ML20154B470

State of Ny Motion for Extension of Time to File Testimony on Immateriality Issue.* Motion Should Be Granted Based on Stated Reasons.Certificate of Svc Encl

ML20154B470
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/03/1988
From:	Zahnleuter R NEW YORK, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6235 OL-3, NUDOCS 8805170204
Download: ML20154B470 (11)

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00CHETED DATE: May 3, 198d1SNRC i8 MAY -9 P8 :17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFIU " ' " to '

000Kli>% >. 10 v-Before the Atomic Safety and Licensina Board In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

)

Unit 1) )

)

STATE OF NEW YORK MOTION FOR EXTENSION OF TIME TO FILE TESTIMONY ON IMMATERIALITY ISSUE Pursuant to this Board's oral ruling of April 11, 1988 and Confi_matory Memorandum and Order of April 12, 1988, the parties' testinony on the CLI-86-13 remand issues is due on May 6, 1988.

For the reasons set forth below, the State of New York hereby requests a one week extension of time in which to file its testimony on the issue of "immateriality," which is one of the LILCO arguments to be addressed in the remand proceeding.

PACTS On December 8, 1987, LILCO filed a motion for summary disposition of Contentions 1, 2 and 9 on the basis of its "immateriality" theory.1 In essence, LILCO's argument on l

Contentions 1 and 2 (traffic control) was that even if traffic 1LILCO's Motion for Summary Disposition of Contentions 1, 2 and 9 -- Immateriality (Dec. 18, 1987).

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4 control were not available to guide the public from the EPZ in the event of a radiological emergency at Shoreham, the adverse effects would be immaterial to the public in terms of dose savings or foreclosure of otherwise available protective actions.2 LILCO's argument was based on revised evacuation time estimates (Revision 5 of the LILCO Plan) which were derived after the 1984 emergency planning hearings 3 and served on August 5, 1985. They were never subject to discovery.

In response to LILCO's summary disposition motion, the Governments offered, among other things, the affidavit of David T. Hartgen, Ph.D.,4 a State of New York traffic expert who has appeared previously before this Board. Dr. Hartgen's affidavit raised severa! questions about LILCO's immateriality theory and the revised evacuation time estimates on which the theory is based. He noted, however, that before he could properly address those questions, he would need to review certain documents, including the computer inputs and outputs from which LILCO's revised evacuation time estimates were derived.

On February 22, 1988, the Board denied LILCO's summary 2Id. at 12-13, 3Een, Affidavit of Edward B. Lieberman In Support of LILCO's Motion for Summary Disposition of Contentions 1,2 and 9 --

Immateriality, dated December 14, 1987.

4Ege Affidavit of David T. Hartgen, Ph.D., P.E., Concerning Immateriality, dated February 1, 1988, attached to Opposition of Suffolk County, the State of New York and the Town of Southhampton to LILCO's Motion for Summary Disposition of Contentions 1, 2 and 9 -- Immateriality (Feb. 1, 1988).

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4 disposition motion with respect to Contentions 1 and 2.5 In noting that there were factual issues to be resolved, the Board stated that, among other things, it expected the parties to address the "technical reliability" of the new time estimates.6 Accordingly, by letter of April 7, 1988 to LILCO,7 the State of New York identified Dr. Hartgen as a witness on the immateriality issue. On April 9, 1988, the Governments also served their second set of interrogatories and document requests,8 which were focused on LILCO's immateriality argument. Among the discovery requests to LILCO was:

11. Provide all documents, including computer inputs and outputs, concerning the Rev. 5 evacuation time estimates.9 On April 20, 1988, attorneys representing the County of Suffolk and State of New York deposed a panel of LILCD witnesses which included Edward B. Lieberman, LILCO's traffic expert, on the CLI-86-13 issues. Mr. Lieberman and his firm, 5 Board Order (Feb. 24, 1988) at 1. The Board also granted the motion with respect to contention 9, which pertained to the distribution of fuel.

6Sgg the Board's follow-up ruling, Memorandum and Order, (Denying in Part and Granting in Part LILCO's Motion for Summary Disposition of Contentions 1, 2 and 9 -- Immateriality)

(Mar. 11, 1988) at 8-9.

7 Letter from Richard J. Zahnleuter to Mary Jo Leugers (Apr.7, 1988).

8Suffolk County's Second Set of Interrogatories and Requests for Production of Documents Regarding Contentions 1-2, 4-8 and 10 to the Long Island Lighting Company (Apr. 9, 1986).

9 1d. at 3.

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KLD Associates, Inc., developed LILCO's revised evacuation timo estimates. When asked whether he had yet begun to gather the documents requested by the Governments, he stated that he had not. He also remarked that the Governments should "send a truck" because of the large volume of documentation pertinent to the revised time estimates.10 Thereafter, on April 22, 1988, counsel for LILCO served its answers to the Governments' discovery requests. With respcct to the documents requested by the Governmeqts concerning LILCO's revised evacuation time estimates, LILCO indicated that the documents would be made available on Long Island for inspection during the week of April 25.11 Counsel for the Governments did not receive further word from LILCO on the production of the documents until last Wednesday, April 27, when counsel for the l

State of New York received a telephone call from counsel for LILCO indicating that the requested documents would be made available for inspection in Long Island only, due to the "sheer volume" of the material. Because of the late notice by LILCO and prior commitments by both Dr. Hartgen and counsel for the State of New York (including representation of State witnesses during two depositions ordered to be taken by this Board, and an 10 Depositions of Edward B. Lieberman et al. (Apr. 20, 1988) at 175.

IlLILCO 's Responses and objections to suffolk County's Second Set of Interrogatories and Requests for Production of Documents Regarding Contentions 1-2, 4-8, and 10 to the Long Island Lighting Company (April 22, 1988) at 7.

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n appearance before the Appeal Board), the earliest date that an inspection could be arranged was yesterday, Monday, May 2.

In light of the very large number of documents which LILCO was requiring the State to sort through, and in order to expedite the document inspection generally, counsel for the State of New York asked LILCO's counsel to have all of the documents labeled and to have someone familiar with the documents in attendance so that specific types of documents could be located and inspected without undue search time. LILCO's counsel stated that the documents would be labeled, but declined the latter request.

Yesterday, counsel for the State of New York and Dr. Hartgen flew to Long Island to inspect LILCO's documents. As LILCO had indicated, the amount of documents produced for inspection was extremely voluminous. Twenty boxes, each full of computer printouts, were placed on a row of tables. While the boxes were numbered 1-20 and a box key listed the contents, the list was vague, and, quite often pointed the reader to multiple boxes.

Accordingly, much time was spent searching for documents in boxes and then perusing thousands of pages of computer printouts rather than analyzing them. In addition, LILCO was unable to provide immediate copies of the documents ultimately requested by the Stato so further study could be done. Those copies will not be available to the State of New York until at least midday on Wednesday, May 4, 1988. Even if LILCO were to produce the requested copies at that time, the State of New York would only have two and a half days in which to prepare and file testimony 5

based on the documents.

If Dr. Hartgen receives the requested documents by the end of this week, it is likely that he can complete his testimony by the end of the following week.12 However, the State of New York cannot prepare testimony for submission on the current due date of this Friday, May 6 that will fairly incorporate the data that it needs to address the "technical reliability" of the new time estimates. Accordingly, the State of New York seeks a one week extension of time to file Dr. Hartgen's testimony.

DISCUSSION The State of New York's dilemma is quite simple. LILCO's immateriality argument relies in part on revised evacuation time estimates. On the basis of the limited information available to him, Dr. Hartgen has been able to determine that the revised estimates raise certain questions which cast doubt on the validity of LILCO's arguments al.d conclusions. In order to address those questions, he must have an opportunity to obtain and analyze the data underlying LILCO's Revision 5 evacuation time estimates. However, LILCO has chosen to make those documents available for inspection only days before Dr. Hartgen's testimony is due. Copies of the documents which he must analyze will not be available until just before the filing deadline.

It was within LILCO's power to gather the requested documents and make them available to the State of New York much earlier 12Any further delays in providing the requested documents may require the State to seek a further extension.

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will not be available until just before the filing deadline.

It was within LILCO's power to gather the requested documents and make them available to the State of New York much earlier than it did, as evidenced by Mr. Lieberman's testimony that he had not even begun to gather the requested documents some 11 days after the Governments April 9 discovery request. LILCO also could have copied and sent the requested documents to the State of New York for delivery today, as LILCO had originally promised on Monday, May 2, 1988. LILCO, however, has chosen to respond to the Governments' discovery requcst in a way that makes it unfairly difficult to incorporate the necessary documentation into the State of New York's testimony.

In light of these circumstances, the State's request for a week's extension of time to file its testimony is fair and reasonable. This request, if granted, should not result in any delay in the CLI-86-13 remand hearing, which is not scheduled to start until one week after the termination of the hearing on the other outstanding emergency planning issues. More importantly, without the extension, the State will be denied its right to submit important testimony on the validity of LILCO's immateriality theory and the data on which it is based -- one of the very issues on which the Board expects the parties to provide testimony.

Accordingly, the Board should grant the State of New York's I

reque:t for an extension of one week within which to file its immateriality testimony, and should further order LILCO to 7

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provide all copies of the documents requested yesterday by the State of New York no later than this Friday, May 6. The State of New York also requests that the Board rule on this Motion as expeditiously as possible, and certainly before May 6.

CONCLUSION For the foregoing reasons, the State of New York's motion for an extension of time to file immateriality testimony sponsored by Dr. Hartgen should be granted. The State of New York also requests expedited consideration of this Motion.

Respectfully submitted, F'abian G. Ifa,1 dm(pel Richard J. Tahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Albany, New York 12224 8

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't 00LMCIED USNRC

.g gy -9 P B M l DATE: May 3, 1988 0FRCE 00CKEhU*ihW"ER*

UNITED STATES OF AMERICA BRAllCM NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board In the Matter of )

)

LONG ISLAND LIGHTING D7MPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station )

)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the "State of New York Motion for Extension of Time to File Testimony on Immateriality Issue,"

have been served on the following this 3rd day of May 1988 by U.S. Mail, first class, except as noted by asterisks.

Mr. Frederick J. Shon* Spence W. Perry, Esq.*

Atomic Safety and Licensing Board William R. Cumming, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel, Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 Dr. Jerry R. Kline* Mr. James P. Gleason, Chairman

• 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

i t

Anthony F. Earley, Jr., Esq. Joel Blau, Esq.

General Counsel Director, Utility Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Ms. Elisabeth Taibbi Mr. Donald P. Irwin*

Clerk Hunton & Williams Suffolk County Legislature 707 East Main Street Suffolk County Legislature P.O. Box 1535 Office Building Richmond, Virginia 23212 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 '

.1792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Commission 195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Adrian Johnson, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-16 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 E. Thomas Boyle Lawrence Coe Lanpher, Esq.*

Suffolk County Attorney Kirpatrick & Lockhart Building 158 North County Complex 1800 M Street, N.W.

Veterans Memorial Highway South Lobby - Ninth Floor Hauppauge, New York 11788 Washington, D.C. 20036 Mr. Jay Dunkleburger Edwin J. Reis*

New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building #2 Washington, D. C. 20555 Empire State Plaza Albany, New York 12223

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Mr. James P. Gleason Douglas J. Hynes Chairman Town Board of Oyster Bay Atomic Safety and Licensing Board Town Hall 513 Gilmoure Drive Oyster Bay, New York 11771 Silver Spring, MD 20901 David A. Brownlee, Esq. Mr. Philip McIntrie Kirkpatrick & Lockhart FEMA 1500 Oliver Building 26 Federal Plaza Pittsburgh, Pennsylvania 15222 New York, New York 10278 Mr. Stuart Diamond Adjuicatory File

• Business / Financial Atomic Safety and Licensing NEW YORK TIMES Board Panel Docket 229 W. 43rd Street U.S. Nuclear Regulatory Commission New York, New York 10036 Washington, D.C. 20555

, . .a ., ,

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c'd, CLOS D

Richard Ry'Zahnleuter, Esq.

Deputy SpecDal Counsel to the Governor Executive Chamber Capitol, Room 229 Albany, New York 12224 (518) 474-1273

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