ML20148S827

NRC Staff Response to Govt Motion for Extension of Time to Respond to Realism Discovery Requests & to Extend Discovery Schedule.* Intervenors 880406 Motion Should Be Denied.W/ Certificate of Svc

ML20148S827
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/08/1988
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6089 CLI-86-13, OL-3, NUDOCS 8804200037
Download: ML20148S827 (8)

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. 04/08/88 00LKCIEO ,

tJWC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOlts APR 18 N0:59 BEFORE THE ATOMIC SAFETY AND LICENSid6'MOARD' p.

in the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF'S RESPONSE TO GOVERNMEN"' MOTION FOR EXTENSION OF TIME TO RESPOND TO REALISM DISCOVERY REQUESTS, AND TO EXTEND DISC _OVERY SCHEDULE The NRC Staff opposes Intervenors' April 6,1988 motion which seeks an extension of the discovery schedule until May 6,1988.

On July 21., 1986, in C L l-8 6-13, 24 NRC 22, 32 (1986), the Commission remanded LILCO's realism argument for further proceeding.

The Commission stated:

Accordingly, we remand LILCO's realism argument to the Licensing Board for further proceedings in accord with this accision. The Board should use the existing record to the maximum extent possible, but should take additional evidence where necessary. [ Footnote Omitted)

On February 29, 1987, this Board set out an outline for the litigation of the "realistr " issues, and set forth a schedule for the litigation of those rnr.tters on March 7,1987.

In spite of the fact that litigation of these matters has been pending for at least 20 months since the Commission Decision of July 1986, the Intervenors state in their Motion that "...the Ocvernments have not yet decided upon or designated any witnesses on the realism issues, or even decided whether witnesses will be designated." Motion at 5. Intervenors 8804200037 080408  ;

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also indicate they have not yet even considered and decided basic and fundamental questions involving the realism proceeding. As they state:

Whlie the Staff's interrogatories are not nearly as lengthy as LILCO's, they nonetheless require the Covernments to consider and decide basic and rundamental questions regarding the realism proceeding. .Thus, for example, if the Staff's interrogatories were to be answered, the Covernments would need to decide such tratters as whether they will subpoene witnesses or documents. Further, assuming docu-monts and witnesses would be subpoenaed, the Governments would have to specify the persons and documents for which subpoenas would be soucht, the subjects they intend to ask subpoenaed witnesses about, and the information hoped to be elicited.

Motion at 3, n. 6. The Intervenors thus show in their own motion that it is the intervenors own lack of preparation that causes them te seek this extension of time.

The Corrmission in its Statement of Poll _cy on Conduct of _ Licensing Pro _ceedings, CL1-81-8,13 NRC 452, 454 (1981),- stated:

Fairness to all involved in NP.C's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations. While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.

The Commission there continued by outlining sanctions which might be imposed on parties who do not fulfill ob!!gations in the hearing process.

The Intervenors here are not impecunious parties with few resources but a large county and a State. The intervenors here should not be rewarded by extending their time to answer interrogatories concerning the nature of their "realism" case. intervenors have known since July 1986, that they might be called upon to put on such a case and give that

Information and hase not yet considered or decidad fundamental questions regarding this procecolng or what evidence they might offer.

Intervenors give four reasons for their need for an extension.

None of them are valid. The first is that the interrogatories are leu rcer.some. Motion at 6-7. 1he interrogatories here seek to find out i

the nature and theory of Intervenors' case. Certainly these are i

matters Intervenors knew they would be called upon to address since the issuance of CLl-86-13 and certainly since November 3,1987 (57 Fed.

Reg. 4207P, 42086) when the Commission amended 10 C.F.R. I 50.47(c)(1).

That regulation provides:

. . . it may be presumed thet in the event of an actual radiological errergency state and local officials would generally follow the utility plan. However, this presumption ,

may be rebutted by, for example, a good faith and timely proffer of an adequate and feasible state and/or local radiological t.mergency plan that would in fact be relied upon in a radiological emergency.  ;

Plainly, the Intervenors have long been on notice that if they claimed they would not rely on a utility plan in radiological emergency, they must set forth in detail how they would respond. -

Next, the Intervenors speak of their other obilgations in this and allied proceedings. Motion at 7-8. However, these are not inexperienced or impecunious parties. Cf. Statement of Policy _, m pra. Thc '

have substantial resources as is evidenced by the number of attorneys involved in this proceeding on their behalf.

Next, intervenors speak to LILCO's designation of the prima facie case on April 1, 1988. Motien at 8-10. LlLCO's filing was not unexpected since that was the date designated by the 86ard for the filing of LILCO's gims facie case, in addition, intervenors were

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Informed in CLI-86-13 diet the recorc which existed was to be relled upon as the primary support for the realism arguments. 2 tl N RC at 32.

Moreover, LILCO's earlier motions for summary judgnient contained almost all of the same material. This material is not new, .and its submission dce tmt show why the Intervenors need more time to answer Interroga-tories gcing to their case and what the actions they would take in radio-logical emergency. Intervenors were told by the Commission in July 1986 (CLI-c6-13), and again upon the amendment of 10 C.F.R. I 50.zi7(c)(1) i in November 1987, that they were obligated to affirmatively state what

- they would do in emergency. It is too late in April, 1988 tc say they have not considered or decided these fundamental questions. See Motion ,

at 3, n. 6.

Lastly, the Intervenors seek to blame this Board for their inability l

to reply to the interrogataries. Motion at 10-11. They state they are hampered by the Board's failure to set forth its reasons for the denial of LILCO's summary disposition motion , it may be that certain of the matters asked in the interrogatories are not considered by the Board to be in dispute, but this dces not show why the interrogatories cannot be answered. Similarly, the fact that matters asked by LILCO may or may not be relevant does not show that answers to such matters may not lead to relevant evidence and cannot be asked in interrogatories.

To the extent that Intervenors say they need the summary -

disposition, opinion to determine whether to seek further discovery, they are certainly late. Discoverv opened on March 7,1988 -- 'and closes six weeks later on April 15, 1987. Either the Intervenors complete discovery within that pericd, or they are barred from discovery. The fact that i

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they might winnow their discovitry after review of the Board's summary disposition opinion, does not show they cannot proceed with any needed 1

discovery in the time provided.

I The intervenors also state their request for an extension of discovery te May 6, 1988 should be granted because it "would not significantly impact the likely commencement date of the realism hearing.

Motion at t.. They recognize that such an extension of discovery will delay the filing of realism issue testimony until May 20, motions to strike that testimony until May 27, and responses to those motions until June 3, 1988. Motion at 3. Thus, a delay of the realism hearings is likely. The hearings en other issues is scheduled to start on May 16, 1988, and the reallsrr hearings to begin at least a week after conclusion of those l hearinns. Should the hearings on other issues even go to May 27, 1988, the realism issue hearings might start on June 6, 1988. Delaying discovery and the filing of testimony, as requested, would not make that date for starting the realism hearings likely. Thus, the delay sought will affect the hearing schedule.

Moreover, the extension of discovery would prejudice other parties as it would shorten the time other parties would have between discovery, the filing of testimony and the start of hearings. For this reason also, the Moticr. should be denied.

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. CONCLUSICN

'Intervenors' Motion to extend the discovery period in the realism I proceeding should be cenled for each of the reasons set cut above.

l Respectfully subniitted, l+ W , /

Edwin J. Reis Icputy Assistant General Counsel Dated at Rockville, Marylano this Eth day of April,1988 l

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e v iiLO UNITED STATES OF AMERICA "lw t NUCLEAR REGULATORY COMMISSION gg n 18 NO $9 BEFORE THE ATOMIC SAFETY AND LICENSINO BOARD crrn *t I '.'". I 00CKEbNn^

in the Matter of ) 59hC'i

)

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

) (Emergency Planning)

(Shoreham Nuclear Pow cr Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO GOVERNMENTS' MOTION FOR EXTENSION OF TIME TO RESPOND TO REALISM DISCOVERY REQUESTS, AND TO EXTEND DISCOVERY SCHEDULE" in the above-captioned proceedino have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit ir. the Nuclear Regulatory Commission's internal mail system or, as indicated by couble asterisks, by telecopy, this 8th day of April 1988.

James P. Gleason, Chairman ** Joel Blau, Esq.

Administrative Juage Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*

• Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety ano Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon** Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of ,

Atomic Safety and Licensing Board Public Service <

U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley lli, Esq. [

Feaeral Emergency Management Donald P. Irwin, Esq.

. Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 - P.O. Box 1535 New York, NY 10278 Richmond, VA 23212

u . .

. Dougisc J. Hynes, Councilman Dr. W. Reed Johnson Town Board of Oyster Bay 115 Falcon Drive, Colthurst  !

Town Hall Charlottesville VA 22901 l Oyster Bay, New York 11771  ;

Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Twomey Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Anthony F. Earley, Jr. Dr. Mo'nroe Schneider General Ccunsel North Shore Committec Long Island Lighting Company P.O. Box 231.

175 East Old County Road Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes Dr. Robert Hoffman Shoreham Opponents Coalition  !

Long Island Ccalltion for Safe 195 East Main Street Living Smithtown, NY 11787 ,

P.O. Box 1355 Massapequa, NY 11756 William R. Cumming, Esq.

Office of General Counsel Alfred L. Nardelli, Esq. Federal Emergency Management New York State Department of Law Agency 120 Broadway 500 C Street, SW Room 3-118 Washington, DC 20472

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Docketing and Service Section* Barbara Newman

Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living Wcshington, DC 20555 Dox 944 Huntington, New York 11743 i

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, Edwin J. Rejar f Deputy Aspistant General Counsel  ;

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