ML20151P240
| ML20151P240 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/15/1988 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| To: | Gleason J, Kilne J, Shon F Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6129 CLI-86-13, OL-3, NUDOCS 8804260118 | |
| Download: ML20151P240 (9) | |
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- th m4w cen mm April 15, 1988 BY TELECOPIER James P. Gleason, Chairman Dr. Jerry R.
Kline Mr. Frederick J.
S.'.o n Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
Docket No. 50-322-OL-3 Gentlemen:
The purpose of this letter is to inform the Board of a new development related to discovery in the CLI-86-13 remand proceeding and to request the Board's resolution of a resulting discovery impasse before close of business today.
Yesterday morning, all parties and the Board received a copy of the "Governments' Objection to Portions of February 29 and April 8 Orders in the Realism Remand and Offer of Proof."
That filing includes the testimony which the Govdriiinents intend to-. - _
submit in the upcoming hearing (other than,'that on the issue of,,
immateriality).
By the filing of that testimony, the Governments t
have now identified their remaining intended witnesses -- Suffolk i
StateDisasterPreparednessCommission,Dr,.f.rmanoftheNewYork County Executive Patrick G. Halpin and Cha David Axelrod.
In light of this new development, the Governments yesterday morning sent to all parties a proposed schedule for the deposi-tion of all the witnesses identified by the parties to date.
The proposed schedule permits all depositionsjto take place before the close of discovery on April 22.
Copies of the Governments' t
8804260110 080415 DDR ADOCK 05000322 T
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4 KIRKPATTdCK & LOCKHART James P. Gleason, Chairman Dr. Jerry R.
Kline Mr. Frederick J. Shon April 15,1988 Page'2 letters are attached hereto.
The comprehensive schedule proposed by the Governments is as follows:
Tuesday:
County witness Halpin Wednesday:
LILCO witnesses (5 persons as a panel)
Thursday:
County witnesses Minor and Sholly i
Friday:
State witnesses Hartgen and Axelrod The Governments' proposed schedule accommodates the depositions of 10 witnesses next week.
In fact, an sleventh witness, FEMA's new EBS witness, will also need to be scheduled next week.
The Governments believe that the identification of the two witnesses it intends to present, along with the production of their actual testimony (in addition to the Governments' earlier identification of their three witnesses on the immateriality issues), obviates any basis for, or need to, proceed with the depositions of the other nine County and State employees whom LILCO had previously identified as persons it speculated the Governments might call as witnesses.
In discussions late yesterday among counsel on the deposi-tion schedule, however, LILCO took the position that it is still entitled to depose all the individuals it has identified, even though only Dr. Axelrod and County Executive Halpin, and the three previously identified immateriality witnesses (Messrs.
Hartgen, Minor and Sholly) will be presenting testimony on behalf of the Governments in the upcoming proceeding.
LILCO's letter addressing this matter is also attached.
Thus, LILCO's position is that it is entitled to depose all five individuals identified as witnesses for the Governments, plus an additional nine other Government employees.
The Governments, on the other hand, believe that the Board's order of Monday, dealing with LILCO's proposed depositions of people LILCO predicted might be Government witnesses, clearly has been superceded by the Governments' ident.ification of its actual witnesses, all of whom are available to be deposed before the end of the discovery period.
Moreover, any LILCO argument that it needs to depose additional Government personnel in order to prepare its own case is without basis for two reasons.
First, the individuals whom the Governments have designated as witnesses have been so designated because they are high ranking County and State of ficials who are able to speak, knowledgeably, authoritatively, and on behalf of the Governments,
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KIRKPAT1UCK 6. LOCKHART James P. Gloason, Chairman t'
Dr.. Jerry R. Kline Mr. Frederick J. Shon
^
q April 15, 1988 Page 3 on the matters at issue.
Further, since the matter at issue here is the intended actions of the Governments, the Governments are entitled to designate the persons to appear and speak on their behalf in a legal prgceeding such as this, and this Board must respect that right.1/
LILCO's primary basis for insisting upon going forward with the depositions of an additional nine individuals appears to be its assertion that it needs "to learn as much about Intervenors' response capabilities and intentions as possible."
(See LILCO's attached letter).
LILCO has made no showing that it cannot obtain from the Governments' designated witnesses any legitimate discovery related to the Governments' intended "best efforts" response end ths Governments' intended testimony in this proceeding.
In the absence of such a showing, there is no basis for requiring the Governments to produce the additional nine persons LILCO has sought to depose.
Second, LILCO has supposedly already submitted its "prima facie case" in this proceeding.
By definition, such a case, standing alone, must be sufficient to meet LILCO's burden of proof.
If, in fact, LILCO needs to prove its case through the mouths of the Governments, then a fortiori LILCO has not sub-mitted a prima facie case, and the proceeding should not go forward.
The Governments request that the Board r"le that LILCO may depose the witnesses identified by the Governments, but that the depositions of the other nine Government employees need not be held.
Because of the obvious need to notify deponents and other-wise deal with difficult logistical arrangements, the Governments request that the Board so rule no later than this afternoon (Friday, April 15), and that the Board notify the parties by telephone of its ruling.
It is the Governments' understanding that LILCO supports the need for a prompt resolution of the current impasse.
The Governments are available for a conference call should the Board believe such a ca tl ;, necessary.
The Governments emphasize one additional point.
LILCO's proposal to depose nine individuals in addition to the five wit-nesses the Governments have identified would mean that a total of 20 individuals, located in Albany, Long Island, and Washington, i
D.C., would have to be deposed in five days next week.
These 1/
- See, e.g.,
Fed. R. Civ.
P.
30(b)(6); 10 CFR 5 2.720(h)(2)(1),
which discuss analogous situations.
j
KUOONDUCK & LOCKH.*RT
[
James P. Gleason, Chairman Dr. Jerry R.
Kline i
Mr. Frederick J. Shon
]
April 15,1988
[4 Page 4 include FEMA's new EBS witness, LILCO's five identified wit-nesses, the Governments' five identified witnesses, plus the nine additional LILCO-identified Government deponents.
There are limits to what is physically possibla; the proposition of preparing for, conducting and defending 20 depositions in five days exceeds those limits.
Even if resources were stretched to the limit, the Governments could not fairly accomplish such a task, particularly since Mr. Zahnleuter, who is entitled to be present at all such depositions to represent the interests of his client, the State of New York, cannot be in two -- not to mention three or four -- places at once.
For this additional reason, then, the Gevernments request that the Board rule that the addi-l tional nine depositions requested by LILCO need not Lu held.
i Sincerely, a tvtt w q h 4 91/Y Lawrence Coe Lanpher 1
i cc:
All Counsel (by telecopier)
Docketing and Service ASLB Panel 4
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,rrrsE1tcH. PA ist:1tre LyntENCE CoE LANPHEA gen nSeeit April 14, 1988 VIA TELECOPY
. Donald P.
Irwin, Esq.
Hunton & Williams P.O.
Box 1535 707 E.
Main Street Richmond, Virginia 23212
Dear Don:
Since Monday, we have been contacting persons that LILCO has sought to depose in order to identify available dates.
Events have now overtaken that effort.
This morning you will receive a legal memorandum together with the t"o pieces of testimony the Governments intend to file in the CLI-86-13 remand proceeding.
The testimony is sponsored by Dr. David Axelrod of New York State and Suffolk County Executive Halpin.
The designation of these witnesses obviates the need for LILCO to depose the other persons who have been noticed.
In view of the current situation, the Governments suggest the following tentative schedule for next week's depositions:
Wednes' ay, 9:00 AM LILCO Panel (Long Island)
Thursday, 9:00 AM Minor and Sholly as a panel (Washington, D.C.)
Friday, 9:00 AM Hartgen (Albany)
Friday, 3:00 PM Axelrod (Albany)
We. expect to have available times for Mr. Halpin shortly.
Sincerel,
Lawren Coe Lanpher cc:
AJl Counsel
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88 VIA TELECOPY Donald P.
Irwin, Esq.
Hunton & Williams P.O. Box 1535 707 E. Main Street Richmond, Virginia 23212
Dear Don:
To follow up on my letter of earlier this morning, I have determined that Mr. Halpin is tentatively available for deposi-tion next Tuesday afternoon.
Sincerely, Lawrence Coe Lanpher cc:
All Counsel
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................ 8357 By Telecopy Lawrance Coe Lanpher, Esq.
Kirkpatrick & Lockhart South Lobby - 9th Floor 1800 M Street, N.W.
Washington, D.C.
20036-5891 Realism Deposition Schedule
Dear Larry:
We received your letters this morning setting forth the In-tervenors' proposed deposition schedule in the realism proceed-ing.
We have also received by Federal Express this morning a sub-stantial document (70 pages of new material, over 200 pages all told with attachments) entitled "Governments' objections to Por-tions of February 29 and April 8 Orders in the Realism Romand and offer of Proof," dated April 13.
It has not, of course, been possible fully to assimilate its substance and import in the six or so hours since its arrival in our of fice.
Clearly, while it reaffirms that Intervanors would undertake a 'best efforts' re-e,ponse to a radiological emergency at Shoreham, it suggests that Intervenoes do nnt intend to present direct evidence as to the cubstance of that actual "best efforts" response.
This position seems clearly contrary to the Board's Orders, particularly in its April 8 memorandum, that Intervenors present such testimony.
Totally apart from consistency with the Board's orders, how-c*ar, the ' objections' does not indicate that Intervenors do not intend to contest the sufficiency, for purposes of satisfying the realism doctrine now embodied in 10 CFR $ 50.47(c), of a response based on the LILCO offsite plan and LERO resourets, supplemented by Intervenors' best efforts, whatever they may turn out to be.
Absent such an indication, LILCO has no choice but to learn as much about Intervanors' response capabilities and intentione as possible.
For that reason, the proposed deposition schedule set in your lett2rs of this morning is not sufficient, and LILCO will I
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Ettyrow & WILLIAxs Lawrence Coe Lanpher, Esq.
April 14, 1988 Page 2 need to pursue each of the depositions granted to it by Board's order during the April 11 telephone conference.
I realise that, as you put it in our telephone conversation about an hour ago, you believe that "the world is different" since the filing of Intevenors "Objections."
However, that be-lief -- even if accurate -- does not necessarily relieve'LILCO, for the reasons outlined above.
In addition, the position taken to the availability of State and in your letters with respect witnesses during the discovery period simply disobeye the Countya April 11 order granting LILCO's motion to compel those i
Board J
persons to appear for depositions.
We urge you to reconsider your position and to provide us immediately with the availability dates for those State and County personnel.
In addition, we have the following comments on t!
partial LILCO agrees to make its deposition schedule proposed by you.
witnesses available for deposition in a panel on Wednesday of next week.
All LILCO witnesses will be available for the full day except Mr. Weismantle, who will have to leave by 1:45 p.m.
for a prior commitment.
He can return to the deposition around 4:00 p.m. if necessary.
LILCO does not agree to take the depositions of Messrs.
Minor and Shelly in a panel, but we will agree to depose Mr.
Minor at 9:00 a.m. nant Thursday and Mr. Sho11y immediately af-terwards, we hope at about 1:00 p.m.
We accept the deposition schedule for Mr. Ralpin (Tuesday, 1:00 p.m.) and for Mr. Hartgen (Friday, 9: 00 a.m.).
We agree to depose Dr. Axelrod on Friday but with a starting time of 1:00 p.m.,
instead of 3:00 p.m.
LILCO does not agree to any advance limitation on the dura-We expect to continue each deposition, tion of the depositions.
into the evening and the next day to complete the if necessary, examination of each deponent.
In short, LILCO agrees to the following partial schedules April 19, 1:00 p.m.
Halpin (Long Island)
LILCO Fanel (Long Island)
April 20, 9:00 a.m.
Minor (Washington, DC)
April 21, 9: 00 a.m.
ashington, DC)
April 21, 1:00 p.m.
Sholly (W(Albany)
April 22, 9:00 a.m.
Martgen Axelrod (Albany)
April 22, 1:00 p.m.
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HUNTON & WILLIAMS Lawrence Coe Lanpher, Esq.
April 14, 1988 Page 3 This schedule can be expanded once the state and County ap-prise LILCO of the availability dates of the f011cwing individu-als:
David DeVito, James Papile, James Baranski, Lawrence Czech, Frank Petrone, Dr. David Harris, William Regan, Daniel Guido, and Richard Roberts.
Please let us know as soon as possible when these individuals will be available for depositions next week.
Sincerely yours, Donald P.
Irwin cc:
Richard J. Zahnleuter, Esq.
William R. Cumming, Esq.
Richard G. Bachmann, Esq.
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