ML20150A938
| ML20150A938 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/09/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5836 OL-3, NUDOCS 8803160095 | |
| Download: ML20150A938 (9) | |
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.LILCO, March 9,1988
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DOCKETED tl5NRC NUCLE R EGULA ORY CO MI SION
'88 MAR 14 P12:05 0FHCE U :f SrW '
Before the Atomic Safety and Licensing Board 00CXEig.L'T In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S RESPONSE TO INTERVENORS' MARCH 8 MOTION FOR EXTENSION OF DISCOVERY PERIOD On March 7 the Board stated in an Order that it would not consider any requests previously filed concerning the discovery schedule for the three remand issues present-ly before it. Those requests consisted of a 21-page paper of March 1 and a six page let-ter of March 3 from Intervenors.II The Board also provided the opportunity for parties to make further extension requests but required, in view of the narrowness of the re-mand issues and the time already available to the parties to deal with them, that any such requests contain concise and particularized showings of need.
Intervenors' present response, a four page motion dated March 8, involves largely a refiling of their earlier papera, which the Board's March 7 Order stated that it not only had not considered but would not consider. Those refiled attachments are not, and to that extent Intervenors' motion is not, responsive to the Board's Order and should be summarily rejected.
1/
LILCO and the NRC Staff responded to Intervenors' March I paper but not to that of March 3.
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, To the extent that Intervenors' current paper itself contains argument, it is not the concise and particularized demonstration that the Board required and does not show cause for any extension, much less the approximately 60 days request'ed. It should be rejected by the Board. To treat its areas of discussion briefly:
1.
EBS Coverage:
Written and deposition discovery has been undertaken promptly by both sides. Intervenors have, as they have noted, filed substantial discov-ery requests an this matter, to which LILCO is replying expeditiously.E LILCO has also made available its primary communications expert witness, Ralph Dippell, for dep-osition. Unfortunately, Intervenors have refused both to give substantive answers to E
written requests for admissions and to take offered depositions within the established discovery schedule,SI on the ground that they either do not know enough to answer fully or lack time to prepare.
Intervenors' contention is invalid. They have not fully utilized the time available to them to date. LILCO filed its summary disposition motion on EBS stations (including two backup technical reports by Cohen & Dippell) on November 6,1987; LILCO's case on this issue has not changed materially since then; thus Intervenors have had four months to develop their case by hiring experts, analyzing LILCO's filings and 2/
LILCO has answered the first set fully, except as to those portions of Interve-nors' interrogatories which are outside the scope of the admitted issues. LILCO is cur-rently working on responses to Intervenors'second set of interrogatories.
3/
Intervenors' response to each of LILCO's 7 requests for admissions contains the statement that they are unable to admit or deny because they "lack sufficient informa-tion (discovery having just begun) to respond otherwise." Response of Suffolk County (et al.) to LILCO's First Set of Requests for Admissions Regarding LILCO's Emergency Broadcast System, March 7,1988. The remarkable aspect of these answers is that each of them relates to matters alleged in the portion of Intervenors' EBS contention admit-ted for litigation.
3/
LILCO offered on March 1 to make its primary communications expert, Ralph Dippell, availabh for deposition on March 7,8 or 9. Intervenors have not accepted this offer. They have stated that they do not have time during this period to prepare to take this deposition.
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generating their own analyses. If they have failed to do so, it is they, not LILCO, that should feel the consequences.N Their unparticularized claim that they simply need more time to retain and confer with experts fails to account for their failure to pre-pare substantively during the past four months, during which they have been on explicit notice.
2.
Hospital ETES: Again, LILCO's case has been explicitly available for analy-sis for two and one-half months, ever since LILCO filed its summary disposition motion on December 18, 1987. Written discovery has gotten underway from both sides. LILCO believes that it could be completed by March 14. Intervenors have not been willing to pursue their opportunities on depositions, however. The Staff brought its traffic ex-pert, Dr. Thomas Urbanik, from Texas to Washington last Friday, March 4; Intervenors refused to take his deposition, claiming they could not prepare for it.SI LILCO has also offered to make its principal expert, Edward Lieberman, available on both March 10 or 11; Intervenors have not taken LILCO up on its offer.O Their current, unparticularized 5/
Intervenors took at least a first step toward preparation in December 1987, when they obtained a 1980 coverage survey on station WPLR from the FCC Public Document Room and interviewed its author. Counsel for Suffolk County acknowledged that docu-ment search and interview in a contemporaneous telephone conversation, but indicated in that conversation that the County did not intend to retain this person as an expert.
Telephone conversation, Michael Miller-Donald Irwin, December 30, 1987. Certainly Intervenors' awareness over two months ago of the need to prepare a substantive case, and their apparent abortive effort to do so, cut strongly against their present, unexplained claim now that they need more time to retain and learn from experts.
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LILCO ultimately proceeded itself to take Dr. Urbanik's deposition at the time offered by the Staff, and believes that if the adequacy of opportunity to obtain discov-ery of Dr. Urbanik is ever challenged, the deposition transcript will show that Dr. Urbanik was prepared on the appointed date to provide substantially all information he presently intends to generate on analysis of Shoreham hospital ETEs; and that this information is straightforward and was reasonably available to Intervenors.
F Intervenors have, however, deposed (on March 7) a LILCO employee, Jeffrey Sobotka, who actually prepared the hospital ETE calculations and worksheets under the direction of Mr. Lieberman. Intervenors had prior access to LILCO's work papers and used them during the deposition; a New York State traffic expert, Mr. David Hartgen, assisted counsel in the examination of Mr. Sobotka.
explanation that they need time to retain experts and confer with existing experts f ails to explain why, in the two and one-half months since LILCO outlined its case on hospi-tal ETEs in its summary disposition motion, Intervenors have not begun to prepare a substantive response.
3.
FEMA RAC Report: Intervenors allege, but show no basis for,'a need,to dam up this entire series of limited remand issues until the R AC report on LILCUs Re-vision 9 has been completed. Current estimates are that that review will be completed in May. FEMA witnesses are available befom then. To the extent that they are not available before March 14 and are needed, caseiy-case accommodations can be made thereaf ter. To the extent that the record on any issue cannot be completed or needs to be reopened on the basis of the RAC review, a good-cause showing can be made at the appropriate time.EI The discovery schedule proposed by the Board is not unreasonable in light of the limited, previously foreshadowed remand issues now coming toward trial.E! Discovery in these circumstances should be a means of clarifying and narrowing issues, not broad-ening them. Intervenors' current paper is not responsive to the opportunity afforded by 1/
These remand proceedings are limited to the three specified issuct (plus realism),
and are not a carte blanche opportunity for Intervenors to relitigate every issue within the secpe of Revision 9.
2/
Intervenors cite a recent Appeal Board decision in the Seabrook case. ALAB-864, 25 NRC 417 (1987), to support the self-evident proposition that discovery schedules must be reasonable. However, application of the Appeal Board's reasoning to;the cir-cumstances of this case does not illustrate at all that the current schedule on the three remand issues is unreasonable. The facts under review by the Appeal Boarrf at Seabrook are vastly different from those in the current situation. There, the scope of litigation was the entire New Hampshire portion of the Seabrook plan; here it is three narrow re-mand issues. There, the Applicants had just substantially revised their 19-volume, 8000-page plan; here, LILCO's proposals are discrete, known and limited. There, litiga-tion, just beginning, had been at a halt for years for reasons the Appeal Board charac-terized as relating to Seabrook's lack of financial resources; here, LILCO has been ac-tively and diligently pressing for resolution of emergency planning issues for five years now.
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. the Board in its March 7 Order, and should be denied since it makes no particularized, concise showing of need for any discovery extension, much less for one of the two months requested.
LILCO would not object, howe' er, to the following one-time extension of the current discovery schedule, provided ('.) all of the internal deadlines in it are adopted and (2) a schedule leading to start of hearings on April 25 8 maintained. Schedule sug-gestions for both completion of discovery and getting to hearings ey April 25 are set forth immediately below:
A.
Completion of Discovery g,
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or Date Aelfon 3/11/88:
A.
All witnest,es proposed by any party on hospital ETE or EBS coverage issues must have been desig-nated, and must be made available for deposition on at least two business days between the date of their.
designation and March 46.18 B. All answers to written discovery requests filed and received by all parties on or before March 8 must be filed and be received by the Board and all parties in interest.
g C. All mouns to compel discovery (other than those relating to discovery requests filed on March 9-11) must be filed and be received by the Board and all parties in interest.
D. All written discovery requests of any nature must be filed and be received by the Board and all parties j
in interest.
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LILCO has already designated all of the witnesses it proposes to designate. The same is true of the NRC and FEMA. Depending on the number of witnesses remaining l
to be designated by Intervenors, this schedule may require holding simultaneous depost-tions, or "double-tracking," during the week of March !4-18. Intervenors have histori-cally refused to participate voluntarily in simultaneous depositions. LILCO requests that the Board condition further designation of witnesses on willingness to "double-track" depositions if necessary to avoid confounding this schedule.
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Daartilne or Date_
Action 3/15/88.
All responses to motions to compel discovery (other than those relating to discovery requests filed on March 9-11) must be filed and be recehed by the Board and all parties in interest.
3/18/88:
A. All depositions must be completed.
B. All responses to discovery requests filed on March 9-11 must be filed and be received by the Board and all partics in interest.
3/21/08:
All motions to co:npol relating to discovery r:qu sts filed on Marah 9-11 must be filed and be received by the Board and all parties in interest.
3/23/88:
All responses to motions to compel relating to discov-ery requests filed c;t March 9-11 must be filed and be received by the Boctd and til parties ir interest.
3/25/88:
Board final ruling (by telephone) on outstanding mo-tions to compel discovery.
3/28/89:
Compliance with final Board Order to comperdiscov-ery.
This mcdification to the discovery schedule will require s11g3t internal revisions to the schcGule for hearings on the rama',.d issues proposed by LILCO on March 1, but need not delay the projected April 25 date for start of the hearing. That revised sched-ule would watk as follows:N B.
.Getting to Hearings 3/18/88 Bus DrNers. Direct Testimony Filing 3/25/83 Bus Drivers: Matlons to Strike 4/1/88 Bus Drivers: Replies to Motions to Strike 4/8/48 EBf/Ecspitals: Direct Testiatony Fliing 11/
All wrvice daty in this schedule presume same-day or overnight ser&e on the Board atrJ the other parties in interest.
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4/15/88 EBS/ Hospitals: Motions to Strike 4/19/88 EBS/ Hospitals:
Replies to Motions to Strike 4/20,21 or 22/88 PREHEARING CONFERENCE IN BETHESDA 4/25/88 HEARINGS BEGIN ON SCHOOL BUS DRIV-ERS, IIOSPITALS, EBS 4/29/88 HEARINGS END ON SCHOOL BUS DRIV-ERS, HOSPITALS, EBS 1
5/18/88 LILCO Proposed Findings and Conclusions 5/23/88 Intervenors' Proposed Findings and Conclu-sions 5/30/88 Staff Proposed Findings and Conclusions 6/6/88 LILCO Reply Findings and Conclusions 7/88 Possible Board Decision CONCLUSION LILCO urges the Board to deny Intervenors' motion for an extension and to adopt the schedules for completion of discovery and proceeding to hearing set forth in this Response.
Respectfully submitted, (71U1
- d. n Donald P. Irwin'
/'
James N. Christman Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DAT ED: March 9,1988
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LILCO, MCrch 9,1988 tagp vbu.m.
'88 MR 14 P12 05 CERTIFICATE OF SERVICE bUICEOFM6hI"'OCKEllM BUNCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S RESPONSE TO INTERVENORS' MARCH 8 MOTION FOR EXTENSION OF DISCOVERY PERIOD were served this date upon the fol-lowing by telecopier as indicated by one asterisk, by Federal Express as indicatd by two asterisks, or by first-class mall, postage prepaid.
James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline
- George E. Johnson, Esq.
- Atomic Safety and Licensing Richard G. Bachmann, Esq.
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel East-West Towers, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.
Bethesda, MD 20814 Herbert H. Brown, Esq.
- Lawrence Coe Lanpher, Esq.
Mr. Frederick J. Shon
- Karla J. Letsche, Esq.
Atomic Safety and Licensing Kirkpatrick & Lockhart Board South Lobby - 9th Floor U.S. Nuclear Regulatory Commission 1800 M Street, N.W.
]
East-West Towers, Rm 430 Washington, D.C. 20036-5891 4350 East-West Hwy.
Bethesda, MD 20814 Fabian G. Palomino, Esq.
- Richard J. Zahnleuter, Esq.
4 Secretary of the Commission Special Counsel to the Governor Attention Docketing and Service Executive Chamber Section Room 229 U.S. Nuclear Regulatory Commission State Capitol 1717 H Street, N.W.
Albany, New York 12224 Washington, D.C. 20555 Alfred L. Nardelli, Esq.
Atomic Safety and Licensing Assistant Attorney General Appeal Board Panel 120 Broadway U.S. Nuclear Regulatory Commission Room 3-118 i
Washington, D.C. 20555 New York, New York 10271 i
e
9 1 Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Evan A. Davis, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.
Stephen B. Latham, Esq. **
Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 Wh e
y Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 9,1988 4