ML20154J386
| ML20154J386 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/19/1988 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-7113 OL-3, NUDOCS 8809230011 | |
| Download: ML20154J386 (15) | |
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00CKETED UtNRC UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION Before the Atonic Safety and Licensina Board
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In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear PoVer Station,
)
Unit 1)
)
.)
SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON RESPONSE TO NRC STAFF MOTION FOR SCHEDULE FOR LITIGATION OF THE JUNE 1988 EXERCISE In a motion served on September 9, 1988,1/ the NRC Staff proposed a schedule to govern litigation of issues arising from LILCO's June 1988 emergency exercise.
The Staff's proposed schedule provides specific dates for all phases of the proceeding, with an evidentiary hearing beginning on February 27, 1989.
l 1/
NRC Staff Motion for Schedule for Litigation of the June 1988 Exercise (September 9, 1988) ("Staff Motion").
As the Board is aware, the Governments informed this Board on September 13 that, in the Governments' opinion, the Board lacks jurisdiction to hear issues related to the exercise issues.
Accordingly, the Governments moved the Appeal Board to designate an appropriate i
Licensing Board.
This Response sdould not be construed as a waiver of that argument or concession that the Board has jurisdiction.
Nevertheless, this Response is filed in order to i
inform the Board of the Governments' position in the event that this Board is found to have jurisdiction.
l 8809230011 000919 PDR ADOCK 05000322 go)
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LILCO's September 16 response to the Staff Motion,2/ takes a different approach.
While declining to support a specific schedule beyond the admission of contentions, the theme running throughout LILCO's Response is that this proceeding should be rushed through under a host of pre-determined expedited procedures and special rules which LILCO seeks to have this Board impose at the outset.
LILCO also proposes an' unrealistically I
abbreviated amount of time for the Governments to digest vast amounts of material concerning LILCO's exercise, much of which l
the Governments have not yet received, and to file contentions.
LILCO's arguments in support of these self-serving proposals are fuelel largely by reliance on irrelevant facts and the misrepresentation of other facts.
Neither the Staff's nor LILCO's suggested approaches to the upcoming exercise litigation are appropriate.
For the reasons stated below, this Board should establish a realistic schedule for the submission and admission of contentions, with any further l
1 schedule to be established after the Board and the parties know the nature and scope of the admitted contentions, i
DISCUSSION While LILCO attempts to deny it, it is apparent to everybody that LILCO's June 1988 exercise is likely to require 2/
LILCO's Response to NRC Staf f's Motion for Schedule for Litigation of the June 1988 Exercise (September 16, 1988)
("LILCO's Response")
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extensive proceedings before whatever Licensing Board is granted jurisdiction over the exercise issues.
The need for careful scrutiny of the June 1988 exercise results is particularly crucial in light of the fact that LILCo failed its February 1986 exercise.
Thus, it is important to consider both whether the deficiencies found in the earlier exercise have been corrected, as well as to determine whether the June 1988 exercise har exposed c.dditional fundamental flaws in LILCo's planning and preparedness.2/
Any consideration of the procedures to be invoked in this proceeding must also take into account that the June 1988 exercise took place over three days and included, to an extent, ingestion pathway and recovery and reentry issues.
The February 1986 exercise lasted only one day and did not test ingestion pathway or recovery and reentry planning or preparedness.
Accordingly, there are more activities and probably more documents to review for the June 1988 exercise than was true for the February 1986 exercise.
The Staff has generally recognized the need to be realistic about the length of time this proceeding may take.
- LILCO, 2/
LILCO suggests that the upcoming proceeding cannot consider aspects of the exercise which the OL-5 Board found to be adequate.
LILCO Response at 3-4.
LILCO's suggestion defies reason.
The June 1988 was not a remedial exercise, but rather was required to be a new full participation exercise.
If LILCO's planning and preparedness has deteriorated since 1986, it is important for the exercise Board to be aware of and consider that fact.
LILCO, however, suggests that certain deficiencies arising from the June 1988 exercise be hidden and ignored simply because similar issues may have been heard regarding the February 1986 exercise.
The focus of this litigation must be on the results of the June 1988 exercise, regardless of the results of the February 1986 exercise.
O however, prefers to ignore the facts, seeking instead to push any proceeding through the exercise Board at breakneck speed.
In the Governments' view, neither the Staffs' nor LILCO's proposals are appropriate.
While the Governments generally agree with the Staff that the exercise issues could not possibly be ready for hearing until late February at the earliest, it is simply not possible to set an exact schedule governing the entire proceeding at this time.
The Governments have not yet submitted contentions, nor has any Board ruled on them.
Until the parties and a Licensing Board are aware of the nature and scope of admitted contentions, it is futile to attempt to set a schedule governing proceedings beyond that point.
After contentions have been admitted, a Licensing Board can quickly convene a conference of counsel to consider and decide a schedule for further proceedings.
i With respect to LILCO's Response, the Governments' comments are more extensive.
In general, it appears that LILCO agrees that it is inappropriate to establish a specific schedule beyond the contantion phase of the proceeding.
However, the schedule i
for the contention phase which LILCO proposes is onerous and i
l unrealistic.
Furthermore, LILCO has proposed numerous special procedures which are wholly unwarranted and premature at best.
These two issues are discussed separately below.
1.
Schedule for the Contention Phase l
First, LILCO attempts to establish a schedule regarding contentions that is unreasonably restrictive and would deny the
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e Governments their right to an opportunity to conduct a meaningful review of data and documents related to the exercise prior to filing their contentions.
Thus, while the NRC Staff has suggested a date of october 13 to file contentions (Staff Motion at 2), LILCO proposes that all contentions be filed by October 3 1
-- only two weeks from today.
LILCO buttresses its proposed unrealistic deadline on the basis of several arguments that are either irrelevant or misrepresent the facts.
For instance, LILCO argues chat the Governments have alrr,ady had the benefit of reviewing FEMA documents related to the exercise.
LILCo's Response at 5, 6.
This is only partly true.
While FEMA has provided the Governments with grg-exercise documents, the Governments have i
been denied the right to obtain and review FEMA documents generated on the day of the exercise and thereafter.
- Plainly, such documents generated by FEMA evaluators, controllers, and i
other federal government observers are crucial to evaluating the I
results of the exercise.
These documents are particularly important because the FEMA report of the June 1988 exercise is i
I lacking in the kind of detail which was evident in the February i
I 1986 exercise report.
I The Governments have made strenuous efforts to obtain day-of-the-exercise and post-exercise documents, but have been l
l thwarted at every turn.
For instance, in response to a request i
j by the Governments to obtain "controller messages" as they were I
f issued at the exercise, counsel for the NRC stated in a June 6
! i I
i
letter / that the Governments would receive such messages "withira s
a reasonable period of time after they are issued."
The Governments still have not received those messages.
Furthermore, the Governments have been in contact with FEMA's counsel in an attempt to obtain all relevant exercise and post-exercise documents.1/
FEMA's counsel, however, has informed the Governments that FEMA will not agrei to produce the documents voluntarily -- despite the fact that such documents were produced and used during and after the February 1986 exercise.
Accordingly, the Governments have been forced to file a FOIA 4
request which may take several weeks to be resolved.
In short, it is simply inaccurate to state that the proceeding should be expedited because the Governments have received relevant PEMA documents.
In fact, most such documents have been denied to date.
r Likewise, LILCO states that the Governments should bc required to file contentions only two weeks from now because l
LILCO has already provided the Governments with relevant documents.
LILCO Response at 5, 6.
While it is true that LILCO has produced many documents, the Governments' review of those documents to date indicates that LILCO's production has been only 1/
Letter from Edwin J. Reis, Deputy Assistant General Counsel, NRC, to Herbert H.
Brown, dated June 6, 1988.
5/
A copy of a recent letter sent to FEMA by counsel for Suffolk County is attached hereto.
FEMA's counsel has since informed the Governments by telephone that the requested documents will not be produced, despite his earlier statement that they likely would be produced.
partial.
In particular, one of the major issues in the February 1986 exercise was the adequacy of LILCO's training.
The OL-5 4
Licensing Board ruled that LILCO's inadequate training constituted a fundamental flaw in LILCO's preparedness.
LBP-88-2, 27 NRC 85, 212-13 (1988).
Yet, LILCO has not provided any training documents pertinent to the instant exercise.
LILCO's additional argument that the FEMA report which the Governments received on September 9 is "only" 150 pages long and found no deficiencies in LILCO's performance is also unavailing.
LILCO Response at 3-4.
The fact is that the FEMA report is extensive and covers a number of issues.
The Governments cannot reasonably be expected to analyze it and develop contentions in i
the short time which LILCO seeks to allot, particularly in light of the fact that the FEMA report is only one source of information concerning the exercise.
Other sources must be factored into contentions as well and, as stated above, the f
Governments have been denied much of the information from those sources.
j The Governments submit that any schedule for the filing of contentions and subsequent consideration of those contentions must take account of the foregoing facts, the extensive nature of the issues to be explored, and the Governments' need for adequate time to review and analyze the issues carefully.
If FEMA were not delaying on the production of relevant exercise documents, the Governments probably would agree with the Staff that.
October 13 would be a reasonable date for the filing of contentions.
FEMA, however, is danying the Governments access to relevant information on which such contentions should be based.
Assuming that the Governments receive the FEMA documents within
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the next two weeks, the Governments propose that their exercise contentions be due on October 27, 1988 -- only two weeks later than the Staff's proposal.
LILCO and the Staff should file any objections to those contentions 10 days and 15 days later, respectively, with the Governments responding to both filings j
seven days after the Staff has filed.5/
After the Board has ruled on the admissibility of the contentions, it should convene a conference of counsel promptly to consider a schedule for further proceedings.
Thus, the Governments' proposed schedule is as follows:
October 27 Contentions filed November 7 LILCO files objections, if any November 11 Staff files objections, it any November 18 Governments respond to LILCO and Staff filings l
Promptly after Board Conference of counsel rules on contentions i
I l
2.
11LpO's Proposed Soecial Procedures t
LILCo's Response also proposes a numb 9r of expedited and/or j
restrictive procedures which are insupportable at this early 1
f/
While LILCO has recognized the Governments' right to respond to such objections (LILCO's Response at 5), the Staff has overlooked it.
It is consistent NRC practice for intervenors to have the opportunity to respond to objections to contentions.
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stage of the proceeding.
For instance, LILCO proposes imposing arbitrary restrictions on interrogatories and document requests, expedited responses to such requests, restrictions on depositions and multiple-tracking of such depositions.
LILCO's Response at 6.
LILCO also proposes truncated summary disposition and testimony-filing procedures, and even goes into such detail as to suggest that service be considered complete only when a document l
is in the hands of a party at its place of business.2/
LILCO's Response at 4, 6-7.
In short, LILCO proposes a radical restructuring of the Commission's rules of practice -- the very sort of arbitrary tampering with the Commission's rules that the OL-5 Licensing Board rejected in the earlier exercise proceeding.
Egg Memorandum and Order (Prehearing Conference, July 8, 1986) l (July 11, 1986) (OL-S Docket).E/
l 2/
LILCO fails to explain why next-day service by Federal Express or Express Mail, which has become the custom among the parties for many filings, is now insufficient for the purposes of this litigation.
j R/
LILCO complains about the time required to litigate the i
results of the February 1986 exercise and, based on that experience, urges the Board to expedite the upcoming exercise litigation.
LILCO's Response at 3, 6 n.1.
LILCO misleads the l
Board with its remarks concerning the pace of the 1986 l
litigation.
First, it must be remembered that the priot exercise was the first exercise ever litigated.
Thus, much time was spent by the commission itself in issuing guidance to the Board and the i
parties.
An unsuccessful interlocutory appeal by FEMA from a Licensing Board prehearing conference order took additional time.
In all, the OL-5 Licensing Board handled the exercise litigation j
about as expeditiously as it could be handled, given the novelty of the litigation.
Second, LILCO's suggestion that the deposition discovery process during the prior exercise litigation was "abusive in the aggregate" is equally baseless.
LILCO's Response at 6 n.1.
Of the 52 persons deposed, nearly one-half 4
(23 persons) were deposed by LILCo.
Thus, it is absurd for LILCO (continued...) !
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O Even if such a radical approach were warranted under some circumstances, and the Governments do not concede that they would ever be warranted, it is plainly premature to impose the draconian steps suggested by LILCO at this time.
As stated above, the only reasonable course of action is to proceed with the contention phase of the proceeding before establishing any further schedule or tinkering with the commissions rules of practice.
A Board cannot make reasonable decisions regarding further proceedings until it knows the scope and extent of the I
contentions which are to be litigated.
CONCLUSION For the foregoing reasons, at such time that a Licensing Board with jurisdiction over the June 1988 exercise issues is f
established, a reasonable schedule for the contention phase of f
the proceeding should be established, with consideration of i
l l
1/ (.... continued) l to complain that a period of about three months was "chewed up" during discovery, when LILCO itself did as much "chewing" as the other parties.
Finally, the time necessary to litigate the February 1986 exercise is a direct result of LILCO's dismal performance, a fact which is well-documented in the OL-5 i
Licensing Board's findings.
See cenerally, LBP-88-2, 27 NRC 85 (1988).
Thus, it ill-behooves LILCO to complain about the time
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spent to litigate the numerous flaws which the OL-5 Licensing l
Board found to exist.
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further scheduling and proccdural issues after the Board has ruled on conteations.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County complex Veterans Memorial Highway Hauppauge, New York 11788 1-m Lawrence d. La5pher Michael S. Miller Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County
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Palpin[ter ~
/
Fabi'an G.
Zahnleu Richard J.
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 l
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aw Stephe'n 3/~latham
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Twomey, Latham & Shea P.O.
%nt 398 33 Wust Second Street Riverhead, New York 11901 Dated:
September 19, 1988 Attorney for the Town of Southampton i
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mf a u unn,m t.Amwcf cot t.ANPHEA manum aca 7?Sici September 12, 1988 William R. Cumming, Esq.
Associate General Counsel Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 j
Dear Bill As you know, Suffolk County has requested on several occasions that FEMA provide the County with FEMA-generated decu-ments from the June 7-9, 1988, Shoreham Exercise.
FEMA hcs to date provided no such documents.
Thus, documents such as FEMA 4
controller messages and free-play messages, FEMA control cell documents, and FEMA Exercise evaluation documents, have been withheld.
You advised Mike Miller on August 17, 1988, that all FEMA-i generated documents from the June Exercise weru being stored in boxes at Argonne.
You also state:I that we probably would be given copies at the time the Exercise report was officially
{
served, but not before.
i FEMA's final Exercise report has now been issued but we have received no FEMA documents.
On behalf of Suffolk County, I i
reiterate the request that FEMA provide copies of all such docu-ments.
These documents are essential to the County's ability to formulatc contentions.
Since the Staff has proposed a contention i
schedule an I'xercise matters (see Staff Motion for Schedule for Litigation of the June 1988 Exercisa, June 9, 1988), it is incumbent that FEMA provide these documents immediately.
Sincerel
- yours, l
Lawren pher I
I cc:
Mitzi Young, Esq.
j Donald P.
Irwin, Esq.
l Richard J.
Zahnleuter, Esq.
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..g.g UNITED STATES OF AMERICA 5 'M "
NUCLEAR REGULATORY CONNISSION Before the Atomic Safety and Licensina Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3 i
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NOW YORK AND TOWN OF SOUTI:AMPTON RESPONSE TO NRC STAFF MOTION FOR Sci!EDULE l
FOR LITIGATION OF THE JUNE 1988 EXERCIE" and ATTACHMENT have been served on the following this 19th day of September 1988 by U.S.
mail, first-class, except as otherwise noted.
4 1
James P. Gleason, Chairman
- Mr. Frederick J.
Shon*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C.
20555 l
Dr. Jerry R. Kline*
William R. Cumming, Esq.***
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General cotnsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, G.W.,
Room 840 Washington, D.C.
20472 I
I.
- - - - - - -,., _ - +
,,,-__,_,__p-
, e Fabian G.
Palomino, Esq.
W. Taylor Reveley, III, Esq.**
Richard J. Zahnleuter, Esq.***
Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm 229 707 rast Main Street State Capitol Richmond, Virginia 23212 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. Elizabeth Talbbi, Clerk suffolk County Attorney suf folk Courty Legislature Bldg. 158 North County complex Suf folk County Legislature Veterans Memorial Highway Office Building Heuppauge, New York 11788 Veterans Memorial Highway Hauppfuge, New York 11788 Mr. L.F. Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea shoreham Nuclour 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.
1 Smithtown, New York 11787 Washington, D.C.
20555 Alfred L. Hardelli, Esq.
Hon. Patrick G. Halpin Assistar.t Attorney General Suffolk County Executive New York Stcte Department of Law H.
Lee Dennison Building 120 Broadway Veterans Memorial Highway Rona 3-118 Hauppauge, New York 11788 l
bew York, New York 10271 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 4
Mr. Jay Dunkleburger Edwin J. Reis, Esq.***
New York State Energy Office U.S.
Nuclear Regulatory Comm.
Agency Building 2 Office of General Counsel Empire State Plaza Washington, D.C.
20555 Albany, New York 12223 i
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Mr. Stuart Diamond David A. Brownlee, Esq.
Business / Financial Kirkpatrick & Lockhart NEW YORK TIMES 1500 Oliver Building i
Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 I
Mr. Philip McIntire Douglas J. Hynes, Councilman Federal Emergency Mr. nag 6 ment Town Board of Oyster Bay Agency Town Hall 26 Federal Plaza Oyster Bay, 'NU York 11711 New York, New York 10278 i
Adjudicatory File Atomic Safety and Licensing Board Panel Decket Nuclear Regulatory Commission U.S.
Washington, D.C.
20555 R
w l1 s'
' Christopher M. McMurray '
/
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KIRKPATRICK & LOCKRART
[
1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 i
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1988.
With additional courtesy hand delivery on September 20, l
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By Federal Express.
I 1988.
With additional courtesy telecopy delivery on September 20, t
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