ML20212C961

Motion of Suffolk County,State of Ny & Town of Southampton for Rev of Hearing Schedule in Light of FEMA Inability to File Testimony Until 870320.* Requests That Hearing Be Held After FEMA Testimony Filed.W/Certificate of Svc

ML20212C961
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/27/1987
From:	Latham S, Letsche K, 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-#187-2643 OL-5, NUDOCS 8703040033
Download: ML20212C961 (7)

Text

Zb b a

DXKETED mam February 27, 1987

'87 WR -2 P 4 :44 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 5U Before the Atomic Safety and Licensino BoaFd-

)

In the Matter of )

)

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

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

MOTION OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON FOR REVISION OF HEARING SCHEDULE IN LIGHT OF FEMA'S INABILITY TO FILE TESTIMONY UNTIL MARCH 20, 1987 By letter dated February 26, 1987, counsel for FEMA informed the Board and parties that due to the illness of one of the FEMA witnesses, FEMA would be unable to file any testimony in this proceeding on February 27, the date set by the Board for the filing by all parties of testimony on Contentions Ex 22.A, Ex 34, Ex 40, Ex 41, Ex 36, Ex 47, and Ex 49.1 Instead, FEMA's counsel announced in his letter that FEMA does not intend to file any testimony until Friday, March 20, 1987.

The purpose of this Motion is to request that the Board revise the March 10 scheduled starting date for the hearing in this proceeding, in light of FEMA's reported inability to comply 1 Counsel for FEMA had previously indicated that FEMA intended to file its testimony on all issues, on February 27. The Board's February 13 Order required FEMA to " file its testimony on all contentions, organized in the (identified] groupings, on February 27." February 13 Order at 9.

0703040033 070227 PDR ADOCK 05000322 h[)$ )

G PDH -

1 i

with the schedule set by the Board. Such revision is essential to protect the due process rights of all the parties, and to permit the hearing to proceed in a fair and efficient manner.

Specifically, the Governments submit that the hearing should be postponed for two weeks -- to March 24 -- so that the parties (and the Board) will have received, and had an opportunity to review, FEMA's direct testimony on the issues to be pursued initially at the hearing prior to their having to present their -

respective affirmative cases or conduct any cross examination on l those issues.

DISCUSSION ,

As the Board is aware, the Governments and LILCO are filing today their direct testimony on the so-called " Group 1" conten-tions pursuant to the Board's February 13 Order. According to that Order, the hearing is scheduled to begin on the Group 1 contentions on Tuesday March 10, after the parties have had an opportunity to review the testimony of the other parties on those contentions and, in light of that review, to prepare to present their respective cases, both affirmatively and through cross examination, on the issues raised in those contentions. FEMA's last minute announcement that it does not intend to comply with the Board's scheduling order by filing its testimony on the date set, has made it impossible to proceed with the hearing without severely prejudicing the Governments (and perhaps other parties as well).

o i T

FEMA's testimony on the matters raised in the Exercise contentions, and its explanation of its findings and conclusions about the Exercise results as set forth in the Post Exercise Assessment or elsewhere, are critical in this litigation.

Indeed, FEMA's findings and conclusions, and its bases, are expressly referenced in the admitted contentions themselves; sometimes they are relied upon, and in many instances they are disputed. It is essential that the Governments have an opportunity to review FEMA's direct testimony on those contentions before they can reasonably be expected to begin presentation of their case on those issues. Clearly, counsel's decisi;as concerning such things as what facts or data must be elicited through cross examination and how that can and should be 1 done, what witnesses or portions of testimony can, or should, be discredited and how to go about doing so, what exhibits need to be introduced through cross examination (because they are not contained in any parties' direct testimony), and the like, cannot be made in the absence of the testimony of FEMA, which, in many respects, is the central party in this case.2 e

2 Moreover, the discovery which was undertaken of the FEMA witnesses was not very productive with respect to the details of their intended testimony. For example, at the time the panel was deposed, Mr. Kowleski had not yet even reviewed the Contentions, he was not even sure he would be a witness, he had not begun preparing any testimony, and he had not reviewed even the preliminary outlines prepared by other panel members on a very limited number of contentions. Similarly, the other panel members had not reviewed all the contentions with an eye toward testimony, and at the time of the deposition, had not yet completed their analysis or determined any details about their testimony even with respect to the contentions they had considered.

l

i Accordingly, the Governments believe and move that the only fair response to FEMA's recent announcement is to hold the beginning of the hearing in abeyance until several days after FEMA has filed its testimony, at least on the Group 1 issues. If the March 20 FEMA filing date is accurate, the Governments believe that the hearing could begin the following Tuesday, March 24, which would allow three days for reviewing the FEMA testimony, and incorporating the results of that review into counsel's decisions as to how to proceed at the hearing.3 FEMA's inability to comply with the Board's schedule, and its unilateral last minute announcement of that fact, are unfortunate and undeniably inconvenient. This new situation, and its ramifications upon the rights of other parties, must be addressed, however, and they must be addressed quickly. Should the Board deem it necessary or advisable to convene a conference, by telephone or otherwise, to discuss the FEMA announcement and this Motion, the Governments are generally available for such a conference, including today. In addition, if the Board so requests, the undersigned counsel will endeavor to survey the other parties to ascertain their availability for such a conference.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 3

If FEMA could be compelled by the Board to file its Group 1 testimony by March 6, the trial could proceed as scheduled on March 10.

T Q.f l \

2 k n' 7 ,}/

b -)

Lawrence Coe Lanpher~

Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County 7 ,

f 6 gj { ]/!/_ ft_ o ~ ~

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 i 7

/G; Stephen 5. Latham 6MM&V' Twomey,DLatham & Shea

~

P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton Y

00( r;[ T[p LMc February 27, 1987

'87 MAR -2 P4 M4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Grr:c - ,

00CM (tv r ; pyn Before the Atomic Safety and Licensing Board ? ? ^ N}

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,

) (EP Exercise)

)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of MOTION OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON FOR REVISION OF HEARING SCHEDULE IN LIGHT OF FEMA'S INABILITY TO FILE TESTIMONY UNTI MARCH 20, 1987 have been served on the following this 27th day of February, 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

't Anthony F. Earley, Jr., Esq. Richard G. Bachmann, Esq.*

General Counsel Myron Karman, Esq.

Long Island Lighting Company Charles A. Barth, Esq.

175 East Old Country Road George E. Johnson, Esq.

Hicksville, New York 11801 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Ms. Elisabeth Taibbi, Clerk Suffolk County Legislature W. Taylor Reveley, III, Esq.*

Suffolk County Legislature Hunton & Williams P.O. Box 1535 Office Building Veterans Memorial Highway 707 East Main Street Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L. F. Britt Stephen B.

Long Island Lighting Company Latham, Esq.

Twcmey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York Wading River, New York 11901 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 i

MHB Technical Associates lion. Michael A. LoGrande 1723 Hamilton Avenue Suffolk County Executive Suite K San Jose, California H. Lee Dennison Building 95125 Veterans Memorial Highway Hauppauge, New W rk 11788 Martin Bradley Ashare, Esq. Fabian G. Palomina, Esq.

Suffolk County Attorney Special Counsel t o the Governor Bldg. 158 North County Complex Executive Chambe;, Rm. 229 Veterans Memorial liighway State Capitol llauppauge, New York 11788 Albany, New York 12224 David A. Brownlee, Esq. Mr. Philip McIn: ire Kirkpatrick & Lockhart Federal Emergency Management 1500 Oliver Building Agency Pittsburgh, Pennsylvania 15222 26 Federal Plaza New York, New York 10278

=Y K/ /

• ; / V/ /(_

By Telecopy Karla J. Le t scbe' KIRKPATRICK Jf LOCK!! ART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891