-flict upon the ability to implement early dismissals; and the im-pact of survey data and other evidence concerning role conflict on the adequacy and implementability of LILCO's new proposal.
In short, a number of issues related to the "dimensions" and practicalities of LILCO's new school evacuation-proposal must be resolved in LILCO's favor, before this Board could determine (a) whether the allegation of Contention 25.C -- that under the LILCO Plan, "LILCO will be incapable of implementing the
. . . protective actions (of] early dismissal of schools . . .
(and) evacuation of schools" -- is correct, or (b) that LILCO's proposal is workable and will adequately protect the health, safety and welfare of the school children within the Shoreham 10-mile EPZ, as required by 10 CFR $$ 50.47(a)(1) and (b).
LILCO claims, however, that the galy issue before the Board is the abstract and meaningless one of the number of school bus drivers which in theory could be available for duty in a Shoreham emergency. Sit, e.g., Motion in Limine at 3. Thus, LILCO has asked the Board to rule that the issues remanded by ALAB-832 do not include, and that evidence will not be taken on, the fol-lowing: ,
The availability of buses for evacuating school children; The identification of reception centers for school children; and
[
Evacuation time estimates for school children. ,
Motion in Limine at 2. In LILCO's view, these issues are no longer within the Board; jurisdiction and, in any event, are i "Staff confirmation" matteru to be closed out by the Staff with-out further adjudication. Id.
o
LILCO is wrong on both scores. As will be discussed more fully below, if the Board decides to hear evidence on LILCO's new school evacuation proposal (as it obviously has, based upon the rulings made in its December 30 Order), the bottom line is clear:
LILCO's method of addressing the remanded Contention 25.C issues also requires the Board to consider and resolve the three issues expressly sought to be excluded by LILCO, as well as the other school evacuation issues raised by LILCO's new proposal which have been outlined above. Moreover, contrary to LILCO's asser-tion, none of these matters can be left to the Staff for resolu-tion. Such a result would be contrary to NRC precedent and the Board's findings in the Concluding Partial Initial Decision
("CPID"), 22 NRC 410, 430 (1985). It would also ignore the Staff's longstanding bias in favor of LILCO in this proceeding.
A. The Need for Board Clarification :
The Governments agree with LILCO in at least one respect:
the scope of the remanded Contention 25.C proceeding needs to be clarified by this Board, jigg Motion in Limine at 2.1/ It is I
with LILCO's assertion that the Governments "interpret the re-manded issue overbroadly" (14.) that the Governments disagree.
It is not the Governments' interpretation of the issues remanded ,
by ALAB-832, but LILCO's proposal for addressing that remand, that arguably "broadens" the scope of this proceeding. In fact, 1/ Indeed, the Governments have previously said as much. figg, m, Governments' Motion for Extension of Discovery in the Remanded Proceeding Regarding Role Conflict of School Bus Drivers, dated January 27, 1988, at 9-11.
1 I
e the scope is defined by the admitted contention itself, the Appeal Board's direction to this Board, and the new proposal and evidence LILCO seeks to have accepted in response to such remand.
LILCO essentially concedes the need for expanding the scope of the remand proceeding beyond the single issue whether a suffi-cient number of school bus drivers can be relied upon to perform emergency evacuation duties,. First, as recognized by LILCO (Motion in Limine at 2), the Board itself has indicated that it prefers to hear evidence concerning "any remaining emergency plan issues concerning the evacuation of school children . . ."
December 30 Order at 6. The Board has also indicated that the Governments are to have an opportunity "to confront" LILCO's new school evacuation proposal and its "dimensions." Id at 5. Thus, the Board has instructed that the Governments, as well as LILCO, are to be provided the opportunity to adduce evidence in the re-mand proceeding regarding LILCO's new proposal.
Moreover, notwithstanding its protests over the Governments' attempts to include issues such as the availability of buses and reception centers needed to implement the new LILCO proposal, and the evacuation time estimates for school children, within the scope of this proceeding, LILCO all but acknowledges that these issues, and others, are subject to litigation in this proceeding.
Thus, for example, LILCO concedes that, since it proposes to pre-sent evidence on its new school evacuation proposal, and since the Board has ruled that some analysis and review of that pro- l i
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posal is thereby required, the Governments are therefore per-mitted "to litigate reasons . . . why they claim the proposal to supply LILCO school bus drivers would not work." Motion in Limine at 4. If the Governments are to have "the opportunity to litigate why they claim (LILCO's ' auxiliary' bus driver) arrange-ment will not work," as LILCO claims (id. at 4-5), then clearly
' issues such as --
are there vehicles available for the "auxi-liary" drivers to drive? will they be able to get them? is there a place for the children to be taken? is'it a place which is available and suitable for that purpose, and would those in charge of the children agree to its use? and could the new arrangement be accomplished in a way and within a time period that would make evacuation a viable protective action that would be safe and adequate under the regulations? -- are fully appro-priate, and must be addressed by this Board. M/
M/ Other issues, including the recruitment, qualifications and experience, and training of LILCO's bus drivers are also appropriate and necessary areas of inquiry in determining whether LILCO's new force of 562 drivers could do the job needed to evacuate the EPZ schools. LILCO suggests that the training of LERO bus drivers " m be nonlitigable," since its training program has already beep litigated. Motion in Limine at 3, n.2 (emphasis added). Whether LILCO's training program has already been litigated is not the pertinent inquiry, however, in light of the recent Licensing Board decision concerning LILCO's inadequate performance during the February 13, 1936 Exercise. Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-2, NRC (Feb. 1, 1988), slip op, at 251 (deficiencies in LILCO's training program precluda a reasonable assurance finding and constitute a fundamental flaw in the LILCO Plan).
F B. LILCO's Attempt to Prohibit Evidence on the Bus Availability, Reception Centers, and Evacuation Time Estimates Issues Is Particularly Without Merit LILCO blatantly attempts to restrict improperly the scepe of the remand proceeding by seeking a Board ruling that evidence will not be taken or permitted on any of the following issues:
the availability of buses for evacuating school children; school reception centers; and evacuation time estimates for school children. Motion in L mine at 2, 4-5. Any Board ruling along the lines sought by LILCO would be clear error, however, for the reasons already discussed and further elaborated on below.
LILCO's argument that the bus availability issue is not litigable (Motion in Limine at 5), is sheer wishful thinking.
LILCO concedes, in fact, that the bus availability issue would ordinarily be litigable, since the Governments' claim that LILCO bus drivers would not have buses to drive provides a valid reason why LILCO's new school evacuation proposal would not work. In LILCO's view, however, the issue of whether there will be enough buses (as distinguished from drivers) to effect a single-wave evacuation has already been litigated, and left to the Staff to review. Thus, further litigation of the issue is barred. L4 LILCO's reasoning is seriously flawed and must be rejected.
It is preposteious for LILCO to argue that the issue of whether there will be enough buses to effect a single-wave evacuation of the EPZ schools has already been litigated. That issue was not 0
4 even in existence at the time of the PID and CPIDt thus, it could not i. ave been lef t to the Staff to review, as LILCO claims. The bus availability issue for school evacuations arose only af ter LILCO. proposed to accomplish school evacuations in a single wave.
That proposal was made known by LILCO for the first time when it sought summary disposition of the remanded Contention 25.C issues last October. The earlier litigation was of a wholly different proposal, involving multiple evacuation waves to be implemented by schools using their own buses. Clearly, therefore, so long as LILCO continues to rely upon its new proposal to obtain a ruling that Contention 25.C is incorrect because, contrary to its allegations, school protective actions can and will be imple-mented adequately by means of that new proposal, the Governments are entitled to litigate the bus availability issue.
The same conclusion must be reached with respect to the school reception center and evacuation time estimates issues which LILCO seeks to have excluded. The parties are entitled to know not only where LILCO intends to transport the school children at issue in this proceeding (a fact finally revealed by LILCO in its recently-issued Revision 9 of the Plan), but also, particularly given the identified facilities, whether they are in fact available for that purpose, and whether they are adequate for that purpose.l1/ It cannot seriously be suggested that this l/ Revision 9 of LILCO's Plan indicates that school children would be evacuated to either the Nassau Coliseum or the Nassau County Community College. Eg.g , n, Plan at 3.6-7. Nassau County, however, is on record stating that neither the Nassau Coliseum nor other Nassau County facilities are available for use (footnote continued)
7 Board could find, as it must in deciding Contention 25.C, that a safe evacuation of school children could and would be implemented in compliance with the regulations, without determining whether there was available an adequate and appropriate facility for the children to be taken. Contrary to LILCO's suggestion, the pro-tective action of evacuation under the NRC's regulations does not consist merely of loading people onto buses and driving them over an imaginary EPZ line. Egg, gig 2, NUREG 0654 S II.J.10.
Similarly, how long it would take LILCO to accomplish its proposed single-wave evacuation of the schools within the EPZ is clearly a subject within the scope of the remanded Contention 25.C proceeding. If LILCO's new proposal for school evacuations ;
cannot be implemented in a timely fashion, then LILCO's proposal is patently inadequate and a finding in its favor on Contention 25.C cannot be made.12/
i (footnote continued from previous page) by LILCO as part of the LILCO Plan. Egg Nassau County Resolution No. 782-1986 (June 16, 1986).
12/ Moreover, LILCO's assertion that its proposal to evacuate all school children in one wave "solve (s) the problem of evacuation time estimates addressed in the CPID at 430 1 8,"
since the evacuation time, with a one-wave evacuation, "is simply the time required to drive to the EPZ boundary" (Motion in Limine at 4, n.3), does not change this conclusion for the reasons already discussed concerning school reception centers.
C. The Bus Availability, School Reception Centers, and Evacuation Ti.se Estimates Issues cannot Be Considered Staff Confirmation Items As previously noted, in an apparent attempt to support its request for exclusion of the three issues which are the subject of its Motion in Limine, LILCO asserts that those issues are
Staff confirmation' matters to be closed by the NRC Staff with-out further adjudication." , Motion in Limine at 2. LILCO is plainly wrong.
LILCO's assertion that these three school-related issues are Staff confirmation matters is wholly untenable, finding support is neither the record of this case nor in the case law. As de-tailed below, there are three primary reasons why these issues require resolution by the Board and are particularly unsuited to delegation to the NRC Staff.
First, the Licensing Board in the CPID expressly identified those deficiencies whose resolution could appropriately be left to the Staff. Contrary to LILCO's assertion (agg Motion in Limine at 8-9), the Board's express delegation to the Staf f of six identified deficiencies (including two related to protective actions for school children) leaves room only for the :^"arence that the three issues here -- which were D21 so identiL'!..a by the Board -- have agt been delegated to the Staff, and are nqi sus-ceptible to mere "confirmation" by the Staff.
k Second, the Staff has aggressively supported LILCO through-out this licensing proceeding. The Staff's role as an advocate for LILCO clearly precludes its serving as an objective reviewer of LILCO proposals in this proceeding.
Finally, NRC precedent governing delegation of confirmatory authority to the Staff does not support LILCO's claim that dele-gation is appropriate here. Indeed, even a cursory review of NRC case law demonstrates that LILCO's claim is without merit.
- 1. The Licensing Board Did Not Delegate the Bus Availability, School Reception Centers and Evacuation Time Estimates Issues to the Staff LILCO's principal basis for suggesting that the bus avail-ability, school reception centers and evacuation time estimates issues are so-called "Staff confirmation matters" is that those i
"three school-related issues are listed in the CPID among twelve
' additional defects of a lesser magnitude in the Plan.'" Motion in Limine at 5, cuotino CPID, 22 NRC at 429-31. From this, LILCO argues that in keeping with the "predictive nature" of a licensing board's findings, the defects need only be remedied before Shoreham opens and "the Staff should oversee these cor-rections." Motion in Limine at 7-8. LILCO's argument is patent-ly absurd, and is contradicted by the very Licensing Board de-cision upon which LILCO seeks to rely.
r
As LILCO observes (Motion in Limine at 5 and n.5), the Licensing Board in the CPID referred to LILCO's' lack of legal authority and the opposition of Suffolk County and New York State as "significant deficiencies in LILCO's Plan . . . . CPID at 431. The Board then listed 12 '"additional defects of a~ lesser ,
magnitude in the Plan." M. at 429-31. Of these 12 "additional defects," the Board expressly delegated six to the Staff for con-firmation of the adequacy of LILCO's "fixes." 13.1 Motion in Limine at 8. Based upon the Board's express delegation of these six deficiencies, LILCO then concludes that "[t]he remaining five defects are also Staff confirmation items." M. a t 9 .1.3_/
LILCO is wrong. Its attempt to gloss over the Board's clear refusal to delegate the "remaining five defects" to the Staff should be rejected as a transparent attempt to mislead this Board into committing clear error.li/ In fmet, the only supportable inference from the CPID is that the remaining defects, including 13_/ LILCO argues that the twelfth "additional defect" involves a licensing condition "that clearly was not intended to require further adjudication." Motion in Limine at 8-9.
14./ Indeed, the transparency of LILCO's argument is made clear when LILCO's attempted sleight-of-hand with respect to the five school-related items on the list of 12 "additional defects" is considered. In identifying the three school-related issues which are the subject of its Motion in Limine, LILCO casually points out that two other school-related defects listed in the CPID were remedied in Revision 5 without further litigation. Sit Motion in Limine at 6 and n.6. Those items were (1) the inclusion in the 10-mile EPZ of several additional schools located just beyond the EPZ boundary, and (2) "the alteration of early dismissal procedures to conform to the protective actions recommended for the general public." CPID at 430. What LILCO carefully fails to note, however, is that those two school-related items were expressly delegated to the Staff in the CPID. The three school-related issues presented here were not so delegated.
e t
the three issues specifically sought to be excluded by LILCO (the bus availability, school reception centers, and evacuation time estimates issues), are expressly n21 susceptible to resolution through Staff confirmation. The simple fact is that the- Board did not delegate these issues to the Staff, and the Board was correct ~in refusing to do so, because LILCO's planning with re-spect to-these three issues does not even approach the level of development necessary to support dalegation to the Staff.
Moreover, LILCO's flawed inference fundamentally rests on a false dichotomy wholly unsupported by either the case law or the record in this proceeding. LILCO creates a two-part classi-fication of the deficiencies identified in the PID and the CPID.
- The first category consists of the two "fatal defects" identified in the CPID: (1) the absence of legal authority; and (2) the lack of assurance of an integrated response between the State and local governments and LILCO, due to the continued opposition of the Governments to LILCO's emergency planning. Sag CPID at 429-
- 31. The second category consists of the twelve "additional de-fects of a lesser magnitude" identified by the Board. Egg 14 LILCO reads far too much into the Board's suggestion that the 12 defects in LILCO's second category "can be remedied and such corrections should be in place by the time the plant com-mences operations, should it be licensed." Motion in Limine at 5-6, ouoting CPID at 429. The quoted language does not in the least refer to delegations it says nothing regarding delegation A
m-versus adjudication of deficiencies in LILCO's Plan and LILCO's proposals to correct them. Moreover, when the Board expressly decided to delegate outstanding deficiencies to the Staff for re-solution, it knew how to do so, and clearly indicated that in the CPID. Thus, the only fair and reasonable reading of the quoted language so heavily relied upon by LILCO is that, in the Board's opinion, while LILCO may or may not ultimately be able to remedy through Plan revisions the 12 "category two" deficiencies, those deficiencies are not as "fats 1" as those relating to LILCO's lack of legal authority and the lack of assurance of a coordinated emergency response, which did not appear capable of resolution in the foreseeable future.
- 2. The Staff's Demonstrated Blas Makes Delegation of the Three Issues Sought to Be Excluded from the Remand Proceeding by LILCO Particularly Inacoropriate The record of this case clearly documents a pattern of Staff bias and advocacy on LILCO's behalf and in LILCO's favor. Thus, it is clear that the Staff has forfeited any claim or right to serve as an independent and objective party in this licensing proceeding. As a result, it would be particularly inappropriate for the Board to delegate to the Staff decisional responsibility regarding the adequacy of LILCO's new proposal for resolving issues within the scope of the Contention 25.C remand.
First, the Staff has consistently supported LILCO's posi-tion, including LILCO's position on Contention 25.C, before the Licensing Board in 1984, and then before the Appeal Board and the Commission. Moreover, the Staff supported LILCO's recent attempt
~
to resolve summarily Contention 25.C, and therefore joined with LILCO in seeking to eliminate the necessity of further eviden- l tiary hearings on that remanded contention. Sag, NRC Staff Re-sponse to LILCO's Motion for Summary Disposition of Con-tention 25.C ("Role Conflict" of School Bus Drivers),
November 13, 1987, at 6. Although the Staff's position was re- ,
jected by the Board, it cannot be relied upon now to put aside its support for-LILCO if called upon to resolve the issues raised l by Contention 25.C as an impartial adjudicator.
Second, recent events underscore that the Staff has lost any semblance of independence and objectivity it may have once had in this case. On January 14, 1988, four attorneys for the Staff met with officials and counsel for LILCO. The Governments were not invited to attend this meeting; nor were they provided any prior notice that it would take place. Indeed, the Staff explicitly decided not to invite the Governments. Egg the attached Af fi- ,
davit of Lawrence Coe Lanpher 1 4.1_5/ '
i LILCO used this secret meeting to lobby the Staff for its continued support of LILCO's effort to license Shoreham. Sag ;
i Lanpher Affidavit 1 5(d) ("We want your continued support, 15./ Although the Affidavit of Mr. Lanpher was submitted to the i Board and the parties as an attachment to the Reply of Suf folk ;
County, the State of New York, and the Town of Southampton to the .
NRC Staff Response in Support of LILCO's Motion for Summary '
Disposition of the Hospital Evacuation Issue (Feb. 1, 1988), it is attached to this Response for the convenience of the Board and ;
the parties.
l
Staff."). And, following the meeting, Staff counsel confirmed to counsel for Suffolk County the Staff's support for LILCO's licensing effort. Id.
The circumstances surrounding this January 14 secret LILCO-Staff meeting are cited merely as an example; however, they con-clusively establish that the Staff has forfeited any claim it may have had to act as an objective and independent party in this licensing proceeding. The Staff has wholly allied itself with LILC0; it may not now be entrusted with the responsibility to review LILCO's Plan revisions respecting the three school-related issues sought to be excluded by LILCO's Motion in Limine.
- 3. NRC Precedent Dictates That the Issues Involved in the Contention 25.C Romand Are Not Susceptible to Deleaation to the Staff In addition to the Board's refusal in the CPID to delegate the issues involved here to the Staff, and the Staff's disquali-fication to serve as a confirmatory body, delegation to the Staff of the three matters at issue would be wholly inappropriate and contrary to NRC precedent. That precedent establishes that "delegation to the Staff of post-hearing verification of certain emergency planning measures can be proper, decendina on exactly what is left for verification." Philadelohia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595, 1600 (1985) (emphasis added).
_ l It is the Licensing Board, and not the Staff, which has the ,
duty to make findings on critical issues of health and safety prior to the issuance of an operating license.l6/ In fact, post-hearing resolutions by the Staff are disfavored,17_/ and are appropriate only with respect to minor procedural deficiencies, or issues where on-the-record proceedings would not be helpful in resolving the issue.18_/ ,
Moreover, in delegating issues to the Staff for resolution, the Licensing Board must determine that the remaining analysis or ;
review merely calls for the confirmation q[ earlier findinas recardina adecuaev; the Board may not delegate decisional re- s sponsibility to the Staff. Sig Metronolitan Edison Co. (Three 16,/ Sig consolidated Edison Comoany of New York (Indiana Point Station, Unit No. 2), CLI-74-23, 7 AEC 947, 951-52 (1974); ;
Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, l Units 1 and 2), ALAB-298, 2 NRC 730, 737 (1975); Washincton !
Public Power Sucolv System (Hanford No. 2 Nuclear Power Plant),
ALAB-113, 6 AEC 251, 252 (1973). S.t.t also Public Service Comoany of Indiana (Marble Hill Generating Station, Units 1 and 2), ,
ALAB-461, 7 NRC 313, 318 (1978) (Staff Counsel urges that factual '
determinations related to the issue of an applicant's financial obligations should not be left'to the Staff because "delegating i open matters to the staff for post-hearing resolution is a practice f rowned upon by both the Commission and this (Appeal]
Board").
l 7./ Sig Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1159 (1984) ("All parties recognize that certain minor matters may be left to the Staff for post-hearing resolution where hearings would not be ,
helpful and' the Board can 'make the findings requisite to issuance of the license.'"); Louisiana Power and Licht Co.
(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103 (1983) (citing Consolidated Edison Co., CLI-74-23, 7 AEC at 951).
18./ Consolidated Edison Co., CLI-74-23, 7 AEC at 951 and n.d Southern California Edison Co. (San Onofre Nuclear Generating l Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1216 (1982), l aff'd, ALAB-717, 17 NRC 346 (1983).
- 4
V ,
p }
Mile Island Nuclear Station, Unit No. 1), ALAB-729, 17 NRC 814, 886-87 (1983) (Sta$f's ahnitoring of test of connection of heaters to emergency.d3esel generators not an improper delegation of de'cisional responsibility since "(ilf, as the Licensing Board s
apparently expected,. the test confirms the - Boa rd 's subscantive conclusion regarding the proper operation of the heaters, nothing further. ne'5d be done[((emshasis added); Texas Utilities Electric CL. (Comanche Peak StsbrA Electric Station, Units 1 and 2), LBP-s.1*.'
85-32, 22 NRd 434, 436 and n.2, 440 (1985) (post-hearing tasks "must be merely; confirmilciry of the adequacy of the plant"),
i N Clearly, the requirements of the NRC case law on delegation are s
not met here, sincq,the earlier findings were that LILCO's Plan v
JQ was inadeauate; thus, any delegation would not require "confirma-tion"bytheSyst'f,butratherdecisionswhichthisBoardmaynot
?.awfully delegate.
. I d'
\
LILCO suggests that case law previously cited by the Govern-ments is not helpful here" because the cases predate the present
' emergenchplanning regulations. and asserts that the Waterford g,
decision'is s s dispositive,on emergency planning issues. Motion in Limine at 11. LILCO ijpincorrect, in part becauce it ignores the express language of de cases upon which it itself relies.
b
,g k First, LILCO states no basis for its assertion that the L .-
long-si:anding precedent ^c ted by the Governments concerning the limits on Board authority to delegate matters to the Staff is
' invalid. In fact, that- pr ecedent is binding upon this Board.
p
. .s s s
230-L_ '
Indeed, the distinction drawn by the Board itself in' delegating only certain matters to the Staff and not others, indicates that this Board understands the limits on its delegation authority.
Second, even the cases cited by LILCO demonstrate that the delegation sought by LILCO would be improper. For example, the quoted passage from the Limerick case cited by LILCO, Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 495 (1986), as explaining the Waterford holding ( gg_e_q Motion in Limine at 8) requires that LILCO's argument for delegation in this case be rejected. Thus, in Limerick the Appeal Board limited proper subjects for Staff delegation to "details relating to the implementation of the emergency plan, rather than a basic incredient of the olan itself" (emphasis added). Clearly, ender NRC regulations and NUREG 0654, the items at issue here -- evacuation time estimates, school reception centers, and transportation resources to accom-plish evacuation of special facilities, including schools -- are "basic ingredients" of a plan. Indeed, they are required ele-ments of a plan. Eg_q 10 CFR Part 50 Appendix E S IV (evacuation time estimates); NUREG 0654 S II.J.10 and Appendix 4 thereto (transportation resources and reception centers) . Clearly, the total absence of such essential items, not to mention their adequacy and sufficiency, cannot be dubbed a mere "implementing detail."
Thus, LILCO cannot use its erroneous "Staff delegation" argument as bootstrap support for its request that issues clearly presented by its new school evacuation proposal and Contention 25.C should be excluded from this proceeding.
D. LILCO's Jurisdictional Araument Is Misolaced In addition to arguing that the matters at issue '. its Motion in Limine are Staff "confirmation" items, LILCO also asserts that these three issues are no longer within the Board's jurisdiction. Motion in Limine at 2, 5 and 12-13. LILCO is correct in arguing that this Board's jurisdiction originates from the Appeal Board's remand in ALAB-832. LILCO is wrong, however, in concluding that, as a result, the only issue before the Board is the narrow one of whether there will be enough bus drivers available to evacuate schools in the EPZ. LILCO is wrong because i t;.g. chosen method of_ addressino thg remanded school M driver availability issue raises oreciselv 1.tig issues i t p_g.w seeks 1.2 exclude, among others.
In truth, this Soard is not now faced with the question of whether orevious findings against LILCO on previously-litigated contentions should be reopened or changed. Consequently, it need not decide whether it has jurisdiction over previously-decided contentions. Rather, what the Beard must decide is the issue presented by the Contention 25.C remand: in light of role con-flict and the resulting unavailability of school buses and school
bus drivers, can and will the protective actions of early dismissal and evacuation of school children be implemented under the LILCO Plan. Given the manner in which LILCO has chosen to address that issue -- that is, by proposing its new school evacu-ation scheme --
this Board must now exanine that scheme, its workability, its adequacy, and its compliance with the regula-
.tions, as set forth in Contention 25.C.
IV. The Inaooropriateness of LILCO's Proposed Schedule In its Motion in Limine, LILCO asks that the Board set a schedule for hearing. Motion in Limine at 13-14. LILCO repeats its request for a hearing schedule in the February 5 Motion; how-ever, because the Board on January 28 extended the discovery period until February 19, LILCO amends its previous request by essentially pushing back by two weeks its proposed schedule for the filing of testimony and the commencement of a hearing on the remanded Contention 25.C proceeding. Feeruary 5 Motion at 1-2.
LILCO's request that the Board set a testimony and hearing schedule leading to a trial in late March is plainly unreasonable in light of the significant workload facing the Board and the other parties and the many open issues yet to be decided by the Board.19_/ Clearly, the schedule proposed by LILCO would not l_9_/ In the Governments Motion for Extension of Discovery in the Remand Proceeding Regarding Role Conflict of School Bus Drivers, dated January 27, 1988, the Governments set forth the tremendous l
"crunch" of work on other issues since discovery on the remanded Contention 25.C issues started. The Governments will not repeat l (footnote continued)
1 provide ample time to the Governments to prepare their case.
Contrary to LILCO's assertion (February 5 Motion at 2), the nature of LILCO's case on the remanded Contention 25.C proceeding has not been known since last October 22, when LILCO filed its motion for summary disposition. Indeed, the nature of LILCO's case on the Contention 25.C issues is still not known, given the fact that discovery has not yet been completed. Thus, among other things, LILCO witnesses remain to be deposed, documents re-main to be produced and interrogatories and other discovery re-quests remain to be answered.
Further, additional time is needed for the Gcvernments to develop their affirmative case, including the identification of ,
witnesses expected to be called on their behalf. As of this time, meetings with some prospective witnesses are tentatively scheduled for the end of this week. Depending upon the results of those meetings, the Governments may determine that they will call certain witnesses to testify on their behalf at the remand proceeding. If and when that determination is made, such wit-nesses will be identified as promptly as possible. It must be i
recognized, however, that the need for, and identification of, l witnesses cannot be fully ascertained until after the Governments 1
have received substantive responses to their outstanding dis-1 I
i 1
l
, (footnote continued from previous page)
I here that discussion. Instead, the Board is referred to the Governments' January 27 Motion, especially at pages 3 and 13-15.
covery requests and the scope of this proceeding has been clari-fled by this Board.20/
Under these circumstances, the Board has no choice but to reject LILCO's proposed hearing schedule. It would be grossly premature to set any schedule at this time; indeed, the earliest time that the Board should decide upon a hearing schedule would be at the end of the discovery period. Rather than deciding a hearing schedule now, as LILCO suggests, the Governments believe that, following the end of discovery, the Board should convene a conference of counsel so that the views of all the parties can be heard and the propriety of proposed hearing schedules can be dis-cussed and considered.
V. The Need for the Board to Resolve Pendino Discovery Matters In addition to the pressing need to clarify the scope of the remand proceeding, the Board must decide a smattering of dis-covery matters which recently have arisen. First, clarification is required with respect to the Board's February 3 Order. The Governments assume that, in those instances where the County's January 25 Motion to Compel was denied by the Board pending its ruling on LILCO's Motion in Limine (aqa, e,q , February 3 Order at 5 and 6), the Board actually meant that the County's Motion to 2,q/ LILCO has acknowledged that it faces the same predicament.
Thus, for example, LILCO has indicated that if the Board rules that evacuation time estimates are within the scope of this l
proceeding, LILCO will designate an additional witness to testify on its behalf. February 5 Motion at 2.
c .
Compel -is to be held in abeyance pending a- Board ruling on LILCO's' Motion in Limine. The Governments believe that, for the reasons stated in this Response, LILCO's Motion in Limine will be denied and the scope of the remanded Contention 25.C proceeding will be in accordance with the views expressed in this Response.
In that event, it is assumed that LILCO will be compelled to produce certain documents and answer certain interrogatories that, as of now, have not been produced or answered.
Second, the Board should be made aware that the "stone-walling" tactics by LILCO and the NRC Staff previously complained about by the Governments are continuing, thereby endangering the February 19 discovery cut-off date imposed by the Board on January 28.21/ Notwithstanding the Board's clear ruling permitting discovery into the "dimensions" of LILCO's new school evacuation proposal, the Staff has generally refused to provide any discovery beyond the very narrow issue of whether there will be enough school bus drivers available in a Shoreham emergency.
.$.g.g , e.o., NRC Staff Objections to State of New York's First Set of Interrogatories and Request for Production of Documents to the NRC Staff and FEMA, dated February 2, 1988. LILCO has been more 21./ The Board must also give consideration to LILCO's continued insistence on filing discovery requests for which responses would not be due until well after the February 19 discovery cut-off.
Most recently, LILCO on February 8 filed i'ts Fifth Set of Interrogatories and Requests for Production of Documents upon
- Suffolk County and New York State. Under the NRC rules, responses to LILCO's interrogatories would not be due until February 22. The documents requested by LILCO would not need to be produced until on or about March 9. LILCO's unilateral extension of discovery beyond the Board's cut-off date blatantly ignores the Board's January 28 ruling and makes preparation of the Governments' affirmative case even more difficult.
responsive than the Staff, but it also has refused to provide any discovery on matters clearly relevant to the Contention 25.C remand. Sag, e,q,, LILCO's Responses and Objections to New York State's First Set of Interrogatories and Request for Production of Documents, dated February 3, 1988. The Governments intend to move in the near future for an order compelling the Staff and LILCO to respond to the legitimate outstanding discovery requests by the Governments. In the interim, however, it must be recog-nized that discovery of certain basic information requested by the Governments is at a standstill.
Third, there is need for this Board to rule on LILCO's re-quest that the Board prohibit the further designation of wit-nesses in the Contention 25.C remand proceeding. February 5 Motion at 2-3. In the Governments' view, little need be said re-garding LILCO's request, because the position. asserted by LILCO is so wholly devoid of merit.
LILCO asserts that the Governments should have been required to designate their witnesses by February 3, the original end of the discovery period. According to LILCO, "[t] hat date having passed, it is improper for (the Governments) to name new wit-nesses now." February 5 Motion at 2.
LILCO's assertion is baseless. First, it' ignores the fact that this Board has never established a cut-off date for the de-signation of witnesses.E/
Second, even assuming, arcuendo, the validity of LILCO's assumption that a discovery cut-off is also a witness designation cut-off, LILCO seeks in effect retroactive retraction g_f, f t;jlg discovery extension already cranted b_y 1.ha BQard. That is ridiculous.23,/ LILCO's argument that February 3 should now be ruled to have been the latest time that witnesses could have been designated is totally without merit, highly disingenous, and un-worthy of further comment.
22,/ LILCO's request also conveniently ignores the fact that prior to its February 5 Motion, LILCO itself had sought Board clarification regarding the two week discovery extension granted by the Board on January 28. In seeking such clarification, LILCO specifically asked the Board to set February 3 as a cut-off date for designating witnesses. Sag LILCO's Answer to Suffolk County's Motion to Compel, dated January 30, 1988, at 10. The Board declined to do so, however. Thus, LILCO itself has recognized that there has been no witness designation cut-off date established in this proceeding.
23/ LILCO also appears to imply that the Governments have not designated their witnesses simply because they wish to force a d_g facto extension of the discovery period. There is no basis whatsoever for this assertion, however, and none is offered. The Governments have diligently sought to obtain and identify the witnesses that will appear on their behalf in the remand proceeding. The Governments will continue to do so. Given the press of other work facing the Governments and the frantic pace of discovery in the remand proceeding, it must be recognized, however, that the time needed to meet with prospective witnesses,
-so that their willingness and ability to testify and their time availability can be determined, must compete with other matters and time constraints.
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o a
VI. Conclusion For all the foregoing reasons, the Board should deny LILCO's Motion in Limine in its entirety. The Board should also clarify its February 3 Order in the ways addressed in this Response, and should reject outright LILCO's request to prohibit the further designation of witnesses in the remand proceeding. Given the little time left for discovery, the Governments request that the Board give this Response expedited consideration. In particular, the Governments request a ruling on the scope of the Contention 25.C remand, and submit that that ruling should be in accordance with the views expressed in this Response.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
/
Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County
M Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo Governor of the State of New York M
StepMen B. Latham Twomey, Latham & Shea 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 4
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.- At tach:.'en t 3
February 1, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY' ) Docket No. 50-322-OL-3 (Shoreham Nuclear Power Station, ) (Emergency Planning)
)
Unit 1) )
)
&FFIDAVIT OF LAWRENCE COE LANPHER Lawrence Coe Lanpher, being duly sworn, hereby states as follows:
1.
I am a partner with Kirkpatrick & Lockhart, which has been representing Suffolk County since early 1982 in the NRC Shoreham operating license proceedings (Docket No. 50-322-OL). I have been personally involved, as one of the counsel representing Suffolk County, in the litigation conducted before the Atomic Safety and Licensing Board, the NRC Appeal Board, and the NRC, concerning LILCO's proposed offsite emergency plan for Shoreham, including its provisions for protective actions for hospital patients, l
I
/
/
4 2.
I have read and am familiar with the NRC Staff Response to LILCO's Motion for Summary Disposition of the Hospital Evacua-tion Issue (Jan. 15, 1988).
3.
By telephone conversation January 15, 1988, as supple-mented in a second conversation on January 20, 1988, Edwin J.
Reis, Esq., of the Nuclear Regulatory Commission Staff, informed me that on January 14, 198,8, four attorneys of the NRC Staff (Mr.
Reis and Messrs. Olmstead, Scinto, and Johnson) met for two hours with four persons from or representing LILCO: LILCO's Executive Vice President, Anthony Earley, who formerly was LILCO's General Counsel; Ira Frielicher, a LILCO public relations spokes-person, who Mr. Reis told me would soon become LILCO's General Counsel; and two of LILCO's outside counsel from Hunton &
Williams, W. Taylor Reveley and Donald P. Irwin. Two of the Staff attendees -- Messrs. Olmstead and Reis -- have never entered appearances in the Shoreham proceeding. They are, respectively, the Director and Deputy Director of the NRC's Hearing Division.
4.
Suffolk County had no prior knowledge of this meeting.
Mr. Reis acknowledged that he knew Suffolk County would have wanted to attend the meeting had it been informed of it. The County was not informed of the meeting in advance, however, because Mr. Reis decided that it would be better for the Staff to meet alone with LILCO. Mr. Reis offered to meet with Suffolk County. i Mr. Reis never explained why it would have been better
{
not to have Suffolk County representatives present at the January 14 meeting.
5.
Mr. Reis noted the following matters concerning the January 14 LILCO/ Staff meeting:
- a. The January 14 meeting came about at the oral request of one of LILCO's attorneys, Donald P. Irwin. Mr. Reis stated that Mr. Irwin asserted that LILCO had a right as a citizen of the United States to make its views known to its government and that LILCO thus sought a meeting with NRC personnel to do so.
b.
During the January 14 meeting, LILCO made a "big pitch" regarding its 25% power motion and the need for the elec-tricity from Shoreham,
- c. LILCO also made a "big pitch" for a new exercise.
d.
Mr. Reis stated that the LILCO/ Staff meeting could be characterized as LILCO meeting with the Staff in order to ask the Staf f to support LILCO.
Mr. Reis stated that it was the Staff's "continued support" that LILCO sought since the Staff, I
according to Mr. Reis, is supportive of a license for Shoreham.
l 1
l
Mr. Reis summed up LILCO's presentation,as follows: "
We want your continued support, Staff."
6.
The above facts are true and accurate to the best of my knowledge and belief.
AM14s<0 M ..
Lawrence Coe Lanph y Sworn to and subscribed before me this 1st day of February 1988.
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\,}H,19 VW 7 Notary 1(ablic My commission expires: * -
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a
.e 00CKETED u5HRC February 8, 1988 UNITED STATES OF AMERICA 18 FEB 10 P2:13 NUCLEAR REGULATCRY COMMISSION Before the Atomic Safety and Licensino Boah8 "C El G SE -
BRANCH
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
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CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' RESPONSE TO LILCO'S MOTION IN LIMINE AND MOTIONS TO SET HEARING SCHEDULE, AND REQUEST FOR BOARD CLARIFICATION REGARDING PENDING DISCOVERY MATTERS have been served on the following this 8th day of February, 1988 by U.S. mail, first class, except as otherwise noted:
James P. Gleason, Chairman
- Mr. Frederick J. Shon
- Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman
- William R. Cumming, Esq.
513 Gilmoure Drive Spence W. Perry, 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 Chaiher, Rm. 229 State Capitol Albany, New Yorx 12224
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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. Ms. Elisabeth Taib~oi, 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 Road 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 3-116 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 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 f:
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Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York. 11771 Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891
- Mailed on February 8, 1988 and delivered by hand on February 9, 1988 e
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