ML20206R324

Proposed Agenda Items for 860708 Prehearing Conference. Consideration of Detailed Schedule for Future Proceedings & Location of Future Hearings Requested.Certificate of Svc Encl

ML20206R324
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/01/1986
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-843 CLI-86-11, OL-3, NUDOCS 8607070117
Download: ML20206R324 (8)

Text

3 $8 LILCO, July la 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,, ,

c Before the Atomic Safety and Licensing Board

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'86 J1. -3 All :22 In the Matter of ) -- - -

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 hrFICE Or 3rr:rgf.a

) (Emergency Planning Proceedikf [thj[.3 " W- '

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO's Proposed Agenda Items for July 8 Prehearing Conference Pursuant to the Board's order of June 20, 1986, LILCO asks that the Board con-sider two items at the prehearing conference of July 8: first, a detailed schedule for further proceedings; and second, the location of any future hearings.  !

1 I. Proposed Schedule On June 6, the Commission issued an Order, CLI-86-11, instituting expedited pro-ceedings on the results of the February 13 exercise of the Shoreham emergency plan.

In that Order, the Commission provided guidance for conducting this final prerequisite to issuance of a full power license for Shoreham. First, the Commission recognized the predictive nature of emergency planning findings and concluded that exercise litigation may be restricted to issues concerning whether the exercise revealed " fundamental flaws" in the emergency plan. Next, the Commission directed the Board "to admit only those Intervenor contentions which satisfy the specificity and other requirements of.10 CFR S 2.714 by 1) pleading that the exercise demonstrated fundamental flaws in LILCO's plan and 2) by providing bases for the contentions which, if shown to be true, w'ould der.1onstrate a fundamental flaw in the plan." Finally, the Commission expressly 8607070117 860701 PDR ADOCK 05000322 G PDR

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rejected Intervenors' argument that a period of discovery must precede the filing of summary disposition motions and replies in this proceeding. Instead, the Commission recognized that timing of summary disposition motions was a matter lef t to the presid-ing officer's discretion, noting that its regulations empower a Board to not grant sum-mary disposition motions where facts essential for response to the motion were shown not to be available.

With this guidance in mind, LILCO offers the following proposed schedule for fu-ture proceedings:II

a. Parties wishing to file contentions must do so no later than July 15. Since the Board has previously held that the time for preparing contentions began to run on June 18, parties will have had four wecks to draf t their contentions,

b. Parties desiring to respond to contentions must do so by no later than July 25.

c. Any replies to objections to contentions must be filed by August 1.

d. The Board would issue its rulings on the proposed contentions on or about August 11. If the Board desires oral argument on any or all of the proposed contentions, the parties should be prepared to argue at this Board's call during the week of August 4-8.

1/ All actions involving the filing of documents relate to the date of physical deliv-ery to the Board in Bethesda and to other parties at their usual offices by hand or by telecopier (or next morning by express service if a telecopier is unavailable).

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e. Assuming some contentions satisfy the requirements of 10 CFR S 2.714 and are admitted, then a period of two weeks, until August 25, would be provided for filing motions for sum-mary disposition.

f. Answers to motions for summary disposition would be filed no later than September 8. During this entire period of filing summary disposition motions and replies, discovery would not be allowed. In the event that parties responding to summary disposition motions show that they lack essential facts to re-spond, then the Board can either deny these motions or take such other action as is appropriate. (See NOTE below).

g. Replies to responses to summary disposition motions, limited strictly 'to replies to respondent's allegations that he lacks sufficient information to respond to the motion, would be filed by September 15. (See NOTE below).

h. Board rulings on motions for summary disposition would be made by about October 1. In the interest of expedition, it is contemplated that these rulings could be summary (either oral or in writing), and followed up if desired by a more detailed opinion later.

1. Discovery on all remaining issues would last for 30 days, until l

October 31.

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j. Filing of direct testimony on all remaining contentions would occur on November 7. ,

k. Evidentary hearings would begin on November 17.

NOTE: In order for the summary disposition process envisioned by this schedule to be effective in identifying genuine issues of triable fact and of necessary discovery, two s

I procedures must be adopted. First, any party wishing to object to any element of a mo-tion for summary disposition on the basis of insufficient facts to respond, as is permit-i -

. ted by S 2.749(c) of the Rules of Practice, must have the burden of documenting, as to each such specific element, the extent of the allegedly missing essential information and how specifically identified discovery would uncover it. Second, the proponent of a summary disposition motion must have the opportunity to demonstrate that the respon-dent to the motion actually possesses the information claimed to be lacking or to estab-lish its irrelevance or immateriality to the statement of material fact at issue in the motion. Any such reply would be strictly limited to these issues and would not include any opportunity to respond to documented factual allegations in response to the sum-1 l mary disposition motion. Thus the Board's Order should include the following instruc-I tions to the parties:

[ 1. Any party wishing to respond to a motion for sumniary disposition by ob-i jecting that he lacks sufficient information to respond must state, with respect to each l material fact in the motion for summary disposition as to which this objection is made: _

l e i (1) the specific information allegedly lacking; (2) the specific source or sources'of such information; and (3) why the identified information from the identified source is essen-4 l tial to respond to the motion for summary disposition. It will be conclusively presumed, ,

in the absence of an objection that meets these tests, that the respondent to a motion f for summary disposition possesses sufficient information to answer the allegation.

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2. The proponent of a motion for summary disposition shall have the right to reply to any objection that the respondent lacks sufficient information to respond to any statement of material fact contained in the motion. The scope of any such te-sponse shall be strictly limited to such objections, and may include only (1) information showing that the respondent does, in fact, possess the information claimed to be lacking but essential to respond to the statement of material fact objected to or its sub-stantial equivalent, and (2) why the information sought by way of the objection is irrel-evant, immaterial or otherwise not essential to permit response to the statement of material fact at issue.

These ground rules should aid significantly in the summary disposition process in this proceeding, which varies from the usual NRC proceeding in several pertinent ways.

By contrast with most NRC proceedings, the ac'ual facts here are historical rather than prospective: the exercise occurred, and the factual inquiry of the proceeding is to determine what happened. Second, the body of information ca these facts is defini-tively determinable and is minutely documented in logs and other " player documents,"

the exercise scenario, the post-exercise report and even by actual observation on the day of the exercise. Third, the participants already possess the vast majority of this in-formation.E Thus there should be relatively little need for speculative theories or dis-covery, and the basis for an effective summary disposition phare should already be largely in the parties' hands.

2/ The only known such remaining category is that of FEMA documents which are not duplicative of the logs and player documents - which are believed to be definitive, complete sets -- already provided by LILCO.

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H. Hearing Location LILCO desires that the proceedings in this matter continue to be conducted in neutral facilities. While the proceedings in previous years in various New York State and Suffolk County facilities have been, by and large, adequately controlled, no one can ignore the cumulative effect of many months of hostility from those governments.

LILCO requests that the Board inquire about the availability of federal facilities on Long Island that are potentially suitable for holding hearings on this matter. With-out knowing their actual availability, LILCO is aware that there are at least three fed-eral buildings on the Island containing hearing rooms or auditoriums with associated fa-cilities which could prove suitable: the federal courthouse in Uniondale, the Brookhaven National Laboratory, and the Veterans' Hospital in Northport.

LILCO also does not see anything intrinsically wrong with conducting confer-ences of counsel in Bethesda if the balance of convenience of the parties favors it.

Inis location is permitted by the regulations; and it should not be forgotten that one rather extensive phase of the case (QA issues) was completely tried in Bethesda in 1983.

Respectfully submitted, Donald P. Irwin k

James N. Christman Lee B. Zeugin Kathy E. B. McCleskey Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED: July 1,1986

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• ' ~ LILCO, July 1,1986 CERTIFICATE OF SERVICE OYNRC U

In the Matter of '86 A -3 E :22

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LONG ISLAND LIGHTING COMPANY ~

(Shoreham Nuclear Power Station, Unit 1)

F Docket No. 50-322-OL-3 [0C OtfG A SNy$r)

BRANCH I hereby certify that copies of LILCO'S PROPOSED AGENDA ITEMS FOR JULY 8 PREHEARING CONFERENCE were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.

Morton B. Margulies,

• Atomic Safety and Licensing Chairman Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Reguhtory Washington, D.C. 20555 Commission East-West Towers, Rm. 407 Atomic Safety and Licensing 4350 East-West Hwy. Board Panel Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline

• Washington, D.C. 20555 Atomic Safety and Licensing Board Bernard M. Bordenick, Esq.

• U.S. Nuclear Regulatory Oreste Russ Pirfo, Esq.

Commission Edwin J. Reis Esq.

East-West Towers, Rm. 427 U.S. Nuclear Regulatory 4350 East-West Hwy. Commission Bethesda, MD 20814 7735 C:1 Georgetown Road (to maitroom)

Mr. Frederick J. Shon

• Bethesda, MD 20814 Atomic Safety and Licensing Board Herbert H. Brown, Esq.

• U.S. Nuclear Regulatory LEwrence Coe Lanpher, Esq.

Commission Karla J. Letsche, Esq.

East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy. Eighth Floor Bethesda, MD 20814 1900 M Street, N.W.

Washington, D.C. 20036 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq.

• Section Special Counsel to the U.S. Nuclear Regulatory Governor Commission Executive Chamber 1717 H Street, N.W. Room 229 Washington, D.C. 20555 State Capitol Albany, New York 12224 i

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6 Mary Gundrum, Esq. William E. Cumming, Esq.

Assistant Attorney General Associate General Counsel 2 World Trade Center Federal Emergency Management Room 4614 Agency New York, New York 10047 500 C Street, S.W.

Room 840 Spence W. Perry, Esq.

• Washington, D.C. 20472 General Counsel Federal Emergency Ms. Nora Bredes Management Agency Executive Coordinator 501 C Street, S.W., Room 840 Shoreham Opponents' Coalition Washington, D.C. 20472 195 East Main Street Smithtown, New York 11787 Mr. Jay Dunkleberger New York State Energy Office Gerald C. Crotty, Esq.

Agency Building 2 Counsel to the Governor Empire State Plaza Executive Chamber Albany, New York 12223 State Capitol Albany, New York 12224 Stewart M. Glass, Esq.

• Regional Counsel Martin Bradley Ashare, Esq. **

Federal Emergency Management Eugene R. Kelly, Esq.

Agency Suffolk County Attorney 26 Federal Plaza, Room 1349 H. Lee Dennison Building New York, New York 10278 Veterans Memorial Highway Hauppauge, New York 11787 Ste['-en B. Latham, Esq. **

Two ney, Latham & Shea Dr. Monroe Schneider 33 West Second Street North Shore Committee P.O. Box 298 P.O. Br e 231 Riverhead, New York 11901 Wading River, NY 11792 Jonathan D. Feinberg, Esq.

New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 Doiiald P. rwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: July 1,1986

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