ML20214W080
| ML20214W080 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/04/1986 |
| From: | Zahnleuter R NEW YORK, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1820 OL-5, NUDOCS 8612100074 | |
| Download: ML20214W080 (19) | |
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State of New York Decem$dtKEffD1986 Uit;?.C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.86 DEC -8 P4 :54 Before the Atomic Safety and Licensino Board
)
)
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 OPPOSITION TO LILCO'S-MOTION TO COMPEL INTRODUCTION On. November 3, 1986, LILCO served the State of New York (the
" State") with a number of interrogstor'ies and document requests,l/ none of which pertain to'the February 13,,1986 Shoreham exercise which is at issue in this litigation.
- Rather, LILCO's discovery requests seek an enormous amount of detailed information on the nature and extent of the State's participation in FEMA-graded exercises at several nuclear power plants other than Shoreham.
A copy of LILCO's discovery requests is attached hereto as Appendix A.
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1/
LILCO's First Set of Interrogatories and Requests For Production of Documents to New York State (November 3, 1986)
/(" discovery requests").
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4 2-i In its November 19, 1986 response,2/ the State declined to comply with LILCO's discovery requests.
The State based its response principally on the Margulies Board's unequivocal ruling
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of October 3, 1986 that the focus of this proceeding is the Shoreham exercise and that comparisons to FEMA-graded exercises at other nuclear plants are irrelevant.
Egg Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule), at 7 (October 3, 1986) (" October 3 Order").
In addition, the State declined to comply with the discovery requests because they are overly br,oad and unduly burdensome.
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Further, the requests seek information and documents which were generated by FEMA or the NRC and which may be obtained more easily from those entities.
LILCO now seeks an Order from "this Board compelling the State to comply with LILCO's requests.3/
For the reasons stated below, LILCO's Motion should be denied.
2/
State of New York's Response to LILCO's First Set of Interrogatories and Requests for Production of Documents (November 19, 1986).
3/
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").
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a DISCUSSION A.
LILCO's Discovery Requests Are Irrelevant and Not Calculated to Lead to the Discovery of Admissible Evidence Section 2.740(b)(1) of the NRC's Rules of Practice provides that the scope of discovery encompasses:
any matter, not privileged, which is relevant to the subiect matter involved in the oroceed-ina
. It is not ground for objection that the information sought will be inadmis-sible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(Emphasis added)
In its October 3. Order,'the Margulies Board plainly defined the relevant subject matter involved in this proceeding--that is, whether the February 13, 1986--Shoreham exercise meets the NRC's regulatory requirements.
In doing so, the Board rejected LILCO's arguments tnat comparisons between the Shoreham exercise and exercises at other nuclear plants were within the scope of these proceedings.
Applicant claims, however, that for such a contention to be admissible Intervenors would have to allege that the scenario was materially different from other FEMA-approved scenarios at other nuclear plants.
Appli-cant's stated requirement is erroneous.
The correct requirement is that the emergency
, preparedness exercise meet the regulation standard of 10 CFR 50.47 and App.
E.
Whether the exercise per se is not materially different from other FEMA-acoroved scenarios at other nuclear plants is irrelevant.
It is the regulatory standard that must be met.
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October 3 Order, at 7 (emphasis added).
The Margulies Board's ruling could not be more clear:
the scoce of this oroceedino is confined to the Shoreham exercise, and matters pertaining to FEMA graded exercises at other nuclear olants are irrelevant.
LILCO's attempt to inquire into irrelevant matters surrounding other exercises thus flies in the face of the October 3 Order and Section 2.740(b)(1).
Furthermore, since all of LILCO's discovery requests seek information on matters which the Margulies Board precluded from inquiry, LILCO's requests cannot be considered reasonably caculated to lead to the discovery of admissible evidence.
Accordingly, the State correctly declined to respond to LLLCO's improper requests.
,,LILCO attempts to distinguish the Margulies Board's unequi-vocal ruling on grounds that it was issued in a different proceduraf context.
Motion, at 2-3.
Thus, LILCO advances the curious argument that matters held to be irrelevant in the plead-ing stage of this proceeding are nevertheless relevant for pur-poses of determining the merits of the case.
Id. LILCO's argu-ment is unavailing.
Regardless of the procedural stage that this proceeding is now in, the Margulies Board has ruled that facts pertaining to the State's participation in other FEMA-graded exercises have no bearing on whether the Shoreham exercise met the NRC's standards.
See October 3 Order, at 7.
To interpret the Margulies Board's language as LILCO would -- that matters pertaining to other exercises are irrelevant in the pleading
- stage of these proceedings, but gelevant in later stages --
simply defies the plain meaning and intent of the October 3 Order.
LILCO contends, however, that a comparison of the Shoreham exercise with the other exercises is relevant because the State participated to some degree in the other FEMA graded exercises and, LILCO asserts, "apparently accepted [them] as ' full partici-pation' exercises."
Thus, LILCO concludes:
if a comparison of the Shoreham exercise with those previous New York State exercise shows that the Shoreham exercise was equivalent --
or greater -- in scope or intensity, it would snow that the State's position in these con-tentions is without merit.
Motion, at 7.
In essence, LILCO's argument appears to be that if the State somehow " accepted" the scope of FEMA-graded exercises at other nuclear plants, and the scope of the Shoreham exercise' was greater or equal to some or all of those exercises, then the State is estopped from contesting the sufficiency of the Shoreham exercise.
This argument is flawed because there can be no mean-ingful comparisons between the Shoreham exercise and any other FEMA graded exercises.
Whatever the State may have " accepted", reviewed or prepared in its participation in other exercises involved plans, scenarios, resources, personnel, geography and local conditions which are different from those involved in the Shoreham exercise.
Most importantly, State and local governments participated in the other exercises, whereas there was no such participation in the
Shoreham exercise.
In this way, the Shoreham exercise and the LILCO Plan are absolutely unique.
Thus, even if LILCO were able to demonstrate that the Shoreham exercise was equal to or greater in scope or intensity than other FEMA-graded exercises, the ques-tion of what is the proper scope under the NRC's rules of a Shoreham-soecific exercise involving no State or local government participation would still remain unanswered.
In'short, LILCO's proposed comparisons would prove nothing.
LILCO also argues that discovery of the information it seeks about FEMA-graded exercises at other nuclear plants is relevant because such information provides:
the most logical, perhaps the only, available yardstick by which the scope of the Shoreham exercise can be measur,ed in determining whether [the Shoreham exercise] was a " full participation" exercise within the regula-
'tions.
Motion, at 5.
Again, the other exercises provide no relevant
" yardstick" by which to judge the Shoreham exercise. The other exercises which LILCO seeks to explore involved different plants, different plans, different scenarios, different personnel ard resources, different geography, different local conditions and, most importantly, State or local government participation.
- Thus, no relevant comparison can be made between the scope and results
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of the Shoreham exercise with those of the exercises at other nuclear plants.
. In the very early stages of the Shoreham emergency planning hearings, the Laurenson Board ruled that the only plan at issue was LILCO's so-called " Transition Plan" which called for imple-mentation without State or local covernment participation.
Order Limiting Scope of Submissions (June 10, 1983).
On this basis, the Laurenson Board consistently excluded from the hearings evidence concerning other plans as well as speculation about State or County participation in any plan.
In one particular instance very similar to the present issue, LILCO attempted to introduce testimony and documentary evidence regarding the Sta.te's plans for accidents at nuclear plants in New York State
.other than Shoreham.
Testimony of Matthew C. Cordoro et al. on
, Contention 92 (State Emergency Plan) at 3, 5, Attachments 1-9 and
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Attachmant 11, ff. Tr. 13,899.
The State and Suffolk County file'd motions to strike the proffered testimony on grounds that it was irrelevant to evaluating LILCO's plan.
Consistent with its position that the only plan at issue in the proceedings was LILCO's plan, the Laurenson Board agreed, striking the irrele-vant testimony.
Tr. 5562-67.
See also Suffolk County Motion to Strike Portions of LILCO's Group II-A Testimony, at 26-27 (March 9,
1984); Motion of Governor Mario Cuomo to Strike Portions of the Testimony of Matthew C. Cordaro and John A. Weismantle on Phase II. Emergency Planning Contention 92 (State Emergency Plan)
(March 9, l'984).
By the same token, LILCO's attempt to raise issues regarding the nature and extent
t of State participation in FEMA-graded exercises other than the Shoreham exercise should also be rejected.1/
f B.
The Broadened Scope of Inquiry Which LILCO Seeks Will Cause Undue Delav to These Proceedinos In support of its Motion, LILCO cites the need to explore various " assumptions".
For instance, LILCO " assume [s] that New York State officials intended (in the exercises at other nuclear plants] to develop scenarios and objectives adequate to satisfy FEMA and NRC requirements.
Motion, at 7.
- Likewise, LILCO assumes "that the State accarently accepted [the exercises at ot'her. plants]'as ' full participation' exercises" (emphas~is i
added).
Id.
LILCO offers no factual basis for these assump-tions; however, t6 explore these issues, it intends to prob _e i,nto
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the "kio'wledge, professional judgment, attitudes and beliefs"-of j
State' personnel.1/
Idz Thus, LILCO intends to subject the Board and the Intervenors to a detailed inquiry into subjective matters far beyond what is necessary for this Board to determine the issue at hand.
Not only are the " attitudes and beliefs" of State 1/
The Laurenson Board also consistently struck testimony speculating on the State's possible participation in LILCO's plan.
E.c. Tr. 5566 (striking portion of answer to Question 10 of LILCO's testimony on Contention 92); Tr. 1298 (striking portion of answer to Question 5 of LILCO's testimony on Contention 65).
If speculation about.the State's participation in LILCO's plan for Shoreham is not relevant, then surely inquiry into the State's participation in emergency planning for other nuclear plants must also be irrelevant.
1/
The State has not identified any New York State officials as witnesses, and, at this time, has no plans to do so, which renders the discovery requests even more irrelevant to this proceeding.
. )
personnel regarding other FEMA-graded exercises totally irrele-vant, but LILCO's extreme broadening of the scope of inquiry threatens to bog the proceeding down in the examination of mean-ingless details concerning those other exercises.
This will only serve to delay the proceeding.
The Board should take into account that if the scope of inquiry is broadened and inquiry is permitted into other exercises, LILCO is not the only party who will take advantage of it.
If LILCO is allowed to probe the facts, circumstances and subjective attitudes and beliefs surrounding other exercises, the Intervenors will no doubt exercise their rights to explore those issues fully as well.
To rebut LILCO's profferd evidence, the Interv.enors will have no choica but to conduct discovery, develop testimony and engage in lengthy cross-examination regarding each one of the other exercises (and perhaps exercises in other states as well) to demonstrate why LILCO's proposed comparisons are incorrect or meaningless.
The result will be an unnecessarily protracted and unfocused hearing concerning not one, but several i
exercises.
The October 3 Order was designed to prevent just this result.
In short, LILCO's proposed inquiry into other exercises will divert the Board's attention from the overriding-issue in this
. case--whether the Shoreham exercise net NRC standards.
This 4
Board shoul'd not deviate from that i:isue by opening this proceed-0 t
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. ing to a host of collateral issues on other exercises, especially after it refused to so open this proceeding at the contention admission stage.
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C.
LILCO's Recuests are Overbroad and Undulv Burdensome The State also properly declined to comply with LILCO's discovery requests on grounds that-they are overbroad and undly burdensome.
That the discovery requests are overly broad is most clearly demonstrated by the scope of the New York State personnel from whom, and about whom, LILCO seeks information.
LILCO's definition of "New York State" and "New York State personnel" includes:
New York State, or any agency therof and any
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elected official, appointed official, legis-
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lator, agent, employee, consultant, con-tractor, technica1' advisor,~ representative or other oerson actina for or on behalf of them, or at their direction and control, or in con-cert with or assistina them.
(Emphasis added)
Discovery Request, at'l.
Clearly, this definition is'so broad that the State connot possibly be expected to comply with it.
Indeed, the definition is so broad that it could include federal or local government personnel (who may have acted "in concert" or
" assisted" the State) as well as private citizens.
The State is not in a position to, and should not be required to, bear the burden of obtaining such information.
Furthermore, much of the information requested by LILCO, such as post-exercise assessments, is available through FEMA, and perhaps the NRC.
- See, e.o.,
Dicovery Request Nos.
1, 3-7.
. Indeed, much of the factual data regarding the exercises are presumably available to LILCO at the NRC's public document room.
LILCO offers no evidence that it has attempted to obtain the information it feels it needs through those agencies as its own efforts.
The State should not be required to locate and produce documents, or to provide information, which can be more easily obtained from other sources or by LILCO itself.
Finally, the Board can see by reviewing the discovery requests at issue that LILCO seeks an enormous amount of detailed information and documents regarding exercises at other nuclear plants.
- See, e.o.,
Discovery Requests at 6.
It is impossible at this time to estimate with any precision the amount of time which will be required to locate and gather all of the information and documents sought; however, the required effort is likely to be substantial.
Given the total absence of relevance in any of _
LILCO's requests, this Board.should not require the-State to expend the effort necessary to produce information and documents of no value to these proceedings.
Conclusion LILCO's discovery requests seek information on matters far beyond the scope of this proceeding.
Thus, the State was correct in declinin~g to comply with those request.
In addition, expand-ing the scope of inquiry into other exercises will result in delay and obscure the real issue of whether the Shoreham exercise
o met NRC standards.
Finally, the discovery requests are overly broad and unduly burdensome.
Accordingly, LILCO's Motion should be denied.
Respectfully submitted, bD W
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' Fabian G( ' Palomino, Esq.
Richard J' Zahnleuter, Esq.
Special Counsel to the Governor Executive Chamber Room 229 State Capitol Albany, New York 12224 e.
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.CO, November 3,1986 t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensinst Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO NEW YORK STATE Long Island Lighting Company, by its counsel, propounds the following interroga-tories to New York State, pursuant to SS 2.740, 2.740b and 2.741 of the, Nuclear Regula-tory Commission's Rules of Practice. In. responding to these interrogatories and re-quests, New. York State should fo_Ilow the instructions and definitions contained in LILCO's First Set of Interrogatories to Intervenors, dated October 29,1986.
~
ork State" or "New York When used in these interrogatories and requests, "New
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State personnel" means New York State, or any agency thereof and any elected official, appointed official, legislator, agent, employee, consultant, contractor, technical advis-or, representative or other person acting for or on behalf of them, or at their direction and control, or in concert with or assisting them.
INTERROGATORIES AND REQUESTS FOR PRODUCTION 1.
Please identify by (1) plant, (2) date, (3) scope (10-m'ile, 50-mile EPZ, both),
(4) scale (fuil-scale or partial), and (5) nature (regular, remedial, etc.) each FEMA-graded emergency planning exercise for nuclear power plants in which New York State personnel have participated (by developing, reviewing, or approving exercise scenarios and/or objectives, or by participating in the exercise itself) during the last five years.
2.
Please identify all New York State personnel who have been involved, at any time in the last five years, in the development, review, or approval of scenarios and/or objectives for FEMA graded exercises for nuclear power plants in New York State.
3.
Please provide copies of all (1) final scenarios, (2) final objectives which were developed, reviewed, or approved by the New York State personnel identified in response to the previous interrogatory, (3) all documents prepared by New York State personnel identified by response to the previous interrogatory as part of their develop-ment, review, or approval of those scenarios and/or objectives, and (4) FEMA post-exercise assessments for each such exercise.
4.
For each FEMA graded exercise for nuclear power plants in New York State in which New York State personnel have participated or have developed, re-i viewed, or approved the scenario and/or objectives, in the last five years please identi-l fy (1) the total number.of hospitals located in the emergency planning zone and (2) the number of hospitals that participated in the exercise. Please provide the same infor-
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mation for schools (public, private, parochial and nursery), and for nursing homes and adult homes.
5.
Please identify all FEMA graded exercises, within the last five years, for j
nuclear power plants located in New York State as well as those located in other states, in which New York State personnel have participated in the ingestion pathway portion of the exercise. Please identify all New York State personnel who participated in those exercises.
6.
For each FEMA graded exercise for nuclear power plants in New York State in the last five years in which New York State personnel have participated or
have developed, reviewed, or approved the scenario and/or objectives for the exercise, please provide the following information:
a.
the number of tuses, ambulances and ambulettes that participated in the cercise, b.
the number < reception centers and congregate care centers that partMipated m de exercise and the theoretical capacity of those f a-
- cilities, c.
a description of the equipment, number of personnel and facilities that were used during the exercise for the monitoring and decontamination of evacuees and vehicles at reception centers, d.
a description of the equipment, number of personnel and facilities that were used during the exercise for the monitoring and decontamination of evacuees from nursing and adult homes, e.
the number of traffic impediments that were posed to the emergen-cy response organization, f.
the number of traffic posts that were staffed, the number of traffic control personnel that staffed them, and the number of traffic posts that were observed by FEMA, g.
whether rumor control capabilities v..re tested and the method used for testing.
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7.
Did any FEMA graded exercise conducted in the last five years in which New York State personael participated include a hypothesized wind shif t during the ac-cident? If yes, please identify each such exercise. During any of those exercises, was an evacuation recommendation rescinded as a result of a wind shif t? If so, please de-scribe and identify and provide copies of pertinent documentation.
i 8.
Please identify all New York State personnel who have been involved in the development of programs to train and evaluate New York State personnel who are to respond to an emergency at nuclear power plants in New York State.
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_4-9.
What sample groups, sample sizes or sampling criteria are used by the per-sons identified in Interrogatory 8 to evaluate the ability of New York State personnel to respond to an emergency at a nuclear power plant or to evaluate the effectiveness of a training program.
Respectfully submitted,
^
Lee B. Zeug(1nDolfald P. I fin (/
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 3,1986 O
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s t-DClfLrirn December 4,E'986" l
~8 P4 :54 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina I Gi.y,f:f Alic.
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of STATE OF NEW YORK'S~ OPPOSITION TO LILCO'S MOTION TO COMPEL have been served on the following this 4th day of December 1986 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 Spence W. Perry, Esq.
Atomic Safety and 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 9
a Anthony F. Earley, Jr., Esq.
Joel Blau, Esq.
General Counsel Director, Utility Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country-Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 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. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Fower 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 Shors. ham Opponents, Coalition U.S.
Nuclear Regulatory Comm.
195 EaJt Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
2055$
Mary M. Gundrum, Esq.'
Hon'. Peter'Cohal'an New York State Department.of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room'3-ll6 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Michael S. Miller, Esq.
Suffolk County Attorney Kirkpatrick & Lockhart Bldg. 158 North County Complex 1900 M Street, N.W.
Veterans Memorial Highway Suite 800 Hauppauge, New York 11788 Washington, D.C.
20036 j
Mr. Jay Dunkleburger Bernard M. Bordenick, Esq.
New York State Energy Office U.S. Nuclear Regulatory Comm.
l Agency Building 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223 By Federal Express.
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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 h.A 21 t'
' Richard J.' Zahnleuter, Esq.
Deputy Spedial Counsel to the Governor Executive Chamber Capitol, Room 229 Albany, NY 12224 Date:
December 4, 1986 e
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