ML20214B041
| ML20214B041 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/13/1987 |
| From: | Case D, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3465 OL-3, NUDOCS 8705200071 | |
| Download: ML20214B041 (14) | |
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I May 13,01SR7u UW<c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 17 MM 18 PI :16 Before the Atomic Safety and Licensina Board 0Ff tE._.
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00Cntrui, w avul BMNCH
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In the Matter of
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Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY
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(Emergency Planning)
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(Shoreham Nuclear Power Station,
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Unit 1)
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SUFFOLK COUNTY AND STATE OF NEW YORK'S RESPONSE TO LILCO'S MOTION FOR ACCEPTANCE OF PROTECTIVE ORDER On April 30, 1987, the Board issued a Memorandum and Order granting the motion of Suffolk County and the State of New York (the " Governments") to compel LILCO to produce certain information relied upon in LILCO's direct testimony.
Memorandum and Order (Ruling on County and State Motion to Compel of April 13, 1987) (April 30, 1987) (the " Board Order").
In particular, the Board specifically ordered that " Applicants are to make avail 1ble to Intervenors the information they seek that underlies the table Mr. Daverio presents in answer to Question 16, and his introduction to it, in LILCO's testimony at 16.
The information not vet furnished consists of the identities of the individuals that furnished the data."
Board Order at 8 (emphasis added).
The Board also ordered LILCO to submit a proposed protective order which would shield the individuals so identified from possible harassment, intimidation or pressure.
8705200071 B70513 PDR ADOCK 05000322 O
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0 On May 7, 1987, LILCO submitted a proposed protective order as part of a Motion for Acceptance of Protective Order or in The Alternative for Stay of Requirements of April 30, 1987 Order and for Expedited Referral or Certification (the "LILCO Motion").
In brazen disregard of the Board Order, the LILCO Motion and the accompanying protective order seek to deny the Governments the very information which this Board ordered disclosed -- the identities of the individuals that furnished the data to Mr.
Daverlo.
Specifically, the proposed protective order conceals the identities of LILCO's secret sources from the Governments and contemplates that LILCO disclose to the Governments only that information LILCO unilaterally believes to provide a prima facie indication of the reliability of information reported to Mr.
Daverio.
LILCO's Motion and proposed protective order are nothing less than a contemptuous and arrogant attempt to reargue this Board's Order.
In doing so, LILCO insults this Board and wastes everybody's time.
Furthermore, the LILCO Motion, with its groundless assertions of intimidation and harassment, is insulting to the Government's counsel -- not to mention childish.
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o e
As before, LILCO's effort to conceal information must be rejected because LILCO is attempting to deprive the Governments of their discovery rights.
Moreover, LILCO's argument that this issue ought to be certified to the Appeal Board is unsupported in the law and should also be rejected.
LILCO should be ordered to disclose the information this Board has already ordered to be disclosed without any further issue delay or face the sanction of '.taving the testimony at stricken.
Although the Board has rightfully placed the onus of preparing a protective order on LILCO, given LILCO's unreasonable and arrogant position, the Governments will prepare a protective order which addresses LILCO's concerns within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of a Board Order to submit such an order.
I.
LILCO IS ATTEMPTING TO REARGUE AN ISSUE DECIDED BY THIS BOARD Having failed in its unilateral effort to conceal the identities of the individuals who provided information to Mr.
Daverio about reception center monitoring capacity, LILCO is now attempting to enlist the Board in this concealment by proposing a protective order which actually prevents disclosure to the Governments of the information this Board has already ruled should be revealed, subject to reasonable protections.
The Board Order was clear:
LILCO is to provide the Governments with the identities of the individuals that furnished the data cited in Mr. Daverio's direct testimony.
Rather than obey this directive, t
4 LILCO submitted a proposed protective order which not only fails to provide the information at issue, but demonstrates LILCO's intention to withhold such information in the future.
In particular, LILCO's proposed protective order provides only that LILCO describe those utility and county personnel to the Governments in such a way as "to (1) provide a crima facie indication of the reliability of the information reported, based upon the level and nature of responsibility for the specific j
radiological plan for monitoring evacuees in that county, and to enable the Intervenors to conduct their own investigation of (2) the validity of the data testified to by the applicant."
Proposed Protective Order at 1-2.
The proposed protective order further provides that all contacts by the Governments for the purpose of investigating the relevant portion of Mr. Daverio's testimony are to be reported in writing to LILCO and the Board.
Proposed Protective Order at 3.
An order of the Licensing Board apparently means nothing to LILCO, for the Board ordered that the identity of those who gave information be disclosed.1/
As justification for its effort to 1/
LILCO mischaracterizes the Board's Ruling by stating that
" striking a balance between the competing interests it
- saw, the Board ordered LILCO, subject to an ' appropriate protective order' to 'make available to Intervenors the information they seek that underlies (Mr. Daverio's testimony]'."
LILCO Motion at 2.
This cle. :rly edited statement fails to quote the sDecific QIf.
Sf the Board that:
Applicants are to make available to Intervenors 4-
e
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obtain reconsideration, LILCO seizes upon the Board's unremarkable statement that this litigation has occurred "in an I
~
acrimonious atmosphere" as a basis for submitting a new affidavit and a ten page brief on why the identities of the informants should not be disclosed.
LILCO's transparent attempt at rearguing the Motion to Compel should be rejected, for the Board has already ruled.
In fact, LILCO's Motion is merely another LILCO effort to deprive the Governments of their discovery rights (rights which this Board has already recognized) and to avoid legitimate scrutiny of its testimony.
Furthermore, LILCO's proposal that it be kept informed in writing of the Governments' legitimate investigation into its data is a proposal too outrageous to be given serious treatment.
II.
LILCO IS ATTEMPTING TO DENY THE GOVERNMENTS' LEGITIMATE DISCOVERY RIGHTS LILCO has submitted direct testimony on the issue of j
monitoring capabilities at other plants.
This information is specifically identified as being based on interviews with other utility and county officials, since "pubitely available documents do not provide enough information to determine monitoring i
the information they seek that underlies the table Mr. Daverio presents in answer to Question I
16, and his introduction to it, in LILCO's testimony at 16.
The information not vet furnished consists of the identities of the individuals that furnished the data._
Board Order at 8 (Emphasis added).
The Board th>1s specifically ordered the disclosure of the identities of those individuals who gave information to Mr. Daverlo.
i,
9 capabilities."
LILCO Testimony at 12.
Having raised this issue, LILCO then refuses -- even in the face of a Board Order -- to identify these county and utility officials on the grounds they might be harassed.
This cannot be allowed.
It is clear that LILCO wishes to present the Board with testimony, but deprive the Governments of the opportunity to challenge its weight by concealing the sources of the information summarized in the testimony /.
LILCO cannot have it both ways.
2 Both logic and precedent require that once a party uses evidence, the opposition must have an opportunity to challenge the evidence.
Egg United States v. Nobles, 422 U.S.
225, 239-240, 95 S.Ct. 2160, 2170-2171 (1975).
As this Board succinctly held, "the information cannot be both privileged and in the public domain.
It can either be in one category or another but not When it was made public the claim of privilege was lost."
both.
Board Order at 6.
LILCO is willing to provide the Governments with information 2/
which in LILCO's determination will provide a prima facie inves-indication of reliability and permit an independent How tigation.
This purported disclosure is an illusion.
are the Governments to assess reliability when they know only a general description of the position of the individual who provided the information?
Indeed, it is unclear under information LILCO's proposed protective order exactly what is to be provided to the Governments, since LILCO ascribes to itself the role of providing the information which it Accordingly, aside from being unrespon-deems appropriate.
sive the Board's Order, LILCO's proposed protective order will invite further litigation by opening the question of whether LILCO has provided enough information to demonstrate prima facia reliability..-
LILCO advances two basic arguments as to why the identity of its sources should not be disclosed.
First, LILCO contends that
" disclosure of the names of LILCO's sources would severely jeopardize" LILCO's ability to obtain manpower, equipment, backup power and information from other utilities and other counties in the State of New York.
LILCO Motion at 5.
This argument is not only absurd, but it patronizes the Board and is an affront to counsel for the Governments.
LILCO has never submitted any evidence that those who provided information to LILCO are fearful of exposure.
Rather, LILCO has taken it upon itself to assert such a conclusion.
LILCO's assertions are thus revealed as self-serving efforts to deprive the Governments of the oppor-tunity to challenge the weight of LILCO's testimony.
In addition, counsel for the Governments are members of the bar and officers of the court, and can therefore be expected to refrain from any misuse of information; especially guided by a reasonable protective order.
LILCO's second argument is that the Governments do not need to know the identity of the informants because LILCO will identify the sources to the Board and the Board " determines how much credence to give a source of information."
LILCO Motion at 7.
First, this argument ignores the fact that this Board should not be asked to assess the credibility of hearsay information solely on the basis of evidence one party unilaterally chooses to be heard by the Board.
This is an adversary proceeding which, N
like all adversary proceedings, is based on the premise that facts are best brought out by advocates for each position.
Second, LILCO fails to recognize that the Governments are entitled to discovery not only to assess the credibility of its sources, but also the accuracy of their information and whether LILCO has represented their information correctly.
The Governments cannot do this with only the information LILCO has determined it is willing to release.
The bottom line is this -- if LILCO's testimony cannot stand the light of day it should be withdrawn or stricken by this Board.
Time is running short and LILCO's game-playing is wasting everyone's time.
III. THE GOVERNMENTS ARE WILLING TO PREPARE AND ENTER INTO A REASONABLE PROTECTIVE ORDER The Board gave LILCO the opportunity to submit a protective order which would address LILCO's concerns, yet satisfy the LILCO has legitimate discovery interests of the Governments.
responded with contempt.
Although the burden of preparing such a protective order is properly on LILCO, in light of the fact that the hearing is close upon us, the Governments will submit their own proposed protective order within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of a Board directive to do so.
The Governments' protective order would restrict Government contacts with the LILCO's sources to Government attorneys or their employees, or to limited Government employees who agree to be bound by the terms of the protective
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order; would deem the identities of LILCO's sources as
" confidential;" would limit the dissemination of confidential information to counsel for the Governments and Government witnesses (who would agree beforehand to be bound by the protective order); and would limit the use of information derived from LILCO's sources, as well as the identity of the sources, to the hearing on the reception center issues.
Nothing more is reasonably required to protect LILCO's sources.
If LILCO believes that such a protective order would be insufficient, it should withdraw its testimony, IV.
LILCO'S MOTION FOR CERTIFICATION IS GROUNDLEEE a
The Board's Order is well grounded in logic and law; LILCO's request for certification, on the other hand, is unsupportable.
As in any adjudicatory system, interlocutory review of discovery matters is generally not permitted in NRC practice. 10 C.F.R. 52.730(f);
Pennsvivania Power & Licht Co. (Susquehanna Station, Units 1 and 2), ALAD-613, 12 NRC 317, 321 (1980).
- However, certification of an order and interlocutory review is permissible where a discovery ruling either (1) threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal; or (2) affects the basic structure of the proceeding in a pervasive or unusual manner.
Pucet Sound Power and Llaht Co._
1 (Skagit Nuclear Power Project Units 1 and 2) ALAB-572, 10 NRC
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a 693, 694 (1979).
The Board Order clearly does not affect the structure of this proceeding and, despite LILCO's groundless protests, does not threaten LILCO with irreparable injury.
In particular, the Governments are willing to enter into an to continue to appropriate protective order, or should LILCO want conceal the identity of its sources, it can withdraw its testimony and preserve the issue for appeal.
Such a situation is not the compelling circumstance that the certification procedure was designed for, and LILCO's Motion in this regard should be denied.3/
V.
CONCLUSION For the foregoing reasons, LILCO's Motion should be denied.
In light of the limited time available to the Governments to complete their investigation, the Governments respectfully 3/
fansas Gas and Electric Co. Kansas City Power and Licht Co.
(Wolf Creek Generating Station, Unit No. 1), ALAB 327, 3 NRC 408 (1978), cited by LILCO, is inapposite.
In Wolf Creek, the disputed document was a supply contract between applicant and Westinghouse, a third party.
The contract itself contained a non-disclosure provision, and an affidavit was submitted by Westinghouse detailing the information.
proprietary nature of the contract Nevertheless, the Licensing Board ordered the information released without a protective order.
In light of the situation, the issue was certified for review by the Appeal Daard.
The Wolf Creek case presents a dramatic contrast with the instant matter, for in the instant case LILCO has submitted no affidavit by a third party and the Governments are willing to enter into a reasonable protective order.
In circumstances such as the instant one, any claims by LILCO for irreparable injury are ludicrous.
'A request this Board to consider this matter expeditiously and to order LILCO to reveal the identities of its sources without any further delay.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway j
Hauppauge, New York 11788
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4sL Christopher M. McMurray David T. Case KIRKPATRICK & LOCMHART 1800 M Street, N.W.
South Lobby - Suite 900 Washington, D.C.
20036-5891 Attorneys for Suffolk County
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i db Y
u b$ Q Richard J. ZaMnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 capital Building Albany, New York 12224 Attorneys for Governor Mario M.
l Cuomo and the State of New York May 13, 1987 i
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May 13. n1987r c Uwc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 NAY 18 P1 :16 Before the Atomic Safety and Licensina Board gg DOCXLhte4. ~ m ici.
HANQ8
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In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
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CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY AND STATE OF NEW YORK RESPONSES TO LILCO'S MOTION FOR ACCEPTANCE OF PROTECTIVE ORDER have been served on the following this 13th day of May, 1987 by United States mail, first class, except as otherwise noted.
Morton B. Margulies, Esq., Chairman
- Joel Blau, Esq.
Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C.
20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline*
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
I
- o Mr. Frederick J. Shon*
Anthony F. Earley, Jr., Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 Ms.'Elisabeth Talbbi W. Taylor Reveley, III, Esq.**
Hunton & Williams Clerk P.O. Box 1535 Suffolk County Legislature 707 East Main Street Suffolk County Legislature Office Building Richmond, Virginia 23212 Veterans Memorial Highway 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 Docketing and Service Section Ms. Nora Bredes Office of the Secretary Executive Director 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 Hon. Michael LoGrande Mary M. Gundrum, Esq.
New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Veterans Memorial Highway Room 3-116 New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider North Shore Committee 1723 Hamilton Avenue P.O. Box 231 Suite K San Jose, California 95125 Wading River, New York 11792 Martin Deadley Ashare, Esq.
Fabian G. Palomino, Esq.
Richard J.
Zahnleuter, Esq.**
Suffolk County Attorney Bldg. 158 North County Complex Special Counsel to the Governor Veterans Memorial Highway Executive Chamber, Room 229 Hauppauge, New York 11788 Capitol Building Albany, New York 12224 Richard G. Bachmann, Esq.*
Mr. Jay Dunkleburger U.S. Nuclear Regulatory Comm.
New York State Energy Office Agency Duilding 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223
9 i
o 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 i
Douglas J. Hynes, Councilman i
Town Board of Oyster Bay Town Hall Oyster Ball, New York 11771 w)
David T. Case KIRKPATRICK & LOCKHART 1800 M Street, N.W.
l South Lobby - 9th Floor Washington, D.C.
20036-5891
- VIA HAND DELIVERY
- VIA TELECOPY May 13, 1987 l
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