ML20151F060
| ML20151F060 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/06/1988 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6044 OL-3, NUDOCS 8804180057 | |
| Download: ML20151F060 (16) | |
Text
r
'Ad 00CKETED USMPC April 6, 1988 -
im APR 11 P6:32 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION qrr t.t i " Q' F l*
6C+
- Before the Atomic Safety and Licensino Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket lJo. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' MOTION FOR EXTENSION OF TIME TO RESPOND TO REALISM DISCOVERY REQUESTS, AND TO EXTEND DISCOVERY SCHEDULE introduction In a Memorandum and Order dated March 10, 1988, the Board set a discovery and hearing schedule for the remaining remand issues, including cealism.
Under that schedule, discovery on the realism issues is to ead on April 15,1/ testimony is to be filed on April 29, and the hearing is to commence no sooner than ene week after completion of the hearings on the other remand issues schools, emergency broadcast system, and hospital evacuation timo estimates.
1/
The Board actually established the April 15 discovery termination date on March 7, when it issued an order authorizing discovery "on the remaiaing eight ' realism' issues" until that date.
8804200 PDR 900406 O
ACO M 050003 p
()4 PD
I O
Even before the Board's March 10 Order was issued, LILCO initiated discovery against Suffolk County, New York State and the Town of Sor' uampton (hereafter, the "Governments").2_/
The Governments responded to LILCO's First Discovery Requests within the time allotted by the NRC's rules;3_/ in addition, prior to re-sponding to LILCO's First Discovery Requests, interrogatories and requests for documents were propounded by Suffolk County to
', f LILCO, the NRC Staff and FEMA.A/
Thereafter, on March 24, 1988, LILCO filed a second round of discovery against the Governments.1/
Unlike its First Discovery Requests, which essentially asked who the Governments' witnesses would be, LILCO's Second Disccvery Requests are lengthy and com-plicated; indeed, the interrogatories presented by LILCO, by any 2,/
Egg LILCO's hrst Set of Interrogatories a id Requests for Production of Documents Regarding Contentions 1-2, 4-8 and 10 to Suffolk County, New YGrk Sta te and the Town of Southampton, dated l'. arch 9, 1988 (hereaf er, "LILCO's First Discovery Requests").
3.,/
Egg Suffolk County's
Response
to LILCO's First Set of Interrogatories Regarding contentions 1-2, 4-8, and 10, dated March 23, 1988; Ratoonse
.i f the State of New York to LILCO's First Set of Inter'rogatotles and Requests for Production of Documents Regarding Realism, dated March 23, 1988.
1/
S.ga Suffolk County's First Set of Interrogatories and Requests for 1roduction of Cocuments Regarding Contentions 1-2, 4-8 and 10 to Long Island Ligating Company, dated March 15, 1988, and Suffolk County's First Sec of Interrogatories and Requests for Production of Documents Regarding Contentions 1-2, 4-8 and 10 l
to the NRC Staff and FEMA, dated March 16, 1988 (collectively,
}
"Suffolk County's First Discovery Requests").
1/
Egg LILCO's Second Set of Interrogatories and Requests for l
Production of Documents Regarding Contentions 1-2, 4-8 and 10 to 1
Suffolk County, New York State, and the Town of Sou t harma t on,
l dated March 24, 1988 (hereafter<
"LILCO's Second Discovery l
Requests").
\\
l
(
estimate, would require substantial time and effort to answer.
Accordingly, the Governments are compelled to request an exten-sion of the time ordinarily permitted to them to respond to LILCO's Second Discovery Requests.
For the reasons set forth be-low, the Governments seek a three-week extension, until April 29.1/
The Governments propose that the overall period of dJ s-covery be extended until May 6.
Since the requested extension would extend discovery until after the time testimony on the realism issues is currently re-q? ired to be filed, the Governments also request that the hearing schedule established by the Board's March 10 Order be extended by three weeks.
If granted, the request made herein would result in testimony having to be filed by May 20, with motionc to strike due May 27 and responses to such motions due June 3; the Govern-ments would propose that, as before, the hearing on the realism issues would begin, at a minimum, one week after the hearings on the three other remand issues have been completed.
Such a 5/
The Governments also request that the time available to them to respond to 9e NRC Staf f's First Set of Interrogatories, dated March 31, 1988, be extended until this same date.
While the Staff's interrogatories are not nearly as lengthy as LILCO's, j
they nonetheless require the Governments to consider and decide basic and fundamental questions regarding the realism proceeding.
Thus, for example, if the Staff's interrogatories were to be answered, the Governments would need to decide such matters as whether they will subpoena witnesses or documents.
- Further, assuming documents and witnesses would be subpoenaed, the Governments would have to specify the persons and documents for
(
which subpoenas would be sought, the subjects they intend to ask subpcenaed witnesses about, and the information hoped to be elicited.
Given the nature of the Staff's inquiries, the requested extension of a
week-and-a-half is reasonable and necessary.
I
- l l
O schedule, if adopted by the Board, would not significantly impact the likely commencement date of the realism hearing.
It would, however, provide the Governments with the minimum additional time needed by them to proceed with their case regarding the realism issues remanded to this Board.
Discussion It can be expected that LILCO will oppose the extensions of time requested by thic Motion.
Most likely, LILCO will contend that the Board allowed over fi fe weeks for discovery, and that the schedule established by the Board on March 10 provided ample time for the Governments to proceed with discovery.
Such an argument, if actually made, would ignore the reali-ties of this case and would result in an unfair and unreasonable schedule.
The realities of this case are that the five weeks allowed by the Board for discovery on the realism issues were not sufficient for many reasons.
First, discovery on the other re-mand issues was not completed until March 25; thus, it has only been since th&t time that the Governments have had the oppor-tunity to focus on the realism case.
Even then, as made clear below, many other Shoreham-related obligations have confronted the Govetaments and have ef fectively precluded the diversion of the time or resources needed to proceed with discovery on the realism issues.
Also, as discussed below, this Board is itself
, responsible for the relatively little discovery that has been
_4
taken thus far on the realism issues.
Its failure to issue its reasoning or detailed rationale in support of its rulings on LILCO's motions for summary disposition on Contentions 1-2, 4-8 and 10 -- although it promised as long ago as February 25 to do so as soon as quickly as possible -- has resulted in a situation where the Governments are expected to procaed with a major pro-ceeding without even knowing the Board's views and rationale on material aspects of the realism case.
Further, it was not until April ' that LILCO's crima facie case on the realism issues was received by the Governments.
Until LILCO's recent pleading can be reviewed and assessed, and the Board has issued its reasoning and rationale in support of its rulings on LILCO's summary dis-position motions. it is simply not possible to proceed with, much less bring to a conclusion, discovery.
Indeed, the Governments have not yet decided upon or designated any witnesses on the realism issues, or even decided whether witnesses will be desig-nated.
s In any event, there are any number of reasons sufficient to support the extensions of time requested by the Governments in this Motion.
For the sake of brevity, only four such reasons will be discussed:
the burdensome nature of LILCO's, and to a lesser extent, the Staff's, outstanding interrogatories; the many other Shoreham-related obligations confronting the Governments; the nature of LILCO's record designations and crima facLe case on the realism issues; and the failure of this Board to yet provide its written opinion (s), rationale or reasons in support of its
_S_
rulings on LILCO's motions for summary disposition of Contentions 1-2, 4-8 and 10.
The Burdensome Nature of LILCO's and the Staff's outstandino Discovery Reauests As previously noted, LILCO's Second Discovery Requests are lengthy and complex, and would require the Governments to expend substantial time and effort in responding.
The 40 pages of in-terrogatories filed by LILCO comprised of 115 separately numbered interrogatories, and literally hundreds of additional lettered subparts ask about not just the substance of the Governments' case, but also each and every aspect of how the Government; might respond to an emergency at Shoreham.
Re-sponding to these interrogatories would clearly require sub-stantial time and effort, necessitating the extension requested by the Governments.
Little need be said regarding the Staff's outstanding inter-rogatories.
They too would require substantially more time to answer than is ordinarily allott.ed by the NRC's rules, for the reasons already discussed.
Sg_q note 6 above.
Accordingly, the Governments request an extension of time to respond to LILCO's and the Staff's outstanding interrogatories, until April 29.
If 1
l granted, the Governments would be provided an additional three i
weeks to prepare responses to LILCO's Second Discovery Requests, and an additional week-and-a-half to respond to the Staff's out-standing interrogatories.
The Governments submit that such an extension is amply justified by the extraordinary burdensome nature of the interrogatories.
However, as made clear below, compelling ot' er reasons exist for granting the extension of time sought by this Motion.
Other Shoreham-Related Oblications In ruling upon the extensions of time requested by the Governments, the Board must take into account the many other Shoreham-related obligations presently confronting the Govern-ments.
These include:
the filing of testimony on all remanded issues other than realism (schools, emergency broadcast system, and hospital evacuation time estimates) by next Wednesday, April 13, with motions to strike due April 20, and responses due April 27; the preparation and filing in mid-April of a reply brief in the U.S.
Court of Appeals for the First Circuit, in the case challenging the NRC's new emergency planning rule; the pre-paration of the Governments' brief to the Appeal Board in re-sponse to LILCO's appeal of the OL-5 Licensing Board's February 1, 1988 Exercise Decision (LBP-88-2),
which must be l
filed by April 18; an OL-6 25% power reply brief to this Board, which must be filed by April 21 (initial briefs were just filed on April 1); and preparing fcr and presenting oral argument to the Appeal Board on April 28 regarding LILCO's appeal of the OL-5 Licensing Board's December 7, 1987 Exercise Decision '(LBP-87-3).
l -
i
O e
In light of the Governments' obligations in the OL-5 and OL-6 proceedings -- as well as in other aspects of the OL-3 pro-ceeding -- not granting the extensions of time requested in this
- 4otion would severely prejudice the Governments.
This is parti-cularly the - case because counsel's obligations in the various Shoreham proceedings are highly concentrated during the month of i
April, and particularly the weeks of April 11 and 18.
- Indeed, the workload in the realism proceeding, without more, justifies the time extensions sough $ by the Governments.
LILCO has now designated five witnesses in that' proceeding; none has yet been deposed, and although the Governments wish to depose LILCO's witnesses, time does not exist to do so until the week of April 18, at the earliest.
In addition, as already discussed, the burdensome nature of the LILCO and Staff interrogatories re-maining to be answered precludes the Governments from responding a
within the time ordinarily provided by the NRC's rules.
- Finally, without the extension of time requested, the Governments will be unable to effectively prepare for or even decide upon the nature of their case on the realism issues.
LILCO's Record Desianations and Prima Pacie Case Pursuant to the Board's February 29 Confirmatory Memorandum and Order,l/ LILCO was required to designate portions of the record that "support" its ntJma facie case on Contentions 1-2, 1/
Confirmatory Memorandum and Order (Ruling on LILCO's Motions for Summary Disposition of Contentions 1,
2, 4,
5, 6,
7, 8 and 10, and Board Guidance on Issues for Litigation) (Feb. 29, 1988). -
4-8 and 10.
LILCO has now done so.8_/
But its record designa-tions and ~gtJma facie case were just received by the Governments on April 2.
Further, LILCO's pleading is really no more than an outline of LILCO's case, which LILCO assumes can be further de-veloped, if and when it chooses to do so.
Indeed, in many in-
- stances, LILCO has done no more than cite to the underlying record in this proceeding, without explanation or discussion of why LILCO believes its case is supported by that record.
Under these circumstances, the Governments believe that an extension of the realism discovery schedule is not only war-ranted, but required.
Even if it is assumed that LILCO's April 1 pleading fulfills the obligations imposed upon LILCO by the Board's February 29 Order -- an assumption with which the Govern-ments do not necessarily agree -- LILCO's pleading, comprised of 55 pages and literally hundreds of citations to the record, Board rulings, and other matters viewed by LILCO to be in its favor, will require the Governments substantial time to review and analyze.
For example, it will be necessary to search the record to determine why particular portions have been cited by LILCO, as well as to determine whether the record, as cited, actually sup-ports LILCO's reasoning and sayr what LILCO representa is the case.
Of course, to conduct the inquiry into LILCO's crima facie case that is necessary will require time, and a commitment of 8/
Sag LILCO's Designation of Record and Prima facie Case on the Legal Authority Issues (Contentions 1-2, 4-8 and 10)
(April 1, 1988).
resources.
This provides additional support for the time exten-sions sought by the Governments in this Motion.
The Board's Failure to Issue Its Opinion on LILCO's Su=_=arv Disoosition Motions At this time, the Board still has not issued its formal written opinion (s) regarding LILCO's motions for summary disposi-tion on Contentions 1-2, 4-8 and 10.
Until the Board does so, the parties must proceed without knowing the Board's views on material facts alleged in support of and in opposition to LILCO's motions for summary disposition.
This situation obviously im-pacts upon the Governments' ability to respond to outstanding discovery requests.
For example, many of LILCO's interrogatories seek informa-tion related to the Governments' summary disposition responses.
The Board made clear in the February 25 conference call that it had not accepted all material facts alleged by the Governments to be in dispute.
Thus, until the Board issues its opinion (s), it may well be the case that many of LILCO's interrogatories seek irrelevant data, given the order (s) finally issued by the Board.
- Further, many of LILCO's interrogatories are based on a LILCO view of relevance that the Board may well have rejected by reason of its rejection of LILCO's summary dispositic:. motions.
For example, LILCO's outstanding interrogatories include a signi-ficant number of questions based upon or r::lstea to other New York State nuclear plants.
The Governments firmly believe that these (and other) interrogatories are irrelevant to the issues before this Board.
Clearly, if the Governments are correct, less ef fort will need to be expended in answering LILCO's interroga-tories.
Conversely, if the Governments are wrong in their assessment of the relevancy of LILCO's interrogatories, they face additional work in responding.
In any
- event, the Board's opinion (s) will presumably address this issue.
Similarly, it must be presumed that the Board's written opinion (s) could be of critical importance to the Governments in determining whether to seek discovery on large aspects of LILCO's crima facie case.
In many respects, LILCO's crima facie case essentially realleges positions taken by LILCO in seeking summary disposition on Contentions 1-2, 4-8 and 10.
Thus, the Board 's opinion (s) ruling on LILCO's summary disposition motions, once received by the Governments, will in all likelihood prove to be instrumental in shaping determinations as to how and whether to proceed with discovery.
Accordingly, the Governments urge that the Board promptly issue its written opinion (s) ruling on L1LCO's motions for
(
summary disposition.
Until the Board does so, the Governments submit that an extension of the realism discovery schedule is required.
I 1
d 4
Conclusion For the reasons set forth above, the Governments request the Board to grant the extensions of time sought in this Motion.
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 Attorneys for Suffolk County 0
Fabian G.
Palcmino Richard J.
Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York e
e
E D
AY&
1 Stepheft B. Latham Twomey, Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton F
c 13
0-G April 6, 1988 UNITED STATES OF AMERICA Il P6:32 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Boar i
,dfg
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' MOTION FOR EXTENSION OF TIME TO RESPOND TO REALISM DISCOVERY REQUESTS, AND TO EXTEND DISCOVERY SCHEDULE have been served on the following this 6th day of April, 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.
S13 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, Vieginia 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.
Ms. Elisabeth Talbbi, 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 3-118 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.
4 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 Douglas J. Hynes, Councilman Adjudicatory File
- Town Board of Oyste'r Bay Atomic Safety and Licensing Town Hall Board Panel Docket Oyster Bay, New York 11771 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 By Hand
- By Telecopy