ML20196G707
| ML20196G707 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/28/1988 |
| From: | Letsche K, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6622 OL-3, NUDOCS 8807060014 | |
| Download: ML20196G707 (15) | |
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[gd 25 2-00LMEiEO UbHi C June 28, 1988
'88 JW 30 P3 :58 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
[0 kb 2 'd o' OkaNG" 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)
)
)
GOVERNMENTS' RESPONSE TO BOARD ORDER OF JUNE 24, 1988 During the June 24, 1988 telephone conference call, the Board asked the parties to submit responses to the following proposal: rather than permitting LILCO to depose 17 former and present Stato and County officials, the Board would itself conduct a focused hearing on the "integrity of the proceeding" issue raised by LILCO's allegations that the Governments have withheld the Suffolk County operations Plan and other documents during discovery in 1982-83 and 1988.
Egg Tr. 20923-25.
This is the Governments' Response, filed on behalf of the State of New York and Suffolk County.1/
1/
The Governments do not repeat here the reasons they believe the LILCO deposition procedure originally proposed by the Board would be unlawful and inappropriate.
The Governments' position
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is set forth in their June 20 Motion to Vacate and their June 23 Motion for a Stay.
Egg Governments' Motion for Licensing Board to Vacate June 17 Order (June 20, 1988); Governments' Motion for stay of June 17 Order (June 23, 1988).
8807060014 880628 h
{DR ADOCK 050 2
As demonstrated below, the premise of the Board's inquiry and of LILCO's accusations -- that LILCO had never seen or obtained a copy of the County's Operations Plan until May, 1988 -- is false.
The Governments submit, therefore, that' the Board should terminate this "inquiry."
I.
The Necessary Scone of the Board's Inauiry, Assumina that One is Conducted The requested responses are to identify the individuals the parties believe should be witnesses available for Board questioning on "the basic iss.ue.
whether state and county emergency plans may have been withheld during the proceeding.
(ajnd if such plans were withheld what were the circumstances surrounding the withholding?"
Tr. 20924.
The Board stated:
Witnesses ought to be knowledgeable about the plans themselves, and who had access to them and knowledge of them.
15b.
In previous filings, the Governments identified the State and County officials who are knowledgeable about the production of documents during discovery, both in the 1982-83 time frame (during which only the County was a party) and in 1988.
Those five individuals are listed in Section II below with a description of their respective positions, knowledge, and anticipated testimony.
The Governments continue to believe that these individuals are the appropriate persons to respond to Board questions about the knowledge and access of the State and County 2
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to the County Operations Plan and other documents produced during discovery.2/
In order to fully address the issue presented by the Board's "integrity of the proceeding" inquiry, however, this Board must not limit itself to the facts concerning the Governments' knowledge of and access to the. County Operations Plan.
LILCO's allegations also require the Board to ascertain the state of LILCO's access to and knowledge of that Plan in light of LILCO's repeated assertions that it was ignorant of the existence of that Plan until May, 1988, that earlier LILCO access to the Plan would have altered LILCO's presentation of its "realism" case, and that the Governments have attempted to conceal the existence of the Plan.
Accordingly, the Board must also question at least one additional witness in order to determine the complete facts concerning knowledge of and acceso to the County Operations Plan.
That witness is.Mr. Norman Kelly, who since 1985 has been employed by LILCO in its emergency planning division.
From 1968 to 1980, Mr. Kelly was the Director of the Suffolk County Division of Emergency Preparedness.
Egg Section II.C below.
Mr. Kelly is a central figure because, notwithstanding LILCO's reported claim of "astonishment" upon the "discovery" of the County Operations Plan for the "first time" in late May 1988, 2/
As stated during the June 24 conference call, the County would also be willing to submit an affidavit of counsel, in response to LILCO's affidavit of counsel, concerning document production in 1982-83, should the Board believe that is necessary.
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the Governments learned subsequent to the June 24 conference call that no later than late 1985 or early 1986. LILCO had actual possession of the County Ooerations Plan.
At that time the Plan was provided by the County to Mr. Kelly, at Mr. Kelly's recuest, wholly apart from the County's formal production of the plan during discov cy in this NRC proceeding.
LILCO has made sweeping assertions about the supposed prejudice to LILCO resulting from LILCO's alleged ignorance about the existence of the County Operations Plan orior to May 1988.
ELILCO has charged the Governments with concealing or attempting to conceal the existence of the County's Operations Plan.
- And, LILCO has alleged that pre-1988 revelation of the existence of the Operations Plan would have greatly enhanced LILCO's ability to present its "realism" position.
Indeed, such allegations have animated virtually every LILCO filing and statement of counsel made in this realism remand since the County's most recent production of the County's Operations Plan in May 1988.
For example, LILCO has stated:
No copy of [the county Operations Plan) was in LILCO's possession when Suffolk County counsel roduced it on or about May 26, 1988 LILCO did not hold the Suffolk County Plan when it was produced in May 1988.
There is no evidence in LILCO's comprehens ve records that it was ever produced.
1/
LILCO's Response to Intervenors' Motion to Vacate (June 23, 1988) at 5.
A/
Id. at 20.
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i' LILCO has been gravely, if not mortally, prejudiced by the unavailability of (the County Operations Plan) for years.E/
I can assure the Board as we'are all sitting here today that had we been able to point to offices, names, phone numbers, resource lists instead of having to shoot dark into a void.
we could have demonstrated realism three years ago, perhaps four.
There is no question about that.5/
[T]he effect of the absence of this document, and perhaps other related documents during this previous four years, I can't say more clearly than to state that it would have made a difference between shooting in the dark and shooting fish in a barrel to LILCO.2/
The Board may still wish to inquire into tne details of document production in 1982-83, and the Governments would provide the appropriate witnesses for that inquiry.
The Governments continue to believe, however, that such an inquiry could only result in the conclusion that the parties' honest recollections about events of 5-6 years ago and available documentation create an impasse which cannot be definitively resolved.
Of overriding significance, however, is the need to inquire I
into LILCO's actual knowledge and possession of the County I
5/
LILCO's Response to "Suffolk County Response to l
Licensing Board Discovery Inquiries," (June 1, 1988) at 17 l
(appearing ff. Tr. 20832).
1/
Tr. 20829-30 (Irwin) (June 3, 1988).
2/
Tr. 20873 (Irwin) (June 17, 1988).
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Operations Plan -- assuming an inquiry is conducted at all.
LILCO has concealed from the Board its own material knowledge concerning the existence and complete contents of that Plan, all the while asserting that the Governments' alleged withholding of documents has caused extreme prejudice to LILCO.
No such prejudice to LILCO has occurred, because LILCO has been in possession of the suppoaedly "withheld" document, which it obtained from the County, since approximately 1985 (if not before).
In fact, if that document actually could have enhanced LILCO's "realism" defense, LILCO had more than two years to use it for that purpose.
II. The Necessarv Witnesses
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The Board should call the following witnesses to determine the facts about production of the County Operations Plan in 1982-83 and in 1988, and to ascertain the status of LILCC's actual knowledge and possession of the County Operations Plan.E/
A. Suffolk County The following individuals are knowledgeable about production of the County Operations Plan and who had access to it, during the 1982-83 and/or 1988 time period.
1.
frank Jones, then Deputy Suffolk County Executive, was in charge of gathering documents to be produced to LILCO in response to discovery requestr
'.n 1982 and 1983.
Mr. Jones would l
A/
As noted during the conference call, should the Board's l
interrogation of these witnesses reveal a need to question
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additional witnesses, that matter can be addressed at that time.
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testify as to how the document gathering and production process was conducted.
He would also testify that the County intended to and believes it did produce to LILCO all non-privileged documents responsive to LILCO's discovery requests, including the County's operations Plan.2/
2.
John Bile 11o has been.the Deputy Director of the suffolk County Emergency Preparedness Division since February 1980.
He is currently the Acting Director of that Division.
Mr. Bilello was directly involved in the 1982 and 1983 document production, and he is knowledgeable about the County's plans and procedures and who has access to them.1E/
Mr. Bilello would testify that in i
1982-83 the Emergency Preparedness Division produced to l
Mr. F. Jones all documents responsive to LILCO's 1982-83 j
discovery requests, including the County's Operations Plan.
Mr. Bilello is also generally knowledgeable about Mr. Norman Kelly's knowledge concerning the County's emergency plans and l
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procedures, including the County's Operations Plan, while Mr. Kelly was the Director of the County's Emergency Preparedness
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Division.
Mr. Bilello would testify that during Mr. Kelly's l
i employment by LILCO, Mr. Kelly has occasionally visited the 2/
Although Mr. Jones is no longer a County employee, he has indicated to the County that he is willing to appear at a I
hearing to be questioned by the Board.
Mr. Jones is presently i
the Supervisor of the Town of Islip, New York.
19/
According to standard County procedure, copies of all County emergency plans and procedures are forwarded to the l
Emergency Preparedness Division.
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County's Emergency Preparedness Division.
Mr. Bilello also would testify that during a recent social lunch with Mr. Kelly, Mr. Kelly acknowledged that subsequent to commencement of his employment by LILCO, he had obtained a copy of the County's Operations Plan.
Mr. Bilello also assisted.Mr. Frank Petrone (see below) in the document production which occurred in 1988.
He would testify that the County diligently searched for and identified responsive documents, and that the County's Operations Plan was again produced to LILCO in May, 1988.
3.
Richard Jones has been the Radiological Officer in the Suffolk County Emergency Preparedness Division since September 1982.
He was involved, with Mr. Bilello, in the document productions which took place in 1983 and 1988.
He would testify that in 1983 and again in 1988, the Emergency Preparedness Division diligently searched for, and produced, all documents responsive to LILCO's discovery requests, including the County's Operations Plan.
Mr. R. Jones is also generally knowledgeable about Norman Kelly's familiarity with the County's emergency plans and procedures, including the Operations Plan.
Mr. Jones would l
testify that Norman Kelly was employed by LILCO in late 1984 or early 1985, in a position related to emergency preparedness, and that he occasionally visited with some of the personnel in the County's Emergency Preparedness Division.
Mr. Jones would also testify that in late 1985 or early 1986, Mr. Kel'ly asked the 8
County's Emergency Preparedness Division for an updated copy of the County's Operations Plan and that Mr. Jones personally gave Mr. Kelly a current copy at that time.
Mr. Jones understood that Mr. Kelly sought the copy of the Plan for use in connection with LILCO's emergency preparedness work.
4.
Frank Petrone was an assistant to the Suffolk County Executive in May, 1988.11/
He was in charge of the County's document production.in 1988, assisted by Messrs. Bilello and R.
Jones.
Mr. Petrone would testify about how the County's document gathering and production took place, and he would testify that the County produced responsive documents to LILCO, including the County Operations Plan.
B. The State of New York Since the State did not enter this proceeding as an active party until 1984, it has no information concerning document production by the County prior to that time.
In addition, there has been no evidence to suggest that the State failed to respond appropriately to discovery requests and Board orders in 1988.
Nevertheless, the State would produce for quastioning by the Board the ' ollowing witness who is knowledgeabic about the State's receipt of, and knowledge about, the Suffolk County Oporations Plan.
11/
Mr. Petrone has recently become Acting Director of the County's Department of Fire, Rescue and Emergency Services.
In this position, he supervises the work of the Emergency Preparedness Division.
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Donald DeVito is the Director of the New York State Emergency Management Office ("SEMO").
SEMO has authority to review State and local government emergency plans for non-nuclear
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emergencies.
Mr. DeVito would testify that SEMO personnel have known for many years that suffolk County, like other counties in New York, had a plan for dealing generally with emergencies.
He would also testify that a copy of the County Operations Plan was located in SEMO files on June 6, 1988, and that this copy was received from Suffolk County on May 6, 1988.
He would testify that the State obtained that copy in connection with a SEMO review of non-nuclear emergency plans in early May, 1988, and not in connection with any Shoreham-related matters.
C.
LILCO There is at least one LILCO employea whom the Governments can now identify as necessary to the Board's inquiry.
Questioning by the Board may reveal the need to call additional LILCO witnesses in order to determine the full extent of LILCO's actual knowledge or possession of the County Operations Plan.
H2rnan Kelly is currently employed by LILCO in an emergency preparedness position.
The Governments do not know his precise title, but believe he is a member of LILCO's emergency planning I
l staff.
Based on discussions with Messrs. Bilello and R. Jones, the Governments believe that Mr. Kelly would testify that:
l Between 1968-1980, Mr. Kelly was the Director of l
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Suffolk County's Emergency Preparedness Division.
While in that 10 i
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i position, he was knowledgeable concerning the County's emergency plans and procedures,12/ and was intimately familiar with the County's Operaticns Plan.
-- Beginning in late 1984 or early 1985, Mr. Kelly was employed by LILCO in an emergency preparedness capacity.
-- In late 1985 or early 1986, Mr. Kelly asked the County's Emergency Preparedness Division for a copy of the County's Operations Plan.
Mr. R. Jones gave Mr. Kelly a copy.
-- During a recent luncheon with Mr. Bilello, Mr. Kelly ackno edged that he had received a copy of the County's L.cns Plan several years ago.
III. Conclusion The Governments submit that the Board's questioning of the witnesses identified herein will result in the following conclusions:
1.
The Coun".y produced the Operations Plan in its entirety in 1982-83, or, a y partial non-production was inadvertent; 2.
Any partial non-production which may have occurred in 1982-83 was of no consequence, and certainly caused no harm or prejudice to LILCO, because by 1985 LILCO had actual knowledge and possession of the County Operations Plan and could have used it in preparing its case; and, 12/
For exau;ple, Mr. Kelly was the author of the Suffolk County Emergency Plan for Major Radiation Incidents, dated August 1979.
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3.
Any allegations by LILCO of failure by the Governments to comply with discovery procedures must be rejected in light of LILCO's failure to disclose to th.e Board that in 1985 LILCO had actually obtained the County Operations Plan from the County.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 n
1 k
Herbbrt H.
Brown /
Lawrence Coe Langher Karla J.
Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County Rich (an G.Palomi g
)
Fab 7 ard J. Zahnleu W b
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 12
00LnEIEP t;sHkt June 28, 1988
'E0 JN 30 P3 :59 UNITER, STATES OF AMERICA igrffigg 3'g';.g NUCLEAR REGULATORY COMMISSION MANCb Before the Atomic Safety and Licensino Board
~"
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' RESPONSE TO BOARD l
ORDER OF JUNE 24, 1988 have been served on the following this l
28th day of June, 1988 by U.S. mail, first class, except as otherwise noted.
I James P. Gleason, Chairman
- Mr. Frederick J.
Shon*
I Atomic Satety 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 Regulat'ry Commission Office of General Counsel l
Washington, D.C.
26655 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C.
20472 l
l l
l l
Fabian G.
Palomino, Esq.*
W. Taylor Reveley, III, Esq.*
Richard J.
Zahleuter, Esq.
Hunton & Williams Special Counsel to the Governor P.O.
Box 1535 Executive Chamber, Rm. 229 707 East Nain Street State Capitol Richmond, Virginia 23212 Albar.y, 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. Elisabeth Talbbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highwa'f 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 Riverheadr New York 11901 Nading 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.
Smithtown, New York 11787 Washington, D.C.
20555 Alfred L.
Nardelli, Esq.
Hon. Patrick G.
Halpin Assistant Attorney General Suffolk County Executive New York State Department of Law H.
Lee Dennison Building 120 Broadway Veterans Memorial Highway Room 3-118 Hauppauge, New York 11788 New York, New York 10271 MHB Technical Associates Dr. Monroe Schneider l
1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 l
San Jose, California 95125 Wading River, New York 11792 l
Mr. Jay Dunkleburger Edwin J. Reis, Esq.*
l l
New York State Energy Office George E. Johnson, Esq.
Agency Building 2 U.S. Nuclear Regulatory Comm.
l Empire State Plaza Office of General Counsel l
Albany, New York 12223 Washington, D.C.
20555
Da' rid A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania. 15222 229 W.
43rd Street New York,,New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency Management Town Hall Agency
-Oyster Bay, New York 11771 26 Federal Plaza New York, New York 10278 Adjudicetory Filu Atomic Safety and Licencing Board Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C.
20555 W a r l/a J. Letsche KIRKPATRICK & L KRART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
- By Telecopy
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