ML20154B585

Clarifies Matter on Hearing Schedule Issue & Forwards Three Ltrs Bearing on Parties Scheduling Efforts.Matters Will Be Addressed During Conference

ML20154B585
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/10/1988
From:	Lanpher L KIRKPATRICK & LOCKHART
To:	Gleason J Atomic Safety and Licensing Board Panel
References
CON-#288-6225 OL-3, NUDOCS 8805170240
Download: ML20154B585 (13)

Text

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_B_y Hand James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-322-OL-3 Gentlemen:

Late yesterday, LILCO's counsel wrote to the Bcard concerning "EBS" and "Hearing Schedule" matters. We will be prepared to address these matters during the confereace.

However, one matter needs to be clarified at the out: set.

On the "Hearing Schedule" issue, LILCO has not accurately portrayed the pertinent facts. The County has not urged five weeks for trial of the three remand issues; the Governments' schedule anticipated 14 trial deys. Further, LILCO omitted to State that the schedule proposed by the County regarding the schools issue was caused by witness availability difficulties early in the trial period. That is why the County proposed that EBS (assuming there is an issuo to be heard) go first, followed by hospital evacuation av.d school.

There are three letters bearing on the parties' scheduling efforts: May 3 from the County to LILCO; May 4 from LILCO to the County; and May 9 from the County to LILCO. Copies of those letters are attached.

Sincerely,

$ 2 4,,gm [,_4 j Lawrence Coe Lanpher cc: Counsel Docketing and Service $Og

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• "$ *22 l May 3, 1988 BY TELECOPY James N. Christman, Esq.

Hunton & Williams P.O. Box 1535

~707 East Main Street 3 Richmond, Virginia 23212

Dear Jim:

We were informed yesterday by Judge Gleason's secretary that the conference of counsel scheduled for this Wednesday, May 4, has boon rescheduled by the Licensing Board until next Tuesday, May 10. We were not provided any reason for the change.

j With the prehearing conference now scheduled to take place only a few days before trial on the remand issues is scheduled to i

i begin, we thought that it might make sense to explore the possibility of agreeing upon a trial schedule. Such a schedule would permit everyone to take into account witness availability problems, so that, if at all possible, such problems can be accommodated. In addition, an agreed-upon trial schedule would offer a degree of certainty to our own lives.

l I have spoken with Rick Zahnleuter about approaching you j with a proposed schedule for the remand proceeding, and he is in j

agreement with the schedule we are proposing. That schedule is as follows:

Dates Issue

! May 17-20 EBS (LILCO, Suffolk County and FEMA witness panels)

May 24-25 Hospital Evacuation Time Estimates (LILCO, New York State, and NRC Staff witness panels) 4

>F ,

KIRKPATRICK & 1.OCKHART James N. Christman, Esq.

May 2, 1988 Page 2 May 26-27 and June 1-2 Schools (LILCO witnesses)

June 7-8 Schools (Suffolk County school official witnesses)

June 9-10 Schools (Suffolk County role conflict witnesses)

Consistent with past practice, the above schedule contemplates a four-day hearing week, Tuesday through Friday.

- This would avoid weekend travel as much as possible. A normal hearing 5:00 p.m.,

day would begin at 9:30 a.m. and last until approximately with one-and-one-half hours for lunch. As in the past, the hearings would take place on Long Island, presumably at the Court of Claims courtroom in the New York State Office Building.

In developing this schedule, Suf folk County has assumed that the EBS issues would be part of the remanded hearings. We have just learned, however, that radio station WPLR-FM has apparently 1

withdrawn from its agreement with LILCO to be the primary station for broadcasting emergency warnings in the event of a Shoreham accident. A copy of an April 28, 1988 story in the New Haven Register, reporting WPLR's withdrawal, is attached. In our view, WPLR's withdrawal, if true, would significantly change the l

posture o' the EBS proceeding since, up until this time, the EBS

! issues ha 'e focused on the adequacy of LILCO's EBS proposal using WPLR as the primary, or trigger, broadcast station. We recognize, however, that LILCO has Board or the other parties of WPLR'yet to adviseand s withdrawal thethe Licensing impact I that such would have, in LILCO's opinion, hearings. Thus, the above proposal leaves intact the possibility on the upcoming of having to litigate the EBS issues at this time. We would expect LILCO to make clear its position on the pending EBS matters in the very near future, however, so that proper planning for the remand proceeding can proceed.

As can be seen, the above schedule is based on firm starting dates for each panel of witnesses. This approach worked quite well during last summer's reception conter hearings and is desirable so that counsel and the witnesses will know exactly when each issue will be tried. As we agreed last summer, it would be understood that the witness panel dates would not be moved forward, even if the preceding panel finishes ahead of schedule, unless agreed to by the parties. Similarly, a panel would not begin later than the agreed-to date, without the agreement of the parties. In addition, if a party does not complete its cross-examination or redirect examination of a panel

.x KIRKPATRICK & LOCKHART James N. Christman, Esq.

May 2, 1988 Page 3 by the time the next witness panel is scheduled to commence, cross-examination or redirect examination rights would not thereby be extinguished or limited; if such examination is to be cr 1: Sinued, however, it would have to be structured in a way that

s the basic schedule substantially unaffected.

It also must be understood that even if a firm schedule can be agreed to, it may not eliminate all witness availability problems.

Accordingly, certain accommodations and adjustments to any schedule may be necessary to address a particular witness' unavailability or other unforeseen circumstances. For instance, one of the Ccunty's school official witnesses is presently unavailable on June 7, when the County school witnesses under the above schedule would be scheduled to appear. We believe that this matter can be resolved, but it must be recognized that certain accommodations may have to be made. However, the "firm" starting date approach worked well last summer, and we therefore believe that it should be followed here.

You will note that there are no hearings scheduled on May 31, which is the day after Memorial Day. Rather than continuing LILCO's witness panel on the school issues on May 31, we have adjusted our proposed schedule to resume the hearings on June 1; this takes into account travel problems that may arise from the Memorial Day weekend.

Similarly, under our proposal there are no hearings scheduled on June 3. We recognize that this results in a two-day hearing week, but believe that this is preferable than the alternative of beginning the County's school of ficial witness pane) on Friday, June 3, and then having to continue that panel on the following Tuesday, June 7.

Finally, it must be recognized that in developing the above schedule, the County has proceeded without the benefit of knowing either when the upcoming FEMA-graded exercise will be scheduled (assuming that one is held), or when the Appeal Board will schedule oral argument on the Frye Board's February 1, 1988 decision (LBP-88-2). Under no circumstances would the County or the State agree to a schedule that results in the trial going forward concurrently with the exercise or oral argument before the Appeal Board.

KIRKPATRICK 61 LOCKHART Jamea N. Christman, Esq.

May P. I88 Page 4 Please let me have your thoughts as soor; as possiole with respect to the schedule set forth above.

Sincerely, Michael S. Miller Enclosure cc: Richard J. Zahnleuter, Esq.

William R. Cumming, Esq.

Stephen B. Latham, Esq.

Charles A. Barth, Esq.

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BY TELECOPY .....i6. . ....

Michael S. Miller, Esq.

Kirkpatrick & Lockhart South Lobby - 9th Ploor 1800 M Street, N.W.

Washing ton, D.C. 20036-5891 Hearing schedule Dear Mike This is in response to your letter of May 3,1988, proposing a hearing schedule for the role conflict, EBS, and Hospital ETE's issues.

'LILCO's views of how the hearing should proceed differ from yours in some respects. In the first place, I believe that the bus driver role conflict issue should go first, beginning May 16 at 9:30 a.m. LILCO's role conflict witnesses have been holding May 16 and 17 open ever since the Board announced May 16 as the starting date. (The starting date of May 16 is not in doubt, since 28, 1988.) the Board has now set it in its Notice of Hearing of April I believe the hearings should run five days a week, begin-ning at 9:30 a.m. and ending at 5:00 p.m.,

lunch. I also think the entire hearing should with one hour for end by May 27 That would give us ten full hearing days. (Your schedule pro-poses 14 days. Since LILCO only intends to use one day for cross-examining the County's role conflict witnesses rather than the four you propose, the overall schedule proposed by LILCO is only one day different from yours.) Moreover, LILc0 is willing to extend the hearings into the evening hours or into the week-ends, though I believe that will not be necessary.

I believe the four days you havo designated for questioning LILCO's role conflict panel is excessive. However, LILCO can make its role conflict panel available for four days, if they start on April 16 and if Doug Crocker is excused for one of tho

( days, as noted below in LILCO's proposed schedule.

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.,e H ux row & WILLI Aus Michael S. Miller, Esq.

May 4, 1988 Page 2 I do not believe that setting a firm starting date for each panel is a good idea, nor do I agree that it "worked well last s u mme r . " Last summer there were large blocks of unused time whenever one or the other of us finished our cross-examination earlier than anticipated. It took five weeks to finish 10 days of hearing, and some of the 10 were short days (July 9 and July 22, for example). I believe that when one panel is finished, the next panel should begin immediately. As you can see from LILCO's proposed schedule, below, that means that no panol should have to wait more than half a day.

According to LILCO's proposed schedule, the role conflict issue would be heard tho week of May 16, and the hospital ETE's and EBS issues would be heard the following week. The schedule LILCO proposes is the following:

Proposed _ Hearing Schedule May 16-18 LILCO's Pole Conflict Panel (or through the 19th, (Crocker <bsent May 18) if necessary)

May 19 or 70 S.co.'s Role Conflict Panels (one full day)

May 23 LILCO's Hospital ETE's Panel (through morning of 24th, if necessary)

May 24 NYS'r, Hospital ETE's witness May 25 LILCO's EBS Panel

( through corning of 26, if necessary)

May 25 S.Co.'s EBS Panel May 26 p.m. FEMA's EBS witness 1/

l (through morning of 27th, if necessary) l 1/ PEHA has requested that its EBS witness be heard in l Washing ton, D.C. If the Licensing Board agrees with that re-quest, arrangements can be made to hear FEMA's testikony in Washington on the af ternoon of May 31, instead of May 26.

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HUNTON & WILLI AM S Michael 8. Miller, Esq.

May 4, 1988 Page 3 May 27 NRC's Hospital ETit's witness (only day available) and WePEHA have and discussed the above both have agrood schedule to its structure. with counsel for the NRC I

am aware of the WPLR situation and expect to advise the Licensing Board imminently. I am not sure whether the changed situation justifies any change in the hearing schedule.

! You indicate that you learned about WPLR's withdrawal as a primary EBS station from a newspaper article. Does this mean that neither you nor your client had a hand in urging the New Haven Board of Aldermen to put pressure on WPLR7 This is not a mere idle question, as it may bear on some of the matters now be-fore the Board.

Based on our experience, I expect we will not agree on all aspects of this proposal. I hope that any ceoblems can be worked out, however.

Please let us know your reaction to our proposal.

Yours very truly, 1 <

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James N. Christman JNC/dlo ces Richard J. Zahnleuter, Esq.

Richard G. Bachmann, Esq.

William R. Cumming, Esq.

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MTT58L1tOH. PA li222 l)79 MICHAEL S. MILLER Hi2) )S54w con mun May 9, 1988 BY TELECOPY James N. Christman, Esq.

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212

Dear Jim:

This is in response to your letter of May 4, 1988, and your views of May 3.

concerning the trial schedule I had proposed in my letter Your letter suggests that we may not be able to agree upon a trial schedule for the upcoming remand proceeding. Nonetheless, I believe that it makes sense to explore this matter fully, before tomorrow's prehearing conference. This letter therefore attempts to respond to the points raised in your May 4 letter.

It also endeavors to set forth the reasons in support of the views of Suffolk County and New York State for why LILCO should agree to the trial schedule I initially proposed.

First, we disagree that the remanded schools issues should go first. In your letter, you state that "LILCO's role conflict witnesses have been holding May 16 and 17 open ever since the Board announced May 16 as the starting date." You provide no reason, however, for why LILCO's witnesses on the schools issues have assumed that they, rather than the witnesses on the other remanded issues (EBS and hospital evacuation time estimates),

would testify first. The Licensing Board has never indicated that the schools issues would precede the EBS or the hospital evacuation time estimates issues. And, certainly, neither the County nor the State has agreed to the schedule you propose; in fact, prior to your May 4 letter, LILCO had never indicated that it wished to litigate the remanded schools issues first.

Furthermore, we disagree that the hearings should run five days a week, beginning on Monday, May 16. As you know, the

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KIRKPATRICK & LOCKHART James N. Christman, Esq.

May 9, 1988 Page 2 I

l consistent practice in the Shoreham proceedings has been to have four-day hearing weeks. This avoids weekend travel, to the i i

extent that is possible. It also provides one business day each week for meeting with witnesses to prepare for trial.

We also disagree with your views regarding setting firm starting dates for each panel of witnesses. In our opinion, this approach is highly desirable, as it permits counsel and the l witnesses to know precisely when each issue will be tried.

Contrary to your recollection, the firm starting date approach worked quite well during last summer's reception conter hearings, and should be followed again here.

One last disagreement remains. Your letter suggests that PEMA's D.C.

EBS witness might be permitted to testify in Washington, If, in fact, the EBS issues are to be part of the remanded hearings, Suffolk County and New York State would insist that the l

1 issue be tried in its entirety on Long Island.

Notwithstanding the areas of disagreement between us, it is still hoped by Suffolk County and New York State that a trial schedule acceptable to the Governments and LILCO can be reached.

If, for example, LILCO's schools witnesses have scheduling problems that would prevent or make difficult their appearing at trial at any time other than the week of May 16, we are willing to discuss an arrangement that would permit LILCO's school witnesses to testify that week. It must be understood, however, that the witnesses for the State and County also have certain commitments and plans that must be accommodated. Indeed, under the schedule proposed in your May 4 letter, Suffolk County's schools witnesses would testify on May 19 or 20. At this time, however, at least six of the County's 11 schools witnesses (both the school officials panel and the role conflict panel) are unavailable to testify on either of those dates. In fact, if LILCO really County's schools intends to use only one day for cross-examining the witnesses (both panels), the only days that all witnesses would be available are June 3 and the week of June 6.

It should be noted, however, that on a panel basis, the County's schools dates: schoolwitnesses are available to testify on the following officials panel -- May 25, 26, and 31 and June 1, 3,6,8 4nd 10; role conflict panel -- June 3 and week of

, June 6.1/

1/ Of these dates, however, May 31 is the day af ter Memorial Day, and could therefore involve traveling problems arising from the Memorial Day weekend. And June 6 is a Monday, which would

} fall outside the four-day hearing week the County and State will ask the Board to adopt.

KIRKPATRICK Ea LOCKHART James N. Christman, Esq.

May 9, 1988 Page 3 The only other witness availability problem presently known by the Governments involves one of the County's EBS witnesses, who is unavailable on May 25-27 and June 8-10. Again, this would conflict with LILCO's proposed trial schedule, but not with the schedule set forth in my May 3 letter.

Based on the foregoing, it would appear that the trial schedule initially proposed by me is workable, but that your schedule poses a number of problems. Thus, I urge you to reconsider your opposition to our proposed schedule. As noted, however, we would be willing to amend our proposal, to take into account the scheduling problems that may confront LILCO's witnesses. Perhaps the best way to proceed at this point is to discuss these matters later today. I am available for a telephone conference at your convenience.

In closing, I First, as you know, find it necessary to raise two other points.

late in the day on Friday, May 6, we received LILCO's Motion for Leave to File Supplemental Testimony on the remanded schools issues.

impact the schedule for trial in our opinion.The filingWe is assume most irregular that and may this matter may be discussed at the p; ihearing conference tomorrow. If the Board accepts LILC0 s new testimony, it may be nccessary at a minimum for the County and State to increase the time needed for questioning LILCO's schools witnesses.

Second it must be recognized that the trial schedule we have propose,d assumes that the EBS issues will be litigated along with the other remanded issues. In my May 3 letter, I requested LILCO to advise the Board and the parties of its views concerning the reported withdrawal of WPLR-FM as the primary, or trigger, broadcast station in LILCO's proposed EBS network. To date, the only response you have made indicated that as of May 4, LILCO expected to advise the Board "imminently" of the WPLR situation.

In addition, any change you suggested in the hearing schedule. that WPLR's withdrawal may not justify To my knowledge, LILCO still has not advised the Board of the WPLR situation. Further, I simply cannot understand how WPLR's withdrawal, if true, would not require changes in the hearing schedule.

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. *s KIRKPAnlCK & LOCKHART James N..Christman, Esq.

May 9, 1988 Page 4

-As previously noted, I am"available to discuss any or all of the matters raised in this letter at any time prior to. tomorrow's prehearing conference.

Sincerely, M

Michael S. Miller cc: Richard J. Zahnleuter, Esq.'(by telecopy)

William R. Cumming, Esq. (by telecopy)

Richard G. Bachmann, Esq. (by telecopy)

Stephen B. Latham l

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