ML20094B921

Motion to Compel Util to Produce Fm Rasbury for Deposition During Wk of 840806-10 Re Relocation Ctr Issues Or,In Alternative,That Fm Rasbury Be Stricken from Util Witness Panel.Certificate of Svc Encl.Related Correspondence

ML20094B921
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/03/1984
From:	Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
OL-3, NUDOCS 8408070308
Download: ML20094B921 (17)

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+1 Tgg g OENcg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

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. ;.L Before the Atomic Safety and Licensing Boardt

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'S ELONG'I' LAND LIGHTING COMPANY

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Docket No.E504322-OL-3

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(Emergency Planning)

(Shoreham Nuclear.Pcwcr. Station,

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e-MOTION TO COMPEL LILCO TO PRODUCE FRANK M. RASBURY, A LILCO WITNESS, FOR DEPOSITION n ;;q,

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' Pursuant.to.10 CFR $2.749(f),1/ Suffolk County hereby moves

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'thi's' Board'.to compel'LILCO to produce Frank M. Rasbury, a new

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'LILCO witness on the relocation center issues (Contentions-24.0,

, 17.4'and 75),-for'a deposition to be taken during the' week of

-fAugust16-10?(except August 9,2/),- 1984.

In the alternative, the 4

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County l moves'thatiMr.-Rasbury be stricken from LILCO's witness

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, panel,iand.that all. testimony sponsored by him be similarly r

E s t r i c' e n'.

'TheLfacts underlying the County's. motion are set forth k

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below..

1 bItvis-thel County's understanding.that under. circumstances such

as'ctheme' where;a--party refuses to produce its own witness for a

/d6pos;l,_m., - 10 CFR' 2.740(f). applies..

If, however, the Board a

s determines-that the County must obtain.a subpoena to depose Mr.

lRa'abury)-[the. County-requests that the-Board treat this motion.as M

can1 application forya subpoena under'10 CFR 52.720.

The County Q 7:

Swill; provide.a draft subpoenafimmediately to the Board should the f ', -

l Board'. determine that.one.is required.

u n J2/['A depo'sition of.the FEMA' witness' panel is already scheduled 1

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8408070308 840003 J

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- Facts' On-July. 13,-1984, the Board issued an oral Order requiring s

LILCO,sif'it decided to file any revised or supplemental testi-mony on'thefrelocat' ion center issues (Contentions 24.0, 74 and w

75),fto file such testimony prior to July 31, 1984.

Tr. 12,831-h

32..In a telephone conversation held on Tuesday, July 24, coun-

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sel.for LILCO informed counsel for the County that LILCO intended to file revised-testimony.

LILCO's counsel also stated, in

. response Lto inquiries.by counsel for the County, that LILCO's

- witness panel on the relocation center issues would include a 1

panel' member not on the original witness panel.

LILCO's counsel, E

' 'after questioning, identified this new witness as someone affili-

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. ated with the Nassau County Chapter of the American Red Crcas.

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. However, counsel for LILCO could not identify this new witness by name..

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. Subsequent.to that telephone call, the County requested by letter'(see Attachment 1) that LILCO'i+ >tify its new witness as 1

soon as counsel for LILCO knew the witness's identity.

Although the.need'to depose the witness was not certain at that time 1

.(since the County had not yet received LILCO's revised testimony

'.and did not know the witness's identity), the County's letter

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- E also. informed LILCO'that the County "may request that you make the: witness available to be deposed prior to the recommencement 4

t of-trial on-August 14."

Counsel for LILCO responded by letter n

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. the next day (see Attachment 2) stating that LILCO did "not intend to. identify the witness prior to filing the testimony,"

but~that the identity of the witness would be known to the County

" shortly," when LILCO's-testimony was filed.

The County received LILCO's revised testimony ! on July 30, 1984. -Only upon receipt of LILCO's revised testimony did the County learn that LILCO's witness panel sponsoring the revised

. testimony now includes Mr. Frank M. Rasbury, Executive Director

- of-the'Nassau County Chapter of the American Red Cross.

Mr.

Rasbury has not.previouslyLappeared before this Board as a wit-ness, nor has Mr. Rasbury ever been deposed by the Courty.

-Indeed, his identity was unknown to the County prior to July 30, 1984. ~ Mr. Rasbury sponsors a substantial portion of LILCO's

' revised testimony, including.an explanation of LILCO's revised

? relocation scheme.

As described in LILCO's revised testimony at h

1pages 15-16 and as clarified by a-conversation with counsel for LILCO, the LILCO Plan, when next revised, will designate a center X-or centers not yet identified-which "might" be a " relocation center" or-which."might" be used as an " emergency center" from

' 'which evaucees will be funneled to other undesignated " shelters."

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" Revised testimony at 15.

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t 71! LILCO's Motion.To Admit Revised Testimony On Phase II Emer-gency Planning Contentions 24.0,'74 and 75 (Relocation Centers) g.

L L(July.30,-1984) [ hereinafter " revised testimony"].

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. t In order to discover the bases for the opinions expressed by Mr. Rasbury and to understand the revised relocation scheme set forth in LILCO's revised testimony, the County requested on cJuly 31 that1LILCO make 1tr. Rasbury available on Friday,

' August-3, for a deposition.

(See Attachment 3).

In the after-noon of'the next' day, LILCO~ informed that County that LILCO was refusing to produce Mr. Rasbury voluntarily.

(See Attachment 4).

In a telephone conversation held on August 2, the County inquired into the reasons behind LILCO's refusal to produce Mr.

Rasbury for deposition.

Counsel #or LILCO replied that Mr.

Rasbury was not a LILCO consultant, was not being paid by LILCO, that the matter has already taken a lot of 10c. Rasbury's time, Land that Mr. Raebury would be available to the County to cross examine, thus obviating somehow the County's need for discovery.

Counsel for'LILCO also informed the County that Mr. Rasbury would be on_ vacation during the weeks of August 6 and August 13A! and

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that if the. County wanted to depose Mr. Rasbury, it should go to

-the Board for relief.

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4/~From conversations.with counse1~for LILCO,-the County has received the' impression that Mr. Rasbury's vacation may not take him out of town.

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' Discussion-

~.Under.NRC regulations, "[p]arties may obtain discovery f

_ 1regarding-any1 matter, not privileged, which is relevant to the

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subject matters. involved in:the proceeding.

10 CFR l$2.740.. The: purpose underlying the NRC's discovery rules are well? summarized in-Pennsylvania Power and Light Co. and Allegheny

" Electric: Cooperative, Inc. (Sasquehanna Steam' Electric Station, LUnits l~and 2), LBP-79-31, 10 N"C 597, 599-600 (1979):

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In Discovery Memo.I, we attempted to outline both.the' NRC~ rules: governing discovery and the underlying purpose which discovery is intended to serve-in an NRC licensing proceeding.

We stated-inter alia (at pp. 5-6) that

.the purpose'of discovery is to en-a; able.each party prior to hearing to i

become' aware of the positions of each adversary' party on the various

. issues in controversy, and the 4;a "--

.information available to adversary l

parties to support'those positions f[ emphasis' supplied]..

We'went on to. observe that Commission licens-a-

-ing proceedings "are not to become the setting

?for ' trial'by surprise,' and the discovery

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mechanism.is the major means used to ' avoid i t h a t ! s i t u a t i o n. " '

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_ i Accordingly, :it has been the practice in this proceeding for each t

'e party'szwitnesses to;be madeLavailable for discovery prior to 4

sc Ibeing cross-e'xamined.:.In this way, each party has been given an Q

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. D opportunity to discover the bases for the opinions of other par-

' ties' sitnesses and prospects for " trial by surprise" have been d'iminished.

'The revised testimony offered by LILCO is now its third opportunity to submit testimony on the relocation center issues.

This is the first time, however, that LILCO has identified Mr.

Rasbury as a witness on its behalf.

Furthermore, it appears from

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LILCO's testimony that L1LCO is revising the manner in which Levacuees are going to be relocated.

The County thus has a clear need and right to depose Mr. Rasbury.

Nevertheless, LILCO has refused to make him_available to be deposed prior to his cross-

~ examination.

LILCO's' intransigence in thir anatter cannot be condoned.

LILCO offers no good reasons for its failure to produce Mr.

.Rasbury.

It is apparently LILCO's belief that, since Mr. Rasbury will be available for cross-examination, there is no further need for discovery.

This position is absurd.

Every witness sponsor-ing written direct testimony in this case has been made available for cross-examination; otherwise, the witness's direct testimony would not be admitted.

The point is that other witnesses have been made available for deposition prior to cross-examination in accordance with established NRC procedure.

In this way, the parties have been able to discover the facts underlying a wit-ness's opinion and have been able to conduct more focused cross-

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examination.

To say that the need for discovery is obviated by the opportunity to conduct cross-examination is to ignore the very purpose of discovery and to throw these hearings back to the days of " trial by surprise."

Those days are long past.

LILCO must; a compelled to comply with the NRC's discovery rules.

Furthermore, the fact that Mr. Rasbury is a busy man is no excuse.

LILCO obviously knew well in advance of filing its test-imony-that Mr. Rasbury would be a witness and that he would be

" subject to a request to take his deposition.

(See Attachment 1).

Therefore, it could have and should have informed him of the need Eco make some time available for that purpose and, further, should

~have contacted the County in an attempt to work around Mr.

.Rasbury's busy schedule.

LILCO, however, never informed the County of a need to accommodate Mr. Rasbury's busy schedule --

t.

indeed, it refused to-identify him prior to filing LILCO's revised testimony on July 30.

The County would have been willing

'to accommodate Mr. Rasbury's schedule, but LILCO has made no such offer to attempt to come to an agreement.

Rather, LlLCO has stated flatly that'it will not make Mr. Rasbury available.

Thus,

'the problem does not seem to be Mr. Rasbury's busy schedule, but y

instead LILCO's outright and unreasonable refusal to make him available.

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The County also understands that Mr. Rasbury will be on vacation for'the next two weeks, which will last until the week he is scheduled to testify (at this time, the LILCO panel on relocation centers is scheduled to be the first panel heard on Tuesday, August 21).

This problem, though, is of LILCO's own m

making.

As stated above', LILCO knew well in advance of filing F,

Mr. Rasbury's testimony that he would be a witness and that he might be asked to be deposed.

(See Attachment 1).

LILCO also knew, or should have known, Mr. Rasbury's vacation plans.

With this' knowledge, LILCO could have come to the County and offered to'make Mr. Rasbury available while he was not on vacation -- for

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ainstance, during the time between the filing of Mr. Rasbury's testimony on July'30 and his vacation commencing August 6.

Indeed, the County requested to depose Mr. Rasbury on August 3 (see-Attachment 3), a time when Mr. Rasbury was not yet on vaca-tion.

LILCO, however, preferred to keep Mr. Rasbury's identity

-secret for as long as possible (see Attachment 2) rather than to accommodate botn the County's need for discovery and Mr.

Rasbury's vacation plans.

No reason has been offered by LILCO why both factors could not be accommodated.

Instead, the

. County's proffered deposition date of August 3 was flatly rejected, with'the explanation that Mr. Rasbury was not being

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y made available and that, in any event, he would be too busy on August =3 because that was his last day in the office before his vacation.

It appears from these facts that LILCO's failure to identify Mr. Rasbury earlier and its last-minute notification to the County.of Mr. Rasbury's vacation plans are a contrivance to keep the County-from obtaining discovery.

The Board shculd not coun-tenance this sort of game-playing.

Clearly, LILCO's position in this matter has been unreason-able and prejudicial to the County.

The County has a right to

?the discovery'it is seeking.

Without the opportunity to depose Mr. Rasbury, theCountywillbeunabletodiscoverthe' facts underlying Mr. Rasbury's testimony and LILCO's revised relocation scheme. -The County therefore requests that Mr. Rasbury be made ava'ilable next week (during August 6-8 and 10).

This is neces-sary because counsel for the County will be in hearings before this BoardEduring the following two weeks, during which the remaining' testimony on the Intervenors' contentions will be heard.- In.the alternative, if LILCO is unable or unwilling to make Mr.'Rasbury available, the County requests that the Board strike Mr.-Rasbury as a witness and that all testimony sponsored

'by'him be similarly stricken.

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In light of the limited time now available for arranging Mr.

_Rasbury's deposition, the County also requests that the Board

.give thisimatter expedited consideration.

The County is avail-able'at any time for a conference call with the Board and other parties.

Conclusion

-For..the reasons stated above, the County's Motion to Compel LILCO to Produce Frank M. Rasbury, a LILCO Witness, For Deposi-tion should be granted.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Karla J.' Letsche Michael S. Miller Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, NW Washington, DC 20036 Attorneys for Suffclk County Dated:

August 3, 1984

r ATTACHMENT 1 ExRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS A Panysrammase Esca.esseo A Peormessonaa. Comecesarnon 1000 M Srmmar, N. W.

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(SOS) SF4* MIS (entJ338 e800 July 26, 1984 w3ETEB4 SESSCT SEAI. NUNSSR (202) 452-8391 BY TELECOPIER Kathy E.B. McCleskey, Esq.

Hunton a Williams 707 East Main Street Richmond, Virginia 23212

Dear Kathy:

During one of our telephone conversations earlier this week, you indicated to Mike Miller and me that you intend to add some-one from the Nassau County chapter of the Red Cross to LILCO's witness panel on the relocation center issue.

At that time, you could not identify the witness, and we have yet to receive that information from you.

We expect that you will inform us of the witness's identity as soon as you know who he or she is.

Please be on notice that we intend to conduct all necessary discovery regarding the opinions of your new witness and the facts on which those opinions are based, and that we well may request that you make the witness available to be deposed prior to the-recommencement of trial on August 14.

Yours truly, 1

Christopher M.

McMurray

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'BY TELECOPIER Christooher-M. McMurray, Esq.

c Rirkpatrick, Lockhart, Hill, Christopher & Phillips 8th Floor-1900 M Street, N.W.

' Washington, D.C.

20036

DearTChris:

I received this morning your letter of July 26 re-

~garding'theLRed Cross witness on relocation centers.

LILCO's revised testimony 'on re]ocation centers will be filed today or Monday, so the identity of.the additional witness will be known

'to you shortly, as I have previously stated during our phone conversations.- I do not intend to identify the witness prior to' filing the. testimony.

Yours very truly,

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301/869 Kathy E.

B. McCleskey L

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ATTACHMENT 3 KInxPATRIcx, LocxHART, HILL, CHRISTOPHER & PHILLIPS A Paarwanmary loca.sresso A Peorsessomas Compomarnom 1900 M Srmaar, N. W.

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(202) 452-8391 BY~TELECOPIER Kathy E.B. McCleskey, Esq.

Hunton a Williams 707 East Main Street

_ Richmond, Virginia 23212

Dear Kathy:

I received yesterday LILCO's revised testimony on the relo-cation center issues and nope that you have added a new witness, Mr. Rasbury, who has never before appeared as a witness in these

. proceedings.

In light of the fact that the County has not pre-viously been informed of Mr. Rasbury's identity, his qualifi-cations, or the facts underlying the opinions expressed in his testimony, I request that you make him available to be deposed on Friday, August 3, 1984, at our office in Washington, D.C.

In addition, please send me Mr. Rasbury's resume prior to the date of his deposition.

Please inform me whether this request presents you or your witness.with any problems so that we may resolve them quickly or go to the Board for an expeditious resolution of the matter.

Yours truly, 1

Christopher M.

McMurray

ATTACHMENT 4 Krmr?ATRJCX, LOCKHART, HILL, CHRISTOPHER & PurLLIPs A Pameransmar lecs.essee A Pearmouromaa. Compomarson 1000 M Srmaar, N. W.

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(202)'452-8391 BY TELECOPIER Kathy E.B. McCleskey, Esq.

Hunton & Williams 707 East Main Street Richmond, Virginia 23212

Dear Kathy:

Mike Miller has informed me that during a telephone conver-sation held today, you statpd that LILCO was refusing to volun-tarily produce your new witness on the relocation center issues,

~

Mr. Rasbury, for deposition.

Frankly. I do not understand your position on this matter since it has.seen common practice in these proceedings to make available for deposition all witnesses who have sponsored written testimony on behalf of one of the parties to this litigation.

It appears that the County will have to seek recourse with the Board in this matter; however, if I have misunderstood your position, or if your position changes, please inform me i,mmediately.

Yours truly, Christopher M.

McMurray

. _ _ = _ - _ _ = _, _, _.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISJIOU N Before the Atomic Safety and Lic'erisiMq. Hoard ;j 7 Wi;GE CF 5,

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DCCMiTING 4 SE : /7

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' In the Matter of

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- LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-OL-3

)

(Emergency Planning)

(Shoreham Nuclear Power Station,

)

. Unit 1)

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of MOTION TO COMPEL LILCO TO PRODUCE FRANK M. RASBURY, A LILCO WITNESS, FOR DEPOSITION dated August 3, 1984, have been served to the following this 3rd day of August 1984.by U.S.' mail, first class, except as otherwise noted.

n James-A..Laurenson, Chairman

• James B.

Dougherty, Esq.

Atomic Safety and Licensing Board 3045 Porter Street, N.W.

U.S. Nuclear Regulatory Ccmmission Washington, D.C.

20008 Washington, D.C.

20555 Mr. Jay Dunkleberger l

Dr. Jerry R.'Kline

• New York State Energy Office Administrative Judge Agency Building 2 Atomic ~ Safety and Licensing Board Empire State Plaza

~

.U.S.

Nuclear Regulatory Commission Albany, New York 12223

. Washington, D.C.

20555 W. Taylor Reveley, III, Esq.#

Mr. Frederick J. Shon

• Hunton & Williams

. Administrative Judge P.O.

Box 1535

-Atomic' Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C.

20555 Edward M.

Barrett, Esq.

Spence Perry, Esq.

General Counsel Associate General Counsel Long Island Lighting Company Federal Emergency Management

' 250 Old Country Road Agency Mineola,~.New York 11501 Washington, D.C.

20472 W

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. ler. Brian.McCaffrey Stephen B.

Latham, Esq.

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Long Island Lighting Company Twomey, Latham a Shea 4:'

Shoreham Nuclear Power Station P.O.

Box 398 P.O.

Box'618 33 West Second Street North Country Road Riverhead, New York 11901

. Wading River, New York 11792-Ms. Nora Bredes Marc W. Goldsmith Executive Coordinator

' Energy Research Group, Inc.

Shoreham Opponents' Coalition 400-1 Totten Pond Road 195 East Main Street Waltham, Massachusetts 02154 Smithtown, New York 11787

-Joel Blau, Esq.

MHB Technical Associates

-New York Public Service Commission 1723 Hamilton Avenue The_ Governor Nelson A. Rockefeller Suite K

-Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive

' Martin Bradley Ashare, Esq.

H.

Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway

-H.

Lee.Dennison Building Hauppauge, New York 11788 Veterans' Memorial Highway Hauppauge, New York 11788 Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Panel Commission

.U.S.

Nuclear Regulatory Commission Washington, D.C.

20555

' Washington, D.C.

20555

. Docketing and Service Section Jonathan D.

Feinberg, Esq.

Office ofLthe Secretary Staff Counsel

U.S. Nuclear Regulatory Commission New York State Public 1717 H Street, N.W.

Service Commission Washington, D.C.

20555 3 Rockefeller Plaza Albany, New York 12223 Bernard M.

Bordenick, Esq.

David A. Repka, Esq.

Stuart Diamond

.Edwin J. Reis, Esq.

Basiness/ Financial U.S. Nuclear Regulatory Commission New York Times Washington, D.C.

20555 229 W.

43rd Street New York, New York 10036 Stewart M. Glass, Esq.

Eleanor L. Frucci, Esq.

1 Regional' Counsel Atomic Safety and Licensing

' Federal Emergency Management Board Panel Agency U.S.

Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission-New York, New York 10278 Washington, D.C.

20555

.s. 4 Fabian Palomino, Esq. ##

~Special Counsel _to the Governor Executive Chamber, Room 229 State' Capitol-Albany, New, York 12224 2fAs b~

n s

Christopher M'. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900'M Street, NW, Suite 800 Washington, D.C.

20036

-Dated:

August 3, 1984 By Hand By Telecopier

! -#5 By Federal Express it 4

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