ML20206C548

Memorandum & Order (Ruling on Suffolk County Motion to Strike Portions of Lilco Testimony on Contention Ex 50).* Motion Denied Due to Lack of Identification of Documents Not Produced.Served on 870407

ML20206C548
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/03/1987
From:	Frye J Atomic Safety and Licensing Board Panel
To:	SUFFOLK COUNTY, NY
References
CON-#287-3022 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8704130082
Download: ML20206C548 (4)

Text

. . _ _ _ _

f 36bb 2

DOCKETED US"C UNITED STATES OF AMERICA NUCLEAR REGULATORY COP 9tISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges

{0CkETftG[hYE V!

0 John H Frye, III, Chaiman Dr. Oscar H. Paris Mr. Frederick J. Shon SERVED APR -71987 In the Matter of Docket No. 50-322-0L-5 (EP Exercise)

LONG ISLAND LIGHTING COMPANY .

(ShorehamNuclearPowerStation, )

Unit 1) ) April 3, 1987 MEMORANDUM AND ORDER (Ruling on Suffolk County's Motion to Strike Portions of LILCO's Testimony on Contention Ex 50) i On March 27, Suffolk County filed the above motion seeking to strike those portions of LILC0's testimony on this contention which deal with other exercises, a content analysis of the FEMA Post Exercise Report, and an analysis of that report based on NUREG CR-3524. Suffolk maintains that the testimony on other exercises is not relevant to and beyond the scope of contention Ex 50, and that prior Board rulines have excluded similar testimony. Suffolk argues that LILCO improperly refused to produce the so-called content analysis when requested to do so and that therefore its testimony which relies on that analysis should be stricken. Finally, Suffolk urges that the alleged failure of LILCO's 8704130082 870403 PDR G

ADOCK 05000322 PDR 150

• 6

't 2-witnesses to indicate that they were preparing an analysis of the FEMA Post Exercise Report based on NUREG CR-3524 requires.that testimony relying on that report be stricken.

LILCO responded to this motion on April 1. LILC0 points to our Memorandum and Order of December 19, 1986, for the proposition that we have held that the experience gained in other exercises is relevant to this proceeding. It maintains that its testimony is both relevant to and within the scope of the contention. LILCO asserts that Suffolk pursued discovery on the content analysis in the deposition of Elliott Pursell on January 20 and that it has furnished all remaining documents related to that analysis with its response to the motion. LILCO denies that it withheld any infomation concerning the analysis of the FEMA Report from Suffolk and asserts that the latter was on notice that such an analysis would be prepared.

1 l

Staff responded to the motion on April 1, taking the position that the motion should be denied and that LILCO should be required to turn over a copy of the content analysis and a copy of any analysis premised on NUREG CR-3524. Staff believes that Suffolk was sufficiently informed of the bases of LILCO's testimony and that Suffolk should have pursued its remedies for failure to provide the content analysis when they were timely. Staff agrees with LILC0 that the experience gained in other exercises is pertinent to this proceeding.

d v

On April 3, we held a telephone conference call to determine whether the documents which LILCO furnished Suffolk with its response had in part satisfied the latter's demands. In addition to the above parties, New York State and FEMA were represented at that conference.

Counsel for Suffolk maintained that LILCO had not furnished all relevant documents and that the documents furnished were difficult to ,

understand. Counsel reiterated Suffolk's position that if the testimony in question were not stricken, additicnal discovery and preparation time would be necessary. Counsel for LILC0 maintained that.LILC0 had indeed furnished all relevant documents, and reiterated LILCO's opposition to the granting of relief to Suffolk on this issue. Staff adhered to its position, pointing out that Suffolk should have pursued its discovery remedies when they were timely. FEMA generally supported LILC0 and Staff, while New York generally supported Suffolk.

LILC0 and Staff rely on our ruling with respect to discovery on contentions Ex 15 and 16 for the proposition that the experience gained I in other exercises is relevant to contention Ex 50. While that ruling was not intended to cover contentions other than the ones it addressed,-

we perceive no meaningful distinction which can be drawn between those contentions and contention Ex 50. Therefore we reject Suffolk's objections to the LILCO testimony on relevance grounds.

1

Further, we agree with Staff and LILCO that Suffolk should have pursued its discovery remedies at the time if it wished to cbtain the so-called content analysis. Suffolk maintains that it regarded the subject matter of that analysis as irrelevant and therefore did not pursue those remedies. Having chosen to follow that course, it may not complain if its judgement turns out to have been incorrect. Furthennore, it appears that LILCO's disclosures with respect to the bases of the testimony of Drs. Mileti and Lindell were adequate.

While LILC0 maintains that all relevant documents have now been produced. Suffolk argues that they have not been. In the conference call, Suffolk did not specifically identify any documents which it has not been furnished. In these circumstances, we cannot direct that specific documents be turned over.

In consideration of the foregoing, it is this 3rd day of April, 1987, ORDERED that Suffolk County's motion to strike portions of the LILC0 testimony on contention Ex 50 is DENIED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD R dutu.Em fy John H Frye, III, Chafngn ADMINISTRATIVE JUDGE Bethesda, Maryland

_