ML20215E674
| ML20215E674 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/16/1986 |
| From: | Latham S, Mcmurray K, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1925 OL-5, NUDOCS 8612230067 | |
| Download: ML20215E674 (17) | |
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c DOCKETED USNRC December 16, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION (p
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)
)
)
GOVERNMENTS' OPPOSITION TO LILCO'S MOTION TO COMPEL FURTHER RESPONSE TO SECOND SET OF INTERROGATORIES INTRODUCTION On August 1, 1986, Suffolk County, the State of New York and the Town of Southampton (the " Governments") filed contentions concerning LILCO's February 13 exercise of its emergency response plan for Shoreham.
Mindful of the NRC's requirement that contentions must be specific and include sufficient bases, the
' Governments set forth their contentions in scrupulous detail.
With respect to each such contention, the Governments included the factual bases known to them at the time and, further, cited references to numerous documentary materials such as the FEMA Report, LILCO's Plan, regulatory standards and various documents related to and generated by LILCO players during the Exercise.
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. On November 10, 1986, LILCO served its second set of interrogatories and document requestsl on the Governments consisting of 21 questions -- each question having multiple subparts.
In many instances, LILCO's discovery requests sought information which the Governments could not yet provide.
Other requests asked whether certain issues were raised in various contentions.
The Governments responded to LILCO's 91 discovery requests on November 26 and November 29, 1986.2 In those instances where the information responsive to LILCO's inquiries was already set forth in the contentions, the Governments referred LILCO to the appropriate contention or, where appropriate, other responsive documents.
In cases where the information sought was not yet available or known to the Governments because discovery was not yet complete, or expert consultants or witnesses had not yet reviewed or analyzed materials, LILCO was so informed.
The Governments also objected to some of LILCO's discovery requests 1
LILCO's Second Set of Interrogatories and Requests for
,l Production of Documents (November 10, 1986)
(" discovery requests").
2 The enormity of the task of responding to LILCO's voluminous discovery requests, combined with the logistical difficulties created by the response being due right before the Thanksgiving l
holiday, two halves. required that the Governments' response be split and filed in See Suffolk County, State of New York and l
Town of Southampton Response to LILCO's Second Set of Interrogatories and Requests for Production of Documents to Suffolk County, New York State and Town of Southampton (November 26 and November 29, 1986)(" Response").
. on grounds that they sought irrelevant information and/or that they asked the Governments how to correct certain Exercise defects.
Despite the Governments' forthright approach to answering the discovery requests, LILCO attacked the Governments' Response as " evasive" and " unresponsive" in a motion to compel filed on December 4, 1986.3 In essence, LILCO complains that it was improper for the Governments to refer back to the contentions in response to questions about what the Governments have alleged in their contentions--despite that fact that the contentions contain the specific bases and explanations which LILCO requested.
LILCO also argues that it simply does not believe the Governments when they state, in response to certain requests, that they are not yet in a position to respond to particular questions, or that they are unable to do so.
Nevertheless, LILCO seeks an order con.pelling the Governments to provide further responses.
For the reasons set forth below, LILCO's Motion should be denied.
3 LILCO's Motion to Compel Suffolk County, State of New York and Town of Southampton to Respond to LILCO's Second Set of Interrogatories and Requests for Production of Documents, and Request for Expedited Response and Disposition (December 4, 1986)
(" Motion).
=.-
i
.-- DISCUSSION A.
LILCO's Complaints Are Not Specific and Therefore Cannot Be Understood or Granted As a preliminary matter, LILCO has made it virtually impossible to determine exactly which responses it. believes are
" unresponsive" or " evasive."
Rather than explaining why i
individual responses are deficient, LILCO has-lumped the i
Governments' individual responses into " categories" accord:ng to the words used in various responses.
LILCO then makes generic attacks on the various LILCO-created "cateaories" of responses without relating its objections to each request or response t
within the LILCO category.
For example, LILCO takes issue with the Governments' response to some interrogatories that the contention " speaks for itself" -- i.e.,
that the contention i
provides the information sought -- without demonstrating why this response is not appropriate in each instance in which it was
[
. given.
Egg LILCO Motion, at 3.
Thus, except for some limited
-examples mentioned in the Motion, LILCO has failed to explain with any clarity why LILCO deems the Governments' responses to be inadequate.
In fact, when each response is viewed in proper context, and in light of the specific request, each is clear and responsive.
LILCO's generalized and non-specific Motion fails to meet the requirements of 10 CFR S 2.740.
It should not be granted.
J
% - B.
The Governments' Contentions Plainly Set Forth the Issues To Be Litiaated It is apparent from reading the Motion that LILCO would have this Board believe that the Governments are engaged in a ruse to hide the bases of their contentions from LILCO.
Nothing could be more absurd or further from the truth; indeed, the Governments have gone to great pains to provide, at the earliest stages of this proceeding, an abundance of facts and reasoning to support their contentions.
Even a cursory review of the contentions reveals that each one contains not just allegations about the Exercise results, but also detailed reasons and factual bases in support of each such allegation. In addition, the Governments' contentions provide numerous citations to supporting documents and regulatory standards.
In light of this attention to detail, it is no wonder that the Governments' 50 contentions covered 152 pages.of text.
Despite the Governments' efforts, however, LILCO filed a number of discovery requests asking what issues the Governments were raising in their contentions.
Generally, these requests were framed in terms of whether the Governments' contentions
" allege" x or " contend" y.
Sgg Discovery Requests, Interroga-tories 16, 40, 51, 70, 71, 80, 81.
Because the issues raised by the Governments were already set forth in the contentions, the Governments' responses in each case properly referred LILCO back to the contention which dealt with the particular issue raised by
. the request.4 In the few instances where further explanation was appropriate, it was provided.
- Egg, e,c,, Response, Nos. 16 and 80.
LILCO nevertheless argues that the Governments' contentions are unclear, thus forcing it to inquire into what the Governments are alleging.
Motion, at 3.
However, the one example used by LILCO to attempt to prove this point in fact proves the opposite.
In Contention EX 38 subpart I, the Governments focused on the delav between the time that LERO workers were instructed to ingest KI tablets and the time that ENC personnel informed the media of that fact.
Contentions, at 101.
The Governments' concerns about the delay were explained as follows:
Such a delay and the attempt to conceal pertinent information about the health-threatening effects of the accident would result in further reductions in LILCO's credibility and refusal of the media and the public to obey LILCO's advice during a real emergency.
Id.
As further explained in the introductory paragraph to Contention 38 such delav is plainly contrary to LILCO's Plan which provides that the information LILCO disseminates will be
" timely" and "up-to-date."
Contentions, at 98.
See Plan at 3.8-5 and 3.8-6.
Notwithstanding the clear intent of Contention 38.I, LILCO asked the Governments whether:
4 Generally, the wording of the Governments' response was that
" Contention speaks for itself".
. Intervenors contend that the general public should have been informed that LERO workers had been instructed to ingest KI.
Discovery Requests, Interrogatory 40(a) (emphasis added).
LILCO justifies this inquiry on grounds that, in its view, subpart I of Contention EX 38 implies "that the public is supposed to be informed when emergency workers are instructed to ingest KI."
Motion, at 3.
This LILCO-found " implication," however, is a complete non-sequitur.
The focus of Contention EX 38.I is the delay which occurred in transmitting certain information and the consequences of such delay (i.e., a perception by the public or the media that LILCO was attempting to conceal harmful health effects information), not whether LILCO had a duty to transmit the information in the first place.5 Thus, the Governments properly referred LILCO back to the contention, which plainly sets forth the Governments' concerns.
By the same token, LILCO's other interrogatories asking what the Governments allege or contend demonstrate a similar lack of attention to the plain meaning of the contentions.
A review of the LILCO questions, the contentions at issue, and the Governments' responses reveals that LILCO's Motion is without basis.6 The issues raised by the Governments are clearly set 5
Of course, if LILCO had refused to disclose the information about the KI tablets to the media at all, the Governments might very well have taken issue with that decision.
That is not the case here, however.
6 The only reason LILCO could have for asking such questions is to obtain answers which serve, in effect, to change the focus
. forth in the contentions, and if that fact is an appropriate response to a LILCO Interrogatory, such a response is proper.
C.
The Governments Cannot Provide Information They Do Not Yet Have LILCO is also upset that in some instances the Governments responded, in various ways, that they were not yet in a position to answer a particular question, or to provide the information or data sought by LILCO.
Motion, at 3-8.7 LILCO complains that such responses are " disingenuous" and constitute an attempt to frustrate LILCO's ability to file motions for summary disposi-tion.
Motion, at 4, 7.
In making this argument, LILCO simply refuses to accept the simple truth -- that this proceeding is still in the discovery stage and that both sides are still in the process of obtaining experts and having them analyze exercise data and information.
In some cases, the Governments have not yet obtained through discovery the material required to respond to LILCO's inquiries.
In other cases, the Governments' newly-acquired experts have not yet had the opportunity to review material that may have been provided to counsel or to conduct the of the contentions.
This is improper.
The Governments are under no obligation to reframe the issues they have raised in a manner more to LILCO's liking.
7 Of the four categories into which LILCO has grouped the Governments' responses, three categories (items II.A.2 through II.A 4 of LILCO's Motion) concern essentially the same response i.e.,
that the Governments were not yet in a position to respond.
Because the three categories are so similar, the Governments treat them here, for purposes of rebutting LILCO's arguments, as if they were one.
. analyses necessary to provide responses to LILCO's requests.
The result is that the Governments simply do not have the detailed information LILCO seeks.
LILCO's implication that the Governments' simple statement of the truth is improper, or justifies an order compelling a different response must be rejected.8 A good example of the circumstances under which the Govern-ments were not in a position to respond at the time the discovery requests were posed is LILCO's Interrogatory No. 31 (an example also used by LILCO in it Motion, at 4).
That interrogatory asked the Governments to identify the media briefing room maps and display which the Governments claimed, in Contention 38.E, were 8
In support of its Motion, LILCO makes much of the fact that there has been, according to LILCO, six months of " informal dis-covery" and two months of formal discovery.
Therefore, LILCO argues, the Governments' claims that they are not yet in a posi-tion to respond to its interrogatories is strong evidence that the Governments are either lying or that their contentions are groundless.
LILCO's argument, however, is misplaced.
LILCO's discovery request, for the most part, seek informa-tion which can only be derived from expert review and analyses of relevant data.
While it is true that there has been an exchange of certain materials between the parties, it has only been within the past several weeks that those proceedings have moved forward sufficiently -- most notably through the Board's ruling on the l
admissibility of contentions -- to justify the retention of
(
consultants and experts.
Some experts have now been hired some have begun their analyses.
Not all have been able to begin yet, however, and many are still in the preliminary stages of their review.
LILCO may not like this fact, but is is a real one, and one with which the parties have had to deal in other aspects of this litigation.
It is irrelevant that the Governments' counsel may have had LILCO's documents prior to their retention of consultants and expert witnesses, since the Governments' lawyers are unable to make the required expert analyses or reach the types of expert conclusions sought by LILCO's requests.
I I
. inadequate.
The Governments answered that discovery is still in progress and that, therefore, they were not yet in a position to respond, other than to refer LILCO to the portion of the FEMA l
Report which was the basis for the contention.
The Government stated further that "[t]he results of discovery may provide additional data."
Response, No. 31(a), at 29.
The " additional data" which the Governments expected would be forthcoming in this case are documents from FEMA.
While the FEMA Report did not identify the specific maps or displays at
- issue, this information is likely contained in the FEMA evalu-ators' critique forms, upon which the referenced conclusion in the FEMA Report is presumably based but which FEMA has refused to produce.
This refusal is currently the subject of the Govern-ments' November 18 Motion to Compel; but, until the issue is resolved, the Governments, through no fault of their own, are being denied the means to obtain the particulars about FEMA's concerns and thus to respond more fully to LILCO's interrogatory.
LILCO's argument that because the Governments have been provided with videotapes of the ENC briefings they should be able to respond, also ignores reality.
See Motion, at 4.
The fact is that at the time of their Response the Governments had had the videotape for only 3 weeks.
In that short time, given all the other activities going on in this and related proceedings, the 9
The FEMA Report stated that "[m}aps and displays in the media briefing room were insufficient FEMA Report, at 54.
Governments' experts _had not had the opportunity to review those tapes'or'to identify specifically.the deficient maps and displays.- Furthermore, LILCO will have the opportunity in the near future to depose the Governments' experts on all relevant matters regarding the maps and displays and the experts' bases for considering them inadequate.
Indeed, depositions are a much more efficient way for LILCO to obtain-the information it I
believes it needs.10 Tae same holds true for the several instances in which LILCO's discovery requests ask for specific numerical responses.
For example, LILCO's interrogatories ask how many buses, ambu-3 lances, traffic guides, drivers, etc. the Governments believe should have been observed and evaluated in order for the exercise j
results to be valid.
Sgg Discovery Requests, Interrogatory Nos.
1-4, 7-13.
For each such interrogatory, the Governments re-sponded that they were not yet in a position to provide a precise I
numerical response, but ther the numbers actually observed during l
the exercise were too low.
Again, the reason for this response is simple -- the Governments' experts are currently analyzing the data from the Exercise.ll When their analyses are complete, they 10 LILCO also argues that the Governments should have the information they seek because they had representatives at the ENC briefings.
Motion, at 4, 5.
The Governments' representatives, however were lawyers, not experts, and thus could not engage in the expert analyses which appropriate responses to LILCO's dis-covery requests require.
!~
11 For the same reasons, expert analyses are required before the Governments can respond to inquiries about the ideal length of time between certain events.
Sag Motion, at 5-7.
l
. may reach conclusions concerning the question asked by LILCO, or at least they could explain, when asked in a deposition, what information they would need for such an analysis, and the bases for their opinions that the samples evaluated during the Exercise were too low.12 LILCO may then discover the information it seeks through depositions.
LILCO, however, cannot require the Government to give information it simply has not yet developed.13 12 Indeed, in their response to Interrogatory No.
5, some of this type of information was already provided to LILCO.
Egg Response No. 5, at 8-9.
13 LILCO also alleges that the Governments' objections to certain requests on grounds of lack of relevance were improper.
Motion, at 9-12.
Careful reading of the contentions demonstrate that this allegation is groundless.
The Governments' relevance objections were raised in response to questions concerning LILCO postulated " standards" or " ideals" "against which (the Govern-ments] apparently compared the performance of LERO players."
Motion, at 9, 10.
The focus of the Governments' contentions, however, is on the events of the February 13 Exercise, not some vague " ideal," or" standard" applied in a vacuum.
Therefore, questions about such vague standards are meaningless, and not answerable by the Governments.
In any event, and as LILCO has failed to inform the Board, the Governments' relevance objections were generally coupled with additional responses or objections, such as explanations of what the Governments' position is with respect to a particular issue, or the fact that the Governments have no obligation to inform LILCO about how to correct the deficiencies in its Plan or Exer-l cise.
Egg Response Nos. 34, 37, 39, 49, 51, 75.
i Finally, even if the Governments had not objected to those discovery requests on relevance grounds, they could not have provided any additional information because the Governments did not have the information requested.
D.
LILCO Has Not Been Prejudiced By the Governments' Truthful Answers LILCO complains that the Governments' assertions that they are not currently in a position to provide the information re-quested demonstrates one of two things:
(1) that the Governments are lying and really hiding the information LILCO wants; or (2) the Governments' contentions are baseless.
Egg Motion, at 7-8.
The first assertion is groundless.
The truth is, whether LILCO believes it or not, that the information LILCO seeks is not yet available.
It serves no purpose to attack the Governments' veracity on the matter, nor is such an attack proper.
4 The second assertion is also without merit.
Every one of the Governments' contentions contain sufficient and specific bases.
The fact that the Governments are not in a position, at this time, to provide some additional details which LILCO may seek is irrelevant, and cannot support an argument that the contentions "are baseless."
LILCO also complains that the Governments' responses pre-clude it from filing. motions for summary disposition.
This argument is silly.
No one has precluded LILCO from filing such motions if it believes no material facts are in dispute concerning one of the admitted contentions.
It would probably be wiser, however, for LILCO to await the completion of discovery since there are still many depositions yet to be taken of the parties' experts witnesses.
After these depositions are taken I
. the parties and the Board will be in a far better position to determine whether there exist disputes concerning issues of material fact.14 CONCLUSION For the foregoing reasons, LILCO's Motion should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Karla J.
&btsc'he
~
/
Christopher M. McMurray
/
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby -- 9th Floor Washington, D.C.
20036 Attorneys for Suffolk County d4 k
e_
Fabian G.~ Pap ming
/
Richard J.
Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Governor Mario M.
Cuomo and the State of New York 14 By the same token, the depositions which have been taken by the parties, and those yet to be taken, will give LILCO an opportunity to learn the bases for the Governments' experts' opinions formed to date.
-4
. d,# m M-Stephth B.'AXtham
~'
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.Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton December 16, 1986 i
00LKEILD UW<C December 16, 1986 16 DEC 18 P2 :30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0FFk.
Aa,
60L'KE11tm A. UvicI Before the Atomic Safety and Licensina Board GR A N&
)
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 GOVERNMENTS' RESPONSE TO LILCO'S MOTION TO COMPEL FURTHER RESPONSE TO SECOND SET OF INTERROGA-TORIES have been served on the following this 16th 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
4 Anthony F. Earley, Jr., Esq.
Bernard M. Bordenick, Esq.
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 MHB Technical Associates Hon. Peter Cohalan 1723 Hamilton Avenue Suffolk County Executive Suite K H.
Lee Dennison Building San Jose, California 95125 Veterans Memorial Highway Hauppauge, New York 11788 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 David A. Brownlee, Esq.
Mr. Philip McIntire Kirkpatrick & Lockhart Federal Emergency Management i
i 1500 Oliver Building Agency l
Pittsburgh, Pennsylvania 15222 26 Federal Plaza New York, New York 10278 ChristopKer M.' McMQrray l
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036
.