ML20215A943
| ML20215A943 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/01/1986 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-0963, CON-#486-963 OL-5, NUDOCS 8610060295 | |
| Download: ML20215A943 (13) | |
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' Q 6p3 llEIf7 DOCKETED USHRC Octobee h kaSil7 QQ UUt d
UNITED STATES OF AMERICA 0FF;rE U NUCLEAR REGULATORY COMMISSION 00ChiiF 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)
)
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON RESPONSE TO LICENSING BOARD REOUEST FOR' SUBMISSION OF PROPOSED ORDER At the Prehearing Conference on September 24, this Board requested the parties to submit "a proposed order which they believe the Board should order on the matter of discovery."
Tr. 16,628.
In response to this request, Suffolk County, the State of New York, and the Town of Southampton (" Governments")
submit herewith such a proposed order.
The Governments do not argue anew in today's filing why the Board should adopt a particular discovery schedule.
Such matters were discussed last week, (see Tr. 16,605-28), and the Govern-ments did not understand the Board's order to include a request for any additional argument.
The Governments note, however, that 8610060295 861001 PDR ADOCK 0D000322 PDR C
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T the Board should not assume that the Governments agree with all the factual assertions made during last week's scheduling dis-cussion.
For instance, LILCO's counsel stated that "we believe j
that the great majority of document discovery, at least that which can be legitimately made toward LILCO, has already been 1
voluntarily produced."
Tr. 16,606.
The Governments disagree.
Since no document discovery requests have yet been made by the Governments, LILCO has not yet produced, for example, any of the exercise observations or evaluations by LILCO's own exercise observers and evaluators, any of the documents which presumably form the basis for LILCO's belief that the Revisions 7 and 8
" fixes" are necessary or would adequately respond to problems identified in the exercise, or any documents concerning the determination of the scope of the exercise scenario.
Such docu-ments, among others, will be requested once discovery begins.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 W
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Herbert H.
Brown Lawrence C.
Lanpher Karla J.
Letsche Kirkpartrick & Lockhart 1900 M Street, N.W.
Washington, D.C.
20036
l 7 Attorneys for Suffolk County f
Men
- Fabian G.
Palomino Richard J.
Zahnleuter Special Counsel to the Governor of New York State Executive Chamber Two World Trade Center New York, New York 10047 Attorney for Governor Mario M.
Cuomo and the State of New York S'
StepEen B.
Latham Twomey, Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton
e i
UNITED STATZS OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Morton B. Margulies, Chairman Dr. Jerry R. Kline Frederick J.
Shon
)
In the Matter of
)
Docket No. 50-322-OL-5
)
(EP Exercise)
LONG ISLAND LIGHTING COMPANY
)
)
(ASLBP No.
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
October 1986
)
Order Pursuant to the Board's request at the September 24, 1986, Prehearing Conference (Tr. 16,628), on October 1, 1986, the parties submitted proposed orders relating to discovery in this proceeding.1 The Board has considered each of these submissions, as well as the discussion of discovery scheduling which occurred on September 24.
See Tr. 16,605-28.
The parties' views on discovery scheduling may be summarized as follows.
1 (List of submissions received by Board on October 1).
1
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I FEMA.
While FEMA took no position on a discovery schedule, it did provide data which are material to discovery scheduling.
First, FEMA does not expect to complete its RAC review of Revisions 7 and 8 until December 15, 1986.
Tr. 16,609.
Since Revisions 7 and 8 relate in large part to proposed corrections of problems with the Plan which were identified at the February 13 exercise, and since, according to FEMA counsel, FEMA witnesses cannv prepare their testimony until after that RAC review is completed, it is clear that a period for discovery of FEMA per-sonnel after the RAC review is completed is necessary.
Second, even aside from the RAC review, the availability of FEMA personnel for discovery is quite limited, due to scheduled exercises at the Indian Point and Salem plants, and other commi tmer.t s.
Apparently, FEMA's proposed three witnesses are available between October 14 and 17, and perhaps in early December, although according to counsel, their availability in the first half of December is uncertain since their efforts may be taken up with completing the RAC review.
They are unavailable during the remainder of October, November, and in the latter half of December.
Thus, it appears that the most productive time for discovery of FEMA personnel is in January, 1987.
Further, FEMA counsel made clear that FEMA would not be able to submit testimony in this proceeding until February, 1987, at the earliest.
Tr. 16,609-11, 16,616, 16,623.
Y' LILCO.
Initially LILCO suggested approximately a 60-day period for discovery, stating that 60 days "may be too long; it may be too short."
Tr. 16,607.
Within this period, LILCO pro-posed two rounds of interrogatories:
the first round would be filed within 20 days of the start of the discovery period and answers would be required in 20 days; the second round of inter-rogatories would be filed within 10 days after receipt of the responses to the first set of interrogatories and parties would have 10 days for responses.
LILCO's interrogatory schedule alone comes to 60 days.
LILCO would have depositions and document pro-duction completed within the same 60-day period.
LILCO also sug-gested the possibility of imposing limits on depositions.
Tr.
16,606-08, 16,625-27.
Most of LILCO's scheduling suggestions were made before FEMA's counsel revealed the FEMA schedule (see schove).
Subsequently, LILCO acknowledged that FEMA witness availability and the projected time frame for completion of the RAC review of Revisions 7 and 8 of the LILCO Plan require leaving the discovery period open until January, 1987.
Tr. 16,616-18, 16,621.
NRC Staff.
The NRC Staff suggested no discovery schedule of its own.
The Staff did suggest that discovery start as soon as the Board rules on admissibility of contentions but that in view of FEMA scheduling difficulties, the Board might want to defer setting a time for completion of discovery.
Tr. 16,622.
I
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Suffolk County, State of New York, and Town of Southampton.
The Governments proposed a discovery schedule of approximately 120 days.
Tr. 16,625.
This schedule took into account the realities of FEMA scheduling difficulties.
The Governments urged that there could be no discovery cut-off until there had been a full opportunity to pursue discovery of FEMA personnel concerning exercise events and the April 17, 1986, FEMA Assessment, as well a
as the upcoming RAC review of Revisions 7 and 8 of LILCO's Plan designed to address problems identified during the exercise.
According to FEMA counsel's discussion of FEMA witnesses' schedules, such discovery cannot be completed until some time in January.
The Governments also pointed out that certain aspects of discovery take longer than permitted by LILCO's originally suggested 60-day schedule.
For instance, the NRC rules permit 30 days for responses to document production requests; therefore, in order to have two rounds of document requests, a period greater than 60 days is necessary.
The Governments also objected to LILCO's suggestion that limitations be placed on the use of depositions as premature and without any basis.
Finally, in response to a Board inquiry, the Governments stated that it is not feasible to attempt to bifurcate the discovery into two parts
-- a first portion covering the February 13 exercise and the second portion covering LILCO's proposed " fixes" for problems
. identified during the exercise -- because the discovery areas are so closely interconnected that it would not be possible or efficient to attempt artificially to separate them.
The other parties did not dispute that point.
Tr. 16,613, 16,614-16, 16,620-21, 16,624-25, 16,627-28.
In view of the foregoing,2 we issue the following guidelines for discovery.
1.
Discovery on admitted contentions will commence upon the issuance of our rulings on contentions.
LILCO suggested that initial discovery requests -- presumably a first round of inter-rogatories and document requests -- be filed within 20 days after our admissibility ruling; we believe 20 days is a reasonable tar-get time period.
2.
The unavailability of FEMA personnel (except for October 14-17) for discovery during the early portion of the discovery period, as well as its projected time frame for com-pletion of the RAC review requested by LILCO and the Staff, clearly prevent us from adopting a 60, 90, or 120-day discovery 2
There also was discussion on September 24 of the possibility of discovery disputes which may arise, particularly related to the Governments' desire to pursue discovery of Mr. Kowieski (the former Shoreham RAC Chairman who was involved in the February 13 exercise but whom FEMA does not presently plan to use as a wit-ness), and FEMA exercise evaluators.
We find that it is prema-ture to address any potential discovery disputes.
, cutoff date, particularly in light of the centrality of FEMA and its personne1 to this exercise proceeding.
It appears to the
~
Board that the FEMA schedule means that initial discovery i
necessarily will focus primarily on LILCO and the NRC Staff and their personnel rather than on FEMA and its personnel.
We take I
l the parties at their word, however, and assume that discovery which can be accomplished without FEMA's involvement will be pursued diligently (Egg, e.g.,
Tr. 16,617, 16,620-21).
And, to the extent discovery of FEMA can be pursued productively prior to January, 1987, we urge that it be accomplished.
We set February 3, 1987, as a tentative final date for completion of all discovery.
3.
There is no basis at this time for the Board to estab-lish limits on the manner or timing of discovery within the iden-tified period.
The NRC's rules of practice, as set forth in 10 CFR Part 2, shall apply.
If particular disputes, or other matters requiring Board involvement, arise as discovery l
progresses, we are confident that the parties will bring them to our attention, and we will address them at that time.
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t-Mort 5n B. Margulies, Esq.
~
Dr. Jerry R.
Kline Frederick J.
Shon October 1986 i
l I
i
o DOLKETED USNRC October 1, 1986
'86 0CT -3 All :37 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI g y,;,,
00cifTik i D 7 d' Before the Atomic Safety and Licensina Boardt
)
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 SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON RESPONSE TO LICENSING BOARD REQUEST FOR SUBMISSION OF PROPOSED ORDER have been served on the following this 1st day of October 1986 by U.S. mail, first class, except as otherwise noted.
- Morton B. Margulies, 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 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 Agenc3 500 C Street, S.W.,
Room 840 Washington, D.C.
20472
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 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 Power 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 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 Mary Gundrum, Esq.
Hon. Peter Cohalan New York State Department of Law Suffolk County Executive 2 World Trade Center, Rm. 4614 H.
Lee Dennison Building New York, New York 10047 Veterans Memorial Highway 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.
Fabian G.
Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger
- Bernard M.
Bordenick, Esq.
New York State Energy Office U.S.
Nuclear Regulatory Comm.
Agency Building 2 Washincton, D.C.
20555 Empire State Plaza Albany, New York 12223 s
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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
..).
Lawrence Coe LanphEr KIRKPATRICK & LOCKHART 1900 M Street, N.W.
Suite 800 Washington, D.C.
20036 Date:
October 1, 1986 By Hand By Telecopy