ML20205F276

Lilco Opposition to Intervenors Request for Extension on Contentions Ex 15,16 & 21.* Granting Lengthy Extension on Short Notice Given Will Prejudice Util.Extension Should Be Denied.Certificate of Svc Encl

ML20205F276
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/23/1987
From:	Irwin D LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2915 OL-5, NUDOCS 8703310130
Download: ML20205F276 (8)

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LILCO, March 23,1987 9

DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

37 MAR 25 NO 58 F

Before the Atomic Safety and Licensing Board [0C f[

ERAT:CH In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-;s22-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S OPPOSITION TO INTERVENORS' REQUEST FOR EXTENSION ON CONTENTIONS EX 15,16 AND 21 Late last Friday af ternoon, seven days before the deadline for filing testimony on Contentions EX 15,16 and 21, Intervenors filed a request for an eighteen-day extension of that deadline. For the reasons stated below,1! LILCO opposes that request.

1. Intervenors Have Not Shown Good Cause for the Lengthy Extension Requested by Them at Virtually the Last Minute.

Intervenors advance a number of reasons as to why they need more time to com-plete their testimony. First, they state that testimony preparation on other issues has taken more time and resources than initially anticipated. That, LILCO submits, is en-tirely Intervenors' choice. All parties have been on equal notice of the schedule set by the Board on January 6 and of their obligations under it. If anything, Intervenors, who 1/ LILCO had expected that Intervenors' motion would be argued as an initial mat-ter at the hearing session scheduled for this morning. Because of the intervening ill-ness of Judge Frye and the cancellation of the hearing session, LILCO submits this reply in writing.

h5hhh$22 Ob PDR

e- have sponsored the contentions at issue, have a head start over the other parties in de-veloping testimony. If Intervenors choose to allocate their resources in a fashion suffi-cient to meet some deadlines but not others, then the other parties, which have bud-geted their time so as to meet all deadlines, should not be penalized by Intervenors' choices.

Second, Intervenors recite the unavaliability of Mr. Zahnleuter due to hearing commitments and of Ms. Letsche due to illness and expected hearing commitments.

Those facts do not commend the requested schedule revision. As to Mr. Zahnleuter, In-tervenors do not make any assertion how his having been in hearings interferes with In-tervenors' ability to complete their testimony on time.U As to Ms. Letsche, LILCO sympathizes with the problems created by the illness of a lawyer working on an issue (one of LILCO's attorneys, Ms. McCleskey, was taken out of action for a couple of weeks earlier this winter with pneumonia). However, the reported duration of Ms.

Letsche's illness - a week - does not justify an extension of two and a half weeks.

Further, the f act that this week's hearings have been cancelled since the filing of Inter-venors' motion eliminates a demand on Ms. Letsche's time and makes it possible for her to work on testimony this week.

2/ More generally, New York State has chosen to participate comprehensively in both this and the related -03 docket, and insists on its right to be treated as a separate party in both. Yet the State has assigned only one attorney to these two complex dock-ets, one of which has been ordered to be expedited. It is no more possible for Mr.

Zahnleuter than for any other mortal to be in more than one place at any given time.

It is, however, both possible and reasonable to expect the Empire State to do what the other participants in these dockets have done - assign enough attorneys to both pro-ceedings to protect its interests, rather than use the obvious limitations on a single lawyer's availability to seek to slow the pace of both proceedings to that of a sole prac-titioner.

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if _3-With respect to the asserted novelty of the issues presented by Contentions EX 15 and 16, Intervenors make no attempt to particularize these issues, or to show how.

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they make timely completion'of testimony on them impossible or.why this conclusion

! was recognized only one week before its deadline. This argument from Intervenors is

. all the more surprising since, af ter all, these issues are the Intervenors' issues, and they f

presumably should know the case they wish to present on them. Intervenors proposed these issues in their contentions over six months ago. Their meaning has been refined

. in multiple rounds of litigation since. It is simply not persuasive for them to assert, one j; week before the filing of the testimony on them, that unspecified aspects of the issues' complexity requires nearly three weeks' additional time given this three week re-l quest, the issues' complexity should have been apparent to Intervenors at least two weeks ago.

2. The Ra'===ted Extension Would Prejudice the Prrv'aartirw and the Other Parties.

!' Intervenors have the burden of establishing that granting their motion would not i prejudice the proceeding or the 1ther parties to it, or that any such prejudice is offset I

by the beneficial effects of the t?llei they seek. They have not made, or even at-tempted, such a showing.-

t Intervenors assert merely that the requested extension will not delay the hearing 1

I of Contentions EX 15,16 and 21. In this they may be technically correct. However, l

that fact is not the answer but merely the indication of the problem. There have al-l i

l ready been two weeks of hearing sessions. In that time, not even one cluster of issues l

L has been completed. LILCO and Suffolk County counsel stated on the re ;ord on March 19 their expectation that most of the second cluster of issues (Contentions EX 47,22.A.

Y -49 and 36) could be tried during the coming week. Even assuming that schedule is ad-

' hered to, three weeks of hearings will have been held already.E The next cluster of is-sues - the public information issues (Contentions EX 38, 39, et al.) - is the subject of

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massive preflied testimony by Intervenors, and considerably briefer, but still substan-tial, testimony by LILCO.M These issues are followed by training issues (Contention EX 50), which again are the subject of lengthy filings by both LILCO and Intervenors.N At the current pace of proceedings, it will be several additional weeks before testimony on Contentions EX 15,16 and 21 is reached.

J The net result _is that, at this pace, Intervenors may well be right in asserting l

that their requested delay would not affect the date on which Contentions EX 15,16 and 21 are reached. It is also that Intervenors' cross-examination time alone may well I end up consuming more than a week of live hearing time for each hour of the exercise.

LILCO does not believe that the Commission had this type of pace in mind when it or-dered this proceeding to be expedited.

If Intervenors' current request is granted, there will be three forms of prejudice i to the proceeding and the other parties.

3/ Already Intervenors have begun to back away from those commitments. In tele-l phone conversations over the weekend, counsel for Suffolk County indicated that he was no longer prepared to commit to finishing with cross-examination of LILCO's panel

on Contention EX 40 in a half-day. In another conversation, other counsel for Suffolk -

County asserted that the time projections stated on the record for cross-examination of LILCO witnesses on the " Cluster 2" issues may be significantly too short. If so, four or

.more weeks of cross-examination, the vast majority of it by Intervenors, may prove to have been required just to get through the " Cluster 2" issues.

l 4/ At 95 pages, LILCO's testimony is only about one-third the length of that filed by Intervenors.

5/ Again, Intervenors' prefiled testimony, at 211 pages, is approximately three times as long as LILCO's.

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V ' 5-First, LILCO will be prejudiced directly and significantly. All the parties have

.had to budget their time and resources to meet the interrelated series of deadlines set out by the Board on January 6. That means that in the finite time available, resources that might have been dedicated, given an unlimited amount of time, to some conten-tions may have had to be allocated to others instead. If LILCO had thought that the testimony for Contentions EX 15,16 and 21 would have been due in mid-April rather than late March, it surely would have been allocating its limited resources differently in the meantime. It is unfair for Intervenors to seek, at virtually the last minute, a major extension of one deadline out of a series when the other parties have been working in good faith to meet them all.EI Second, there is hardly such a thing as a delay that does not have further conse-quences for a proceeding. That is certainly the case for a major delay of the type re-quested here, if only because with so much additional time to write prefiled testimony, issues may become unnecessarily broadened.II To the extent that this delay broadens or delays the overall proceeding, it would be irreconcilable with the Commission's man-date in CLI-86-11 that the proceeding be expedited.

Third, this Board's own authority may be undermined if it accedes to the re-quested extension. The Board set a schedule on January 6 at a prehearing conference, af ter hearing extended argument from all the parties. LILCO has regarded that sched-ule as a set of serious requirements, and has bent its efforts to meeting it. Intervenors

!/ This is not even Intervenors' first request for an extension. Less than three weeks ago they sought, and were granted over LILCO's objection, a one-week extension of their deadline on training issues, Contention EX 50. There, as here, LILCO had bud-geted its time so as to be able to file its testimony on the original schedule.

1/ In telephone discussions Friday af ternoon with counsel for Suffolk County, coun-set for LILCO endeavored to learn whecier a lesser extension would suffice. Counsel for Suffolk County indicated not.

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$ have apparently regarded it as a set of optional guidelines, to be observed until incon-venient. The Board has already granted Intervenors one scheduling extension. The cur-rent one is not only on shorter notice than the first extension (7 days v.10 last time) but is for a considerably longer period (18 days v. 7 last time). If Intervenors are given this extension, it may appear, in the absence of other controls, that they, not the ,

Board, are in charge of the proceeding's schedule, and that any requirements set by the Board can be waived by them virtually at will.

CONCLUSION Intervenors' argument does not justify, viewed charitably, an extension of as much as a week. Even that extension causes prejudicial effects. Granting the lengthy extension requested, on the short notice given, will prejudice LILCO. It will also preju-dice the proceeding in more subtle but significant ways. The requested extension should be denied.

Respectfully submitted

] l Ddt1'ald P. Irwin Lee B. Zeugin Kathy E.B. McCleskey Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 23,1987

LILCO, Mrreh 23,1987

(

DOCMETED ll$NiiC CERTIFICATE OF SERVICE TI IWt 25 NO58 In the Matter of GFFICE OF HCitTAe

. LONG ISLAND LIGHTING COMPANY DOCMETihG 4 SEf4VICf.

(Shoreham Nuclear Power Station, Unit 1) BRANCH

- Docket No. 50-322-OL I hereby certify that copies of LILCO'S ' OPPOSITION TO - INTERVENORS' REQUEST ~FOR EXTENSION ON CONTENTIONS EX 15,-16 AND 21 were served this date upon the following by telecopter, as indicated by an asterisk, by Federal Express as indicated by 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. Oreste Russ Pirfo, Esq.

• Bethesda, MD 20814 Edwin J. Reis Esq.

U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris

• 7735 Old Georgetown Road Atomic Safety and Licensing (to mailroom)

Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission

- East-West Towers Herbert H. Brown, Esq.

• 4350 East-West Hwy. Lawrence Coe Lanpher, Esq.

Bethesda, MD 20814 Karla J. Letsche, Esq.

Kirkpatrick & Lockhart Mr. Frederick J. Shon

• South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.

} Washington, D.C. 20036-5891

! Board U.S. Nuclear Regulatory Commission

- East-West Towers, Rm. 430 Fabian G. Palomino, Esq.

• 4350 East-West Hwy. Richard J. Zahnleuter, Esq.

Bethesda, MD 20814 Special Counsel to the Governor Executive Chamber Secretary of the Commission Room 229 Attention Docketing and Service State Capitol Section Albany, New York 12224 U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Mary Gundrum, Esq.

Washington, D.C. 20555 Assistant Attorney General 120 Broadway j

Atomic Safety and Licensing Third Floor, Room 3-116 Appeal Board Panel New York, New York 10271 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l -. -

_ ___. - ._ _ .~.._. _ . _ _ _ . _ _ _. _ ._ _ _ _ ._

Spence W. Perry, Esq. * . Ms. Nora Bredes

. William R. Cumming, 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

.h~ *Y

• l Donald P. Irwin I

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 I DATED: March 23,1987 l

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