ML20028A437

Response Opposing ASLB 821102 Proposal to Conduct Evidentiary Depositions on Emergency Planning.Regulations Provide for Litigation of Contentions in Public Adjudicatory Forum.Certificate of Svc Encl.Related Correspondence

ML20028A437
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/17/1982
From:	Latham S SHOREHAM OPPONENTS COALITION, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20028A435	List: ML20028A434 ML20028A437
References
ISSUANCES-OL, NUDOCS 8211220160
Download: ML20028A437 (8)

Text

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'F,10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'82 N9V 19 A10:10 BEFORE THE ATOMIC SAFFTY AND LICENSING BOARD In the Matter of ) [U. , hg ,5}h

) W M:CH LONG ISLAND LIGilTING COMPANY ) Docket. No . 50-322 (O.L.)

< ) (Emergency Planning)

(shoreham Nuclear Power St.at. ion ,)

Unit 1) )

SHOREHAM OPPONENTS COALITION RESPONSE TO BOARD PROPOSAL OF NOVEMBER 2, 1982 TO CONDUCT EVIDENTIARY DEPOEITIONS ON EMERGENCY PLANNING In t.roduc tion It is the Shoreham Opponent s Coalit. ion's (" SOC's") under-standing (based upon the relevant. t.ranscript pages of the hearing conducted on November 2, 1982 and a subsequent. Board Order, dated November 9, 1982) that the Licensing Board int. ends t.o lit.igate on-site emergency planning issues t.hrough a device characterized as " evidentiary deposit. ions" . According to t.he November 2, 1982 transcript. and the Board's November 9, 1982 Order, parties t.o the on-site emergency planning issues are being t.old t.o cond uct. t. heir cross-examination of t.he emergency planning witnesses t.hrough the use of depositions, outside the presence of the Board. SOC fur-ther understands that t.he part.ics will then submit t.he depositions to the Board for t.he Board's review after indicat.ing on the depositions which portions t.he respective part.ies int.end to move into evidence. Af t.er t.he Board has reviewed t.he depositions, the

,. s 8211220160 821117 PDR ADOCK 05000322 G PDR

Board may decide t o call one or more wit.nesses t.o respond to Board questions and at the Board's discret. ion, parties may be permitted to ask a limited number of "well-focused and primarily follow-up questions" within reasonably set. time limitat. ions. While no party can firmly predict t.he lengt.h of t.ime that would ordinarily be required to litigat.e t.he on-sit e emergency planning issues through a formal hearing process , i* is fair to say t.ha t. t.he Board's pro-posal would restrict. t.he act.ual hearings on on-site emergency planning issues to a day or two at most. For t.he reasons set.

forth below, SOC st.rongly opposes t.he Board 's evident.iary deposi-tion proposal and will decline t.o pa r t. ic ipa t.e in any such depar-ture from the hearing process.

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St.at.ement. of Position As se t. fort.h at. page 12,563 of t.he t ranscript in this pro-ceeding, the Board has charact.erized its evidentiary depositions proposal as an "ef ficiency device":

". . . It is for ef ficiency. There is no need for us l to sit here while each and every question and answer is asked. We can read t.he deposit. ion and t hen bring the witnesses in t.o follow-up with our questions ."

l We are, quit.e frankly, ast.ounded at t.he Board's cavalier and I

self-int.erested view of what. we have always t.ho ug h t. were formal ,

l public adjudicatory hearings. The Board apparently believes that.

it would be a wast.e of t.he Board's t.ime t.o sit. through several days of " live" t.est.imony on emergency planning issues when the I

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- t Board apparently has more import. ant t.hing s t o which i'. could devote its attention. SOC has always believed and 10 CFR S2.751 expressly provides that the lit.i ga t. ion of cont.ent. ions in the Shoreham proceeding would be in a public adjudicstory forum, in the presence of the triers of fact rather t.han t.hrough the use of deposit. ions with perhaps some formal public hearings if it suits the Board's in t.ere s t. . We have assumed that t.his long-stand-ing practice of administrat.tve law would be followed in this pro-ceeding unless ot herwise ordered by t.he Commission, which has clearly not happened in t.his case.

It is undoubtedly t. rue t.h a t. t.he Board has opt ed for eviden-tiary depositions in lieu of formal adjudicatory hearings in the interest.s of "ef ficiency", but we believe t.ha t. t.he " efficiency" in this instance is designed t.o serve t.he co'nvenience and in t.e r es t.s of the Board and the applicant. rat.her t.han serving t he int.erests of justice and a f air hearing process.

It has been clear to SOC and undoubt edly to ot.her parties, at least since the oral argument. on emergency planning issues be fore the Board on July 20, 1982, that. t.he Board has st.ructured the lit.igat. ion of emergency planning issues an<1 now int ends t.o cond uc t.

the litigation of t. hose issues in a fashion t hat, will ensure a partial initial decision in t. ime t o issue a low power license t.o the applicant. in March of 1983. Our fears have been confirmed by a communication from NRC Chairman Palladino to Congress on September O

30, 1982 which af firms t.he March , 1983 decision dat.e.

In view of t.he extended t.ime necessary for t.he litigat. ion of the numerous Shoreham safet y issues, t.he Board now realizes t. hat it cannot afford t.o take the t.ime for formal public adjudicatory hearings on on-sit.e emergency planning issues and still expect u, meet its March, 1983 deadline. Inst.ead of adhering to its role as an impartial trier of fact. and taking what.ever time is necessary to f airly litigate all of t.he safet.y issues in the Shoreham pro-ceeding, the Board has inst.ead opted t.o shortcut that process while at. t.he same t.ime ret.aining cont. col over all of t.he issues necessary to support a low power license according t.o 1.he schedule announced by Chairman Palladino.

Contrary t.o t.he Board 's apparent. disi nt erest. in adjudicat.ing the on-sit.e emergency planni ng i ssues and' i t.s appa rent. belief that.

these issues are of less impor t.ance t.han t. hone safet y issues which have been subject. to formal adjudicat.ory proceedings, each of the intervenors in the Shoreham case (as well as t.he public at large) believes t. hat. emergency planning issues are among t.he most criti-cal, if not the most critical issues in t.his proceeding. The issues are too impo r t. ant to be subject t.o arbit.rary 1.ime limita-tions or other procedural gimmicks in order t.o meet. LILCO's latest (and undoubtedly st.ill inacc ura t.e ) f uel-load dat.e .

We need not. speculat.e here on t he possibilit.y that the Board 's att.empt t.o s ho r t.c u t formal evident.iary hearings will O

- t create more problems, confusion and public skepticism about the licensing process than t.he Board will save in time t.hrough the use of evidentiary deposit. ions. It does occur t.o us and we do not understand how the Board i n t.e nds t.o t.ake not.e of demeanor in evaluating the credibilit.y of the parties' w i t.ne s s e s , but perhaps the Board has planc t.o amend t. hat a spect. of t.he f act -finding process as well. LILCO's suggest. ion (as page 8 of it.s November 11, 19P.; P.:morandum on this subject.), t.o t.he of feet that. the parties can rest. age cert.ain por:t. ions of t.he deposition testimony to capt.ure witness demeanor is pat ently absurd. Perhaps one of the parties will suggest t.h a t. all of t.he deposit. ions be video-taped so that the parties can subsequent.ly mark portions of the video-t. ape where it feels t.he Board should,have a flavor of the demeanor during depositions.

For the above reasods and t.he reasons set. fort.h by the County in its filing, dated November 8, 1982, SOC will not. participate in the Board's proposed evident.iary depositions or in any other ad hoc procedural device which t.he Board may concoct. and which inf ringes on t.he public 's r ig h t. to a formal, public adjudicat.ory proceeding.

SOC similiarly declines to t. ravel t.o net.hesda , Maryland , on l

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November 22, 198 2 to arg ue f urt.her on t.his point. in view of SOC's l

firm belief that all of t.he public hearings in t.he Shoreham case should be held on Long Island. The Board can hardly pret.end that l l l -s-

c the Shoreham hearings are t.ruly "public" as int. ended by the NRC's regulations when those hearings have been so far removed from the site of the project so as t.o preclude all but. the major institutional part.ies f rom at.t.ending ; so as t.o preclude members of the public from attending; and so as to preclude members of the press from attending and reporting on events which may interest those who will have to live with the Shoreham project long after the Board has moved ont.o ot.her mat.t.crs.

SOC formally request.s t. hat. any furt.her argument. or proceed-i ings in the Shoreham case, particularly t. hose pertaining to the issues of on-site and of f-sit.e emergency planning be returned to Long _ - land . Should t.he Board wish to reschedule it.s proposed November 22, 1982 hearing on emergency planning t.o a site on Long Island, SOC will att.fr.d.

Re f tfu y ob tt a tihafn" "

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S t. e B.

TWOME/, LATilAM & SilEA Att.orneys for t.he Shoreham opponents Coalition 33 West Second Street i

Post. Office Box 398 j Riverhead, New York 11901 Dated: .Riverhead, New York l

November 17, 1982 l

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- I C XKETET "4"

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION T2 NOV 19 N0:10 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Cni. . Liu. tina

) 00CEMG & SEhvlCE In the Matter of ERAT!CH

}

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (O.L.)

) (Emergency Planning)

(Shoreham Nuclear Power Station,) '

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of SHOREHAM OPPONENTS COALITION RESPONSE TO BOARD PROPOSAL OF NOVEMBER 2, 1982 TO CONDUCT EVIDENTIARY DEPOSI-TIONS ON EMERGENCY PLANNING, dated November 17, 1982, submitted by the Shoreham Opponents Coalition, in the above captioned proceeding , have been served on the following parties: by Federal Express on Lawrence Coe Lanpher; by hand on those parties whose names are preceded by an asterisk; and on the remainder of the parties by deposit in-the United States mail, first class, this 17th day of_ November, 1982.

• Lawrence Brenner, Chairman Samuel J. Chilk, Secretary Administrative Judge Docketing and Service Station Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.

Board Panel Washing ton , D.C. 20555 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Ralph Shapiro, Esq.

Cammer and Shapiro, P .C .

• Dr. Peter A. Morris 9 East 40th Street l

Administrative Judge New York, N.Y. 10016 l

l Atomic Safety and Licensing Board Panel *W. Taylor Reveley, III, Esq.

U.S. Nuclear Regulatory Comm.

Hunton & Williams Washing ton , D.C. 20555 707 East Main Street P.O. Box 1535 Richmond, Va. 23212

• Dr. Jamaa H. Carpenter Administrative Judge Atomic Safety and Licensing Jef frey Cohen , Esq.

Board Panel Deputy Commissioner & Counsel U.S. Nuclear Regulatory Comm. New York State Energy Office Washing ton, D.C. 20555 Agency Building 2 Empire State Plaza Albany, N.Y. 12223 Ed wa rd M. Barrett, Esq.

General Counsel Atomic Safety and Licensing Long Island Lighting Co. Appeal Board Panel 250 Old Country Road Mineola, N.Y. 11501 U.S. Nuclear Regulatory Comm.

Washing ton, D.C. 20555 l

Atomic Safety & Licensing Herbert H. Brown Board Panel Lawrence Coe Lanpher

'U.S. Nuclear Regulatory Comm. Karla J. Letsche Washing ton , D.C. 20555 Kirkpatrick, Inckhart, Hill, Christopher & Phillips Doward L. Blau, Esq. 1900 M Street, N.W.

217 Newbridge Road 8th Floor Hicksville, N.Y. 11801 Washing ton, D.C. 20036 David J. Gilmartin, Esq. Cherif Sedky, Esq.

Attn: Patricia Dempsey, Esq. Kirkpatrick, Lockhart, County Attorney Johnson & Hutchison Suffolk Co. Dept. of Law 1500 Oliver Building veterans Memorial Highway Pittsburgh, PA 15222 Hauppauge, N.Y. 11787 Brian McCaffrey MHB Technical Associates Charles Daverro 1723 Hamilton Avenue Long Island Lighting Company 175 East Old Country Road Suite K Hicksville , N.Y. 11801 San Jose, Ca. 95125 Energy Research .ap, Inc.

Nora Bredes SOC Coordinator 400-1 Totten Pond Road Waltham, Mass. 02154 195 E. Main Street Smithtown, N.Y. 11787

• Bernard M. Bordenick, Esq.

Daniel F. Brown, Esq. Counsel for NRC 'Staf f Atomic Safety & Licensing U.S. Nuclear Regulatory Comm.

Washing ton, D.C. 20555 Board Panel U.S. Nuclear. Regulatory Comm.

Washington, D.C. 20555 Dated: Riverhead, New York November 17, 1982 .

.Jh Stephen /B. Latham I

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