ML20212N557
| ML20212N557 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/07/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2754 OL-3, NUDOCS 8703130072 | |
| Download: ML20212N557 (12) | |
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7 LILCO, Mat h 1987
'8I MIR -9 P12:30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFnCE Or ?rtrfic <
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U,Ni Before the Atomic Safety and Licensing Board 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 Station,
) (Reopened Reception Center Issue)
Unit 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 In accordance with 10 C.F.R. S 2.740(f), Long Island Lighting' Company ("LILCO")
moves this Board for an order compelling Suffolk County and the State of New York to respond to LILCO's Interrogatories and Requests for Production of Documents. In par-ticular, LILCO asks that the Intervenors be ordered to answer 'certain questions de-signed to discover possible inconsistencies between the Intervenors' views on Shoreham and their views on other nuclear plants in New York State.
I. Introduction On January 16,1987, LILCO propounded its "First Set of Interrogatories and Re-quests for Production of Documents" on Suffolk County and the State of New York (herein referred to as "Intervenors"). Among other things, these first discovery re-quests (in nos.11 and 12) seek a current list of relocation centers designated under emergency plans for nuclear power plants in New York other than Shoreham, and for each such relocation center, a statement of why it "is acceptable to New York State in contrast to LILCO's reception centers, which are not acceptable to the State."
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^ s Intervenors are asked to distinguish the centers they have found adequate from the LILCO centers using a list of criteria to be provided by Intervenors.
Intervenors submitted their response on January 30,1986, objecting on relevance grounds to these interrogatories and requests for production. In making their objection, Intervenors stated that:
The issue in this proceeding is "whether LILCO's emergency response plan contains adequate provision for reception centers for use by the public in the event of a radiological emergency 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 i
this proceeding is specific to the Shoreham plant, the provisions made for reception centers at other nucle-ar power plants are irrelevant, and are not proper subjects for discovery under 10 C.F.R. 2.740(b)(1).
Response of Suffolk County and State of New York to LILCO's First Set of Interrogato-ries and Request for Production of Documents Regarding Reception Centers ("Interve-nor's First Response") at 8 (emphasis in original).
LILCO propounded a Second Set of Interrogatories and Requests for Production of Documents regarding reception centers to Intervenors on February 4,1987. It contains three interrogatories seeking information about reception centers for nuclear power plants in New York State other than Shoreham. Interrogatory No. 37 seeks, for all nuclear power plants in New York State save Shoreham, information about (a) the capability of relocation centers to monitor people and vehicles for radioactive contami-nation within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> and (b) the capacity of these centers to decontaminate people and vehicles within any period for which Intervenors have information. Interrogatory 38 seeks information about whether relocation centers for nuclear power plants in New York State other than Shoreham are required to have (a) an SPDES permit or (b) an en-vironmentalimpact statement prepared under SEQRA or other state law. Interrogatory ju
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' No. 39 seeks information about efforts to determine whether the use of relocation cen -
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II ters for monitoring or possible decontamination would violate local zoning laws or any other state or local laws.
Intervenors objected to these discovery requests as well. In their response sub-mitted on February 20,1987, Intervenors again asserted that since the Licensing Board has determined that the issue in the present proceeding is the adequacy of the Shoreham facilities," matters concerning reception centers at other nuclear power plants are irrelevant...." Response of Suffolk County and State of New York to LILCO's Second Set of Interrogatories and Request for Production of Documents Re-garding Reception Centers at 16,17.
On March 3,1987 LILCO sent a Third Request for Production of Documents to the Intervenors (copy attached), this time asking for information about the capabilities of reception centers for other New York State nuclear plants to monitor evacuees and vehicles. The Intervenors have not yet responded to this request, but it is anticipated that they will once again raise the " relevance" objection.
LILCO's interrogatories and requests for production, described above, are proper under the NRC's Rules of Practice,10 C.F.R. SS 2.740,2.740(b), and 2.741. Indeed, In-tervenors have made relevance objections to similar requests in the past, and their ob-jections have been overruled. Intervenors should be ordered to respond fully to these requests now.
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LILCO does not concede that local zoning laws are an issue litigable in this pro-ceeding. However, since the Intervenors have made it clear that they will try to insert such an issue in the proceeding, LILCO is entitled to discover the facts related to the
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The Licensing Board Has Previously Held that Informat[on About Other Nuclear Power Plants is Relevant to thec Shoreham Licensing Proceeding -
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' On several occasions during the Shoreham licensing proceeding Intervenors, have i
argued that informat' ion about nuclear power plants other than ShcNhna are not rfile-
? w vant to Shoreham licensigg issues. The Board's mtion of these matters in the past m
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3 shows that LILCO's'curreat requests are appropriate. The most recent instance c
occurred in the emerger y planning exercise proceeding (tho -05 pjt,ceeding) in a Q
. setting almostJdenkical to the present one. Several contentions iri that proceeding as-
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. sert that the February 13,1986 FEMA graded emergency p!anning exercisept the f
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1 adequate because it was not a full participation enorcise. LILCO propound (d interroga-tories and requests for production of documents to Np York State seeking hformation 8'
about the State's participation tu previous FEMA gradedymergency planning exercises si for other nuclear power plants.
.g The State objected, argbing that information about exercises at other plants was
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si irrelevant to the determination whether the Shoreham exercise was adequatel In mak-ing this objection, the State relled on a Licensing Board order holding that to challenge
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the sufficiency of 'the Shoreham Exercise, Intervenors need not Dleadi that the n
Shoreham scenario was materially different from other FEMA-approved exercises. In that order, the Board stated that "(w]hether the exercise per se is not materially dif-u ferent from other FEMA-approved scenarios at other nuclear plants is irrelevant."
o; Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Sched-ule)(October 3,1986) at 7. The State leapt from this statement about what is relevant at the Dleading stage to the sweeping conclusion that the " matters pertaining to 1
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. FEMA graded exercises at other nuclear plants are irrelevant" at any stage. State of e
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New York's Opposillon to LILCO's Modon to Compel at 4 (emphasis in origia../. The State also argued that "no relevant comparison can be made between the scope and re-3
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Kssit of the Shoreham exercisA?&h those of the exercises at other nuclear plants" be-5
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.'s cause those other exercises invcipad different plants, plans, scenarios, personnel, local yy j
conditions, etc. Ld. at 6.
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The Board agreed with the State that "each nuclear plant site presents its own unique emergedey planning situation and that what may be' sufficient for one site may not be for anbther."# Memorandum and Order (Ruling on LILCO's Motions to Compel
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g, Crder)(Decemhr 19,1986) at 5. Nonetheless, neither this fact nor the
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K; ment about the pleading requirements supported a denial of LILCO's motion to compel:
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'LILCO correctly points out that the issue of whether this exercise constituted a full participation exercise should not be addressed in a vacuum. Indeed, we believe that informa-l V
tion regarding the scope of other full participation exercises is necessary in order to intelligently address that issue.
While it is true that what constitutes an acceptable full par-l ticipation exercise for cther New York plants will not nec-essarily establish the' standard for the Shoreham exercise, it 1
will at a minimum provide valuable background information.
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I The unique aspects of the Shoreham situation must be taken into account against this background.
[d. at 5-6 (footnotes omitted). The Board added that this conclusion does not conflict with its pr!br holding that contentions need not allege a deviation from past practice.
That conclusion, held the Board, "marely reflects the fact that each nuclear emergency -
planning situation is, unique; it does not dictate the conclusion which New York reaches I
that nothing oivalue can be learned from other situations." Ld. at 6. Accordingly, the 1
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Board held that the information sought was relevant and granted LILCO's motion to l
compel the State to respond to the discovery requests.
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ly unsuccessfufin their attempt to prevent LILCO from discovering information about
- other nuclear wer plants in New York State. LILCO filed a motion to compel the State to produce a copy of the New York State Radiological Emergency Preparedness Plan. See LILCO's Motion to Compel Zxpedited Production of the New York State Emergency Preparedness Plan (February 10,1984). LILCO argued that knowledge of the State Plan was "a unique and irreplaceable component in understanding how the (State] Disaster Preparedness Commission and other New York State agencies involved in radiological emergency response conceive and execute their dutias with respect to nuclear plants in New York...." and that it would enable LILCO "to understand the t
criticisms which New York State witnesses may make of the Shorenam Radiological Emergency Response Plan...." Id. at 3. The State of New York opposed the motion to compel, arguing that because the State Plan is different from the LILCO Plan, the requested information was irrelevant. See Memorandum of Governor Mario Cuomo, Representing the State of New Ycrk, in Opposition to LILCO's Motion to Compel Expe-dited Production of Documents u *!ew York State (February 13, 1984). The Board granted LILCO's motion to compel,' holding that the State Plan would "certainly be rea-sonably expected to lead to information regarding the attitudes and beliefs of authori-ties r'elled upon by New York in emergency planning matters...." Order Granting LILCO's Motion to Compel Expedited Production of the New York State Emergency Preparedness Plan (February 28,1984) at 4.
B. The Information Sought By LILCO is Relevant Given this background, it is clear that the information currently sought by LILCO is discoverable, particularly given the policy of liberal discovery in NRC pro-ceedings. See Suffolk County... Motion for Order Compelling the NRC Staff to
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_7 Respond... (undated; served February 27,1937), at 5. The basis for Intervenors' objec-tion is the Board's statement in'its order reopening the record on the reception centers issue that the " essential concern" in this proceeding is whether LILCO's emergency response plan contains adequate provision for reception centers for use by the public in the event of a radiological emergency at Shoreham.
Memorandum and Order (Rulings on LILCO Motion to Reopen Record and Remand of Coliseum Issue)(December 11,1986) at 15,16. See Intervenors' First Response'at 8 and J -
Intervenors' Second Response at 16,17. From this, Intervenors conclude that only in-formation about LILCO's reception centers is relevant. Intervenors' reasoning is incor-i rect.
As was the case when the State of New York objected to LILCO's request for in-formation about non-Shoreham exercises, Intervenors here misconstrue the statement on which they rely.. In this case, what was before the Board was LILCO's motion to re-open the evidentiary proceeding on reception center issues. The Board granted that motion. Having done so, the Board proceeded to frame the ultimate issue to be decided in the reopened proceeding. The Board did not have before it, however, nor did it de-cide, what information is relevant to that decision. Thus, the Board's December 11, 1986 Order does not support Intervenots' conclusion.
Moreover, the discovery sought is relevant. Obvious!y', if New York State does not require (for example) SPDES permits for other reception centers in the State, this fact is relevant to the State's apparent position that such permits are needed for l.
l' Shoreham reception centers. Moreover, while the ultimate issue of suitability is specif-l le to Shoreham f acilities, the standard for judging suitability is not. To determine i
j whether the Shoreham reception centers are uitable, it is first necessary to have some l
idea of what is suitable as a general matter. As was the case when the -05 Licensing l
Board granted LILCO's motion to compel the State of New York to provide information
I 9 about non-Shoreham exercises, this "should not be addressed in a vacuum." Memoran-dum and Order (Ruling on LILCO's Motion to Compel New York State to Answer LILCO's First Set of Interrogatories and for a Protective Order)(December 19, 1986),
at 5. Even if other reception centers are different in some degree from the LILCO fa-cilities, the State's treatment of other reception centers "will at a minimum provide valuable background information." I_d, at 6.
Each of LILCO's discovery requests seeks relevant information. Numbers 11 and 12 of LILCO's First Set of Interrogatories and Requests for Production, which seek a comparison of the LILCO centers with others that the State has deemed suitable, goes to the very heart of the issue in this proceeding - what it is that makes a reception center suitable and how LILCO's centers fare under this standard. Interrogatories 37 through 39 in LILCO's Second Set of Interrogatories and Requests for Production, though more narrowly focused, also seek information about the requirements for recep-tion centers. As explained above, this information will be helpful in analyzing the ade-quacy of the LILCO reception centers. The information sought, therefore, is relevant.
Likewise, LILCO's Third Request for Production of Documents seeks information about New York State's policy on what the capacity of reception centers should be. There is a clear need for discovery on this point; in a deposition on February 25,1987, New York State witnesses testified that NUREG-0654 calls for the capability to monitor 100 per-cent of the EPZ in about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. In a deposition on March 6,1987, a FEMA witness testified that in his experience New York State does not use a 100-percent criterion in planning for plants other than Shoreham.E 2/
LILCO has not yet received transcripts of these depositions and so cannot pro-vide page citations.
u Finally, LILCO's discovery requests can "certainly be reasonably expected to lead to information regarding the attitudes and beliefs of authorities relied on by New York...." February 28,1984 Order Granting LILCO's Motion to Compel at 4. Accord-ingly, LILCO's discovery requests are proper, and the Board should order Intervenors to respond fully to them.
III. Other Document Discovery Apart from the specific dispute regarding information about other New York State nuclear plants identified above, the Intervenors' responses to LILCO's requests for documents have been generally unsatisfactory. LILCO's first set of requests was filed by telecopier January 16; under this request, documents from the Intervenors should -
have been due February 16. LILCO asked for, among other things, documents on which Intervenors intend to rely in support of their position on the suitability of LILCO's re-ception centers.
There is now little more than one week lef t in the discovery schedule, and LILCO's testimony is duc March 30. Yet as of this date the Intervenors have produced hardly a single substantive document in this docket. They have produced five resumes of their witnesses. LILCO also received, postmarked March 2, a package of documents con'sisting of LILCO's procedures with marginal notes made by State witness Sarah Meyland; these documents were expressiy requested during Ms. Meyland's deposition on February 26. That is all the Intervenors have produced in response to LILCO's requests.
Intervenors have not even supplied an updated resume of their witness Susan Saegert, despite a promise to do so " shortly" made on February 25.
It is known that relevant documents exist. For example, County w uness Dr.
Stephen Cole has conducted an opinion survey on which he intends to rely on in his tes-timony. Despite requests that the results of this survey be produced, nothing has been
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s produced. Also,in their response to LILCO's Second Set of Interrogatories, Intervenors identified " analyses" being prepared to address the issue of traffic congestion. Re-sponse of Suffolk County... to LILCO's Second Set of Interrogatories... (Feb.10, 1987), at 4.
It is now too late for document discovery to be of any use in deposing Intervenor
. witnesses; only four such depositions are lef t. But the documents are necessary for LILCO to prepare its written testimony. Accordingly, LILCO asks the Board to order the Intervenors promptly to produce the documents requested in LILCO's written re-quests and, at a minimum, to produce all data and analyses on which State and County witnesses will rely at hearing.
l IV. Conclusion For the reasons stated above, LILCO respectfully moves that this Board enter an order, on an expedited basis, compelling Intervenors to produce the documents called for in LILCO's First and Second Sets of Interrogatories and Requests for Production of Documents Regarding Reception Centers and Third Request for Production of Docu-ments and to answer all LILCO's requests for information about reception centers for nuclear plants other than Shoreham.
Respectfully submitted
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-? :-i James N. Christman l
Stephen W. Miller Hunton & Williams 707 East Main StreAt l
P.O. Box 1535 l
Richmond, Virginia 23212 DATED: March 7,1987
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i LILCO, March 7,1987 00CKETED USNRC.
W IVIR -9 PI2:41 CERTIFICATE OF SERVICE TSCMETING A SEnvict FfCE OF SECN.iARY In the Matter of.
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of 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 were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mall, postage prepaid.
Morton B. Margulies, Chairman **
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission '
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407
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4350 East-West Hwy.
Richard G. Bachmann, Esq. **
Bethesda, MD 20814 George E. Johnson, Esq.
U.S.' Nuclear Regulatory Commission
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Dr. Jerry R. Kline **
7735 Old Georgetown Road l
Atomic Safety and Licensing (to mallroom) l Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers,' Rm. 427 Herbert H. Brown, Esq. **
4350 East-West Hwy.
Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq.
j.
Kirkpatrick & Lockhart Mr. Frederick J. Shon **
South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.
Board Washington, D.C. 20036-5891 i.
L U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq. **
4350 East-West Hwy..
Richard J. Zahnleuter, Esq.
l
'Bethesda, MD 20814 Special Counsel to the Governor l
Executive Chamber l
Secretary of the Commission Room 229 l
Attention Docketing and Service State Capitol Section Albany, New York 12224 U.S. Nuclear Regulatory Commission i
1717 H Street, N.W.
Mary Gundrum, Esq.
l Washington, D.C. 20555 Assistant Attorney General l
120 Broadway Atomic Safety and Licensing Third Floor, Room 3-116 Appeal Board Panel New York, New York 10271 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I
I 9-Spence W. Perry, Esq. **
Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. _**
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223
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James N. Christman Stephen W. Miller Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 7,1987
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