ML20207Q351

Lilco'S Motion Re Prehearing Schedule.* Motion That ASLB Amplify & Modify Bench Rulings at 870106 Conference of Counsel to Confirm or Establish 870227 as Deadline for Filing Direct Testimony.Certificate of Svc Encl

ML20207Q351
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/20/1987
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2264 OL-5, NUDOCS 8701270202
Download: ML20207Q351 (8)

Text

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LILCO, Janusry 20,1987 N

DX KEil:0 UNITED STATES OF AMERICA 1' K NUCLEAR REGULATORY COMMISSION

'87 Jmi 23 A10:15 Before the Atomic Safety and Licensing Board In the Matter of )

)

LONG ISLAND LIGitTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S MOTION CONCERNING PREllEARING SCIIEDULE Long Island Lighting Company (LILCO) moves that the Board amplify and, to the extent necessary, modify its bench rulings at the January 6 conference of counsel so as to confirm or, if necessary, establish February 27 as the deadline for filing of all direct testimony in this proceeding. LILCO also asks that the Board confirm the other dates set out in its January 6 bench order. Since time is of the essence and since the issues presented are straightforward and familiar to the parties, LILCO also requests that the Board require that any responses to this motion be filed on an expedited basis in order to permit a timely ruling by the Board.

On January 6 9t a conference of counsel, the Board issued bench rulings estale lishing the following schedule for getting to hearing on the subject of the February 13, 1986 offsite emergency planning exercise:

January 23: deadline for designation of witnesses absent substantial showing of good cause February 6: completion of discovery February 10: conference of counsel 0701270202 070120 PDR ADOCK 05000322 0 PDR b

e g February 27: deadline for filing direct testimony March 4: filing of motions to strike testimony

( thereaf ter, to be presented on March 9 5 days before the start of hearings on any issue]

March 9: start of hearings The structure of prehearing events leading to the start of hearings was discussed in a hypothetical context on January 6 since the Board at that time had before it a pro-posal from LILCO involving hearings coordinated with summary disposition motions and a rolling schedule for filing testimony on issues either not addressed or not resolved by summary disposition. At the conference, when the Board indicated that it could not support simultaneous conduct of hearings and summary process and that any substantial use of summary dispolition motions would probably entall a delay of about 60 days in getting to hearing, LILCO was forced to reconsider its proposal. The schedule outlined above grew out of those discussions.

In its telecopied January 9 letter LILCO notified the Board and parties that it would recede from its earlier proposal to use summary disposition, given the Board's scheduling advice,in the hope of getting earlier to hearings. LILCO at that time asked the Board to order all parties to file all of their testimony simultaneously on February 27.

In lotters of January 13 and 14, counsel for the NRC staff and FEMA indicated that they could support a scheduto involving the filing of all direct testimony on i February 27. Only Intervenors object. On January 15 counsel for Suffolk County wrote a letter agrcolng to drop a summary disposition phase, objecting to the illing of all

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g testimony on February 27 (rather than a rolling schedule), protesting that such a filing would be impossible for Intervenors, and complaining that in any event there was no formal motion before the Board from LILCO on the subject.

By this motion LILCO asks the Board to confirm or, as necessary, to modify its January 6 bench rulings to require that all parties file their full direct testimony pack-age on February 27, rather than in a rolling fashion. The Board should also require the parties to attempt before the February 10 conference of counsel to agree on the organi-zation of the issues in that testimony so that lasues will be brought on at the hearing in as nearly a head-on fashion as possible.

There are strong general reasons for preferring that all testimony be filed at the same time, whenever truly urgent contervalling considerations do not apply. First, fil- ~

ing an entire case on the same day encourages a cohesiveness and focus that may well im lacking in sequential filings. It permits an economy of background explanations that is otherwise not so readily available, and strongly encourages consistency in presenta-tion of views. As a corollary, it tends to minimize the otherwise inevitable tendency in later filings to reinterpret initial testimony in light of later-occurring events.

Second, it permits the Board to gain a view of the parties' entire cases at the outset, and thus enables it to understand and focus on areas of dispute and to put the partles' testimony on any given issuo into context. It also permits the Board to gauge the likely extent of hearings much more closely than is possible with testimony rolling in over an Indefinito schedule. It also permits the Board to monitor and control the pace of the hearings more closely than is otherwise possible since, except for redirect or rebuttal testimony to be filed only for good cause shown, the entire scope of the proceeding is known at the start.

g These considerations apply strongly in this caso, whose subjcet-matter is a scrics of tightly interrelated events that took place within a defined geographic area and in-volved a limited number of people in a limited number of locations between about the hours of 6:00 am and 6:00 pm on one day. Notwithstanding the weiter of paper and in-tervenors' efforts to broaden the scope of this proceeding, its fundamental subject-matter is narrow. The manner of testimony filing should conduce to that end.

A unitary testimony filing, by forcing economy and focus, will do so; a staggered sched-ule, with waves of filings rolling in over a months-long schedule, invites unnecessarily long and confusing filings. The inevitable result will t,a to further prolong and broaden this proceeding.

The unsupported assertion in the January 15 letter from counsel for Suffolk County that a February 27 filing dato is impossiblo for Intervonors should not be ac-copted. It is, af ter all, Intervenors who chore the issues they desired to litigato, and this lloard has admitted virtually cycry issuo they requested, in the form they requested it. Notwithstanding their complaints, Intervonors havo had cycry conceivable opportu-nity. They were allowed to observe the exerciso in greater numbers than Intervenors at any other exerciso known to LILCO. They have been the beneficiarles of extensivo dis-covery (greater than in the initial litigation on the plan), much of it voluntary, begin-

, ning over half a year ago. Despite the appearanco of over a half dozen lawyers on their behalf in this matter, Intervenors have been given extensions of time to file their con-tentions (they are longer by half than in the initial litigation on the plan), have never been ordered to reply to any motion on an expedited basis notwithstanding LILCO's re-quests, and have never been forced to attend more than Jno deposition

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simultaneously.M in short, Intervenors have never been pressed by this proceeding's schedule.

Against this fact is another undenlable one: that this proceeding was com-manded by the Commission, now over seven months ago, in CLI-86-11, to be expedited.

Yet even on the current schedule it will not have even commenced hearings until over nine months af ter that order, and almost thirteen months af ter the one-day exercise it was set up to review. LILCO will already have been forced in the meantime to apply for a waiver of the Commission's regulations concerning the permissible time interval between conduct of an emergency planning exerciso and issuance of a license simply because of this delay.

Thero comes a point where justico delayed becomes justico denied. This pro-cceding is in danger of reaching that point. There is no plausible explanation why In-tervenors cannot, like the other parties, bo prepared to filo all their testimony on the issues they chose to put into contest. The Board should not permit further delay, llowever, this Isrue must be resolved soon, while thoro is adequate timo to file testimony. February 27 is still nearly six weeks off. By February 10, when counsel for Suffolk County suggests the Board deal with it, that deadline will be Icss than three weeks off. If the lloard acts now, all parties can be put fairly on notico of its require-ments (all parties are already on nottee, from correspondence, of the issue), if the Board waits until February 10, the opportunity to permit anything other than either a If it is not clear that all remaining depositions can be completed by February 0 un-less thero is somo doubling-up. Without ascribing fault, this is a f act; and unicss the Board is willing to order the parties to take more than one deposition at a timo as nec-essary, one aspect of the scheduto is likely to be frustrated.

) wasteful rolling schedule or a unitary filing af ter a significant delay will have been lost.

The Board should decide this issue now.

In sum, LILCO requests that:

1. The Board order that all partics' entire direct testimony cases be filed on February 27, with service on each other by hand or overnight mall for Saturday delivery;

2. The Board require the parties to discuss with each other the grouping of testimony issues for purposes of hearing before the February 10 prehearing conference; ,

3. The Board confirm that all other currently scheduled prehearing deadlines will be adhered to, with the parties required to take more than one depost-tion simultaneously if necessary to finish by February 6:

4. The Board require that any responses to this motion to be filed and in hand not later than noon on Friday, January 23.2/

Respectfully submitted, f

iRM Donald P. Irwin Lee B. Zeugin Kathy E. B. McCloskey Counsci for Long Island Lighting Company llunton & hilliams 707 East Main Street P.O. Ilox 1535 Richmond, Virginia 23212 DATEI): January 20,1987 2/ LILCO is authorized to state that the NRC Staff and FEMA do not object to the relief sought by this motion.

l l

LILCO. January 20.1987

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9%Y CERTIFICATE OF SERVICE

'87' JAN 23 N0 35 offC "

in the Matter of LONG ISLAND LIGHTING COMPANY 50CrOg'Q,,',ui (Shoreham Nuclear Power Station. Unit 1)

Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S MOTION CONCERNING PREHEARING SCHEDULE were served this date upon the following by telecopy as indiacted by an as-terisk (*), Federal Express as indicated by two esteriska (**), or by first-class mail, postage prepald, John H. Frye III, Chairman

• Atomic Safety and Licensing Atomic Safety and Licensing Board Panet 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 7738 Old Georgetown Road Board (to mailroom)

U.S. Nuclear Regulatory Com, mission Bethesda, MD 20814 East-West Towers 4350 East-West Hwy. Herbert H. Brown, Esq.

• Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.

Karls 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 liwy. Fabian G. Palomino. Esq.

• Bethesda, MD 20814 R! chard J. Zahnleuter. Esq.

Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.

Washington, D.C. 20555 Mary Gundrum, Esq.

Assistant Attorney General Atomic Safety and Licensing 120 Hroadway Appeal Hoard Panet Third Floor. Room 3116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555

,i

]

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 i Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider '

Federt. 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 Stati Counsel Three Rockefeller Plaza Albany, New York 12223 Donald P. Irwin

!!unton & Williams 707 East Main Street P.O. Hox 1535 Rlchmond, Virginia 23212 DATED: January 20,1987 f

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