ML20207R843
| ML20207R843 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/13/1987 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20207R844 | List: |
| References | |
| CON-#187-2806 OL-3, NUDOCS 8703180198 | |
| Download: ML20207R843 (16) | |
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B0CKETED March if," Y987 UNITED STATES OF AMERICA
- 5) MMt 16 P5 :53 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina BoatiF!CE CT 'EUW
w;nE553 A.
E A;.i.a
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power
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Station, Unit 1)
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SUFFOLK COUNTY AND STATE OF NEW YORK OPPOSITION TO LILCO'S MOTION TO COMPEL INTRODUCTION On March 7, 1987, LILCO filed a Motion to Compel Suffolk County and the State of New York (the " Governments") to respond to certain interrogatories and document requests. 1/
For L
the reasons set forth below, LILCO's Motion should be denied.
BACKGROUND LILCO's Motion arises largely from LILCO's efforts to inject issues concerning emergency planning for plants other than Shoreham into this proceeding.
Those efforts are inconsistent with previous Board rulings which have made plain that emergency plans pertaining to nuclear power plants other than Shoreham are 1/
LILCO's Motion To Compel Suffolk County and State of New York To Respond To LILCO's Interrogatories and Requests For Production of Documents Regarding Reception Centers, March 7, 1987) (" Motion").
8703180198 870313 ~
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., l not within the scope of this proceeding.
In any event, LILCO's Motion is untimely, thus mooting most of the issues raised in the Motion.
The facts surrounding LILCO's untimely Motion are as follows.
On December 11, 1986, this Board reopened the Shoreham emergency planning record to hear evidence regarding LILCO's three newly proposed reception centers. 2/
In doing so, the Board defined the scope of the hearing as follows:
"The essential concern stated in the conten-tion remains valid.
It shall be determined whether LILCO's emeroency resoonse olan con-tains adequate provision for reception centers for use by the public in the event of a radiological emergency at Shoreham."
Memorandum and Order, at 15-16 (emphasis added).
Thus, the Board made plain that the subject of this hearing was LILCO's Plan and LILCO's receotion centers, not other plans or reception centers.
After the discovery phase of this reopened proceeding commenced, LILCO filed its first set of discovery requests on January 16, 1987.1/
Despite the Board's explanation of the scope of this proceeding, two of the interrogatories posed by LILCO sought information about reception centers at plants other than Shoreham.
Specifically, those interrogatories sought a list of 2/
Memorandum and Order (Rulings on LILCO Motion to Reopen Record and Remand of Coliseum Issue) (December 11, 1986)
(" Memorandum and Order").
1/
LILCO's First Set of Interrogatories and Requests For Production of Documents Regarding Reception Centers To Suffolk County and New York State (January 16, 1987).
every reception center at nuclear power plants in the State.of-New York and a request for a comparison of all of those reception centers with LILCO's reception centers.
The Governments responded to LILCO's January 16 discovery requests on January 30, 1987. i/
With respect to LILCO's requests concerning plans and reception centers other than those related to Shoreham, the Governments expressed the following objection:
The Governments object on the ground that Discovery Request No. 11 seeks information which is irrelevant to this proceeding.
The issue in this proceeding is "whether LILCO's emeroency resoonse olan contains adequate provision for reception centers for use by the public in the event of a radiological emer-gency at Shoreham."
Memorandum and Order (Ruling on LILCO Motion to Reopen Record and Remand of Coliseum Issue) (December 11, 1986) at 16 (emphasis added).
Since this proceeding is specific to the Shoreham plant, the pro-visions made for reception centers at other nuclear power plants are irrelevant, and are not proper subjects for discovery under 10 C.F.R. S2.740(b)(1).
January 30 Response, at 8.
The NRC's regulations provide that motions to compel must be filed within 10 days of the date of the response which the moving party deems to be unsatisfactory.
10 C.F.R. S 2.740(f)(1).
LILCO filed no motion to compel within the limits mandated by that section.
3/
Response of Suffolk County and State of New York to LILCO's First Set of Interrogatories and Request for Production of Documents Regarding Reception Centers (January 30, 1987)
(" January 30 Response").
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On February 4, 1987, LILCO filed a second set of dis-covery requests.1/ 'Again ignoring the proper scope of.this pro-ceeding,L LILCO posed certain interrogat'ories, under the subheading "Other_ Nuclear Power Plants," seeking information about emergency plans and reception centers other than at Shoreham.
The Governments responded to LILCO's second set of dis-covery requests on February 20, 1987.1/
Consistent with their January 30 Response to LILCO's first set of discovery requests, the Governments objected to LILCO's inquiries into other plans and other reception centers on the ground that such inquiries were not within the scope of this proceeding.
Again, LILCO did not file a Motion to Compel within the time constraints of 10 C.F.R.
S 2.740(f)(1).
On March 7, 1987, LILCO filed the instant. Motion requesting an order from this Board compelling the Governments to respond to LILCO's discovery requests regarding plans and recep-tion centers not related to Shoreham. 1/
LILCO argues that the 1/
LILCO's Second Set of Interrogatories and Requests for Production of Documents Regarding Reception Centers to Suffolk County and New York State (February 4, 1987).
6/
Response of Suffolk County and State of New York to LILCO's Second Set of Interrogatories and Request for Production of Documents Regarding Reception Centers (February 20, 1987)
(" February 20 Response").
1/
On March 3, 1987, LILCO filed a third set of documents requests as well as requests for admissions.
Both requests seek information or admissions regarding plans and reception centers other than Shoreham.
LILCO's recent document requests require a response by April 6; LILCO's recent request for admissions requires a response by March 16.
Because the time for responding to those pleadings has not yet elapsed, the Governments have not (footnote continued)
matters it seeks to raise are relevant to this proceeding.
In support of this argument, LILCO relies primarily on a ruling by a different Board in the Shoreham OL-5 proceeding (chaired by Judge Frye and' cited hereafter as the "Frye Board") which is currently hearing issues relate'd to a different matter -- LILCO's February, 1986, exercise.
LILCO also voices a general complaint about the Governments' alleged failure to produce, as yet, the documents and analyses on which their witnesses intend to rely at trial.
LILCO's Motion is silent on its failure to meet the time constraints of 10 C.F.R. S 2.740 (f)(1). 8/
l As discussed below, LILCO's Motion is untimely.
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.Furthermore, the information sought is irrelevant and far beyond the scope of-this proceeding.
Finally, LILCO's Motion contains additional uncorrected factual errors and misleading omissions.
For these reasons, LILCO's Motion should be denied.
DISCUSSION I.
LILCO's Motion Is Untimelv.
The NRC's regulations are explicit on the time limita-tions applicable to a motion to compel:
I' If a deponent or party upon which a request for production of documents or answers to interrogatories is served fails to respond or objects to the 4
(footnote continued from previous page) yet responded to them.
Thus, there is as yet no controversy surrounding those pleadings.
8/
On March 9, 1987, LILCO filed a pleading correcting one of the factual misstatements in its Motion.
Correction to LILCO's March 7, 1987 Motion to Compel (March 9, 1987).
request, or any part thereof, or fails to permit inspection as requested, the deposing party or the party submitting the request may move the presiding officer, within ten (10) davs after the date of the response or after failure of a party to respond to the request for an order compelling a response or inspection in accordance with the request."
10 C.F.R.
$ 2.740(f)(1) (emphasis added).
LILCO has utterly failed to meet this requirement, and has not even proffered any reason (there is no such reason in the Governments' view) to justify its non-compliance with the rules.
Instead, LILCO has sat on its alleged rights and waited until the last week of discovery to file its Motion.
On this basis alone, LILCO's Motion must be denied.
The NRC's regulations apply to all of the parties involved in this proceeding, including LILCO.
Indeed, during the course of discovery, the Governments filed certain discovery requests of their own to which LILCO's responses were, in many instances, evasive or incomplete.
Because of the tight schedule established by the Board and the need to prepare for or defend depositions virtually every day during the latter part of that schedule, the Governments made a decision to forego motions to 4
compel (with one exception) because such motions could not be prepared and filed within the time allowed by 10 C.F.R.
S 2.740(f)(1).
If LILCO's Motion is granted, there is no reason why the Governments should not now be permitted to file their own untimely motions to compel.
The result, of course, would be contrary to the procedure contemplated by the regulations and
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would threaten to delay these proceedings.
In short, LILCO must f
live by the rules -- and the rules state that LILCO is out of time.
Since LILCO has not even attempted to justify its failure to file on time, this Board must deny the Motion.
II.
LILCO's Interrogatories Seek Information Which Is Irrelevant and Not Calculated To Lead To the Discovery of Admissible Evidence.
Even if this Board concludes, contrary to the plain language of the regulations, that LILCO's Motion is timely, the Board should nevertheless deny the Motion on the ground that the disco /ory requests in question seek information which is not with-in the scope of this proceeding.
Section 2.740(b)(1) of the NRC's Rules of Practice pro-vides that the scope of discovery encompasses:
any matter, not privileged, which is relevant to the subiect matter involved in the oroceedino.
It is not grounds for objection that the informa-tion sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(emphasis added)
In its December 11 Memorandum and Order, this Board defined the 3
relevant subject matter of this proceeding -
"whether LILCO's response olan contains adequate provisions for reception emeroency centers Memorandum and Order, at 15-16 (emphasis added).
Thus, matters pertaining to other plans and other reception centers are irrelevant and are not the proper subjects of inquiry in this proceeding.
Furthermore, because all of the discovery
1 l
1 requests at issue seek information which is outside the scope of the issues defined by the Board's Memorandum and Order, LILCO's requests cannot be considered reasonably calculated to lead to the discovery of admissible evidence.
Accordingly, the Governments correctly declined to respond to LILCO's improper inquiries.
The Governments' responses are in accord with this Board's rulings in earlier phases of this proceeding.
Indeed, in the very early stages of the Shoreham' emergency planning hearings, this Board (chaired at that time by Judge Laurenson) ruled that the only plan at issue was LILCO's so-called " Transition Plan" (i.e., the plan presently before the Board).
Order Limiting Scope of Submissions (June 10, 1983).
On this basis, the Board consis-tently excluded from the hearings evidence concerning other plans.
In one instance very similar to the present issue, LILCO attempted to introduce testimony and documentary evidence regard-ing the State's plans for accidents at nuclear plants in New York State other than Shoreham, including various County supplements.
Testimony of Matthew C. Cordoro, gi al., on Contention 92 (State Emergency Plan) at 3, 5, Attachments 1-9 and Attachment 11, ff.
Tr. 13,899.
The State and Suffolk County filed motions to strike the proffered testimony on the ground that it was irrelevant to evaluating LILCO's Plan.
Consistent with its position that the only plan at issue in the proceedings was LILCO's Plan, the Board agreed, striking the irrelevant testimony.
Tr. 5562-67.
Sgg also Suffolk County Motion to Strike Portions of LILCO's Group II-A 1
l Testimony, at 26-27 (March 9, 1984); Motion of Governor Mario
Cuomo to Strike Portions of the Testimony of Matthew C. Cordaro and John A. Weismantle on Phase II Emergency Planning Contention 92 (State Emergency Plan) (March 9, 1984).. By the same token, LILCO's attempt to raise issues regarding reception centers at other plants should also be rejected.9/
In an attempt to buttress its arguments that it may conduct discovery on other plans and other reception centers, LILCO relies on a ruling by the Frye Board in the Exercise Jitiga-tion which permitted inquiry into the State'c role in exercises other than the February, 1986, Shoreham exercise.
That ruling, however, is not apposite to the issue now before this Board.
One of the contentions before the Frye Board raises the issue of whether the LILCO exercise was a " full participation exercise" within the meaning of 10 C.F.R. Part 50, Appendix E.
The Frye Board concluded that the scope of exercises around other plants might be useful to address the meaning of that specific term, which is not precisely defined in NRC regulations or gui-l dance.
No such circumstances exist here.
As this Board has ruled, other plane and other facilities are not relevant to this l
l 9/
This Board also consistently struck testimony speculating on l
the State's possible participation in LILCO's Plan.
E.a._,
Tr.
5566 (striking portion of answer to Question 10 of LILCO's testimony on Contention 92); Tr. 1298 (striking portion of anst;er to Question 5 of LILCO's testimony on Contention 65).
If speculation about the State's participation in LILCO's Plan for Shoreham is not relevant, then surely inquiry into the State's role in emergency planning for other nuclear plants must also be irrelevant.
oroceedino.
The Board should apply that principle here, just as it did when it struck LILCO's irrelevant testimony on other plans in the earlier stages of this proceeding.
The Board must also consider the consequences to the rational' conduct of this proceeding if the scope of this pro-ceeding is broadened and inquiry is permitted into other plans and reception centers.
This proceeding is now focused on the adequacy of three separate LILCO facilities.
If LILCO is permitted to address not only the adequacy of its own reception centers, but the adequacy of other reception centers as well, the prospects for an expeditious hearing are dim.
The record will be burdened with irrelevant evidence proffered by LILCO on other reception centers.
In addition, to rebut LILCO's proffered evidence, the Governments will have no choice but to develop additional testimony and engage in lengthy cross-examination to demonstrate why the comparisons which LILCO is evidently trying to make between its reception centers and other reception centers are incorrect or meaningless.
The result will be an unnacessarily protracted and unfocused hearing concerning not just LILCO's three reception centers, but~
potentially a host of others as well.
LILCO's proposed inquiry into other reception centers threatens to divert the Board's attention from the appropriate issue in this case -- whether LILCO's receotion centers meet NRC standards.
This Board should not deviate from that issue by expanding the scope of this proceeding to include the adequacy of other reception centers as well.
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l II.
LILCO's Complaints About Other Document Discovery Are Unfounded.
In Part III of its Motion, LILCO raises other complaints about the Governments' responses to LILCO's discovery requests.
LILCO's complaints are not linked to any specific requests; thus it is difficult for the Governments to respond specifically.
The Board should dismiss out-of-hand such unfocused complaints.
Section 2.740(f)(1) specifies that a motion to compel "shall set forth the nature of the questions or the request, the response or the objection of the party upon whom the request was served, and arguments in support of the motion."
The obvious purpose of these requirements is to ensure that motions to compel are well-focused, thus allowing other parties to respond in a focused manner and the Board to rule on the basis of such narrowly drawn filings.
Since LILCO has violated the foregoing requirement, its arguments in Part III of its Motion must be denied.
In any event, LILCO's complaints are unfounded.
LILCO first raises two instances in which the Governments were allegedly derelict in responding to LILCO's requests.
The first instance deals with Suffolk County's alleged failure to provide LILCO with certain analyses conducted by a County witness, Dr. Steven Cole, I
who will testify on the issue of the number of evacuees likely to arrive at LILCO's reception centers for monitoring.
However, as LILCO noted in its March 9 Correction, these materials (including l
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a draft report, computer runs and interview transcripts), were in fact produced to LILCO on March 2 -- shortly after they were completed.
Thus, this portion of the Motion clearly is moot.
Likewise, LILCO states that the County failed to provide a resume for another witness, Dr. Susan Saegert, despite a promise to do so.
Again, this statement is incorrect; the County produced that resume in a letter to LILCO dated March 2.
A copy of that letter is attached hereto as Attachment 1. lE/
LILCO also complains that it has not yet received analyses now being conducted by certain State witnesses on the issue of traffic congestion.
This assertion is true.
The reason that LILCO has not received those analyses'is that they are still in progress and are a long way from being finished.
Indeed, it is unlikely that they will be completed much before the last week of March.
This is because the analyses which the State's witnesses are conducting involve sophisticated traffic modeling which requires a great deal of time.
Studies which are not completed cannot be produced.
I LILCO's apparent concern is that'it may not receive the l
State's traffic analyses in time to address them in its direct 1
testimony, which is now scheduled to be filed on March 30.
This l
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The two matters discussed above highlight the need for better l
communication between parties before a motion to compel is filed.
j The Governments followed that practice in the case of their recent motion to compel against the Staff by confirming the Staff's l
position by telephone before moving to compel.
If LILCO had l
followed that practice here, it would have learned that the documents it sought had in fact been produced and would have avoided needlessly raising these non-issues with the Board.
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- i may or may not be the case.
However, the problem that LILCO raises is not the State's. fault, nor is the problem unique to LILCO.
The problem stems from the fast pace at which this matter is proceeding to hearing.
The schedule established by the Board does not allow for the preparstion of this sophisticated analysis
'and its production to LILCO very much before LILCO's testimony'is due.
This is a problem faced of the Governments as well.
For instance, while LILCO's traffic expert, Edward Lieberman, conducted a traffic-related analysis pertaining to the reception centers in mid-1986, he testified at his recent deposition that he intends to redo his analysis (this time by computer rather than hand) and to expand the scope of the analysis significantly.
Lieberman Deposition, February 24, 1987, Tr. 4-6, 30-31.
To date, the County has received no further analyses by Mr. Lieberman, although they have been requested.
The Governments presume no bad faith on the part of LILCO or Mr. Lieberman in this regard -- only that Mr. Lieberman's analyses are not yet complete.
Likewise, LILCO's behavioral expert, Dr. Denis Mileti, explained in his deposition that he is considering certain further analysis or studies on which he intends to rely in his testimony.
i Mileti Deposition, February 27, 1987, Tr. 54-55.
Again, although requested, the Governments have received no such further analyses or studies.
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t In short, LILCO is raising a problem faced by all of the parties.
It is not a problem without a remedy.
For instance, the problem may be resolved by permitting the filing of rebuttal tes-timony where good cause is demonstrated.
The facts demonstrate that LILCO's general discovery complaints are unfounded.
The Governments, for their part, will continue to work as hard as possible to provide requested
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discovery materials in a timely manner.
This Board and LILCO cannot reasonably ask for more.
k CONCLUSION 1
For the foregoing reasons, LILCO's Motion should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 1
J Lawrence C.
Lanpher Christopher M. McMurray David T. Case KIRKPATRICK & LOCKART 1800 "M" Street, N. W.
South Lobby - Ninth Floor Washington, D. C.
20036-5891
_ _ _ a Attorneys for Soffolk County L L J l lA d s /& n f
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Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Governor Mario M.
Cuomo and the State of New York n,l/
,A Stephen B. Latham Twomey, Latham and Shea Post Office Box 398 1
33 West Second Street Riverhead, New York 11901 Attorney for the Town of South-pton March 13, 1987
KIRKPATRICK & LOCKHART -
SOUTH LOBBY. ffH FLOOR Exowax Pua 1800 M SI1 LEET N.W.
53 STATS m WASHINGTON, D.C. 20055091 sosrow, ur arm sinan m 1438 mRICEELL AVDAR TEMPHONE 000 74M00 MAbd, FL Hill 005) M44lla 7ttzxsem rtocta
,, a a TELECOPEA 00D 749100 CMtlSTOPHEA M. McMURRAY PrTT3aVROM, PA 1522553M 000 MS90H March 2, 1987 James N. Christman, Esquire Hunton and Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212
Dear Jim:
Enclosed is a new resume for Susan Saegert.
Yours truly, O
t 40
-r:..q Christopher M. McMurray CMM/ mas Enclosure
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