ML20207M168
| ML20207M168 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/05/1987 |
| From: | Monaghan J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| References | |
| CON-#187-2128 OL-5, NUDOCS 8701130107 | |
| Download: ML20207M168 (13) | |
Text
,
2 / 2 2' LILCO, January 5,1987 O
DOCKETED USNR0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 JAN ' 7 All :02 Before the Atomic Safety and Licensing Board
[
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION TO COMPEL SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTION TO RESPOND TO LILCO'S FIRST REQUEST FOR ADMISSIONS AND THIRD SET OF INTERROGATORIES AND REQUEST FOR EXPEDITED RESPONSE AND DISPOSITION In accordance with 10 C.F.R. 5 2.740(f), Long Island Lighting Company ("LILCO")
moves this Board for an order compelling Suffolk County, the State of New York, and the Town of Southampton ("Intervenors") to respond within 10 days to "LILCO's First Request for Admissions and Third Set of Interrogatories"(December 1,1986).I!
I.
INTRODUCTION On December 1,1986, LILCO propounded its "First Request for Admissions and Third Set of Interrogatories Directed to Suffolk County, New York State, and the Town of Southampton". The Request for Admissions sought the admission or denial by l
1/
LILCO previously moved this Board for an order requiring Intervenors, pursuant to 10 C.F.R. 5 2.742(b), to admit or deny the accuracy of the contents of the timeline which was the subject of LILCO's December 1,1986, First Request for Admissions.
LILCO's Motion Regarding Pending Discovery Matters and Order of Proceeding under the December 11 Order (December 23,1986), at 11-13. As noted in LILCO's December 23 Motion,Intervenors' Response was received by LILCO on December 23.
At that time LILCO was ccnsidering whether to move the Board to compelIntervenors to respond substantively; this is that Motion.
[O.)
8701130107 870105 PDR ADOCK 05000322 G
~ _.._ _._
s..
Intervenors of the accuracy of an attached document containing a timeline of events and communications which, according to the exercise-day records (all of which had been available to Intervenors for several months), occurred during the February 13, 1986 Exercise.2/ The interrogatories sought specific relevant information concerning Intervenors' reasons for denying a timeline entry or portion thereof or stating that In-tervenors could not truthfully admit or deny the timeline entry or portion thereof. In addition, the interrogatories sought the names of any non-LILCO personnel who had in-formation relating to or knowledge of the portion of the timeline entry that was not ad-mitted.
Between December 1 and approximately December 22,1986 when Intervenors filed their " 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" in which Intervenors claim an inability to answer the Request for Admissions, fruitless discussions took place with Intervenors' counsel. These discussions, which centered on the possibility, proposed by Intervenors, of a stipulation regarding the timeline, pro-duced no concrete results. LILCO's initial understanding that the stipulation would be to the accuracy of the times and events listed in the timeline and the authenticity of the documents supporting it prevailed until af ter Intervenors had filed their unilateral
" notice" on December 15,1986 informing the Board and the parties that Intervenors would not be responding timely to LILCO's Request for Admissions. Shortly thereaf ter, it became clear that Intervenors' counsel was willing only to stipulate to the authentici-ty of the underlying documents.
l s
2/
The Board and other parties on the service list were served with copies of LILCO's Request for Admissions and the accompanying timeline. See LILCO's First Re-I quest for Admissions and Third Set of Interrogatories (December 1,1986).
l l
l
s 3 Finally, Intervenors filed their " Response of Suffolk County, the State of New Ycrk, and the Town of Southampton to LILCO's First Request for Admissions and Third Set of Interrogatories" (December 22,1986). This " response", which was 8 days out of time, in fact did not admit or deny any or all of the entries on the timeline and did not respond to the interrogatories. Rather, the " response" admits only that the logs and message forms were " prepared by the LERO players indicated on such documents during the Exercise and that the notations contained in such documents were made at approxi-mately the times indicated on the documents that they were made." The " response" also admits that Intervenors possess a complete set of the documents generating by LERO players during the exercise. Beyond those statements Intervenors claim that they "are unable to repond to LILCO's Request for Admissions." In short, af ter four l
weeks of deliberation, Intervenors have stipulated to nothing regarding the informat!on set forth in the timeline.
Intervenors' " notice" of December 15 and " response" of December 22 are insuffi-cient, unsatisfactory, and do not relieve Intervenors of the duty to respond to LILCO's Request for Admissions. As LILCO demonstrates below, the requested information is clearly within the proper scope of discovery since it is relevant to the subject matter of the proceeding and to the issues raised in Intervenors' contentions. S_ee 10 C.F.R.
SS 2.740(b),2.742. But there is a second reason to compel a response: the admission of tho events described in the timeline fosters judicial economy by obviating the need to introduce numerous documents and testimony in hearings to establish what happended during the FEMA exercise. This would clearly benefit all parties by streamlining the hearing process. LILCO respectfully requests that this Board order Suffolk County, New York State, and the Town of Southampton, pursuant to 10 C.F.R. SS 2.742(b) and 2.740(f), to admit or deny the accuracy of each and every entry on the timeline filed on December 1 within 10 days and that the Board compelIntervenors to respond to j
LILCO's Third Set of Interrogatories.
. g.
II. DISCUSSION A.
Intervenors Have Established No Principled Basis for Their Claimed Inability to Respond to the Request for Admissions The timeline for which LILCO seeks admission is a chronological compilation of players' log entries (individually identified) and LERO message forms (also individually identified) that were generated by LERO players during the February 13,1986 Exercise; the timeline consists of 278 pages, each page containing an average of ten entries. The
- entries themselves reflect either the complete text of the log or message form from which they are drawn or in some cases lengthy notations on Exercise documents have been summarized. In effect the timeline provides a complete chronology of the events on the day of the Exercise that were noted on message forms or in players' log books.
Intervenors admit that they have possession of all players' documents generated during the Exercise.
~
Intervenors' claim that they are unable to respond to LILCO's Request for Ad-missions is disingenuous and unsubstantiated. They possess all of the relevant docu-ments to verify the accuracy of the timeline and have had those documents for several months.
1.
The Timeline Is Not So Voluminous As to Prevent a Response 1
Even if one considers Invervenors' stated reasons for their inability to respond to LILCO's Request for Admission as objections to the Request, they fall far short of es-l tablishing any basis on which Intervenors should be relieved of the duty to answer LILCO's Request for Admissions. First,Intervenors allude to the volume of the Exer-cise timeline as a reason for their inability to respond. The timeline is a 278-page docu-ment of simple log entries or to/from messages primarily consisting of short declarative statements such as "pager sounded" or "all ambulances and ambulettes dispatched from EWDF". All of these simple declarative statements were quoted directly or summarized
l 3 from individually identified LERO message forms or player logs that were generated during the February 13,1986 Exercise. Intervenors have had possession of the logs and message forms which form the basis for the timeline for several months. The times and log book or message form designations listed in the timeline make it a relatively uncomplicated process to compare the timeline descriptions of events with the actual message forms and logs that have long been in Intervenors' possession.
Not only are Intervenors in a position to readily identify and check the specific document underlying each of the statements in the timeline but the " volume" of the task is not out of proportion to the Request for Admissions that Intervenors propounded to LILCO. That request consisted of 223 separate requests which required LILCO to identify, review and analyze hundreds of documents generated during the Exercise as well as to gather information from its employees about extra-Exercise events; none of the documents needed to verify the accuracy of Intervenors' requests was identified by time or location in the requests themselves. Moreover,Intervenors' Request for Admis-sions were far more complex than the simple declarative statements contained in the Exercise timeline. For example, Suffolk County Request for Admission No.188 re-quests LILCO's admission of the proposition.
That, during the Exercise, and in their responses to the Exer-cise Scenario, LERO players assumed that there was no evac-uation or mobilization traffic, accidents, or impediments in the road prior to the first LERO evacuation and advisory.
Suffolk County, State of New York and Town of Southampton's First Request for Admis-sions and Second Set of Interrogatories Directed to LILCO (November 5,1986), at 35.
LILCO's Request for Admissions is not so voluminous as to be unduly burdensome or to prevent Intervenors from ree onding. The Request seeks the admission of simple factual statements for which confirming documents are readily available to Intervenors 1
and are referenced by time and author in the requests themselves.
$.O,
2.
The Timeline Entries Are Clearly Relevant to Admitted Contentions 7_
I Intervenors' " Response" complains that the timeline covers " huge numbers of Ex-ercise messages and references that have no relevance to admitted contentions or mat-ters in controversy." Even a cursory review of the contentions exposes the falsity of that claim.
Contention EX 50 calls into controversy virtually every event that occurred dur-ing the Exercise by alleging that a programmatic ! allure of the LERO training program was revealed by the Exercise. In support of that conclusory allegation, Contention EX 50 makes the claim that "every lostance of a LILCO training deficiency revealed 4
during the exercise is not described at length in this contention because they are so nu-i merous; virtually every error made by a LERO player during the exercise involved to j
some degree a failure of the LILCO training program to prepare personnel adequately to perform necessary actions." Such broad-based allegations of pervasive problems re-
[
vealed by the Exercise make all of the events that occurred during the Exercise poten-tially relevant both to the issue of problems that occurred and to the issue of whether i
the problems were pervasive.
Communications of the sort compiled in the timeline are more specifically the subject of Contention EX 50.C, which alleges that "the LILCO training program has not successfully or effectively trained LERO personnel to communicate necessary and suf-j ficient data and information, to inquire and obtain such information, or to recognize the need to do so." The players' logs and message forms compiled in the timeline pro-vide clearly relevant evidence about the nature, substance, frequency and channels of I
communication.
Intervenors' own responses to LILCO's prior discovery requests and the deposi-l
~
tion testimony of Intervenors' witnesses clearly demonstrates that Intervenors them-l l
selves regard the entire universe of events that occurred the day of the Exercise as
~_ _
c
) 6 relevant. In their responses to LILCO's Second Set of Interrogatories and Request for Production of Documents (November 26 and 29,1986),E Intervenors stated:
(
LILCO Interrogatory No. 88 88.a. Identify all events that occurred during the Exercise which Intervenors would classify as requiring LERO person-i nel to " exercise independent judgment or good judgment, or
-l to use common sense."
i
+
- c. Identify and provide a copy of each document (on) which Intervenors rely or which relates to the answers i
to paragraphs (a) and (b).
Response
(a) See subpart E of Contention EX 50 and the events identified therein for examples identified to date by the Governments. The results of discovery and analysis and j
research may provide additional examples.
i.
(c) At this time, the Governments have identified no documents as responsive to this request other than the facts, data, Plan and FEMA Report references set forth in subpart E of Contention EX 50, an'd documents and 1
materials generated during the Exercise by FEMA and j
LILCO. The results of discovery may provide additional documents.
Intervenors' Response to LILCO's Second Set of Interrogatories and Requests at 38-39 l
(emphasis added).
f Nor did Intervenors' witnesses limit the documents or events on which they would rely for their testimony. Dr. Charles Perrow, who has bwn designated by Inter-1 2
venors as a witness on Contentions EX 15,16, 22, 41 and 50, stated as follows in his t
~
deposition of December 8,1986:
i l
l 3/
LILCO notes that Intervenors' Responses to the Second Set of Interrogatories and j
Request for Production of Documents are also the subject of a Motion to Compel Dis-l covery now pending before this Board. See LILCO's Motion to Compel Suffolk County, State of New York, and Town of Southampton to Respond to LILCO's Second Set of In-terrogatories and Requests for Production of Documents, and Request for Expedited j
Response and Disposition (December 4,1986).
e a
e.
,----a
-,.,.,,w,.,
--u---
r,,-se-e---------.m---nn.n.-,---,ma-,
.,,.., me
---w..-.--m..,-~m
,ve-
---,v-m-m-ex
Q. What are the f acts - what are the f acts on which you will rely for your testimony?
A. The facts stated in the FEMA report and summarized in the Conten-tion.
Q. Do you intend to rely on any other facts or documents?
A. I may, but I don't know of them now. I haven't developed my testimo-ny.
Deposition of Charles Perrow at 110.
Q. Do you think you will be in a better position to make that assessment (of whether a lack of common sense was a pervasive problem] if you have reviewed additional documents?
A.
Yes.
Q. Let's say for example, that you had reviewed the documents that were generated by the LILCO players on the day of the exercise, which in-clude logs and message forms. Would that assist you in making your assessment?
A. It might. I would have to look at those. I am not sure.
Deposition of Charles Perrow at 131-132.
Intervenors' contentions, in particular Contention EX 50, and their own discov-ery responses demonstrate that all the events comp'iled in the timeline are relevant to matters in controversy.
3.
Summarizations or Characterizations of Events in the Timeline Are Not Improper Reauests for Admissions Intervenors claim that they can not respond because they "cannot agree to the characterizations contained in such summaries" as were made of lengthy notations in the Exercise documents. The NRC Rules of Practice do not require that requests for admissions be verbatim transcriptions of preexisting documents. In fact, the usual re-quest for admission is one party's version of the facts, and the Rules provide that the i
party receiving the request may deny it or set forth the reasons why he can neither truthfully admit or deny. S.e_e 10 C.F.R. S 2.742(b).
If Intervenors' disagree with an entry on the timeline for any reason, the appro-priate response is to deny the entry or state that it can not be admitted or denied and set forth the reasons for the disagreement. Intervenors' refusal to follow the Commis-sion's Rules of Practice by stating they are " unable to respond" should not be condoned.
Virtually all of Intervenors' 223 Requests for Admissions directed to LILCO char-acterized the events of the exercise. In some instances, the requests contained as-sumptions that LILCO found it necessary to deny. For example, Suffolk County Admis-sion No.142 stated:
That, as of 12:50 p.m. during the Exercise, the LILCO road crews were not notified of the simulated Shoreham emer-gency or required to report to their respective staging areas until af ter the declaration of the Site Area Emergency at approximately 8:19.
In response, LILCO identified the portion of the request that it admitted and denied that portion of the request that improperly characterized factual events.
LILCO admits that during the Exercise the LILCO road crews were notified of the simulated Shoreham emergency and required to report to their respective staging areas af ter the declaration of a Site Area Emergency at approximately 8:19, and denies any implication in this request that that no-tification was inadequate.
LILCO's Response to Suffolk County, State of New York and Town of Southampton's First Requests for Admissions (November 17,1986), at 31.
Intervenors are as able as LILCO to review requests for admissions and separate undisputable facts from characterization. They should be compelled to do so.
3.
The Fact that Some Timeline Events Were Simulated Is Not a Valid Reason for Intervenors' Refusal to Respond In similar fashion, Intervenors claim that they are unable to respond to LILCO's Request for Admissions because they can not admit that simulated or hypothetical events occurred at the times noted in Exercise players' documents. Intervenors' ostrich-like refusal to admit or deny these simulated events can only be characterized
- + _..,,, -.. - -
as a calculated refusal to deal with the basic premise of the exercise - a hypothetical accident at the plant - and a refusal to deal with a basic tenet of FEMA's program:
that a number of events during the exercise are simulated so that the exercise does not impinge on the public.
But Intervenors need not admit the simulated events to respond to the Request.
As discussed above, they may respond by admitting the event but noting that it was simulated, by denying the event and stating that the denial was based on the fact that it was simulated, or by stating an inability to admit or deny because the event was simu-lated. They should be compelled to provide a response.
III. REQUEST FOR EXPEDITED RESPONSE AND DISPOSITION LILCO filed its "First Request for Admissions and Third Set of Interrogatories Directed to Suffolk County, New York State, and The Town of Southampton" on December 1,1986. Intervenors unilaterally took eight additional days to file their pur-ported " Response" to the Request but still have f ailed to respond in any substantive manner to LILCO's Request for Admissions. LILCO is serving this Motion by telecopier on the affected parties. In order that further discovery, if the Board grants it, may be readily completed, LILCO requests that the Board require remnses to this Motion be received by the Board and other affected parties not later than the close of business on January 9,1987 and the Board rule on it as soon thereaf ter as its schedule permits.
IV. CONCLUSION LILCO requests that the Board issue an order on an expedited basis compelling Intervenors to admit or deny the accuracy of each entry on the timeline and to respond to LILCO's Third Set of Interrogatories. LILCO also requests, given the f act that the Intervenors were served with the request on December 1,1986 and that they have had
e t possession of the underlying documents for several months, that Intervenors be ordered to respond within 10 days.
Respectfully submitted, Wh W
Dffiald P. Irwin Jessine A. Monaghan Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 5,1987 e
e+
,----,------------,-,n,
r
-,-----,_-,m
i LILCO, JSnuary 5,1987
.(.
o:txEn amH CERTIFICATE OF SERVICE
'87 JAN -7 All :02 In the Matter of
- LOhG ISLAND LIGHTING COMPANY
[0NL6.
N'F (Shoreham Nuclear Power Station, Unit 1) race Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S MOTION TO COMPEL SUFFOLK COUN-TY,' THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON TO RESPOND TO LILCO'S FIRST REQUEST FOR ADMISSIONS AND THIRD SET OF INTERROGATO-RIES AND REQUEST FOR EXPEDITED RESPONSE AND DEPOSITION were served this date upon the following by telecopy as indicated by one asterisk (*), Federal Express as indicated by two asterisks (**), or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Bernard M. Bordenick, Esq.
- Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mallroom)
U.S. Nuclear Regulatory Commission
- Bethesda, MD 20814 East-West Towers 4350 East-West Hwy.
Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche,' Esq.
Mr. Frederick J. Shon
- Kirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036-5891 East-West Towers, Rm. 430 4350 East-West Hwy.
Fabian G. Palomino, Esq.
- l Bethesda, MD 20814 Richard J. Zahnleuter, Esq.
l Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol l
U.S. Nuclear Regulatory Commission Albany, New York 12224 l
1717 H Street, N.W.
l Washington, D.C. 20555 Mary Gundrum, Esq.
l Assistant Attorney General Atomic Safety and Licensing 120 Broadway Appeal Board Panel Third Floor, Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555 l
Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223
$W Hunton & Williams 707 East Main Street t
P.O. Box 1535 l
Richmond, Virginia 23212 DATED: January 5,1987 I
f
,