ML20209H470
| ML20209H470 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/30/1987 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2405 OL-5, NUDOCS 8702060060 | |
| Download: ML20209H470 (12) | |
Text
^
yos J iC January 30, 1987
'87 FEB -3 A11 :04 UNITED STATES OF AMERICA
. n.
NUCLEAR REGULATORY COMMISSION:
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)
)
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S MOTION CONCERNING PREHEARING SCHEDULE On January 6, 1987, this Board, after conferring with counsel and obtaining the parties' views on numerous scheduling issues, established a schedule for completion of discovery, a February 10 conference of counsel, a February 27 filing date for the parties' first round of exercise testimony, and a March 9 or 10 trial date.
While the parties disagreed whether the first round of testimony should be filed on February 27,1 no party objected to the Board's decision that testimony would be filed on a rolling basis, i.e., with a first round of testimony filed initially, and additional testimony filed thereafter with enough 1
The Board set the February 27 date after considering the parties' suggestions:
LILCO sought February 16 (Tr. 159-60); the Governments sought March 6 (Tr. 161); the Staff and FEMA sought February 23 (Tr. 162).
8702060060 B70130 4
'})f o 2 PDR ADOCK 05000322 7
O PDR
^
leeway to ensure that trial proceeded without being held up while awaiting testimony.
Suffolk County's counsel noted that the normal past practice in this proceeding has been to file testi-mony on a rolling basis (Tr. 158-59); LILCO's counsel agreed that this was the past practice.
Tr. 159.
LILCO's counsel offered only the following comment on this matter:
I've got just one concern, and that is that the initial slug of testimony filing be substantial enough that we've got enough in the can to keep the hearings going as we defer some issues.
That may be a matter as to which the parties ought to try to get together.
We've been reasonably successful at that in the past.
And bind ourselves to making a proposal to the Board certainly not late than the conference, which the Board now has scheduled probably on the 10th or so of February.
Tr. 159.
Notwithstanding LILCO's lack of objection on January 6 to the rolling testimony procedure, LILCO on January 20 moved this Board to alter the January 6 schedule in a fundamental manner:
to order that all testimony on all issues be filed on February 27.
See LILCO's Motion Concerning Prehearing Schedule, January 20, 1987.2 2
LILCO's Motion seeks Board action on a number of other matters as well.
For instance, LILCO seeks an order compelling the parties to confer prior to February 10 on the order that issues should be heard.
The Governments intend to do this; indeed, on January 6, this was proposed and no party objected.
Tr. 159.
LILCO also seeks an order mandating that discovery must be completed by February 6, even if it requires double-tracking of depositions.
No such order should be considered.
The parties (footnote continued) e LILCO's Motion should be dismissed out of hand.
LILCO had i
an opportunity to argue on January 6 that all testimony should be filed at one time.
LILCO made no such argument, even though the January 6 conference was held at LILCO's urging and proceeded pursuant to an agenda submitted by LILCO.
Having failed even to raise the issue on January 6, this Board should refuse to enter-tain the issue now.3 f
l In the event the Board does not reject LILCO's Motion out of y
' l
]
hand, the Governments respond as follows to LILCO's Motion and will be prepared to discuss the matter further at the February 10 l
conference.
3 (footnote continued from previous page) have been endeavoring to do their best to complete discovery by February 6 under an already draconian schedule, made far worse by the recent snow emergencies which have caused deposition cancellations /reschedulings.
The Governments expect that most discovery will be completed by February 6, although a deposition of at least one LILCO witness (identified by LILCO after January 23 due to the snow emergencies) will likely take place after February 6.
This and related matters are appropriately set i
for discussion on February 10.
3 In its January 9 letter, LILCO attempted to link a change in the testimony filing procedure to its decision to forego summary disposition motions.
Egg letter from Donald P.
Irwin to Licensing Board, January 9, 1987.
However, it was crystal clear on January 6 that the Board's schedule -- including the procedure that testimony would be filed on a rolling schedule -- was premised on there being no summary disposition motions.
Egg Tr. 150, 154, 157.
Thus, LILCO's decision on January 9 to forego summary disposition motions is irrelevant to the instant scheduling matter and provides no excuse for LILCO's failure to object on January 6 to the procedure which was agreed upon at that time.
l e
s 0
First, LILCO urges, in essence, that counsel for Suffolk County was not telling the truth when counsel stated in a January 15 letter to the Board (copy attached) that a February 27 date for submitting all testimony would be impossible, gee Motion at 4.
LILCO's generalizations about the numbers of lawyers working on this case, etc., are irrelevant.
The fact is that it would be impossible for the Governments to file all testimony by February 27.
Counsel for the Governments are working as diligently as possible.
The deposition schedule has been so demanding as to virtually preclude work on testimony.
Further, we have lost substantial time due to the snow emergen-cies -- just meeting the February 27 date for a first round of testimony will be very difficult.
The existing schedule has been made all the more difficult by the need to devote resources to FEMA's appeal (scheduled for argument before the Appeal Board next week), and matters in the OL-3 proceeding (where, like here,
)
~
LILCO is pressing for schedule changes after the Board issued a scheduling order).
And it similarly is clear that in the future, the crush of work will be no loss substantial.
For instance, LILCO has recently filed an exemption request which must be analyzed and answered.
In short, any fair-minded person must recognize that a February 27 date for the filing of all testimony is impossible.
Second, since January 6, the Governments have premised their discovery and trial preparation activities on the basis of the Board's January 6 schedule, i.e.,
a first-round of testimony to be filed February 27 and other testimony to be filed thereafter.
It would be grossly unfair at this late date to alter that schedule.
It would cause prejudice to the Governments who have relied in good faith on the schedule previously adopted.
Third, LILCO provides no logical reason to justify the 1
['
filing of large amounts of written testimony on February 27 which will just sit in counsel's and the Board's offices for weeks i
because the hearing will be progressing in Long Island on other issues.
Such a procedure simply makes no sense.
Given the volume of testimony it appears LILCO and the Governments intend to file, it seems unlikely that once the hearing begins, the parties or the Board would even have time to read, much less analyze or work on, testimony relating to any issues other than those scheduled in the near future for trial.4 In sum, there does not appear to be any good reason to require the parties and their witnesses to telescope all their efforts into a very short time -- merely to meet an arbitrary filing date -- and then to have large portions of the written testimony sit, unread, and 4
LILCO urges that filing all testimony at one time will be helpful to the Board.
Egg Motion at 3.
It is presumptuous for LILCO to assert that it knows what is best for the Board, particularly since the only comment by the Board on January 6 was that a rolling schedule for testimony submittal was best for the Board.
Egg Tr. 159 (Paris) ("I think it's easier for the Board to keep up with if it comes in on a rolling schedule.")..--_ _ ___ -.
unused in the hearing.5 Filing testimony sufficiently in advance of the hearing to permit the Board and parties to review it and prepare for cross-examination is reasonable and sensible.
The Board should not change its ruling that testimony should be filed on a rolling basis.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 M
HWrbert H.
Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Act ineys for Suffolk County 5
Of course, if any parties wish to file their testimony all at once -- for example, because (as is the case with FEMA) they have only one witness panel which will submit one piece of testimony addressing all issues -- they should be allowcd to do so.. -.
s ha M0%no i
Fabian G.
Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York if$
St'eph4en B.
Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton e-a.,
,4 m-
-,m
,-----w,3-n-c
~
e KIRKPATRICK & LOCKHART SouTN LOBBY 9TH floor EXCHA)CE PLACI 1800 M STREET, N.W.
smaT WASHINGTON, D.C. 20045091 esm 1274 son 14M MEUR AWMA MIAMI. PL 33131 TELEPHOPE 00D 77&M 0 05) 374 4 812 tuux om n oc u
,,,, m u,.
TEtaCOfER 000 77H100 FITTSOWLOH. PA I5222-53M ICARLA J. LETSCIE idlD 35545'8 aan nsenee January 15, 1987 BY TELECOPY John H. Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gentlemen:
This letter responds to that of Donald P.
Irwin, dated January 9, 1987, concerning LILCO's decision not to file summary disposition motions in the exercise litigation.
Suffolk County is willing to forego the opportunity to file such motions, and, accordingly, agrees that there is no need for filings on January 16, or a conference call on January 20.
In his letter, Mr. Irwin requests a change in the schedule agreed to by the parties and set by the Board during the January 6 conference of counsel -- that is, he suggests that all testimony should be filed on February 27, rather than on a rolling basis as suggested by the Board and discussed and agreed to by the parties during the conference.
For the reasons already stated, Suffolk County sees no need for, or benefit to such a proposal; indeed, it would be counterproductive and, in any event, not possible within the three week period now in the schedule between the close of discovery and the first testimony filing date.
Since Mr. Irwin has filed no motion for a change of schedule, however, and indeed, in his letter he stated no reason or justification for changing the ruling already made by the Board, the County does not discuss his request any further here.
The County does note, however, that the rolling schedule already agreed to was based upon the assumption that there world be no summary disposition motions.
Thus, LILCO's decision to forego such motions certainly provides no basis for a change in the schedule.
i KIRKPATRICK & LOCKHART John H. Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon January 15, 1987 Page 2 Finally, the County has also received the letter to the Board from FEMA counsel William R. Cumming dated January 13, 1986.
The County's initial view is that FEMA's proposals should not be accepted.
However, the matters raised by FEMA are more appropriately discussed after the close of discovery, when the parties will have a better handle on how the hearing will proceed.
Accordingly, the County believes Mr. Cumming's concerns should be discussed during the conference of counsel scheduled for February 10, 1987.
If the Board should desire the County's views at the present time, however, the County requests that the Board so advise the undersigned.
The County is authorized to state that the State of New York and the Town of Southampton agree with the views expressed herein.
Sincerely, Ka la J. Letsche Attorney for Suffolk County KJL: sir cc:
Service List (Telecopy to counsel for LILCO, FEMA, and NRC Staff)
_~ _ _. - _ _ _. -,
~ -
=1 1
OG,L.KE.,3. !
.y: -
January.30m1E997 T3I t to > " ' '
UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSIk.hy,.
'#A x!
e.-
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, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S MOTION CONCERNING PREHEARING SCHEDULE have been served on the following this 30th day of January 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 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 Mr. L.
F.
Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 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 LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H.
Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 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 Mr. Jay Dunkleburger Bernard M.
Bordenick, Esq **
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223 1
5
___-__,r._._..
Oi i
1 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
/C Lawrence Coe Larf her KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 By Hand By Telecopy d
7-..
_-n
.-.4_
-