ML20196B071
| ML20196B071 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/30/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5517 OL-3, NUDOCS 8802080022 | |
| Download: ML20196B071 (12) | |
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$5/7 LILCO, January 30,1988 00CHETED (JSilRC NUC E R EG L ORY 05 I S!Og g 4 4 MFtCE Ci tLCi r it Tt' Before the Atomic Safety and Licensing BlialdCI{fj .
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) (School Bus Driver Issue)
Unit 1) )
LILCO'S ANSWER TO SUFFOLK COUNTY'S MOTION TO COMPEL OF JANUARY 25.1988 This is LILCO's response to Suffolk County's January 25 motion to compel the production of ten categories of documents (hereinaf ter "Motion").II Motions to compel are governed by 10 CFR S 2.740(f).
In addition, LILCO asks the Board to clarify that the extension of the discovery period granted by phone on January 28 was intended to close out then-outstanding dis-covery matters and not to expand them.
I. BACKGROUND AND LEGAL FRAMEWORK LILCO opposes the Intervenors' Motion. As we shall show below, there is hardly any information in dispute. The fcw documents that LILCO has withheld are withheld because they are, in LILCO's view, clearly beyond the scope of the issue to be tried and therefore neither relevant nor likely to lead to admissible evidence. For example, LILCO has withheld a few documents related to (1) evacuation t!me estira , and (2) reception centers for schools, both of which issues LILCO believes are not within the 1/ Suffolk County's Motion for Order Compelling LILCO to Respond to Suffolk County's First Set of Interrogatories and Request for Production of Documents, Jan. 25, 1988.
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scope of tNis remand proceeding. See LILCO's Motion in Limine and Motion to Set a C
Hearing Schedule, January 25,1988.
As of this past Friday, LILCO had produced for Suffolk County about 780 pages n
of documents relating to its arrangement for LILCO school bus drivers, plus resumes of
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Its four designated witnesses, plus about 714 pages relating to a study L!LCO's witness Robert Kell [y has done of past evacuations using bus drivers.Y The dispute in this case centers around a small number of additional documents that LILCO has no] provided.
g LILCO can agree that, as the Intervenors argue, discovery is "liberally granted,"
Motion at 3,in proceedings that are not narrow remanded ones. And we can agree that discovery l's proper if the information sought "appears reasonably calculated to lead to the discovery of admissible evidence," 10 CFR S 2.740(b)(1) (1987), Motion at 3. But what is adniissible evidence, of course, depends on what are the issues to be litigated.
In th'e instant caso proceeding is a remand proceeding on a narrow issue, despite the Intervenors' attempt to expand it. And neither a remand nor an initial proceeding is a licens[to litigate every conceivable detail of an emergency plan. Louisiana Power
& Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076, 1106-07 (1983).
II. THE MERITS OF THE INTERVENORS' REQUESTS The Intervenors seek ten separate categories of information.E For most of x
2/ By contrast, the only document produced by Intervenors so far is a not quite-current seven page curriculum vitae of their only (so far) witness, Professor Cole. In his deposition January 28, Professor Cole said that the only documents he has reviewed in connection with his upcoming testimony are those provided by Suffolk County coun-sel, who claimed at the deposition that those documents are covered by the work-product doctrine.
3/ The' County argues (Motion at 4) that LILCO was obligated to seek a protective order rather. than merely to object. This is clearly incorrect. The County cites the last sentence of 10 CFR S 2.740(f)(1), which addresses a failure to respond. LILCO did not (footnote continued) m O
these categories there is nothing at issue, because LILCO has already provided the re-quested information or has none to provide. These categories are marked "nothing to produce" below. As LILCO sees it, the Board need only make a decision as to items A, F, and H. In the other cases LILCO has already produced what information it has.
-A. Interrogatory 4 (Identity of LERO Workers)
In Interrogatory 4 (Motion at 14-18) Suffolk County asks for the name (or em-playee number), position with LILCO, and "qualification / experience to serve as a school bus driver." LILCO has objected to this request and continues to do so.
There appears to be no ripe issue at this point about providing names.M See Mo-tion at 10-11. What the County seeks is each driver's "position with LILCO" and "quall-fication/ experience."
As for qualifications, LILCO has already answered the Intervenors' question. All LEP.O bus drivers will have Class 2 licenses. All will undergo LERO training as de-scribed in the emergency plan and procedures.5/ See OPIP 5.1.1 (Rev. 9). Both the (footnote continued) fall to respond; it objected. The sentence does not apply. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,1152 (1982) ("a party is not required to seek a protective order when it has, in f act, responded by ob-jecting")t see also Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility),
LBP-86-4, 23 NRC 75, 85 (1986), citing Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), ALAB-678,15 NRC 1400,1414 (1982)("when a Board grants a motion to compel, the party to whom it is directed has no option but to answer the interrogatories or file for a protective order").
Also, according to 10 CFR S 2.740(c), a protective order is to protect a party or person f rom "annoyance, embarrassment, oppression, or undue burden or expense . . . ."
Where, as here, the objection goes to relevance, it is not necessary to move for a pro-tective order. A decision fram the Board that the information sought to be compelled is irrelevant or not likely to lead to the discovery of admissible evidence is sufficient.
4/ Employee numbers by themselves, of course, are of no use to Intervenors and of no relevance.
5/ LILCO also has corporate hiring practices designed, for example, to reveal crim-inal records.
lleenses and the training program have already been litigated. PID,21 NRC at 749-50.
And the Board has already decided that lengthy experience in such things as directing traffic or driving buses is not an NRC requirement. Ld.
As for each driver's position with LILCO, that is irrelevant to the remanded issue. The Intervenors claim that "(c]ertain positions at LILCO are, no doubt, less i likely than others to adequately prepare or qualify employees to transport school chil-dren." Motion at 16. Even if true, this is beside the point. If some individual LERO drivers have what Intervenors might consider additional qualifications (such as experi-ence driving buses or tending children), that is irrelevant to this litigation. LILCO does not rely on such individual experiences to meet NRC regulations. Moreover, litigating ;
i such individual differences would clearly be beyond the scope of an NRC licensing pro- t ceeding, because the mix of LERO workers changes as individuals come and go.SI i Litigating individual "qualifications" is contrary to the idea of "predictive" findings and ,
contrary to the Waterford principle that minute details are not litigable.
Inquiries that lead to arguments about whether a Utility Mechanic (for example) [
is better qualified to be a school bus driver than a Working Underground Line:S Foreman are not going to help the Board reach a decision. They are,in short, unlikely to lead to 4 the discovery of admissible evidence.
B. Interrogatory 7 (LILCO Personnel Declining to Participate)
- Nothing to Produce --
Interrogatory 7 (Motion at 18-21) asks how many LILCO personnel have declined I
to be LERO school bus drivers and why. This information is not likely to lead to admis- -
sible evidence. The individual reasons why people who are not bus drivers do not want to be bus drivers cannot help decide anything useful about the bus drivers.Il
$/ "Representative" titles of LILCO employees designated to fill LERO positions are provided in OPIP 2.1.1, Att. 2, 2/ The County's statement that "such information could well provide support for ,
the County's contention that persons expected to drive school buses during a Shoreham 1
(footnote continued)
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Also, there is no documentary information responsive to this interrogatory to produce. LERO workers were recruited for LERO generally, and not for any particular job; the letter used to recruit LERO workers has been provided to the County. Af ter LILCO employees volunteer to join LERO, they are assigned specific LERO jobs such as school bus driver.
Some LERO members have said that they do not want to drive a bus, and so they were assigned other LERO jobr,. ilowever, no count was made or record kept of these requests. There is nothing to produce.
C. Interrogatory 11(a)(Recruitment Documents)
- Nothing to Produce -
Interrogatory 11(a) (Motion at 21-22) asks for "all documents relating to" the "re-cruitment" of LILCO employees to serve as school bus drivers. As noted above, no one was recruited specificaHy to be a bus driver; LILCO employees are recruited to be LERO members, and thereaf ter assigned to specific LERO jobs, including school bus driver. LILCO has a*. ready provided the LERO recruitmentEl letter and has no re-cruiting documents specific to school bus drivers to produce.
D. Interrogatories 11(c).12-16 (Training)
- Nothing to Produce -
Interrogatottes 11(c),12,13,14,15, and 16 (Motion at 23-25) seek information regarding the training of the LILCO-employed school bus drivers. Motion at 23.
(footnote continued) emergency would place family obligations ahead of such driving obligations"(Motion at
- 20) makes nc, sense. How could information about people who are not involved at all provide insig,ht about those who are involved?
J/ See '19 below. In addition, on January 29 we discovered 15 additional pages of documents having to do with ecruiting. These are being provided to the County along with this pleading.
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LILCO's position is that the issue the Intervenors seek to litigate is Les e judicata and that f
in any event there are no more documents to be produced. ;
As OPIP 5.1.1 (Rev. 9) reveals, LERO bus drivers for schools receive the same !
classroom training as the LERO bus drivers for the general public except that the school bus drivers do not receive Module 14. LILCO's training program has already been litigated as a planning matter in the -03 proceeding and as an exercise matter in the
-05 proceeding. See PID 21 NRC at 744-56; Contention EX 50.
The job-specific training for LERO school bus drivers has not begun. "Mini-tabletops" and classroom training are tentatively scheduled to begin February 16; drills will start in March. There are no schedules at this point except tentative ones.
LILCO already provided documents concerning job-specific training for LERO school bus drivers specifically, as noted in its letter of January 25, 1988 to Suffolk County counsel.EI There is nothing more to produce.
E. Interrogatery 21(b)(Number of LILCO-Employed School Bus Drivers to Report to Each Bus Yard)
- Nothing to Produce -
Interrogatory 21(b) (Motion at 25-26) asks LILCO to provide "The number of LILCO-employed school bus drivers that could be ordered to report tg each of the desig-nated bus yards." Apparently the County did not read Attachment 1 to LILCO's answers to the interrogatories. That document, which is also included in Rev. 9, provides the information requested.
2/ As LILCO counsel said in her January 25,1988 letter to Suffolk County counsel, "I have enclosed documents concerning buses, the recruitment of LERO-emergency workers as school bus drivers, and job specific training for LERO school bus drivers. I have not produced, however, any documents about general LERO or Class 2 license tralning. Thus far, planning for job specific training of LERO school bus drivers has just begun."
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F. {;!bterrogatory 24 (Time Estimates) intokatory 24 (Motion at 26-27) asks for "all documents relating in any way to y
any time'edimates for the evacuation of pub!!c school children." As argued in LILCO's n-motion in limine of January 25,1988, evacuation time estimates are outside the scope of this reNAnd proceeding and indeed outside the Board's jurisdiction.
However, since LILCO answered the interrogatories, Revision 9 of the emergen-3 . t cy plan has been issued, and it contains the time estimates to which the County refers. ,
The only o'ther documents "relating" to the time estimates are a stack about an inch A- e thick of maps and worksheets for the calculations, which LILCO is withholding on the ground of relevance.
G. ? Interrogatory 26 (Impact on Implementability)
- Nothing to Produce -- i Interrogatory 26 (Motion at 28-31) asks that LILCO
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.- 26. Provide a copy of all documents, including corre- ,
?spondence and draf ts, concerning the impact of the imple-mentability of LILCO's offsite emergency plan of LILCO's inew schools evacuation proposal, including, but not limited to,
' the impact of having to notify, mobilize, brief, equip, dis-7 paten, communicate with, coordinate and control, and/or imanage as many as 562 additional LERO personnel. ,
There are n o nonprivileged documentsN responsive to this request that have not al-ready been,provided.
The[ request itself is objectionable. It is designed to advance the Intervenors' of t-
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repeated theory that, whenever LILCO changes a portion of the emergency plan, the change ripples through the entire plan and requires that the entire plan be reviewed
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10/ It appears that the County's argument about the attorney-client privliege (Mo-tion at 30-31) is irrelevant to the present dispute. All documents for which LILCO claims attorney-client or work product privilege have been identified for the County in the attachment to LILCO's letter of January 25, 1988. The County does not appear to be claiming a right to any of those identified documents if the County wishes to dis-pute the application of the privilege. It will have to specify the documents it seeks. !
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(and litigated) anew. This theory is spurious. More to the point, it is c!carly not within the scope of this remand issue to rel!tigate the entire offsite plan simply because addi-tional bus drivers have been added to it.$
It is difficult even to know what a document "concerning the impact on the im-plementability" is. But, understanding the request in light of the County's (objection-able) ripple theory, LILCO has searched for documents saying something like "adding the additional bus drivers would have such-and-such an effect on mobilization" and the like. We have found none.
- 11. Interrogatories 29-30 (School Reception Centers and Routes)
Interrogatories 29 and 30 (Motion at 31-32) request the identity of reception cen-ters for schoolchildren and the routes which "might have to be driven" in transporting schoolchildren.
Interrogatory 29 has been answered by Revision 9, which identifies the reception centers for schoolchildren. However, as the Board knows from LILCO's motion in limi-ne, LILCO believes that school reception centers are outside the scopo of this remand proceeding. On this ground LILCO is withholding about an inch-thick stack of letters and memoranda about reception centers.
That leaves only Interrogatory 30, the question what routes "might have to be driven." Routes go to the issue of evacuation time estimates, which LILCO believes is outside the scope of this proceeding. Also, the Intervenors can see the routes that "might have to be driven" by looking at a road map. To the extent they wish to litigate the details of the precise streets down which bus drivers would drive, that is a matter I
of detail that is not litigable accarding to the Waterford case. ALAB-732, supra.
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!!/ Intecyt:.m' regument that LILCO has somehow conceded the relevance of these documents is wrong. Revis!on 9 to the plan contains the job titles and functions of rel-cvant players as a matter of course: it is, af ter all, a description of who does what in an emergency response. LILCO did not include that information in Revision 9 as a conces-sion to the Intervenors. ;
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I. Interrogatory 31 (Maps)
- Nothing to Produce -
Interrogatory 31 (Motion at 33) requests a copy of "all maps which LILCO-employed school bus drivers are purportedly to be given as part of their training." The maps ooc not yet exist.
J. Interrogatory 32 (All Other Documents Relating to LILCO's New Schools Evacuation Proposal)
- Nothing to Produce -
Interrogatory 32 (Motion at 33-35)is a catch-all provision requesting that LILCO
- 32. Provide copies of any documents relating to LILCO's new schools evacuation proposal and not previously produced, including, by way of example only, draf ts, notes, and correspondence, whether produced or generated by LILCO, LERO, or non-LILCO organizations or individuals.
In short, the Intervenors seek, to the extent not already produced under the quite ex-tensive requests already addressed, any other documents "relating to LILCO's new schools evacuation proposal."
Although LILCO has responded to such broad requests in the past, there is no ob-ligation to do so. The Appeal Board has cited with approval the observation in Moore's Federal Practice that "(a] blanket request for production of al! 'hnoks documents, pa-pers and records which are relevant and relate to the subject matter of (an) examina-tion . . .' is obviously without merit." Illinois Power Co. (Clinton Power Station, Unit Nos.1 and 2), ALAB-340, 4 NRC 27, 34 (1976). This principle should apply all the more (1) in a narrow remand proceeding and (2) in light of the other, more specific requests to which the applicant has responded.
In any event, there is nothing to produce. Suffolk County claims that this inter-I rogatory is "specific and limited in nature." Motion at 34. Thus interpreted, there are
, no documents responsive to the request.
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i III. REQUEST FOR CLARIFICATION As is shown above, the actual dispute over discovery is very small in scope. The County's Motion need not have been filed at all.
In large measure the Motion seems designed to lay a foundation for continuing Intervenor arguments that they need more time, the argument that they made in their January 27 motion for extension of the discovery period.NI As LILCO stated during the conference call with the Board on January 28, the extension sought by Intervenors appears to be for the purpose of allowing them to find witnesses and expand the pro-ceeding as much as possible.
Accordingly, LILCO asks the Board to clarify that the more than two-week ex-tension granted on January 28 was for the purpose of closing out outstanding discovery matters (principally LILCO's motion in limine, then-outstanding discovery requests, and the County's motion to compel) and not to open new ones. In particular, LILCO asks that there be a cut-off for designating witnesses of February 3,1988, the original dis-covery cut-off. LILCO has already designated its witnesses: the Intervenors should be required to do so by February 3.
s Respectfully submitted, h.
James N. Christ' man Mary Jo Leugers Scott D. Matchett Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 30,1988 12/ Government's Motion for Extension of Discovery in the Remanded Proceeding Regarding Role Conflict of School Bas Drivers, Jan. 27,1988.
i LILCO, January 30,1988
-o DOCHETED tbHRC
'88 FEB -4 Pl2.04 CERTIFICATE OF SERVICE OCKEi} G sNyh BRANCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S ANSWER TO SUFFOLK COUNTY'S MO-TION TO COMPEL OF JANUARY 25,1988 were served this date upon the following by telecopier as ir.dicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mall, postage prepaid.
James P. Gleason, Chairman ** Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline ** George E. Johnson, Esq. **
Atomic Safety and Licensing Richard G. Bachmann, Esq.
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, Rm. 427 11555 Rockville Pike 4350 East-West Hwy. Rockville, MD 20852 Bether,da, MD 20814 Herbert H. Brown, Esq. **
Mr. Frederick J. Shon ** Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Rm. 430 1800 M Street, N.W.
4350 East-West Hwy. Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino, Esq. **
Secretary of the Commission Richard J. Zahnleuter, Esq.
Attention Docketing and Servico Special Counsel to the Governor Section Executive Chamber U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W. State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alfred L. Nardelli, Esq.
Appeal Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway Washington, D.C. 20555 Room 3-118 New York, New York 10271
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Spence WFPerry, Esq. ** Ms. Nora Bredes William RXCumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency ,'c! 195 East Main Street 500 C Stree,t,'S.W., Room 840 Smithtown, New York 11787 Washington,'D.C. 20472 g . Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York'S, tate Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223
.P= 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 Highway P.O. Box 298'. Hauppauge, New York 11788 Riverhead,'New York 11901 Jj^ Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency f.ri Wading River, NY 11792 26 Federal' Plaza New York,'New York 10278 Jonathan D. Feinberg, Esq.
New York ~ State Department of Public Ser'vice, Staff Counsel Three Rockefeller Plaza Albany, New York 12223
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.i James N. Christman Hunton & W'illiams 707 East Main Street l P.O. Box 1535 l Richmond, Virginia 23212 t
l DATED: January 30,1988 l ::-
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