ML20215B198

Reply to State of Ny Opposition to Util Motion to Compel. State Failed to Establish That Info Sought in Util Discovery Requests Not Reasonably Calculated to Discovery of Admissible Evidence.W/Certificate of Svc

ML20215B198
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/09/1986
From:	Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1852 OL-5, NUDOCS 8612120070
Download: ML20215B198 (9)

Text

5 LILCO3 December 9,1986 UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION UStmc

'86 DEC 11 P1 :51 Before the Atomic Safety and Licensing Board GFT' _ . ~

a-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 OPPOSITION TO LILCO'S MOTION TO COMPEL On December 4, New York Statt filed its Opposition to LILCO's Motion to Compel (hereinaf ter "NYS Opposition"). This reply addresses three arguments raised for the first time in that opposition.M

1. Exercise Litigation Can Not Be Confined Solely to Shoreham New York State contends in its Opposition that there can be no meaningful comparisons between the Shoreham exercise and any other FEMA graded exercise.

NYS Opposition at 5. New York State argues that since each exercise involves different plans, scenarios, resources, personnel, geography, local conditions and the participation, or lack thereof, of State and local governments, no comparisons can be 1/ New York State's Opposition also raises arguments that LILCO was able to anticipate in its motion to compel. For example, LILCO's motion to compel already presents LILCO's interpretation of the language of the Board's October 3 Prehearing Conference Order, LILCO Motion at 2-3, and the fact that the discovery information sought by LILCO is relevant to contentions other than Contentions EX 15 and 16 as essentially statements against interest by New York State, LILCO Motion at 6-9.

LILCO does not repeat those arguments here. Instead, this reply addresses only new arguments of sufficient import to warrant an answer.

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made. I_d. at 5-6. In addition, New York State contends that during the earlier litigation of the Shoreham emergency plan the Board consistently excluded evidence "concerning other plans as well as speculation about State or County participation in any plan." M. at 7. As will be demonstrated below, these arguments are meritless.

At base, New York State's argument that any or all of a myriad of factors prevent comparisons of exercises ignores the accertion of experience and judgment in the framing of other exercises. It is a transparent invitation for NRC licensing boards to conduct unstructured de novo reviews of the results of each FEMA graded exercise, FEMA's conduct of that exercise, and the legal meaning of the NRC's emergency plan regulations without any points of comparison. Even at their broadest, the D.C.

Circult's decision in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.

1984), cert. denied 105 S.Ct. 815 (1985), and the Commission's decision in CLI-86-11 cannot be read to intend such a wholesale review of the exercise process. They certainly cannot be interpreted to require a broad review of FEMA's activities in a f actual void.

A review of Contentions EX 15 and 16 reveals that the value of the discovery inf ormation sought by LILCO is not affected by factual differences between emergency planning zones and emergency plans. Contentions EX 15 and 16 allege that the scope of the February 13 exercise was deficient because a number of elements of the Shoreham plan were not tested. LILCO's discovery requests ask whether these planning elements were tested during other nuclear power plant exercises conducted in New York State - exercises at which New York State officials negotiated with FEMA about the scope and objectives of those exercises. Clearly, this information appears reasonably calculated to shed light on the implementation of FEMA and NRC exercise requirements at other New York State sites, and thus to lead to the discovery of i

admissible evidence. New York State makes no effort to explain how asserted  !

i geographic, personnel or plan differences in any way affect whether and how FEMA normally tests various plan elements. Likewise, the absence of state and local government participation in an exercise has no bearing on the concerns raised by Contentions EX 15 and 16. For example, the manner by which the Coast Guard demonstrated its capacity to actually notify boaters in the water portion of the EPZ, whether hospital evacuation was demonstrated, and whether a sufficient number of buses or ambulances participated in the exercise are unaffected by whether or not state and local officials participate in an exercise.

New York State's attempt to rely on previous rulings of the Laurenson Board to support its argument 'that information about emergency planning at other nuclear power plants, see NYS Opposition at 7-8, is also misplaced. In the first place, New York State has mischaracterized that Board's actions. At the outset of the emergency planning hearings, the Laurenson Board was presented with an emergency plan with a series of plan alternatives depending on the assumptions one was willing to make about the participation of Federal, State and local officials. The ruling cited by New York State admitted the LILCO-only Transition Plan for litigation and noted that the Board would not speculate on governmental participation in that plan in the absence of specific indications of such participation. Order Limiting Scope of Submissions, at 3 (June 10,1983). Thus, the Board's ruling focused on which.Shoreham plan would be litigated, not whether the plans or planning activities at other nuclear power plants could be relevant to the litigation of admitted contentions.

Similarly, New York State's reliance on the Board's testimony rulings on 2/ Legally, there is a clear difference between the acceptance of testimonial evidence and the standard governing discovery. Testimonial evidence must meet the (footnote continued)

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Contention 92 (State Emergency Plan), see NYS Opposition at 8, are misplaced. In Contention 92, the issue was whether a New York State plan existed which included Shoreham. In striking a portion of LILCO's testimony on that contention, the Board ruled that whether or not a New York State plan existed for all other plants in New York State was not relevant to resolving the issue before the Board. By relevant contrast, as noted in LILCO's Motion to Compel at 6 n.4, the same Board nevertheless permitted broad discovery concerning the New York State plan and New York State planning activities.

Finally, contrary to New York State's suggestions, the Laurenson Board did admit testimony on other emergency plans. For example, in Contention 65 which dealt with evacuation time estimates for the Shoreham EPZ, LILCO introduced testimony on evacuation time estimates at other nuclear power plants. See Testimony of Cordaro, e_t al. on Contention 65, at 45-46, ff. Tr. 2337. Intervenors moved to strike that testimony arguing that information about other emergency plans was not relevant to the Shoreham proceeding. Suffolk County Motion to Strike Portions of LILCO Testimony on Contentions 25,23 and 65, at 8-9 (Nov. 28,1983). The Board denied Intervenor's motion and admitted the testimony. Tr.1298 (Laurenson)(Dec. 12, 1983).

Thus, New York State has failed to establish that the information sought in LILCO's discovery requests is not reasonably calculated to the discovery of admissible evidence.

(footnote continued) appropriate relevancy requirements. By contrast, the standard for discovery recognizes, "[ilt is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 10 CFR S 2.740(b)(1).

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2. Shoreham Should Not Be Held to a Higher Standard Than Other Nuclear Power Plants New York State also argues that:

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 question of what is the proper scope under the NRC's rules for a Shoreham-specific exercise involving no State or local government participation would still remain unanswered.

NYS Opposition at 6. In essence, New York State asks this Board to find that what is good enough for other plants is not good enough for Shoreham. New York State offers no legal support for this theory, nor could it. Existing case law supports the opposite conclusion.

In Consolidated Edison Co. of New York (Indian Point, Unit Nos. 2 and 3),

CLI-83-16,17 NRC 1006 (1983), the Commission was asked to review the adequacy of New York State's actions to compensate for Rockland County's withdrawal from the Indian Point emergency plan. The Commission in reviewing its emergency planning regulations stated:

Rather, the Commission intended that the lack of a particular plan was to be balanced against other factors, and that interim operation should be allowed where protection of the public, while not optimum, was adequate for a limited period of time.

Id. at 1011 (emphasis supplied).

Similarly, in CLI-86-13, tho Commission addressed the lack of State and local government participation in the Shoreham emergency plan in a ruling on the " realism" issue. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13 (July 24,1986). There, the Commission expressly rejected the presumption employed by the Licensing and Appeal Boards that LILCO was required to demonstrate that the Shoreham plan could achieve all that a fully coordinated plan could achieve. I_d. at 12.

t Instead, the Commission indicated that the proper test was whether the Shoreham Plan "was capable of achieving dose reductions in the event of an accident that are generally comparable to what might be accomplished with government cooperation."

Ld. (emphasis supplied). Thus, the proper test is not what higher standard LILCO should be required to meet, but what reduced standard still provides reasonable assurance.

New York State's argument that the Shoreham exercise must be held to a higher standard should be summarily rejected as contrary to established NRC precedent.

3. LILCO's Discovery Requests Are Not Overly Broad or Unduly Burdensome New York State also contends that LILCO's requests are " overly broad and unduly burdensome." The primary basis for New York State's contention is that LILCO's definitions of "New York State" and "New York State personnel" are too sweeping. NYS Opposition at 10-11. New York State's argument is specious.

First, the definitions used in LILCO's First Set of Interrogatories to New York State are identical to those used in LILCO's First Set of Interrogatories to Intervenors which was served five days before LILCO's requests to New York State. New York State's response to that prior set of interrogatories did not include an objection to LILCO's definition. Nor for that matter did any other Intervenor object to those definitions.

Second, the definition of "New York State" and "New York State personnel" is functionally identical to the definition of "LILCO" and "LILCO personnel" contained in Suffolk County's First Set of Interrogatories to LILCO.E 3/ To date, only Suffolk County has filed discovery requests on LILCO, the NRC Staff and FEMA. New York State and the Town of Southampton have filed no requests.

Instead, they have, for all appearances, allowed counsel for Suffolk County to act as lead counsel for all Intervenors.

s LILCO's requests are neither " overly broad" nor " unduly burdensome."

CONCLUSION Accordingly, LILCO requests that the Board reject New York State's Opposition and grant LILCO's Motion to Compel Discovery.

Respectfully submitted,

,  !" w Dohald P. ny Lee B. Zeu n Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 9,1986 O O

LILCO, December 90 1986 s

30f.Kr T U CERTIFICATE OF 3ERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) UFFc_; . . %<

Docket No. 50-322-OL-5 M ]'d *#f I hereby certify that copies of LILCO'S MOTION TO FILE A REPLY TO NEW YORK STATE'S OPPOSITION TO LILCO'S MOTION TO COMPEL and LILCO'S REPLY TO NEW YORK STATE'S OPPOSITION TO LILCO'S MOTION TO COMPEL were served this date upon the following by telecopied as indicated by an asterisk (*), federal ex-press as indicated by a 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 4350 East-West Hwy. Herbert H. Brown, Esq.

• Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.

Karla J. Letsche, Esq.

Mr. Frederick J. Shon

• Kirkpatrick & Lockhart Atomic Safety and Licensing Eighth Floor Board 1900 M Street, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20036 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

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1

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Spence W. PeqEsq.

• Ms. Nora Bredes William R. Cuneing, 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 Leh B. Zeug ()

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 9,1986

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