ML20024F296

Memorandum in Support of Suffolk County Motion to Compel Util Responses to Discovery Requests Re non-LILCO Support Organizations.Info Relevant to Admitted Contentions. Certificate of Svc Encl

ML20024F296
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/06/1983
From:	Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20024F293	List: ML20024F292 ML20024F296
References
ISSUANCES-OL, NUDOCS 8309090244
Download: ML20024F296 (13)

Text

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t UNITED TTATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

MEMORANDUM IN SUPPORT OF SUFFOLK COUNTY MOTION TO COMPEL RESPONSES TO DISCOVERY REQUESTS RELATING TO NON-LILCO SUPPORT ORGANIZATIONS I

Suffolk County's Motion to Compel arises from LIICO's re-l fusal to respond to certain of the County's discovery requests concerning non-LILCO organizations, entities and individuals, such as school districts, hospitals, ambulance companies, fire departments, volunteer groups, and bus companies, on which LILCO may rely for implementation of the LILCO Transition Plan.

Under the LILCO Plan such entities are expected to play key roles in the implementation of protective actions. (See, e.g.,

Plan, Section 2.2) Consequently, discovery designed to ascertain the identity of the organizations being considered by LILCO to fill such roles, their capabilities, and their re-sponses to contacts made by LILCO is both relevant and, indeed, essential.

8309090244 830906 PDR ADOCK 05000322 G PDR 1

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j -Thh.information soucl6t by the County is relevant to

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, sevbral? admitted: contentions. In particular, see Contentions 15.Ac 15.C, 24, 25, 26E, 27, 34, 39, 67, 70, 71, 72, and 73.. ,

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In addition, the information the County seeks is'not protected

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by any privilege. Accordingly, LILCO should be compelled to respond to the County's discovery requests.

3 DISCUSSION --

The County's informal discovery requests.(dated July 18,

~1983) to whicln.this Motion applies and LILCO's responses to those requests ~ (dated August 5, 1983) are set forth below:

Suffolk County Request 6

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Identify the name and address of.every company, organiza-tion, group, entity, institution, and individual, not employed by LILCO, who are expected to, perform emergency services _of'any type in the event of a' radiological emer-gency at Shoreham, under the LILCO Transition Plan. With respect to each organization identified,, identify the 3 _

person or persons affiliated with that organization who are knowledgeable concerningathat organization's partici-pation in the emergency response.

LILCO Resoonse To the extent that Suffolk County's Request 6 seeks infor-O*' mationqconcerning negotiations between LILCO and non-LILCO organfzat' ions prior _ to . sue.h non-LILCO organizations

<cxecuting*l.etters of agreemr.nt to perform or,to assist in

the' performance of emergency services, LILCO" objects to

.. .; Suffolk County's Request 6' on:the grounds that provision

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7 of'such information would frustrate LILCO's negotiations 4

swith non-LILCO organizations. To the extent that LILCO c ,

has reached ageements with.non-LILCO organizations to per-form or to assist in the performance of emergency

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serdices, Letters.of Agreement with such organizations have.been included in the Plan as pages APP-B-1 through I APP-B-9 r if_ additional agreements are reached in the fu-

ture they will be included in the Plan.

Without waiving its objection, LILCO states that, in I' LILCO's July 29, 1983, Response to Suffolk County Request 1 of Julys18, 1983, Elaine D. Robinson has been. designated as a LILCO. witness on the subject of non-LILCO support groups.

, Suffolk County Request 7 Provide copies of all correspondence, questionnaires, 1 . surveys, polls, or information sent by or on behalf of V '

LILCO to the organizations or individuals identified in response to the previous question. Also provide copies of all responses or-other correspondence or information

- received from such organizations or individuals, and any analyses, summaries, or reports relating thereto.

fs LILCO Response m"

• See LILCO's Response to Suffolk County Request 6 above.1/

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Suffolk County' Request 9 q

<< Identify the name and title of the person or persons who

are " pursuing" on behalf of LILCO agreements _for "certain L' '

LERO functions" "with ap ro (See 3 .

yourJune20 Responses.)_p/priateorganizations."

Identify the "LERO functions" jb/ In response to the County's objection-to LILCO's refusal 1 y;_ to respond to Request 7, LILCO provided (on August 16, Jce '.6- 1983) copies of documents sent to or received from organi-

" i zations'with which'LILCO has a letter of agreement --

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these documents consisted of a form letter from LILCO's Chairman of the Board, an information packet entitled "For Your Information . . . 'Shoreham Nuclear Power Station,"

. , and the so-called ~1etters of agreement which have been in-corporated,into'the Plan.

2/ On June 14, 1983, shortly after having received a copy of the Transition Plan, the County. asked the following 1

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an6=the_ names and addresses of the " appropriate organiza-

. tions" refetred to. @rovide copies of all correspondence,

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/ ' or other documentation, relating to this effort.

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- 4 LILCO Besponpc'

,- ,E SeoiLILCO's Response to Suffolk County Request 6 above.

',' i Without waiving its objection, LILCO states thate.in LILCO's July 29 Response-to Suffolk County Request 1 of Julyll8, E).aine D. Robinson has been designated as a LILCO i witness on the subject of non-LILCO support groups.

Suffolk County Request 10

',': Provide ' copies of all correspondence, questionnaires, 7  ; surveys, polls, or any other inquiries, documents or in-

-- formation sent by orjon behalf of LILCO to any of the following with' respect to radiological emergency planning:

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. (Footnot cont'd from previous page)

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7 - questfon,slof LILCO:

- -- "Does'LILCO,have agreements with any fire departments

- and/or ambulance. services with respect to providing offuite radiological emergency response services in the eventsof an accident at Shcreham? Please provide copies."

-- "Does LILCO presently have contracts with Ony bus companies, school districts or other entities to provide high occupancy vehicles to LILCO for use in the event of a radiological emergency at Shorehan.?

Please provide copies."

-- "Does LILCO have an agreement with the'Long Island Railroad to implement emergency evacuation procedures in the event of. a radiological emergency at Shoreham?

Please provide copies."

LILCO's response to these three questions was:

"No. LILCO is pursuing agreements for certain LERO functions, however, with appropriate organizations.

Final agreements may include the organizations you have listed."

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a. Private, parochfal, public anc nursery schools

b. Nursing / adult homes

c. Hospitals, and other medical or health care facilities

d. Bus companies or other entities capable of providing evacuation transportation, vehicles, or personnel

e. Ambulance services or other entities capable of providing ambulance or rescue vehicles and personnel

f. Fire districts, fire departments

g. Law enforcement agencies

h. School districts

1. Local governmental authorities, other than Suffolk County

j. The American Red Cross

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k. The Salvation Army

1. The Long Island Railroad Provide copies of all correspondence, responses or other information received by or on behalf of LILCO from the entities listed. In addition, provide all analyses, summaries, reports or any other documents relating to the

- participation or involvement of any of the entities in or during a radiological emergency at Shoreham.

LILCO Response See LILCO's Response to Suffolk Counf.,s Request 6 above.1/

3/ In response to the County's objection to the responses to Questions 6-10, on August 16 LILCO provided copies of school emergerly disaster plans from . hose schools or dis-tricts which had provided their plans to LILCO, and two memoranda from the New York State Education Department to (Footnote cont'd next page)

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In addition, during several discussions among counsel con-

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cerning discovery problems, LILCO's counsel has informed us '

i that although Elaine D. Robinson is the LILCO witness desig-l nated to testify "on the subject of non-LILCO support groups,"

counsel will instruct Ms. Robinson not to answer questions posed during her deposition concerning any non-LILCO organiza-tions or individuals other than those with which LILCO has al-ready consummated formal agreements. 3a/ -

The only reason provided to the County for LILCO's posi-tion on this matter -- as applied to both document and deposi-tion discovery -- is that such discovery "is inappropriate" be-cause providing the requested information would supposedly

" frustrate LILCO's negotiations" with non-LILCO entities.

LILCO asserts this position by characterizing the County's dis-covery requests, listed above, as attempts to discover LILCO's

" ongoing negotiations." While responses to the requests would r

presumably include information relating to such negotiations, neither that fact, nor LILCO's unsupported assertion that the requested discovery is, in its opinion, " inappropriate,"

(Footnote cont'd from previous page) 4 District Superintendants, Superintendants of Schools, and the'New' York City Board of Education, regarding disaster preparedness.

2"! Because this instruction has also been given to other LILCO witnesses with respect to such questions, the County re-quests that any Board order granting this motion be appli-cable not just to Ms. Robinson but also to the testimony of all LILCO deposition witnesses.

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constitute a proper basis for objection to a legitimate discovery request.

In discussions of this matter among counsel, LILCO's l

counsel has stated that LILCO has taken this position because it believes efforts have been made, by certain unidentified i persons, to impede or obstruct LILCO's attempts to persuade I

' non-LILCO organizations to cooperate in implementing the LILCO Plan. However, LILCO's counsel also has expressly conceded that LILCO has no evidence, nor does it mean to suggest, that Suffolk County or any County representatives have been involved in any way in the referenced efforts allegedly directed toward

" frustrating" LILCO's negotiations. Furthermore, in discus-sions among counsel, the County has stated that it does not seek the requested information for the purpose of obstructing LILCO's negotiation efforts, or for any improper purpose.

The overriding fact which must govern this Board's ruling on this Motion is that the requested information is undeniably relevant to admitted contentions. It is, moreover, absolutely essential to the County's preparation for trial. Because the Plan itself fails to identify by name the various non-LILCO or-ganizations and individuals which the Plan, on paper, indicates "will" provide certain emergency services, the County has no i

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choice but to use discovery to ascertain what LILCO has done, or intends to do in the future, to make what the Plan baldly asserts will happen, actually happen.

There is no more central issue in this proceeding than whether the LILCO Plan can be implemented. LILCO has admitted that it is attempting to obtain agreements, from varioun unidentified entities, to participate in implementation of the proposed LILCO Plan. Since such implementation will depend upon the capabilities of non-LILCO organizations as well as those of LILCO, the County is entitled to discovery concerning such capabilities. Clearly, a prerequisite to such discovery is the identification, by LILCO, of the organizations it is considering. Similarly, the information provided by LILCO to the organizations concerning what would be expected of them and their anticipated roles in an emergency should they agree to participate, as well as information from the organizations to LILCO concerning their willingness and abilities to perform such roles, is a prerequisite to any evaluation of whether the organizations' participation would make implementation of the LILCO Plan any more feasible.

• . Moreover, LILCO's implication that the County only needs to know such information with respect to the organizations with

1 which LILCO has already reached an agreement has no relevance to the discovery issue presented here.1/ LILCO argues that unless it has a written agreement from a non-LILCO entity, it cannot rely upon that entity, or "take credit" for its avail-ability, in this licensing proceeding. Therefore, according to LILCO's reasoning, until such agreements are executed, the

. identity of the entity can properly be kept secret and the County cannot be heard to complain. This LILCO argument ig-nores the entire purpose of the discovery process. Without knowing in advance whom LILCO is contacting and the nature and results of such contacts, the County will be unprepared and un-able to address in testimony the issues which will undoubtedly be raised when LILCO suddenly produces, sometime in the future, additional letters of agreement.

Moreover, carried to its logical extreme this LILCO argument would, in fact, bar all discovery because until testi-

. mony or evidence is finally submitted to the Board, a party cannot "take credit" for, or rely upon, any fact, for purposes of this proceeding. In addition, even under LILCO's own logic, 1/ We also note that aside from the Letters of Agreement that are in the Plan itself and the two items referenced in footnote 2 above, none of the information requested by the County in the above-cited discovery requests has been pro-vided by LILCO with respect to the organizations with which it already has entered agreements.

the requested discovery is proper because the LILCO Plan --

which LILCO has submitted to this Board and upon which LILCO does rely -- explicitly states that various non-LILCO entities will participate in and are necessary to the implementation of the Plan. Most significantly, the requested information is di-rectly relevant to admitted contentions. The County's discov-ery is proper and well within the scope permitted by 10 CFR S2.740.

Finally, were this Board to sanction this LILCO effort to withhold clearly relevant information from the County, the County would have no alternative but to seek the information through other means, such as through subpoenas of all the

,. entities LILCO conceivably could be contacting, or through dep-ositions of large numbers of non-LILCO representatives. Al-though a certain amount of such discovery may be necessary in any event, a large portion of it could be obviated were LILCO compelled to respond as required by the NRC regulations to the County's legitimate discovery requests.

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Accordingly, for the reasons stated above, the County sub-mits that its Motion to Compel should be granted.

Respectfully submitted, 1

David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 ,

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H'e r.be r t H . Bro Karla J. Lets 'e John E. Birke heier KIRKPATRICK, LOCKHART, HILL CHRISTOPHER & PHILLIPS

. 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 k Attorneys for Suffolk County September 6, 1983 e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Suffolk County Motion to Compel Responses to Discovery Requests Relating to Non-LILCO Support Organizations and Memorandum in support thereof have been sent to the following this 6th day of September, 1983 by U.S. mail, first class, except as otherwise noted:

• James A. Laurenson, Chairman Ralph Shapiro, Esq.

Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C. 20555 New York, New York 10016

• Dr. Jerry R. Kline **W. Taylor Reveley, III, Esq.

Atomic Safety and Licensing Board Hunton & Williams U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. 20555 707 East Main Street Richmond, Virginia 23212

• Mr. Frederick J. Shon Atomic Safety and Licensing Board Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Commission Twomey, Latham & Shea Washington, D.C. 20555 33 West Second Street Riverhead, New York 11901 David J. Gilmartin, Esq.

Suffolk County Attorney Docketing and Service Section H. Lee Dennison Building Office of the Secretary Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11788 Washington, D.C. 20555

• Bernard M. Bordenick, Esq.

• Eleanor L. Frucci, Esq.

David A. Repka, Esq. Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U. S. Nuclear Regulatory Commission i Washington, D.C. 20555

• By Hand

• • By Telecopier

Nora Bredes

• Stewart M. Glass, Esq.

Executive Director Regional Counsel Shoreham Opponents Coalition Federal Emergency Management 195 East Main Street Agency Smithtown, New York 11787 26 Federal Plaza, Room 1349 New York, New York 10278 MHB Technical Associates 1723 Hamilton Avenue James B. Dougherty, Esq.

Suite K 3045 Porter Street, N.W.

San Jose, California 95125 Washington, D.C. 20008

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Karla J. Lets6h'e KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATED: September 6, 1983 i

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