ML20207T564
| ML20207T564 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/18/1987 |
| From: | Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2844 OL-5, NUDOCS 8703240135 | |
| Download: ML20207T564 (10) | |
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DOCKETED USHRC Marchakew a9877 DI iim *"
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIhFFLCE Uf E[IS'53
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Before the Atomic Safety and Licensino Board i
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
-(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF LILCO'S TESTIMONY ON CONTENTION EX 47 Suffolk County hereby moves to strike the last sentence of Answer 4, Answer 14, and Questions and Answers 15, 16, 17 and 18, at pages 3, and 10-13, of LILCO's Testimony on Contention Ex 47 (Registration, Monitoring, and Decontamination of Evacuees From Special Facilities), dated February 27, 1987 (hereafter, the
" Testimony").
The referenced portions of the Testimony discuss a purported LILCO " proposal," in draft form, dated February 20, 1987.
The LILCO witnesses assert that this brand new two paragraph " draft proposal":
(a) " supersedes" Revision 7 of the LILCO Plan, which is referenced in Contention Ex 47; (b) " clarifies procedures for registering, monitoring, and decontaminating evacuees from special facilities"; and (c) " provide (s) additional details that resolve the issues raised by the Rev. 7 subsections of Contention 0}y32jyhkk
'e OSc8
L
'Ex 47."
Testimony.at 10, 3.
For the reasons set forth below, discussion of-this'so-called " draft proposal" is not a proper subject of testimony on Contention Ex 47 and, accordingly,fthe
. referenced portions of the Testimony should be stricken.
I.
THE " DRAFT" PROPOSAL IS NOT RELEVANT TO CONTENTION EX 47 Contention Ex 47 deals with two subjects:
(1)'LILCO's failure to demonstrate, during the February 13, 1986 Exercise, l
its ability to perform necessary registration, monitoring, and decontamination of special facility evacuees at their special reception centers under Revision 6 of the LILCO Plan (which was l
. the subject of the Exercise); and (2) the failure of the procedure in the post-Exercise Revision 7 of the Plan (generated by LILCO in response to the FEMA RAC's finding of inadequacy concerning the Revision 6 procedure) to correct the deficiencies t
in Revision 6 relating to the registration, monitoring and decontamination of special facility residents.
The LILCO
' witnesses address the first point in pages 4-9 of the Testimony.
j.
Rather than addressing the second point, however, the witnesses discuss in the remainder of their testimony the so-called " draft 4
]
proposal."
That proposal is not relevant to either of the two 4
major points raised in Contention Ex 47.
Neither it nor the witnesses' testimony about it has anything to do with what was or was not demonstrated during the Exercise, or with Revision 6 or Revision 7 of the LILCO Plan, which are the subjects of Contention Ex 47.
Accordingly, the referenced portions of the j
Testimony should be stricken as irrelevant.
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II.
THE " DRAFT PROPOSAL" IS NOT AN APPROPRIATE SUBJECT OF LITIGATION IN THIS EXERCISE PROCEEDING The so-called " draft proposal" is not part of any version of LILCO's Plan which is even arguably before this Board.
It is not part of Revision 6 -- the subject of the Exercise; it not part of Revision 7 -- referenced in Ccntention Ex 47 as containing the "fix" to the FEMA-identified inadequacies; it is not even part of Revision 8 of the Plan, which purports to address certain Areas Requiring Corrective Actions identified by FEMA during the Exercise.
The " draft proposal" attached to and discussed in the Testimony is not a LILCO Procedure.1 It is not a Plan Revision or even part of any Plan Revision.
It has not been submitted by LILCO to the NRC as part of its license application, nor has it been submitted to FEMA for review.
It is denominated even by LILCO as only a " proposal," and not even a " final" one at that.
Clearly, given the February 20, 1987 date of the draft, a mere seven days before the testimony on Contention Ex 47 was due to be filed, the draft proposal is a blatant and inappropriate eleventh hour attempt to divert the Board's attention from the issues properly before it on Contention Ex 47.
Indeed, in coming up with its new draft proposal, LILCO has, in effect, conceded that the Governments are correct in their allegations in Contention Ex 47.
In other words, in conceding the ne'ed to 1
It is, however, referenced in " draft" versions of OPIPs 3.6.5 and 3.9.2, which have not been finalized, put into a Plan Revision, or submitted to the NRC or FEMA for review.
" supercede" Lits' inadequate' Revision 7' procedures -- themselves
'necessary to address the deficiencies previously-identified in Revision 6 -- LILCO has, in essence agreed with'the allegations of Contention Ex 47 that..the LILCO Plan is flawed with respect to the. registration, monitoring and decontamination of special-facilities evacuees.. The appropriate ruling on Contention Ex 47,
- therefore,-is one:in favor of the Governments, not as LILCO suggests by the filing of its Testimony, a decision to litigate a completely different subject.
If LILCO now wishes to change its Plan, to address deficiencies identified in Exercise contentions or elsewhere, it may do so, but only in the proper way and before the proper forum.
A mere desire by LILCO to have some NRC body rule on some new LILCO " proposal" relating to offsite emergency planning, does not automatically entitle it to discuss such new " proposals" in this Exercise litigation, which has well-defined issues on which this Board is to rule.2 This Board and this Exercise proceeding, however, are not constituted for the purpose of serving as a " sounding board" upon which LILCO can cavalierly " bounce" preliminary or draft ideas or proposals such as the one discussed in the Testimony on 2
Rather, the proper course, once LILCO has decided upon some new proposal, incorporated it into a procedure or Plan. revision, and submitted it as part of its license application fo'r review by the NRC and FEMA, would be for LILCO then to file a motion to reopen the OL-3 proceeding to seek consideration of a new planning proposal.
The Governments would then respond to such a motion and, if the planning proceeding were reopened to deal with the new LILCO material, would proceed to file contentions or contest its adequacy as appropriate in that forum.
O Contention Ex 47.
This Board should not countenance LILCO's effort to divert the Board's and the parties' attention from the issues relating to the Exercise which are clearly defined in the admitted contentions, as to which the other parties have submitted (or in the case of FEMA will submit) testimony, and upon which the Board is in a position to rule.
Accordingly, the portions of the Testimony which deal with LILCO's recent pre 21minary " draft proposal" should be stricken as inappropriate and improperly before this Exercise litigation Licensing Board.
III. LILCO'S ELEVENTH HOUR CREATION OF A NEW PROPOSAL PREJUDICES THE OTHER PARTIES LILCO's draft proposal, and its Testimony about it, should be stricken from this proceeding for an additional reason.
The draft proposal itself is dated February 20, 1987.
Counsel for Suffolk County received a copy of it, by telecopier, at approximately 7:30 p.m. on February 24, long after discovery was completed, and a mere 3 days before the testimony on Contention Ex 47 was due, and after the County's witnesses had completed preparation of their testimony on that subject.3 The new draft proposal had never been mentioned by LILCO or its witnesses in any discovery responses and, therefore, came as a total surprise to Suffolk County.
3 In fact, counsel working on these issues discovered the LILCO telecopied material on the morning of February 25; the County's testimony on Contention Ex 47 was sent out to be copied on February 26, so it could be hand-served on February 27. -
Even assuming, arauendo, that the draft proposal could be a proper subject of testimony in this Exercise litigation, having learned of its existence so late, in fact after the. County's testimony had been finalized, made it impossible for the County's witnesses to address it in their prefiled testimony.
Therefore, the LILCO Testimony should be stricken for-the additional reason that no parties were on notice prior to testimony preparation of LILCO's intent to discuss some new draft proposal in its prefiled testimony.4 IV.
CONCLUSION For the foregoing reasons the following portions of LILCO's testimony on Contention Ex 47 should be stricken:
(a) Answer 4 (p. 3); and (b) Questions and Answers 15, 16, 17 and 8 (pp. 10-13).
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Highway Veterans Memorial Highway Hauppauge, New York 11788 l
4 In the alternative, should the Board determine thit it will accept LILCO's testimony on the draft proposal even though it is irrelevant to Contention Ex 47 and not even a final procedure or 4
one incorporated into LILCO's Plan, the other parties must be l
permitted to file rebuttal testimony, following cross examination of the LILCO witnesses on the new proposal, in order to express their views on this new subject for the Board's consideration. - _ _ - _ _ _ _. _. _ _ _. - - _ - -
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Lawrence Coe Lanpher Karl'a J. Letsc(e Kirkpatrick & Lockhart 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County 7-
'V 00CKETED USNRC March _l8_.1447 y rym LU ru s s. :
UNITED STATES OF AMERI c y gygggy NUCLEAR REGULATORY COMMIS mv; & SEWICI.
BRANCH Before the Atomic Safety and Licensino Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)-
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF LILCO'S TESTIMONY ON CONTENTION EX 47 have been served on the following this 18th day of March, 1987 by U.S.
mail, first class, except as otherwise noted.
John H. Frye, III, Chairman **
Dr. Oscar H. Paris **
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.
20555 Mr. Frederick J. Shon**
William R. Cumming, Esq.*
Atomic Safety and Licensing Board Spence W. Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472
Anthony F. Earley, Jr., Esq.
Joel Blau, Esq.
General Counsel Director, Utility 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 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.*
Suffolk County ~ Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande
(
New York State Department of Law Suffolk County Executive l
120 Broadway, 3rd Floor H. Lee Dennison Building i
Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 1
I MHB Technical Associates Dr. Monroe Schneider f
1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 J
Richard G. Bachmann, Esq.**.
Stephen B.
Latham, Esq.
Myron Karman, Esq.
Twomey, Latham & Shea Charles A. Barth, Esq.
33 West Second Street George E. Johnson, Esq.
Riverhead, New York 11901 U.S. Nuclear Regulatory Comm.
Office of General Counsel Washington, D.C.
20555
e 9
David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 wh
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By Telecopier Karlia J. Letspe By Hand KIRKPATRICK 4 LOCKHART-1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
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