ML20215D579
| ML20215D579 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/11/1986 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1880 OL-5, NUDOCS 8612160411 | |
| Download: ML20215D579 (16) | |
Text
.
/8 76 December ll,1RR6ETED uiNRC.
UNITED STATES OF AMERICA
.E DEC 15 All :55 NUCLEAR REGULATORY COM'!ISSION Before the Atomic Safety and Licensina Board: 5 t
)
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 htW YORK, AND TOWN OF SOUTHAMPTON RESPONSE TO "LILCO'S MOTION FOR PROTECTIVE ORDER GOVERNING INTERVENORS' QUESTIONING OF WITNESSES AND REQUEST FOR EXPEDITED BOARD RULING" On December 2, 1986, LILCO filed a Motion for Protective Order Governing Intervenors' Questioning of Witnesses and Request for Expedited Board Ruling (the " Motion").
Suffolk County, the State of New York, and the Town of Southampton (" Governments")
hereby respond to and oppose LILCO's Motion.
LILCO's Motion is premature and is based upon speculation.
LILCO attempts to persuade this Board to impose a prior restraint on legitimate discovery by urging the Board to guess what the Governments may ask about when LILCO personnel are deposed.
The Board should not become engaged in such speculation.
Further, LILCO's Motion is premised upon multiple inaccuracies and misstatements about what matters are relevant in this proceeding.
In the process, LILCO 30 3 86121% h h
PDR G
ignores the plain words of the contentions in yet another of LILCO's seemingly unending efforts to persuade this Board to alter the October 3 Prehearing Conference Order.
This Board should reject LILCO's Motion in its entirety, i
LILCO's Motion is set forth in 13 numbered paragraphs.
For ease of Board review, the Governments respond below to each of the numbered paragraphs.1 However, several general comments need to be made initially.
LILCO's Motion is grossly premature.
Based upon depositions of certain FEMA witnesses, LILCO now speculates on a wide range et issues which LILCO asserts are likely to be pursued by the Governments' counsel in depositions of LILCO personnel.
LILCO never becomes specific in its motion, except for attaching selected portions of exhibits from the Tanzman deposition (Mr. Tanzman was a FEMA evaluator during the exercise) as alleged
" proof" that the Governments are planning to pursue improper discovery of LILCO's personnel.
1-Paragraphs 10 through 13 (there is no paragraph 12) are concluding paragraphs which add nothing substantive to LILCO's earlier arguments.
These paragraphs are responded to adequately in the Governments' discussion of paragraphs 1-9.
In paragraph 13 LILCO also urged the Board to issue an expedited ruling on these matters.
In view of the deferral of discovery directed by the Board at the December 4 conference of counsel, no response is required to that portion of the Motion.,
This Board should not indulge in the kind of speculation urged by L1LCO.
The rules governing the scope of discovery are broad, and protective orders should not be entered on the basis of speculation.
Further, general speculation at the discovery stage of a proceeding that broadly characterized subjects of inquiry are irrelevant should be promptly rejected.
The methods by which parties intend to prove their case on the exercise contentions are still being developed.
LILCO has no basis whatsoever to ascert that particular areas of inquiry -- such as matters related to development of exercise objectives -- are irrelevant.
Indeed, for reasons demonstrated below, these areas of inquiry clearly are relevant.
LILCO's Motion is yet another example of LILCO seeking reconsideration of the scope of this proceeding despite having failed to raise any such objections promptly after the issuance of the Board's October 3 Prehearing Conference Order.
Egg 10 CFR S 2.751a(d).
Yet that is, in fact, what LILCO is attempting to do.
Egg, for example, paragraph 10 of the LILCO Motion where LILCO asks the Board to " clarify the scope of inquiry in this proceeding." That is not proper procedure; the Motion merits summary rejection.
The Governments now respond in turn to LILCO's numbered paragraphs:,
LILCO Paracraoh 1.
In paragraph 1, LILCO asserts that the
" issues currently before the Board are whether the events that occurred on the day of the exercise demonstrate that there is a fundamental flaw in the LILCO Plan and whether the scope of the exercise is consistent with regulatory requirements."
This is incorrect.
The " issues currently before the Board" are the admitted contentions, not some LILCO characterization, of what it believes, or wishes, those contentions allege.
LILCO next proceeds to assert that given its improper characterization of the alleged scope of this proceeding, pre-exercise events, and pre-exercise training of LILCO personnel are not relevant.
LILCO is plainly wrong.
For example, the second paragraph of Contention EX S0 addresses LILCO's pre-exercise training.
Contention EX 50 was admitted by the Board.
It is a gross misstatement, therefore, for LILCO to assert that pre-exercise training is not relevant in this proceeding.
Further, the relevance of the pre-exercise training is clear.
LILCO has repeatedly informed the parties in this proceeding that it has carried out extensive training.
Much of that training went forward prior to the exercise.
Notwith-standing that training, it is the Governments' allegation that LILCO's exercise demonstrated glaring deficiencies in LILCO's training.
It is relevant to an assessment of the adequacy of the LILCO training program as demonstrated during the exercise to.
determine how much and what type of training went forward before the exercise.
If that training was extensive and LILCO's post-exercise " fixes" are merely more of the same, the Governments submit that no one can possibly have assurance that LILCO's training program is adequate.
Thus, the relevance of an inquiry into the pre-exercise training, which clearly is permitted by the very words of Contention EX 50, is all the more clear when one considers possible methods of proof.
i Similarly, the planning and development of the exercise scenario and the development of the exercise objectives are also clearly relevant to admitted contentions in this proceeding.
Take, for example, the exercise objectives.
The Governments assert in many contentions which were admitted by the Licensing Board (and which rulings were not objected to by LILCO) that during the exercise LILCO failed to satisfy exercise objectives, or that FEMA's conclusions that exercise objectives were met during the exercise are wrong.
Clearly, LILCO disagrees with those allegations.
In order to test those allegations, however, it is necessary to understand what those objectives in fact mean.
Thus, inquiry into the meaning of those objectives and the intent of various participants in developing those objectives is clearly per.tinent.2 2
LILCO has no need for such discovery since it was a primary participant in the preparation of the objectives and the scenario.
Indeed, LILCO has asserted in the Motion that it was acting as a FEMA consultant on these matters.
Eee Motion at 5.
The Governments demonstrate below that LILCO's assertions are (footnote continued)
Finally, for similar reasons, inquiry into the scope and development of the exercise scenario also is clearly relevant to admitted contentions.
The Governments allege that LILCO's exercise did not constitute a full-participation exercise, and thus did not meet the requirements of 10 C.F.R. Part 50 Appendix E, and that certain LILCO actions during the Exercise were inappropriate or incorrect responses to the exercise scenario.
The Board made unmistckeably clear in the October 3 Order that 1
l these issues are proper matters for litigation.
In that regsrd, it is certainly relevant to inquire -- as has been done in some of the FEMA depositions -- whether FEMA or other participants in fact believed that this exercise constituted a full participation exercise.
Similarly, it is clearly relevant to admitted contentions -- including EX 15, 16, and 21 -- to understand why particular entities and areas were not tested during the exercise.
And to determine whether LILCO responses during the exercise were correct or not, it is essential to understand what was intended by the scenario, and what the responses were expected to be.
It is utterly absurd for LILCO to assert that such matters are irrelevant.3 This Board should reject LILCO's (footnote continued from previous page) without basis.
Still, however, it is improper for LILCO -- which has had access to these pertinent data -- to attempt to manipulate the discovery process to deny the Governments access to the same data.
l 3
LILCO's asserticns in this regard are yet another invitation to the Licensing Board to sharply limit the scope of legitimate inquiry -- a development which would likely lead to reversal, just as it did the last time the Board banned legitimate discovery.
Egg Lono Island Lichtino Co. (Shoreham Nuclear Power (footnote continued) -
i arguments.
LILCO Paracraoh 2.
In Paragraph 2 of the Motion, LILCO urges that any questioning of witnesses or deponents about pre-exercise events or pre-exercise LERO training is inappropriate because the Governments have taken the exercise and the scenario and the FEMA evaluation process as " givens."
LILCO's argument should be rejected out of hand.
LILCO is correct that the Governments have taken the scenario, the exercise, and the FEMA evaluation process as " givens."
What happened on February 13 happened, and the Governments have never suggested otherwise.
However, that fact does not mean that the adequacy of LILCO's performance in response to the scenario, FEMA's evaluation of Exercise events, or the application of that evaluation in this licensing proceeding are also givens.
Quite to the contrary, and as the Board recognized in its October 3 Order, the Governments challenge the conclusions that have been reached by FEMA in view of those " givens," and challenge LILCO's position that the exercise results can support the issuance of a license.
For instance, Contention EX 21 clearly questions FEMA's conclusions that certain exercise objectives were satisfied in view of FEMA's failure to evaluate the performance of many entities.
It is essential in testing FEMA's conclusions, tnerefore, to find out what FEMA and LILCO intended and whether FEMA or LILCO gave any
= = - _ _ _
= - - - = = - -
(footnote continued from previous page)
Station, Unit 1), ALAB-832, 23 NRC 135, 157-62 (1986) (Licensing Board erred in barring discovery which might bear on suitability of a facility for use as a reception center).
i consideration to the possible impact of its extraordinarily small samples on the validity of its subsequent conclusions after the exercise.
LILCO Paracraoh 3.
LILCO Paragraph 3 is redundant of earlier arguments.
LILCO asserts that the contentions do. tot encompass any events, occurrences or activities predating the exercise and thus that the Governments should be precluded from questioning witnesses about matters or events which occurred before February 13.
For reasons discussed above, this is completely inaccurate.
LILCO Paraaraoh 4.
In Paragraph 4, LILCO asserts that the Governments should not be permitted to pursue deposition discovery on matters related to the exercise objectives and scenario or to pre-exercise training.
Again, this paragraph is redundant.
Further, the same arguments have been dealt with in detail in the December 1, 1986 Suffolk County Response to LILCO's Motion for Protective Order in Response to Suffolk County's Response to Compel.
The Governments respectfully direct the Board's attention to that Response, in particular pages 7 and 8 thereof.
LILCO Paracraoh 5.
In this paragraph, LILCO objects to any questions by the Governments concerning LILCO training.
LILCO asserts that this is an issue that was litigated for 3 1/2 weeks,
t during the earlier proceeding and thus is irrelevant.
This is a gross misstatement by LILCO.
First, as already demonstrated, Contention EX 50 explicitly makes LILCO's training relevant, both that conducted prior, and that conducted subsequent, to the Exer-cise.
LILCO simply ignores the language of the admitted Contention.
Second, as the Board observed in its October 3 Order and as stated explicitly in Contention EX 50, the Board's decision in the earlier proceeding expressly stated that the adequacy of the training would have to be evaluated during the exercise.
That is what Contention EX 50 is all about.
In order to find out whether the training has produced satisfactory results, the deficiencies which were revealed during the February 13 exercise must be exam-ined in light of the training which has occurred.
To examine those training deficiencies in a vacuum would be absurd.
LILCO Paracraoh 6.
This Paragraph again concerns pre-exer-cise training.
It is redundant and has been adequately responded to above.
LILCO Paracraoh 7.
In this Paragraph, LILCO objects to any inquiry into post-exercise training unless the inquiry is directly relevant to so-called " fixes" instituted by LILCO after the exercise.
LILCO urges that questioning of witnesses about the general LERO training program or developments in that program,
should be prohibited and that LILCO's ongoing efforts to create an even better LERO training program are not at issue.
This
" objection" represents a classic example of LILCO speculation
\\
about what it thinks the Governments may inquire about during
. future depositions.
The Board should reject it summarily as premature, and without basis.
Further, the Governments are at a loss to understand how one can distinguish the changes to LILCO's training program related to " fixes," from LILCO's training 1
program in general.
Those fixes clearly are part of LILCO's training program.
In examining the adequacy of LILCO's program i
and the fixes thereto, one must must examine how these proposad fixes are integrated in the overall training program.
Accordingly, the inquiries which will be made by the Governments are clearly relevant.
i LILCO Paracraoh 8.
LILCO asserts that the exhibits from the Tanzman deposition demonstrate that the Governments have engaged i
in inappropriate questioning.
Those exhibits reveal nothing of the sort.
For the Board's convenience, the Governments deliver for the Board an entire copy of the Tanzman deposition.4 When the Board reviews that deposition, it will conclude, we submit, that the questioning was entirely appropriate.
J l
4 Copies of the Tanzman deposition are not delivered to the other parties since they are available to everyone.
i
LILCO also asserts in Paragraph 8 that LILCO witnesses acted as consultants for FEMA and thus will require FEMA's authoriza-tion to reveal any potentially privileged information pertaining to the development of the exercise scenario or objectives.
LILCO's assertion is either just untrue or it constitutes proof that the February 13 exercise was no true test at all.
If LILCO witnesses acted as consultants to FEMA, then clearly the exercise was biased and non-objective.
How could this have been a fair test if LILCO, the regulated entity, was acting as a consultant to the entity which was grading the test?
The Governments submit that LILCO's assertion is absurd and untrue.
LILCO did not act as a consul. tant of FEMA at all and thus there is no possible basis'for any privilege claim.
To the extent that LILCO has FEMA documents that might otherwise be privileged, the fact that LILCO has those documents constitutes a clear waiver of any privilege which might exist.5 Furthermore, the Tanzman deposition exhibits were produced by FEMA to the Governments, without a claim of privilege, so LILCO's argument is totally eff-base.
LILCO Paracraoh 9.
In this paragraph, LILCO makes general-ized and premature objections which go to no specific matters of inquiry.
The Board cannot possibly grant a protective order on such generalized speculation.
5 In other pleadings, the Governments have demonstrated that there is no executive privilege that FEMA possibly could claim.
Egg Suffolk County, State of New York, and Town of Southampton Motion for Order Compelling FEMA to Produce Witnesses for Deposition to Permit Witnesses to Respond to Deposition Questions and to Produce Documents, November 18, 1986.,
... = -..
For the foregoing reasons, LILCO's Motion for Protective Order is premature and inaccurate and not supported by the facts.
It should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 sv r Herbert H.
Brown
/
Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART South Lobby-Suite 900 1800 M Street, N.W.
Washington, D.C.
20036-5891 At ieys for Suffolk County 90 Fabian G.
Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M.
- Cuomo, Governor of the State of New York
Stephen B. Uatham Twomey, Latham & Shea P.O. Bex 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton Dated:
December 1l,1986 l
1
December 15, 18iN((F' UNITED STATES OF AMERICA
'86 DEC 15 All :55 NUCLEAR REGULATOILY COMMISSION 4
andLicensinaBoardhhh{(({-j Before the Atomic Safety G ? l. NO.
)
In,the Matter of
)
l
)
l
) 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 "LILCO'S MOTION FOR PROTECTIVE ORDER GOVERNING INTERVENORS' QUESTIONING OF WITNESSES AND REQUEST FOR EXPEDITED BOARD RULING" have been served on the following this 15th day of December 1986 by U.S. mail, first class, e cept as otherwise noted.
John H. Frye, III, Chairman #
Dr. Oscar H. ParisW 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. Shone Spence W.
Perry, Esq.
Atomic Safety and Licensing Board William R. Cumming, Esq.F 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 l
Anthony F. Earley, Jr., Esq.
Joel Blau, Esq.
General Counsel Director, Utility Intervention i
Long Island Lighting Company N.Y. Consumer Protection Board 175 Et.st 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 i
Mr. L. F. Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street i
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 M. Gundrum, Esq.
Hon. Peter Cohalan New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 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.
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 i
Mr. Jay Dunkleburger Bernard M. Bordenick, Esq.4 New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223 e
I
- r. -.-
,... - + _ _ _ _ _ -., _ _. _ _.,,, _. _ _ _
---.,,.,.,r
,_-_-,_,,,,r.y, en.,_,n-_
---_.,,._,-n,,
.-,,e-,
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 M
- s; Lawrence Coe La'nphbr KIRKPATRICK & LOCKHART South Lobby-Suite 900 1800 M Street, N.W.
Washington, D.C.
20036-5891 Date:
December li, 1986 ox
- u....
By Federal Express e