ML20212R690
| ML20212R690 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/27/1987 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2343 OL-5, NUDOCS 8702030046 | |
| Download: ML20212R690 (5) | |
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t 33h LILCO, January 27,1987 i
UNITED STATES OF AMERICA C0CKETE.-
MI NUCLEAR REGULATORY COMMISSION 29 A11 :18 Before the Atomic Safety and Licensing Board h"
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S REPLY TO NEW YORK STATE'S RESPONSE TO LILCO'S MOTION REQUESTING ISSUANCE OF SUBPOENAS, AND MOTION FOR LEAVE TO FILE LILCO respectfully requests the Board's leave to file the following reply to New York State's opposition to LILCO's January 20 Motion requesting issuance of subpoenas.
Good causa exists for this filing since if the Board does not grant the subpoenas re-quested there is a significant chance that the end of the discovery period on February 6 will deprive LILCO of the ability to obtain needed information from New York State, and since the pleading and affidavit filed by New York State today show on their face that New York State's sole proposed witness, General James Papile, is quallfled to an-swer questions relating to only two of the nine interrogatories which will form the basis for the deposition.
The State of New York's January 27 Response to LILCO's January 20 Motion Re-questing Issuance of Subpoenas should be rejected for the following reasons:
1.
The NRC regulation cited by New York State,10 CFR S 2.720(h)(2)(1), for the proposition that the State should receive the same treatment as the NRC Staff with respect to the production of persons for deposition, rather than being treated like any other entity, applies on its face only to the NRC Staff. New York State's state-law ar-I gument does not apply in the federal forum and the State has cited no federal authority for giving it preferential treatment relative to other parties.M l
l 1/
Even in the example of the application of 10 CFR 5 2.720(h)(2)(1) referred to by New York State - LILCO's acquiescence in the NRC Staff's production of Messrs. Weiss (footnote continued) h[k DO O 322
_ __ _ _ _ 3 PDR
(
a 6 2.
The result being sought by New York State cannot be reconciled with the Board's disposition of other requests for discovery from other participants in this pro-ceeding, including FEMA, a sister federal agency. There, counsel for FEMA resisted in-tervenors' requests for issuance of subpoenas for numerous observers and evaluators who were not proposed to be called as witnesses for FEMA. This Board overrode those objections and issued subpoenas for specified individuals on a showing of need by Inter-venors.
3.
New York State's state-law argument goes, in any event, only to the right to designate witnesses "in the first instance," leaving the discovering party to seex fur-ther subpoenas in the event that the initial witness or witnesses prove insufficient.
This might be workable, if cumbersome, at an earlier stage in discovery where time is not a constraint. However, it is virtually impracticable at this late stage in discovery, with a February 6 cutoff. The deposition session now in dispute is due to take place on February 3 in Albany - the only time and place agreeable to New York State. This is not only at the very end of the discovery period, but its lateness is due directly and solely to New York State's resistance at every turn of LILCO's timely attempts to gain legitimate discovery: LILCO filed the discovery request leading to the requested depo-sitions exactly three months earlier, on November 3, 1986.2/ If the Board grants New York State's argument it will either prevent LILCO from gaining discovery it needs or l
l force that discovery to take place following the close of the presently allotted period.
l (footnote continued) and Schwartz - the witnesses were both knowledgeable and known in advance to be so.
Had they not been, LILCO would have sought further witnesses.
2/
LILCO filed its interrogatories on November 3.
New York State opposed each one of them on November 19, forcing LILCO to seek a motion to compel discovery on November 24. This Board granted that motion on December 19. New York State still did not respond until January 20. LILCO, knowing the information that it needed and believing New York State's intended witness designation would be inadequate, filed its request for subpoenas on the same day, January 20.
In either event, New York State will have succeeded in thwarting discovery by obdura-cy or threaten further delay in this proceeding. The Board should not reward this ap-proach to discovery.
4.
General Papile's own affidavit, at paragraph 3, shows that his knowledge is not sufficient to cover the scope of the intended deposition. LILCO intends to cover subject-matter raised by all nine interrogatories propounded to New York State and by the State's January 20 responses to them. General Papile's affidavit, by contrast, at-tests to his knowledge only of the answers to Interrogatories 2 and 8. Thus, on its face his affidavit is insufficient to cover the subject-matter of the intended deposition. As the Board will see, Mr. Daverio's affidavit attached to LILCO's January 20 Motion for Issuance of Subpoenas indicated that the knowledge of all three gentlemen requested -
Messrs. Czech and Baranski as well as General Papile - is necessary to answer the 1
questions at issue.
For the foregoing reasons the Board should permit the above reply to be filed and should grant the subpoenas requested by LILCO of Messrs. Lawrence Czech and James Baranski and command them to appear for deposition on February 3 following the depo-sition of General Papile.
i Respectfully submitted, Donald P. Irwin Lee B. Zeugin Kathy E.B. McCleskey Counsel for Long Island Island Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 4
DATED: January 27,1987 1
4 LILCO, January 27,1987 cm m t.
M' CERTIFICATE OF SERVICE
'87 JAN 29 All :18 In the Matter of OH <M LONG ISLAND LIGHTING COMPANY
^ '
(Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S REPLY TO NEW YORK STATE'S RESPONSE TO LILCO'S MOTION REQUESTING ISSUANCE OF SUBPOENAS, AND MOTION FOR LEAVE TO FILE were served this date upon the following by telecopier, i
as indicated by an asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
John H. Frye, III, 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 4350 East-West Hwy.
Bernard M. Bordenick, Esq.
- Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers i
4350 East-West Hwy.
Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
l Karla J. Letsche, Esq.
Mr. Frederick J. Shon
- Kirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036-5891 East-West Towers, Rm. 430 4350 East-West Hwy.
Fabian G. Palomino, Esq.
- Bethesda, MD 20814 Richard J. Zahnleuter, Esq.
Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.
Washington, D.C. 20555 Mary Gundrum, Esq.
Assistant Attorney General Atomic Safety and Licensing 120 Broadway Appeal Board Panel Third Floor, Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555
4,
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 i
Public Service, Staff Counsel l
Three Rockefeller Plaza Albany, New York 12223 t
l Don ~ald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 l
DATED: January 27,1987 l
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