ML20207L933
| ML20207L933 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/05/1987 |
| From: | Zahnlauter R NEW YORK, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2106 OL-5, NUDOCS 8701130043 | |
| Download: ML20207L933 (10) | |
Text
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January 5, 1987.,
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY E
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(Shoreham Nuclear Power Station,
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STATE OF NEW YORK'S RESPONE TO LILCO'S DECEMBER 23, 1986 MOTION G
8701130043 870105 PDR ADOCK 05000322 PDR b
1.
I The State of New York hereby responds to LILCO's December 23, 1986 motion (entitled "LILCO's Motion Regarding the Pending Discovery Matters and Order of Proceeding Under the December 11 Order" and referred to herein as "LILCO's motion") and the preamble that accompanied it (letter from Donald P.
Irwin to the Board, dated December 23, 1986).
LILCO's motion seeks certain discovery rulings and reconsideration of the Board's December 11, 1986 Memorandum and Order.
For the reasons specified in Sections I through IV below, the State of New York opposes LILCO's motion.
Before discussing the substantive aspects of LILCO's motion, it is necessary to rebuke LILCO's disingenuous attempt to deprive the State of New York of its rightful status as an independent party in this proceeding.
Throughout LILCO's motion and prefatory letter, LILCO obscures the truth by referring to actions and events solely associated with the County as actions and events somehow also attributable to the State of New York.
One of the most blatant examples occurs on lines 20 and 22 of page eleven of LILCO's motion.
In that passage, LILCO falsely represents that discussions involving LILCO's counsel and "Intervenors' counsel" took place concerning LILCO's exercise timeline.
LILCO never included counsel for the State of New York in those discussions.
Furthermore, the State of New York has warned LILCO not to automatically consider dis-cussions with the County's attorneys to be discussions with "Intervenors' counsel."
See letter of December 9, 1986 from R.
Zahnleuter to J. Monaghan, attached hereto.
Sen also " State of New York's Response to LILCO's Motion to File a Reply, and to the Reply Itself, in the Matter of 'LILCO's First Set of Interrogatories and Requests for Production of Documents to New York State'(December 19, 1986) at 5.
Another example can be found on line four of footnote one on page two of Mr. Irwin's letter, where LILCO refers to Stephen Cole as a " witness for Intervenors," and on lines eleven and twelve of footnote nine of page nine of LILCO's motion, where LILCO refers to Charles Perrow, Gary Simon and Dr. Cole as witnesses designated by "Intervenors."
The truth is that the State of New York has had nothing to do with retaining or sponsoring Dr.
Perrow, Dr. Simon or Dr. Cole as witnesses.
These gentlemen are County Witnesses.
As a third example, line 15 on page one of Mr. Irwin's letter cites a letter from one of the County's attorneys (Christopher M. McMurray) for the
2 proposition that "Intervenors have served notice on the Board that they do not intend to complete designation of their witnesses...."
(emphases added).
What Mr. McMurray's letter actually said was "[P} lease be advised thnt the County may obtain the services of two additional witnesses...
If thase witnesses are retained, we will not be in a position to identify them by December 24, because the County's contracting procedures will not have been completed by that date" (emphasis added).
Similar instances of such mis-representation occur on lines two, five and nineteen of page one of Mr.
Irwin's letter.
The point is not that the County's attorneys have acted inappropriately.
The opposite is true - they have acted prudently, conscientiously and app-ropriately. 'The point is that when the County's attorneys state that they are acting on behalf of the County, they are doing just that.
on behalf of the State of New York.
They are not acting When the State of New York wishes to concur in a position taken by the County, or to file a joint pleading with the County or Town of Southampton, the State of New York has authorized and will continue to authorize the County's attorneys to state that fact.
However, absent such an express authorizaation, the County's attorneys de not represent the interests of the State of New York and, indeed, may not.
Consequently, LILCO may not attempt to deprive the State of New York of its rightful status as an independent party in this proceeding by under-handedly attributing actions and events to the State of New York when those actions and events only were associated with the County.
I.
Summary Disposition and Testimony Filing Schedules LILCO seeks reconsideration of the Board's December 11, 1986 Memorandum and Order because LILCO is dissatisfied with the January 21, 1987 deadline for discovery (instead of January 15, 1987) and the February 2, 1987 deadline for filing LILCO's testimony.
LILCO's proposed alternative is to order all parties to file testimony on February 2, 1987, as long as the testimony per-tains to contentions which are not subject to a pending motion for summary disposition.
See LILCO's motion 8.
The practical problem with this scheme is obvious - no party will know which contentions will be the subject of summary disposition motions until such motions are filed, which conceiveably could be as late as the close of business on February 2, 1987.
Consequently, the parties may have to prepare testimony for all contentions because it could turn out in the end that one or more of those contentions were not covered by a summary disposition motion.
3.
Such a scheme is faulty for at least two reasons.
First, it is ex-tremely inefficient.
For example, the State of New York intends to sponsor Frank Petrone as a witness.
It would be an extraordinary waste of re-cources to diligently work toward the proposed testimony filing deadline, only to have another party obviate the need for filing the testimony by filing a summary disposition motion.
Moreover, that prepared testimony may not even be useful for the summary disposition process, as LILCO states on line six of footnote five on page six of its motion: "[R]ulings on
[ summary disposition) motions often eliminate issues entirely, or at least focuses or recasts them, thus enabling the parties to file more responsive testimony after the motions' resolution than before."
Second, LILCO's scheme encourages unfair gamesmanship.
For example, if LILCO knew all along that it intended to file summary disposition motions on particular con-tentions, LILCO would not expend energy and resources to prepare written testimony for those contentions.
However, the other parties, not being privy to the litigation strategies of LILCO's attorneys, would have needlessly mis-directed substantial energy and resources to prepare testimony on those contentions. These undesirable features of LILCO's scheme render it un-workable.
It appears that the essence of this aspect of LILCO's motion is that LILCO desires to increase the importance of the summary disposition process:
"[T]here is both more possibility for hyperextended proceedings without summary disposition and a significant possibility, which should not be inadvertently ignored, of focusing and trimming its [the hearing's] scope and extent by use of summary process."
See LILCO's motion at 6, fn.4.
If the Board did inadvertently ignore the summary disposition process, as LILCO suggests, and if the Board agrees with LILCO that the summary disposition process should be gisen increased importance, then the State of New York's position is that the current time schedule should be modified to allow the parties to give adequate attention to the summary disposition process. Thus, it would be necessary for the Board to postpone the current testimony filing dates and the current hearing commencement date until the summary disposition process has been completed.
II The Remaining Discovery Schedule Since the bulk of LILCO's trifles with the discovery schedule deal with County witnesses and statements made on behalf of the County by the County's attorneys, the State of New York refers the Board to the County's response to LILCO's motion.
Suffice it to say, though, that with respect to the witness designated by the State of New York (Frank Petrone),
LTLCO's
1 4.
claims are meritless.
The State of New York designated Mr. Petrone as a witness on December 3, 1986, which was just after Mr. Petrone agreed to be a witness.
See Petrone Deposition Tr. 171.
On December 3, 1986 LILCO noticed Mr. Petrone's deposition for December 15, 1986.
Despite this short time frame, Mr. Petrone rearranged his private schedule, the State of New York agreed to the date, and the deposition was held.
LILCO's proposals concerning the remaining discovery schedule should be rejected.
Since most of the proposals deal with depositions of LILCO or FEMA witnesses noticed by the County, or depositions of County witnesses noticed by LILCO, the State of New York refers the Board to the County's response to LILCO's motion.
However, the State of New York spec-ifically urges the Board to reject LILCO's request for an order instituting simultaneous depositions.
Counsel for the State of New York is making a good faith effort to satisfy the demands of this proceeding and will continue to do so.
Thus far, the State of New York has been represented at almost every deposition that has been held.
To deny the State of New York's opportunity at this juncture to have knowledgeable legal representation at all of the remaining depositions would be to violate the State of New York's rights to due process.
The Board should not tolerate LILCO's request to unfairly limit the State of New York's participation in this proceeding.
If additional depositions are noticed, and it appears that they will need to be noticed since LILCO desires to designate new witnesses at some indefinite time in the future, the depositions should be included in an extended discovery' period.
LILCO's proposal to schedule simultaneous depositions, coupled with LILCO's proposal to receive special permission to designate new witnesses at its convenience in the future, is extremly unfair and prejudical'to the State of New York and should be rejected.
III Exercise Timeline The State of New York adheres to its position, as stated in " Response of Suffolk County, the State of New York, and the Town of Southampton to LILCO's First Request for Admissions and Third Set of Interrogatories" (December 22, 1986).
IV Treatment of Contentions Ex 15,16 and 19 The State of New York adheres to its position, as stated in "Suffolk County, State of New York, and Town of Southampton Response to FEMA Motion to Bifurcate Proceeding and Request Early Consideration of Contention EX 19" (December 22, 1986).
5.
Respectfully submitted, t
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. Fabian G.g al6 fin 6 f
Richard J.-Eahn16 uter Special Counsel to the Governor Executive Chamber State Capitol, Room 229 Albany, New York 12224 Attorneys for Governor Mario M. Cuomo and the State of New York 4
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b STArc or NEW YORK Executive CHAMBER FAtl AN PALOMINO so.ci.icoon n o,.o
.,no, December 9,1986 By Telecopy Jessine A. Monaghan, Esq.
Ilunton and Williams P.O. Box 1535 Richmond, Virginia 23212
Dear Jessine:
This is in reference to your letter of November 14,1986 to Mr. Miller, in which you stated LILCO's position and attempted to state Suf folk County's position concerning timely service of the Governments' Response to LILCO's First Set of Interrogatories and Requests for Production of Documents to Suffolk County, the State of New York and the Town of Southampton.
Your reference to Kirkpatrick & Lockhart as the " lead counsel for the Intervenors"is intolerable. Kirkpatrick & Lockhart does not represent the State of New York and does not have any status that is superior to the status of coiinsel for the State of New York (Special Counsel to the Governor) or counsel for the Town of Southampton (Twomey, Latham and Shea). Counsequently, service of a pleading of any kind on Kirkpatrick and Lockhart is not service at all on the State of New York.
Previously, the State of New York allowed LILCO to produce discovery documents to Kirkpatrick & Lockhart in lieu of separate production to Mr. Palomino or me. We agreed to this arrangement as a courtesy to LILCO and to facilitate and expedite the discovery process. Ilowever, in light of LILCO's contorted interpretation, manipulation and abuse of this arrangement, we hereby terminate it. Etfective immediately, please separately produce all discovery documents to Mr. Palomino nr me.
Your truly,
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J Rl:hard 'IrI5hnicuter Deputy Special Counsel to the Governor cci Mr. Latham Mr. Lanpher Mr. Bordenick Mr. Cumming
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v24 CotrE M P oppc DATE: 3anuary, 3,1987
'87 JAN g p4 :46 UNITED STATES OF AMERICA NCNiG4 '?"
NUCLEAR REGULATORY COMMISSION M*"
Before the Atomic Safety and Licensing Board in the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
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(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
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i CERTIFICATE OF SERVICE I hereby certify that copies of the State of New York's Response to LILCO's December 23,1986 Motion have been served on the following this 5th day of January 1987 by U.S.
mall, first class, except as otherwise noted.
John H. Frye, Ill*
Dr. Oscar H. Parls*
Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20535 Mr. Frederick 3. Shon*
Spence W. Perry, Esq.*
Atomic Safety and Licensing Board William R. Cumming, Esq.
l U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency Washington, D.C. 20472 i
gmg yqwyerpgcxcucwr m
Anthony P. Earley,3r., Esq.
Joel Blau, Esq.
General Counsel Director, Utllity intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Mr. William Rogers W. Taylor Reveley, III, Esq.*
Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Vete ans Memorial Highway Hauppauge, New York 11788 5tephen B. Latham, Esq.
Twomey, Latham & Shea Mr. L. F. Britt 33 West Second Street Long Island Lighting Company Riverhead, New York 11901 Shoreham Nuclear Power Station North Country Road Docketing and Service Section Wading River, New York 11792 Office of the Secretary i
U.S. Nuclear Regulatory Commission Ms. Nora Bredes 1717 H. Street, N.W.
Executive Director Washington, D.C. 20335 Shoreham Opponents Coalition 193 East Maln Street Hon. Peter Cohalan
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Smithtown, New York 11787 Suffolk Courity Executive I
H. Lee Dennison B illding Veterans Memorial Highway Mary M. Gundrum, Esq.
Hauppauge, New York 11788 New Ycrk State Department of Law 120 Broadway,3rd Floor Dr. Monroe Schneider Room 3-116 North Shore Committee New York, New York 10271 P.O. Box 231 Wading River, New York 11792 MHB Technical Associates 1723 Ilamilton Avenue Lawrence Coe Lanpher, Esq.*
Suite K Kirkpatrick & Lockhart San Jose, California 95125 1900 M. Street, N.W.
Suite 800 Martin Bradley Ashare, Esq.
Washington, D.C. 20036 i
Suffolk County Attorney Building 158 North County Complex Bernard M. Bordenick, Esq.*
Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11788 Washington, D.C. 20553 4
Mr. Jay Dunkleburger New York State Energy office Agency Buildin8 #2 Empire State Plaza Albany, New York 12223 l
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JR4 06 '87 09:25 UDC EXEC CH David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 0:lver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 t?$V
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Richard 3. Zahn16dydr,f.sq.
Deputy Spec (n!,Coonsel to the Governor Executive Chamber Capitol, Room 229 Albany, New York 12224
- By telecopy.
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