ML20212D117

Suffolk County,State of Ny & Town of Southampton Motion for Order Compelling NRC Staff to Respond to Portions of Govt First Set of Interrogatories & Request for Production of Documents to FEMA & NRC Staff.* Certificate of Svc Encl

ML20212D117
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/27/1987
From:	Case D, Latham S, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2647 OL-3, NUDOCS 8703040064
Download: ML20212D117 (11)

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n *' / f 29/7 DOLKEif0 t,uiF r UNITED STATES OF AMERICA EP ME -2 P4 :24 NUCLEAR REGULATORY COMMISSION Fefore the Atomic Safety and LicensinqFBoard .

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In the Matter of )

LONG ISLAND LIGHTING COMPANY )

) Docket No. 50-322-OL-3 Shoreham Nuclear Power Station, ) (Emergency Planning)

Unit 1) )

)

SUFFOLK COUNTY, STATE OF NEW YORX, AND TOWN OF SOUTHAMPTON MOTION FOR ORDER COMPELLING THE NRC STAFF TO RESPOND TO PORTIONS OF THE GOVERNMENTS' FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO FEMA AND THE NRC STAFF Pursuant to 10 C.F.R. S 2.740(f), Suffolk County, the State of New York, and the Town of Southampton (the " Governments")

request that this Board issue an Order compelling the NRC Staff to respond to portions of the Governments' First Set of Interrogatories and Request for Production of Documents to FEMA and the NRC Staff, dated January 28, 1987 (" Discovery Requests"),

l as set forth below.

l INTRODUCTION This Motion to Compel results from the refusal of the NRC Staff to identify or produce any documents responsive to the Governments' January 28, 1987 Discovery Requests. The Governments' Discovery Requests seek, among other things, the identification of documents the NRC Staff intends to rely upon at the upcoming hearing on the adequacy of the reception centers 8703040064 870227 PDR ADOCK 05000322 G PDR

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designated in LILCO's Plan, as well as documents and communications concerning those reception centers. The Discovery Requests state in pertinent part:

3. Identify all studies, papers, articles, reports, books, and other such documents, published or unpublished, upon which each witness identified in response to Interrogatory No. 1 intends to rely in support of his or her testimony . . . .

5. Identify all articles, papers, and other documents authored or co-authored by each FEMA or NRC staff witness identified in response to Interrogatory No. 1 on the subject of reception centers, care of evacuees during emergencies, monitoring or decontamination of people or property, handling contaminated materials, traffic engineering or management, or the number of persons expected to arrive at LILCO's reception centers for monitoring . . . .

6. Identify all documents concerning the use of LILCO's Hicksville, Bellmore, and Roslyn Operations Centers as reception Centers . . . .

7. Identify all communications between LILCO and the NRC or FEMA concerning the use of the Bellmore, Hicksville, and Roslyn Operations Center as reception centers . . . .

8. Identify all documents concerning LILCO's procedures for monitoring or decontaminating evacuees as set forth in the LILCO Plan . . . .

9. Identify all documents concerning the LILCO Plan's compliance with NUREG 0654 II.J.12 or with FEMA or NRC guidance memoranda, or other such documents, regarding reception centers or the care, monitoring or decontamination of evacuees . . . .

10. Identify all documents concerning FEMA's review of the LILCO Plan . . . .

11. Identify all documents concerning the Regional Assistance Committee's (the "RAC's") review of the LILCO Plan Furthermore, each of the above Discovery Requests asks that the NRC Staff and FEMA produce the documents identified in response to the request.

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The Governments' Discovery Requests address subjects clearly relevant to the instant litigation, and seek nothing more than the identification of responsive documents. Once the responsive documents are identified, the Governments acknowledge that those in the public domain must be obtained by the Governments.

However, the NRC Staff has refused even to identify documents responsive to the Governments' request.1/ When Counsel for the Governments contacted the NRC Staff to discuss the Staff's position, the NRC Staff Counsel stated that the Staff would not identify the documents because they did not have the resources or the time to make such an identification. (Egg the February 25, 1987, letter from David T. Case, Counsel for the Governments, to ,

Richard C. Bachmann, Counsel for the NRC Staff, affixed to this motion as Exhibit A).

1/The pertinent parts of the NRC Staff Response were as follows:

The Staff's response is directed to only those documents generated by the Staff ani which are not reasonably obtainable elsewhere. See 10 C.F.R. Part 2, App.A, Para.IV. Thus the Staff will not identify nor l produce NRC documents which have been placed in the NRC Public Document Room or which have been the subject of a Freedom of Information Act request by Intervenors.

Similarly, documents generated by the other parties or by FEMA have not been identified or provided.

6-12. The Staff has no information or documents that are not reasonably available from other sources.

Egg NRC Staff Response to Suffolk County et.al. First Set of Interrogatories and Request for Production of Documents to FEMA and the NRC Staff (February 13, 1987), at p. 2-3.

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The refusal of the NRC Staff to identify documents responsive to the Governments' Discovery Requests constitutes a total failure to respond. Identification of the documents responsive to the Governments' Discovery Requests is the prerequisite to any type of discovery, and the Staff's cavalier approach to discovery cannot be sanctioned, particularly in a case where a tight discovery schedule has been established. This refusal to identify responsive documents not only prejudices the Governments, but makes the fair and orderly adjudication of this proceeding impossible. In fact, the Staff's position is likely to delay this proceeding, since the Staff has effectively cutoff an important avenue of discovery with only two weeks remaining in the discovery period. Accordingly, the Governments' request that this Board enter an Order compelling the NRC Staff immediately to identify documents responsive Discovery Requests Nos. 3, 5, 6, 7, 8, 9, 10 and 11.

DISCUSSION The refusal of the NRC Staff to respond to interrogatories requesting the identification of pertinent documents effectively truncates the Governments' discovery efforts. There is no basis in law or logic for the Staff's position, for under NRC regulations:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceedings, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . .

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10 C.F.R. S 2.740(b)(1). It is beyond dispute that in NRC proceedings, as in federal court proceedings, pretrial discovery, by interrogatories or otherwise, is liberally granted to enable parties to ascertain the facts, to refine the issues, and to prepare adequately for a more expeditious hearing or trial. Seg, e.g., Public Service Co. or New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494 (1983); Texas Utilities Generatino Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981); Pennsylvania Power and Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322 (1980); Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1,) LBP-78-20, 7 NRC 1038, 1040 (1978); Illinois Power Co. (Clinton Power Station, Unit 1), LBP 81-61, 14 NRC 1735, 1742 (1981).

Given this well-established policy of liberal discovery, the NRC Staff is required to identify the documents responsive to the Governments' Discovery Requests.2/ Indeed, to permit the NRC Staff to engage in such evasive conduct would defeat the policies enhanced by discovery and would endorse the long discredited process of trial by ambush.

2/ Neither 10 C.F.R. S2.744, 10 C.F.R. S2.790 nor 10 C.F.R. Part 2, App.A, Para IV excuse the NRC Staff from identifyino responsive documents. In particular, Section 2.744 address the situation where the Executive Director of Operations " objects to oroducino a requested record or document." (Emphasis added)

Similarly, Section 2.790 discusses documents which are " exempt from disclosure," and Part 2, App.A,Section IV simply discusses the public availability of documents. Indeed, Section 2.744, Section 2.790 and Part 2, App.A,Section IV all presuppose the identification of responsive documents, since without such an identification, the parties would operate in a vacume and could not comply with the procedural dictates of Sections 2.744 and 2.790.

'n There is nothing remarkable or burdensome in the Governments' requests for the identification of documents which are pertinent to the LILCO reception centers. The Governments acknowledge their responsibility to obtain documents in the public domain, but such documents cannot be obtained if they are not first identified. The NRC Staff has suggested that a lack of resources and time justifies their failure to respond, their evasive answer, but a purported lack of resources cannot justify non-responsive answer. Indeed, it is clear that the NRC Staff is simply unwilling to make the required identification. Such an approach to discovery cannot be condoned, for it halts the entire discovery process and will inevitably work to delay these proceedings.

CONCLUSION For the foregoing reasons, this Board should compel the NRC Staff to respond without delay to the Governments' Discovery Requests by identifying the documents responsive to Requests Nos.

3, 5, 6, 7, 8, 9, 10 and 11 of the Governments First Set of Interrogatories and Requests for Production of Documents to FEMA and the NRC Staff.

Respectfully submitted, 1

Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 o

(

Christopher M. McMurray David T. Case KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County i

/ / /) E Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York b . [ h Stephen B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton l

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4 KIRKPATRICK & LOCKHART SOUTH LOBBY 9TH floor ExcHA.NCE PLACE 1800 M STREET, N.W. 53 STATE smET WASHINGTON, D.C. 20036 5891 , f

!* S BRICKELL A\ ENUE ML4ML FL Dtil TELEPHONE CO2) 778-9000 ggs, i;4.gii 45X OLI\ER BL1LDING TELECOP!ER CO2) 77S912 BRTTER1 DIRECT DIAL NUMBER PITTSBURGH PA 15 ::1)N g4:n pgegy (202) 778-9084 February 25, 1987 BY TELECOPY Richard G. Bachmann, Esq.

Nuclear Regulatory Commission Office of General Counsel Washington, DC 20555

Dear Mr. Bachmann:

I telephoned you today to discuss the refusal of the NRC Staff to identify documents responsive to the January 28, 1987 discovery requests of Suffolk County, the State of New York and the Town of Southampton (the " Governments"). In response to my request that you identify the responsive documents, you stated that the NRC Staff would not respond because it had neither the resources nor the time.

Your answer is unacceptable and certainly does not constitute a valid reason for the Staff's refusal to identify documents. Indeed, your position on this matter could result in a delay in this proceeding. I urge you to reconsider your position so that we might arrive at a mutually agreeable solution without the intervention of the Board. If you decide to amend your position, please call either Chris McMurray or myself.

Unless we hear from you promptly, we will have no alternative but to go to the Board for resolution of this matter.

Sincerely yours, hM David T. Case cc: All counsel EXHIBIT A

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DOCKETE February 27,US$87 UNITED STATES OF AMERICA '87 MAR -2 P4 :24 NUCLEAR REGULATORY COMMISSION 6FFh' Before the Atomic Safety and Licensina BoaYdW ~ n  : #

. I p f. m .

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SE3VICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTRAMPTON MOTION FOR ORDER COMPELLING THE NRC STAFF TO RESPOND TO PORTIONS OF THE GOVERNMENTS' FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO FEMA AND THE NRC STAFF have been served on the following this 27th day of February by U.S. mail, first class, except as otherwise noted.

Morton B. Margulies, Esq., Chairman

• Joel Blau, Esq.

Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C. 20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline* William R. Cumming, Esq.*

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 i

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Mr. Frederick J. Shon* Anthony F. Earley, Jr., Esq.

Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C. 20555 175 East Old Country Road Hicksville, New York 11801 Elisabeth Taibbi W. Taylor Reveley, III, Esq.*

Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

i Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Mary M. Gundrum, Esq. Hon. Michael LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 l Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq.*

i Suffolk County Attorney Special Counsel to the Governor l Bldg. 158 North County Complex Executive Chamber, Rm. 229 i Veterans Memorial Highway State Capitol

! Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*

New York State Energy Office U.S. Nuclear Regulatory Comm.

Agency Building 2 Washington, D.C. 20555 Empire State Plaza Albany, New York 12223 i

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David A. Brownlee, Esq. . Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Ball, New York 11771

• By Telecopy David T. Case KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891

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