ML20212C316
| ML20212C316 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/19/1986 |
| From: | Zannleuter R NEW YORK, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1982 OL-5, NUDOCS 8612300014 | |
| Download: ML20212C316 (7) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 DEC 23 PS:00 Before the Atomic Safety and Licensino Board -
DCC/ ' '
)
In the' Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
STATE OF NEW YORK'S RESPONSE TO LILCO'S MOTION TO FILE A REPLY, AND TO THE REPLY ITSELF, IN THE MATTER OF "LILCO'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO NEW YORK STATE" On December 9, 1986, LILCO served a motion to file a reply,1 and the reply itself,2 in the matter of "LILCO's First Set of Interrogatories and Requests for Production of Documents to New York State" (November 3, 1986) ("LILCO's discovery requests").
LILCO's Reply Motion claims at 3 that a reply is necessary because the State raised new arguments in its' opposition 3 to 1
LILCO's Motion to File a Reply to New York State's Opposition to LILCO's Motion to Compel (December 9, 1986)
("LILCO's Reply Motion").
2 LILCO's Reply to New York State's Opposition to LILCO's Motion to Compel (December 9, 1986) ("LILCO's Reply").
3 State of New York's Opposition to LILCO's Motion to Compel (December 4, 1986)
(" State's Opposition").
LILCO's Reply Motion at 2 claims that the State's Opposition was " filed in the name of New York State."
The undersigned counsel prepared, signed and filed the State's Opposition -- LILCO's inappropriate statement should be ignored.
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LILCO's motion to compel.4 however, the theme of the State's Opposition was n21 a new argument.
The theme was that the Board already ruled in its October 3 Order that comparisons between the Shoreham exercise and exercises at other nuclear plants are irrelevant to this proceeding.
Whether the exercise per se is not materially different from other FEMA-approved scenarios at other nuclear plants is irrelevant.
Id. at 7.
The State clearly identified this objection in its initial response 5 to LILCO's discovery requests.
Since LILCO's Reply is little more than a second-thought embellishment of its Motion to Compel, LILCO's Reply Motion should be denied and LILCO's Reply should be ignored.
Nevertheless, if the Board decides to consider LILCO's Reply, the State Requests that the Board also consider the following response by the State.
A.
LILCO's Discovery Requests Are Irrelevant in Light of the Board's December 14, 1986 Memorandum and Order The first two subheadings of LILCO's Reply assert at 1 and 5 that " Exercise Litigation Cannot be Confined Solely to Shoreham" and "Shoreham Should Not be Held to a Higher Standard Than Other Nuclear Power Plants."
The Board recently repudiated both of 4
LILCO's Motion to Compel New York State to Respond to LILCO's First Set of Interrogatories and Requests for Production of Documents, and Request for Expedited Response and Disposition (November 24, 1986)
(" Motion to Compel").
5 State of New York's Response to LILCO's First Set of Interrogatories and Requests for Production of Documents (November 19, 1986). _.
LILCO's arguments.
In the Board's Memorandum and Order (Ruling on FEMA's Motion for Reconsideration of and Intervenors Objections to October 3, 1986 Prehaaring Conference Order), dated December 11, 1936, the Board stated:
[W}e have not opened the hearing to issues concerning its [ FEMA's} conduct and design of the exercise, nor have we determined that the exercise must be the best possible.
Id. at 14.
If the hearing has not been opened to issues concerning FEMA's conduct and design of the February 13, 1986 exercise, then the type of information that LILCO seeks to discover from the State about FEMA's conduct and design of other exercises is simply not relevant to the subject matter involved in this proceeding.
Accordingly, LILCO's discovery requests are not permitted by Section 2.740(b)(1) of the NRC's Rules of Practice because they are not calculated to lead to the discovery of admissible evidence.
Furthermore, LILCO's Reply mentions that the Board previously refused to admit into evidence "a portion of LILCO's testimony" on Contention 92 because testimony about other plants in New York State was not relevant.6 The substance of the stricken testimony is instructive.
Among other things, the Board struck the following sentence on irrelevancy grounds:
State employees have participated in drills for Rockland County to practice this involve-ment.
6 LILCO's Reply at 4.
Cordaro et al. ff. Tr. 13,899, at 6; Tr. 5,564 (Laurenson).
If evidence pertaining to State involvement in a drill for Rockland County was previously irrelevant and inadmissible, then the same type of information that LILCO now seeks is just as irrelevant and just as likely not to lead to the discovery of admissible evidence.
B.
LILCO's Discovery Requests Are Overly Broad and Undulv Burdensome LILCO's Reply claims at 6 that if the State had an objection to LILCO's definition of "New York State personnel," then the State should have raised the objection in the Governments' response to one of LILCO's earlier discovery requests, "LILCO's First Set of Interrogatories and Requests for Production of Docu-ments to Suffolk County, New York State and Town of Southampton" (October 29, 1986).
There was no need for the State to make such an objection at that time because every interrogatory and docu-ment request pertained to monitors of the February 13, 1986 exer-cise or witnesses in this proceeding.
Since the only persons who fell within those two categories at that time were counsel for the State of New York, the discovery request did not constitute an undue burden.
However, with regard to the pending discovery request concerning other exercises at otntr nuclear power plants, the definition of New York State personnel is so broad that it could now include federal or local government personnel (who may have acted "in concert" or " assisted" the State) as well as __
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private citizens.
The State is not in a position to, and should not be required to, bear the burden of obtaining information from such persons.
C.
LILCO's Reply Contains a Misrepresentation that Should be Ionored Footnote 3 of LILCO's Reply at 6 states that the State has "for all appearances, allowed counsel for Suffolk County to act as lead counsel for all Intervenors."
This is false.
Counsel for Suffolk County does not and may not represent the interests of the Statt, has no status that is superior to the status of counsel for the State (Special Counsel to the Governor) or coun-sel for the Town of Southampton (Twomey, Latham & Shea), and has not been authorized to act as " lead counsel for all Intervenors."
LILCO's irresponsible statement should be ignored.
D.
Conclusion LILCO's Reply Motion should be denied and LILCO's Reply should be ignored.
In the alternative, the Board should consider the responses set forth herein.
Respectfully submitt d,
/
' Richard J Z p )n euter Deputy Sp ar Counsel to the Governor Executive Chamber Capitol, Room 229 Albany, New York 12274 December 19, 1986.
00LMEIU December 19fN1986 UNITED STATES OF AMERICA 86 DEC 23 P5:00 NUCLEAR REGULATORY COMMISSION GFF V -
Before the Atomic Safety and Licensino Bhrid w,.
- g[nf B R;au. "
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Fower Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of STATE OF NEW YORK'S RESPONSE TO LILCO'S MOTION TO FILE A REPLY, AND THE REPLY ITSELF, IN THE MATTER OF "LILCO FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO NEW YORK STATE" have been served this 19th day of December 1986 by U.S. mail, first class, except as otherwise noted.
John H. Frye, III, Chairman
- Spence W. Perry, Esq.
Atomic Safety an.d Licensing Board William R. Cumming, 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 Dr. Oscar H. Paris
- Mr. Frederick J.
Shon*
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
o c
Bernard M. Bordenick, Esq.
Anthony F. Earley, Jr., Esq.
U.S. Nuclear Regulatory Comm.
General Counsel Washington, D.C.
20555 Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801 Mr. William Rogers W. Taylor Reveley, III, Esq.*
Clerk Hunton & Williams Suffolk County Legislature P.O.
Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr.
L. F.
Britt Stephen B. LatFla, 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 4
MHB Technical Associates Hon. Peter Cohalan I
1723 Hamilton Avenue Suffolk County Executive Suite K H. Lee Dennison Building San Jose, California 95125 Veterans Memorial Highway Hauppauge, New York 11788 Martin Bradley Ashare, Esq.
Herbert H. Brown, Esq.
Suffolk County Attorney Lawrence Coe Lanpher, Esq.
Bldg, 158 North County Complex South Lobby - 9th Floor Veterans Memorial Highway 1800 M Street, N.W.
Hauppauge, New York 11788 Washington, D.C.
20036-5891 David A. Brownlee Mr. Phillip McIntire Kirkpatrick & Lockhart Federal Emergency Management 1500 Oliver Building Agency Pittsburgh, Pennsylvania 15222 26 Federal Plaza New York, New York 10278 By Telecopy
' Richard n euter Deputy S 1
Counsel to the Governor Capitol, Room 229 Albany, New York 12274
-.