ML20202F843

Memorandum & Order Advising That Setting Discovery Schedule & Establishing Time for Filing Direct Testimony Premature & That ASLB Intends to Hold Proceeding in Secure Facility. Served on 860714

ML20202F843
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/11/1986
From:	Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO., NEW YORK, STATE OF, SUFFOLK COUNTY, NY
References
CON-#386-965 86-533-01-OL, 86-533-1-OL, OL-3, OL-5, NUDOCS 8607150242
Download: ML20202F843 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

9 A8:27 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: oggp GCCH(7 D W~T;f[

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Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon l 65EC agh

• In the Matter of Docket No. 50-322-0L-3

) (EPExercise)

LONG ISLAND LIGHTING COMPANY )

) (ASLBP No. 86-533-01-OL)

(Shoreham Nuclear Power Station, )

Unit 1) ) July 11, 1986

)

MEMORANDUM AND ORDER (PREHEARING CONFERENCE, JULY 8, 1986)

On July 8, 1986, a prehearing conference was held in the New York State Court of Claims at Hauppauge, New York. It was scheduled pursuant to our Memorandum of June 11, 1986 and Order of June 20, 1986, for the

> purpose of considering the matters that will be at issue in the subject proceeding, the procedures to be employed, the setting of schedules and other topics customarily reviewed before commencing a hearing. In attendance were Applicant, Long Island Lighting Company, Intervenors, State of New York, Suffolk County and Town of Southampton, NRC Staff (Staff) and Federal Emergency Management Agency (FEMA). The parties had been invited to submit suggestions for the agenda, to be discussed at the conference. Applicant and Intervenors submitted proposals. Staf#

8607150242 860711 PDR ADOCK 05000322 G PDR TSOL

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made no independent submission, choosing to comment on those of the others.

At the prehearing confere'nce the Board reviewed the proposed agendas with the parties. We placed on the agenda, as appropriate, Applicant's proposed topics, I. Proposed Schedule, a. through k. and II.

Hearing l.ocation. The topics under I. cover proposed scheduling, beginning with the time for filing contentions and extend through the times for permitting motions for sumary disposition, conducting discovery, filing direct testimony and holding the evidentiary hearing.

It also sought the adoption of two procedures to be employed as part of e

the summary disposition process proposed. Topic II consists of a request to hold the proceeding in a suitable federal facility.

As to Intervenors' proposed agenda, we made the following rulings on placing the items on the agenda.

Item 1. Nassau Coliseum. The request to discuss the action of the Nassau County Board of Supervisors enacting resolutions on June 16, 1986, which bar the use of the Nassau County Veterans Memorial Coliseum as part of the emergency plan and its impact on the exercise litigation because of the void created, was denied. The thrust of the discussion was to be that an essential underpinning of the emergency plan was no longer in effect so that it left the exercise, in retrospect, without real meaning. In making its ruling, the Board relied upon the Memorandum and Order of the Commission of June 6,1986, setting forth the purpose of the hearing to be to consider evidence to show that the emergency plan exercise disclosed a fundamental flaw or flaws in the l

3 LILC0 plan. That which Intervenors sought to place on the agenda is beyond the scope of the subject hearing and therefore was denied a place on the agenda, without prejudice to Intervenors' right to submit contentions on this subject.

For the same reason, we denied placing on the agenda the action i

taken by the New York State Legislature, several days prior to the conference, of enacting legislation creating the Long Island Power Authority, whose purpose is to take over LILCO and all of its generation and transmission facilities, and further prohibiting it from operating Shoreham. As a forum with limited jurisdiction, this is a matter not I

for our consideration and about which we can take no action. We ,

therefore denied its placement on the agenda. Likewise, we denied a d

motion to suspend this proceeding awaiting the placing of the matter before the Comission. Our mandate is to conduct an expedited proceeding.

I Item 2. Bases of Litigation and Item 3. Revisions 7 and 8 of LILC0 Plan. Intervenors sought discussion of these matters to learn the 1

intention of the Board as to admitting into evidence the FEMA i post-exercise assessment report from April 1986, and whether that is one s

of the documents or the only document upon which subsequent litigation is going to be focused. The Intervenors further sought to discuss Revisions 7 and 8 of the LILCO Plan from the standpoint whether a review of Revision 7 is going to be undertaken and the schedule for that, and what Applicant's schedule is for Revision 8. The Board denied the request to place on the agenda a discussion of the admissibility of the I

4 documents and to what extent they will be the focus of litigation, as premature considering the stage of the proceeding. Placed on the agenda j was the matter of when the documents would become available and what their processing would be. This matter was discussed for scheduling purposes as part of the agenda. The information as to when the documents would become available and what their processing would be was disclosed.

. Item 4. Burden of Going Foward. Intervenors sought to place on the agenda their claim that the current posture of this licensing proceeding places on LILC0 the burden of going forward in this litigation. The Board denied the request on the grounds that the Commission in ordering the emergency planning exercise issue for hearing rendered the argument in Item 4. moot. Item 4. was raised before the Commission prior to the issuance of its Order of June 6 instituting the proceeding. Inherently, the Commission's decision calls upon Intervenors to assume the burden of going forward for it discusses i

pleading and practice standards that Intervenors are to meet in establishing the issues for litigation. Furthermore, this is but an ongoing operating license application proceeding where intervenors always have the burden of going forward and establishing the issues for litigation. The matter sought for placement on the agenda had already been decided.

Item 5. Data Requests. Intervenors sought to place on the agenda their claim that they had not received from FEMA its generated exercise data despite repeated requests and the impact of this failure. This was

5 approved for discussion because it relates to scheduling. It developed FEMA had not submitted logs generated at its end of the exercise, and data concerning the preparation of the scenario. Information was not provided as to what occurred at the EOF. LILCO will not provide EOF material. Significant amounts of data were provided by LILC0 of what they generated at their off-site end of the operation. FEMA is attempting to make the logs available, but its logistical capability limits its ability to do so. Intervenors and Applicant have offered 1

FEMA assistance to facilitate the transfer of documents.

Item 6. FEMA Personnel. For the agenda, Intervenors sought t

information from FEMA regarding the availability of FEMA and RAC personnel and its impact on the exercise litigation. It was added to the agenda because of its relation to scheduling. Discussion developed that FEMA has undergone a major reduction in personnel. Its current counsel in the proceeding will leave the agency as of October 1. A principal manager for preparation of the FEMA post-exercise assessment report is no longer employed in his regular position. Other people who helped author the document are represented as being able to address the issues overall. A request of the Board to take action on the possible failure of the principal manager to participate in the proceeding was

! denied as premature.

Item 7. Limited Appearance Statements. Intervenors sought to

! place on the agenda the request made to them by residents of Long Island to make limited appearance statements should there be litigation concerning the February 13 exercise and to have a spokesperson address

6 the Board on July 8 to schedule times and places. Intervenors strongly supported the request because FEMA allegedly did not conduct a post exercise meeting with the public to obtain data and coments. The Board placed the request for limited appearance statements on the agenda but denied the request to be addressed on the subject by representatives of the public at the prehearing conference as not being at an appropriate time. Similarly the Board denied a request to have the Counsel for the Nassau County Board of Supervisors address the Board with respect to the use of the County facilities, as inappropriate for the conference. The Board determined that limited appearance statements will be taken at a t

time in proximity to the holding of hearings. Note was taken that residents want appearances taken in at least three locations, i.e. in Nassau County, and in Suffolk County, in the eastern and western segments of the EPZ. The public can write to the Board with their suggestions as well as to Intervenors and Staff.

I. Proposed Schedule, a. through k.

Applicant proposed dates of: July 15 for filing contentions; July 25, for responding; August 1, for replies; and August 4-8 for argument at the Board's call.

Prior to setting a date for filing contentions, the Board denied a motion by Intervenors to direct LILC0 to provide the EOF documents which were asserted to be critical data needed to prepare contentions. The Board ruled that the filing of contentions was not dependent on the receipt of the EOF documents; that the key pacing document for the filing of contentions is the [ April] FEMA post-exercise evaluation o

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report. It would be premature to consider the ordering of the production of the E0F documents prior to the submission of contentions.

Discovery must follow the filing of contentions. The parties had previously been notified by our Order of June 20, 1966 that the time for filing contentions began to run from June 18. A request that the filing of contentions be made contingent on the receipt of additional FEMA documents was also denied on the basis that the filing date for contentions was predicated on the pacing document, the FEMA post-exercise evaluation report.

The Board set the following scheduling dates. Contentions are to t

be filed by August 1, 1986, responses by August 11, and replies by August 18. August 26 is the date for holding oral argument on the contentions, to be conducted most likely in the area of the facility.

The filing dates are the dates the documents are to be received in the hands of the Board and of the parties.

Applicant proposed that in order to expedite the proceeding discovery be held following the sumary disposition process. It further recomended that any party wishing to object to a motion for summary disposition on the basis of insufficient facts to respond, the burden be placed on it of documenting the extent of the allegedly missing essential information and how specifically identified discovery would uncover it. Additionally, the proponent would be given the opportunity to demonstrate that the respondent to the motion actually possesses the

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information claimed to be lacking or to establish its irrelevance or immateriality to the statement of material fact at issue in the motion.

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8 The Board denied this request to depart from the established rules of practice and procedure which have been designed to afford parties a full, fair and expeditious hearing. The Commission Order of June 6, 1986 directed that the Board is "to expedite the hearing to the maximum extent consistent with fairness to the parties." The novel approach proposed might well delay the proceeding. The procedures for summary disposition, provided for in the Rules of Practice, will be followed in this proceeding. Discovery will follow the filing of contentions.

The Board further found it was premature to set a discovery schedule, to establish the time for the filing of direct testimony and t

to set the time for the evidentiary hearing.

II. Hearing Location Applicant requested that the proceedings be held in federal facilities rather than in those of adverse parties, New York State and Suffolk County. It would expect a greater sense of security if the proceeding were held at a federal location. The request was joined in by the Staff. Intervenors were of the position the facilities made available by the State and County were adequate.

The Board noted that there were disorderly spectato s present during the course of the prehearing conference. The Board had not arranged for security officials to be present in the New York State Court of Claims courtroom because of the past history that proper decorum was observed. As a federal agency, the Board has a preference for use of a federal courtroom. If a federal courtroom is unavailable a state courtroom or county courtroom is desirable. They usually can

9 provide the necessary security. Because the State or County is a litigant does not mean the facility is less secure. It can become less secure if advance preparation for security is not arranged.

It is the Board's intent to hold the proceeding in a facility that is secure, and we will endeavor to do so. Security is a prime consideration in choosing the facility and not whether a supplier of the 1

facility happens to be a party to the proceeding. It is expected that any government whether or not a litigant will provide necessary security for all within its facilities.

ORDER t

It is hereby ordered that the parties implement the foregoing directives.

THE ATOMIC SAFETY AND LICENSING BOARD MortonB.Margdlies,/Khairman

, ADMINISTRATIVE LAW JUDGE JAsu J arry' R. Kline

,DMINISTRATIVE JUDGE l

CLW Frederick J. Shon/

ADMINISTRATIVEJdDGE

/

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Dated at Bethesda, Maryland this lith day of July, 1986 l

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