ML20154B575
| ML20154B575 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/05/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6233 OL-3, NUDOCS 8805170238 | |
| Download: ML20154B575 (15) | |
Text
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LILCO, May 5,1988 0
00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,g g Crim:r.: --
Before the Atomic Safety and Licensing Board 0 0 C +.".,
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- . c,a In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
) (Best Efforts Issue)
Unit 1)
)
LILCO'S RESPONSE TO STATE OF NEW YORK MOTION FOR EXTENSION OF TIME TO FILE TESTIMONY ON IMMATERIALITY ISSUE On the af ternoon of May 3, the State of New York by telecopier filed State of New. York Motion for Extension of Time to File Testimony on Immateriality Issue (May 3,1988) ("Intervenors' Motion"). Intervenors request a one-week extension of time in which to file testimony on the immateriality issue.M LILCO opposes the motion.
I. Background On March 7,1988, the discovery period began in the "best efforts" remand pro-ceeding. On March 15, Intervenors filed their first set of interrogatories,E in which Intervenors requested only the identities, on a contention-by-contention basis, of LILCO's witnesses.
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Testimony in the "best of forts" remand proceeding, of which the "immateriality" issue is a part, is due to be filed this Friday, May 6.
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Suffolk County's First Set of Interrogatories and Requests for Production of Mc-uments Regarding Contentions 1-2,4-8 and 10 to Long Island Lighting Company (March 15, 1988).
8805170238 880505 PDR ADOCK 05000322 G
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On April 9, over a month af ter the discovery period began, Intervenors for the first time inquired of LILCO whether it intended to pursue its "immateriality" argument in the remand proceeding.E Interrenors also for the first time requested that LILCO
"(p)rovide all documents, including computer inputs and outputs, concerning the re-vised Rev. 5 evacuation time estimates."O LILCO responded to Intervenors' April 9 Interrogatories on April 22, within the time limit prescribed by the regulations.EI In response to Intervenors' request for docu-ments, LILCO stated that such documents would be made "available for inspection the week of April 25, 1988."S This was done because it was impractical, given the massive volume of the computer input and output generated in the calculation of the Rev. 5 evacuation. time estimates, to copy.all the documents that were responsive to Interve-nors'. document request. Producing. documents for inspection, rather than providing copies, is clearly contemplated under 10 C.F.R. 5 2.741(a)(1). In f act, this method of production was the method agreed to by the parties during the earlier planning litiga-tion in 1983-84, when large volumes of documents relating to LILCO's Revision 3 evacu-l ation time estimates were requested by Intervenors.
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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 9,1988)("Intervenors' April 9 Interrogatories").
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Intervenors' April 9 Interrogatories at 3.
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Under 10 C.F.R. S 2.740b, LILCO's answers to Intervenors' April 9 Interrogato-ries would have been due on April 25. LILCO's prescribed time limit was in fact cut short by the Board's oral ruling during the April 11 conference call that answers to all interrogatories were due on April 22. In granting Intervenors' request for additional time to answer LILCO's interrogatories, the Board's ruling had the effect of reducing LILCO's time to answer Intervenors' April 9 Interrogatories.
l f/
LILCO's Responses and Objections to Suffolk County's Second Set of Interrogato-ries 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.
LILCO served its answers on Intervenors on April 22, by Federal Express f or Saturday delivery, April 23. As of the morning of Wednesday, April 27.1988, LILCO had not received any word from Intervenors about when during the week of April 25 they wished to inspect the Rev. 5 documents. Counsel for LILCO therefore telephoned counsel for the State of New York on April 27 to inquire as to when Interveno.1 intend-ed to conduct the examination.
During that phone conversation, counsel for LILCO informed counsel for the State that the documents could be made available as early as the following day, April 28. Counsel for the State, however, requested that arrangements instead be made for the following Monday, May 2.
While LILCO agreed to this request, at no time did LILCO agree that postponement of the document inspection to the following week would constitute good cause to extend the May 6 filing deadline. A copy of the letter confirming the phone conversations between counsel for LILCO and counsel for the State on April 27 is enclosed as Attachment I to this Response.
Counsel for the State and the State's traffic expert, Dr. Hartgen, conducted their inspection as scheduled, beginning at approximately noon on May 2. At the end of their inspection that af ternoon, Intervenors requested copies of approximately 50 pages from the computer printouts which Intervenors had examined.
Because of the time required to reproduce that many pages of oversized com-puter printouts, LILCO employees were unable to complete the copying in time to meet Monday night's Federal Express deadline.2/.The copied pages were therefore sent the J/
Accordingly, Interventors' assertion that "LILCO.. could have copied and sent the requested documents to the State of New York for delivery (on May 3], as LILCO had originally promised on Monday, May 2,1988," Interventors' Motion at 8, is not true.
Moreover, while a LILCO employee may have indicated to Intervenors on Monday, May 2, that LILCO would attempt to reproduce and mail the requested pages for deliv-ery on May 3, at no point did counsel for LILCO "promise" that the copies would be sent to Intervenors by that date.
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following day for delivery on Wednesday May 4. LILCO has since learned that. for rea-sons that are uncertain, the package was returned to LILCO undelivered on the morning of May 4.
Af ter verifying with Intervenors the proper mailing address, LILCO again sent the package to Intervenors, for delivery on May 5.
II. Argument Intervenors' alleged "dilemma"8/ s solely the consequence of their own dilatori-i ness in requesting production of the "immateriality" documents, and Interventors have no one but themselves to blame for their predicament. Having waited until the week l
that their testimony is due to begin analyzing data and preparing their case, Interve-EI nors are in no position to argue now that they need more time Intervenors offer no reason, nor can they, why they could not have made their request for documents prior to April 9. Discovery on the "best efforts" and immaterial-ity issues had begun over a month earlier. Moreover, as early as February 1,1988, in response to LILCO's Motion for Summary Disposition on the "immateriality" issue O Intervenors' traffic expert, Dr. Hartgen, in his affidavit accompanying Intervenors' Op-l position, stated, in part, that:
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Intervenors' Motion at 6.
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Moreover, the difficulties which Intervenors have experienced in obtaining the reproduced pages, while unfortunate, do not justify an extension of the filing deadline.
Delays and misdirection of mail is not unprecedented, and Intervenors, by waiting until the last minute to request and to examine the Rev. 5 documents, assumed the risk that they might not get the reproduced materials as quickly as they would have liked.
i LILCO further notes that the 30 day production period allowed to it under 10 C.F.R.
S 2.741(d) does not even expire until May 9,1988. This f act underscores the untimeli-ness of Intervenors' April 9 document request.
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Opposition of Suffolk County, the State of New York and the Town of Southampton to LILCO's Motion for Summary Disposition of Contentions 1,2 and 9 -
l Immateriality (Feb.1.1988) ("Intervenors' Opposition").
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..1 A sound analysis of the evacuation time estimates discussed in LILCO's Motion and Mr. Lieberman's affidavit would require, at a minimum, the following information:
a.
The computer inputs and outputs from which the revised evacuation time estimates were de-rived.
Affidavit of David T. Hartgen, Ph.D., P.E. Concerning Immateriality (Feb. 1, 1988) 14.
Despite their own expert's need, professed as early as February 1.1988, to exam-ine the Rev. 5 documents, Intervenors apparently took no steps to arrange for the in-spection of those documents prior to the filing of tneir April 9 Interrogatories. This was evidenced during the deposition of Dr. Hartgen on April 22,1988:
Q.
[by Mr. Irwin] Okay.
A.
I think that is one of the areas we willlook into when we have the materi-als from LILCO. We are very much dependent here, of course, on LILCO's response since we don't have the computer printouts or any of the support materials.
Q.
I take it you yourself have never urged that these materials be requested prior to the time they were,in fact, requested?
A.
I urged counsel to see if he could get hold of them. That is the basis of the affidavit, that I can't see what changes have been made in the model, so I can't be sure if Mr. Lieberman's conclusions are accurate.
l Q.
And that implicit request to obtain data was communicated by you, you feel l
at the time you prepared your affidavit?
A.
In the process of preparing the affidavit, I prepared a list of things I felt I would need at a minimum, and I listed those in Item 4.
Hartgen deposition at 50-51.EI Intervenors' failure to anticipate that they might find 1their examination of the Rev. 5 documents to be lengthy or tedious plainly does not jus-tify their request to be excused from the May 6 filing deadline, particularly in light of the advance notice given Intervenors by their own traffic expert of the importance of those documents.
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The pertinent pages of the Hartgen deposition are enclosed as Attachment 2 to this Response.
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. s Moreover, not only do Intervenors fall to point out how they themselves have waited until the last minute to request production of the "immateriality" documents, but they make several statements in support of their motion that are inaccurate or oth-erwise misleading. For instance, Intervenors state that:
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 w.th 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.
Intervenors' Motion at 5. Intervenors do not mention, however, that during the April 27 phone conversation counsel for LILCO indicated that in the interest of facilitating In-tervenors' examination, LILCO was willing to assist Intervenors in attempting to identi-fy in advance those portions of the Rev. 5 documents which Dr. Hartgen was specifical-ly interested in examining. Given the technical nature of the docum'
'nvolved, and to avoid any misunderstanding that might inadvertently limit Dr. Hartgen's examina-tion, counsel for LILCO requested that counsel for the State provide precise guidance in writing as to which portions of the Rev. 5 documents Dr. Hartgen wished to exam-ine.EI Counsel for the State, citing the additional workload that providing this initial guidance in advance would entall for Intervenors, declined to accept LILCO's of fer.
In addition, Intervenors' characterization of the manner in which LILCO pro-duced the documents for inspection on May 2 is misleading. As Intervenors describe it:
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M/
Earlier, in his deposition on April 20,1988, LILCO's witness Mr. Lieberman had also advised the State and County that "I think it might be useful if your request [for documents) were more specific." He explained that there were many documents to be produced. Deposition transcript at 174-75.
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 of ten pointed the reader to multiple boxes.
Intervenors' Motion at 5. In fact, the documents were provided to Intervenors in pre-cisely the same fashion in which they are reutinely organized and stored at KLD Associ-ates, LILCO's traffic consultant. The allegedly "vague" box key list was the same index which KLD Associates itself uses during the course of its day-to-day business to locate specific documents relating to the Rev. 5 evacuation time estimates.
As Intervenors are aware, LILCO was under no obligation under the regulations to actively assist Intervenors in identifying and analyzing documents which Intervenors themselves chose to examine in their entirety.E If it is true, as Intervenors allege, that "much time was spent searching for documents in boxes and then perusing thou-sands of pages of computer printout rather than analyzing them," Intervenors' Motion at 5, then this speaks more to lack of proficiency on the part of Intervenors and their traffic expert than it does to any unwillingness on the part of LILCO to facilitate the discovery process.
In short, it is evident from the foregoing that Intervenors' statement that "LILCO has chosen to make those documents available for inspection only days before Dr. Hartgen's testimony is due"MI is misleading in the extreme. Nor is it true that "LILCO... has chosen to respond to the Governments' discovery request in a way that makes it unfairly difficult to incorporate the necessary documentation into the State of New York's testimony." Intervenors' Motion at 7.
Intervenors, not LILCO, chose to wait over a month during the discovery period before making their request for M/
Nor is LILCO aware of any requirement that it should have provided during the inspection "someone familiar with the documents," Intervenors' Motion at 5, to assist Intervenors.
M/
Intervenors' Motion at 6.
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3 documents. Intervenors, not LILCO. chose to wait until this week, rather than the week of April 25, to inspect those documents. Intervenors, not LILCO. should have to suffer the consequences.
Conclusion For the above reasons, LILCO hereby asks that the Intervenors' Motion be denied and that Intervenors be required to file their testimony on the immateriality issue as scheduled, on May 6,1988.
Respectfully submitted, rh 5. YMb r gJsme6Christman David S. Harlow Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: May 5,1988 S
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Apri1 27, 1988
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....e,...i.... n. 7 2 4 3 BY TELECOPY Richard J.
Zahnleuter, Esq.
Deputy Special Counsel to the Governor of the State of New York Executive Chamber Room 229 Capitol Building Albany, New York 12224 l
"Immateriality" Discovery Documents
Dear Rick:
This is to confirm our telephone con'versations today re-garding the production of documents responsive to Suffolk County Interrogatory No. 11 (April 9, 1988), specifically, the "computer inputs and outputs" generated in the calculation of the evacua-tion time estimates for Revision 5 of the LILCO Plan.
This morn-ing I informed you that arrangements had been made for the pro-duction'of these documents and that these documents would be available to the State of New York for inspection beginning on Thursday, April 28, 1988.
As I indicated, the sheer volume of the documents makes copying them all impractical, and that therefore, LILCO is making i
these documents available for inspection in accordance with 10 C.P.R. S 2.741.
If during the course of its inspection the State identifier specific portions of the documents which it wishes to i
have reproduced, these portions can be marked and copies made.
If the State chooses to have large portions of these documents reproduced, the cost of the copying will be borne by the State.
You requested, and LILCO agreed, to make the documents
.greement, LILCO I
available on Monday, May 2, 1988.
As per our i
will make these documents available for inspection at the J. W. Dye Training Center, 131 Hoffman Lane, Central Islip, New l
York, 11722 in Room 208-305.
A monitor from LILCO will be pro-vided.
A "tentative" starting time of 11:00 a.m. was agreed upon.
1 I
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Richard J.
Zahnleuter, Esq.
April 27, 1988 Page 2 You stated that it was the State's position that it would not be precluded from extending the examination beyond May 2 if necessary, but that it was the State's "intention" to complete the examination on May 2.
At this time, LILCO does not agree that an extension beyond May 2 is warranted but agrees to consid-er such a request from the State lf and when such request is made.
Finally, it is LILCO's understanding that by producing these documents to the State of New York for inspection, LILCO will satisfy any obligation to produce these same documents to Suffolk County, as requested by Suffolk County Interrogatory No. 11.
Sincerely yours, so D
id S. Harlow cc Christopher !!. McMurray, Esq.
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ATTACHMENT 2 L.MN~S lk'.'
03 PROCshJIN'GS UNITED STATES OF A!1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
- - - - - - - - - - - - - - - - - - -x i
l In the Matter of:
Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY i
(Emergency Planning) l (Shoreham Nuclear Power
(
Station, Unit 1)
- - - - - - - - - - -x DEPOSITION OF DAVID HARTGEN Albany, New York Friday, April 22, 1988 ACE-FEDERAL REPORTERS, INC.
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so you can't comment on whether they are valid or not?
2 A
I cannot at this point.
It did concern me that what were apparently small changes to both the network and i
3 4
the structure of just one zone, Zone Q, would have such a 5
large effect on these numbers.
6/
In my experience as a traffic analyst, usually changes to networks and Zones would have to be larger than 7,
8 just one zone, or just a hand full of highway sections to produce changes that are as large as these.
9 10 Q
But you have not looked yourself at the i
relationship of Zone Q to an overall evacuation flow at this 11 point to enable you to draw any conclusions as to whether or 12 13 not Zone Q is a typical zone, or perhaps an anomaly zone 14 which might have a greater impact?
15' A
No, not yet.
l 4
16 Q
Okay.
I think that is one of the areas we will look 17 A
1 into when we have the materials from LILCO.
We are very 18 19 much dependent here, of courst, on LILCO's response since we don't have the computer printouts or any of the support 20:
21 materials, I take it you yourself have never urged that 22.
Q ACE-FEDER AL REPORTERS, INC.
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these materials be requested prior to the time they were, in g/gy 2
fact, requested?
l 33 A
I urged counsel to see if he could get hold of 4f them.
That is the basis of the affidavit, that I can't see 5
what changes have been made in the model, so I can't be sure 6'
if Mr. Lieberman's conclusions are accurate.
7.
Q And that implicit request to obtain data was 8
communicated by you, you feel, at the time you prepared your 9'
10 A
In the process of preparing the affidavit, I 11 prepared a list of things I felt I would need at a mininum, 12 and I listed those in Item 4.
13 Q
Let me come back once again to the sentence we 14 were discussing just a few minutes ago, which begins with 15 the word, "further," and contrasts the zero percent i
16 non-compliance controlled scenario, with the 50 percent i
i 17 '
non-compliance uncontrolled scenario.
18 As I recall your answer, you are not asserting 19 that it is -- the proper presumptive comparison is between a 20 zero percent non-compliance cont' rolled scenario, and CO 21 percent non-compliance as a base case.
This is just simply 22 an illustration of the range of variation that is present in ACE-FEDER AL REPORTERS.15C.
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LILCO, May 5,1988 00CKE iEC' USNBC 88 m -9 P8 36 CERTIFICATE OF SERVICE O R CE id S itIM #
00CKE16HG A SPYlfI-BRANCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 1 hereby certify that copies of LILCO'S RESPONSE TO STATE OF NEW YORK MOTION FOR EXTENSION OF TIME TO FILE TESTIMONY ON IMMATERIALITY ISSUE were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline
- Adjudicatory File Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel Docket U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.
Bethesda, MD 20814 Richard G. Bachmann, Esq.
- U.S. Nuclear Regulatory Commission Mr. Frederick J. Shon
- One White Flint North Atomic Safety and Licensing 11555 Rockville Pike Board Rockville, MD 20852 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Herbert II. Brown, Esq.
- 4350 East-West Hwy.
Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq.
Kirkpatrick & Lockhart Secretary of the Commission South Lobby - 9th Floor Attention Docketing and Service 1800 M Street, N.W.
Section Washington, D.C. 20036-5891 U.S. Nuclear Regulatory Commission 1717 H Sticat, N.W.
Fabian G. Palomino, Esq.
- Washington, D.C. 20555 Richard J. Zahnleuter, Esq.
Special Counsel to the Governor Executive Chamber Room 229 State Capitol Albany, New York 12224
g Alfred L. Nardelli, Esq.
Jonathan D. Feinberg, Esq.
Assistant Attorney General New York State Department of 120 Broadway Public Service Staff Counsel Room 3-118 Three Rockefelier Plaza New York, New York 10271 Albany, New York 12223 George W. Watson, 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 liighway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip Mc!ntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278
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}{unton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: May 5,1988
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