ML20215F894

Memorandum & Order Compelling State of Ny to Answer Lilco First Set of Interrogatories & Requests for Production of Documents W/Mod to Definition Contained in Interrogatories & Denying Lilco Motion for Protective Order.Served on 861222

ML20215F894
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/19/1986
From:	Frye J Atomic Safety and Licensing Board Panel
To:	NEW YORK, STATE OF
References
CON-#486-1965 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8612240104
Download: ML20215F894 (9)

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00LMETED UNITED STATES OF AMERICA UFC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAR 36 DEC 22 All :24 Before Administrative Judges gg7t nac- '

John H Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon SERVED DEC 22 BB@

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In the Matter of ) Docket No. 50-322-0L-5

) (EP Exercise)

LONG ISLAND LIGHTING COMPANY )

) (ASLBPNo. 86-533-01-0L)

(ShorehamNuclearPowerStation, ) )

Unit 1) December 19, 1986 MEMORANDUM AND ORDER (Ruling on LILC0's Motions to Compel New York State to Answer LILC0's First Set of Interrogatories and for a Protective Order)

On November 24, LILC0 filed a motion to compel New York to answer its first set of interrogatories and requests for production of documents. On December 2, it filed a motion for a protective order which would limit Intcrvenors' questioning of witnesses during discovery. We deal with both motions in this Memorandum and Order.

In the November 24 motion to compel, LILCO seeks information concerning other emergency plan exercises for nuclear power plants in which the State has participated. Specifically, LILCO wishes information concerning the scenarios and objectives of such exercises; details concerning the number of hospitals, schools, and similar facilities involved; details concerning participation by emergency 8612240104 861219 PDR ADOCK 05000322 O PDR DSO -

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q response organizations and equipment; whether any of these exercises involved a hypothetical wind shift; and information concerning the training of State emergency response personnel. The State refused to answer these interrogatories on the grounds that they are overly broad, unduly burdensome, and not relevant.

In support of its motion to compel, LILC0 points out that in the October 3 Prehearing Conference Order, we held that the exercise could be challenged as failing to meet the standard for a " full participation exercise" found in Appendix E to 10 CFR Part 50.1 LILC0 states that it is aware of no previous adjudication, regulation, or other guidance which sheds light on the meaning of that standard. Consequently, LILC0 argues that the experience at other nuclear plants within the State is relevant to this determination. (See motion, pp. 3-5.) LILC0 then goes on to argue that the information sought is specifically relevant to the admitted contentions which expressly challenge the scope of the exercise. (See motion, pp. 6-9.) Finally, LILC0 takes issue with the l

State's assertion that these interrogatories are unduly burdensome.

i (See motion, pp. 9-10.)

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Subsequent to LILCO's motion, we adhered to that ruling in LBP-86-38A, 24 NRC (December 11,1986).

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In its response of December 4,2 the State notes that in the October 3 Prehearing Conference Order, we rejected LILC0's position that, in order to be admitted, a contention challenging the scenario of the exercise would have to allege that that scenario was materially different from other FEMA approved scenarios. The State takes the position that this pleading requirement must be interpreted to mean that LILC0's inquiries will not lead to the discovery of admissible evidence.

The State argues that the emergency planning aspects of each nuclear plant site are unique, so that what may have happened in the exercises of plans pertaining to other sites can have no bearing on the question of whether the Shoreham exercise met regulatory requirements. The State notes that in another phase of this proceeding, LILC0's attempt to introduce evidence concerning the State's emergency plans for other nuclear sites was rebuffed. (See responses, pp. 3-8.)

The State goes on to argue (response, pp. 8-10) that, if LILC0's motion is granted, the scope of the proceeding would be unduly broadened and delay would result. In this connection, the State notes that Intervenors will undoubtedly exercise their rights to fully explore these issues as well. The focus of the proceeding would then be diverted from the overriding issue of whether the Shoreham exercise met regulatory requirements.

2 In a filing of December 4, Suffolk County joined in the State's responses on December 10, Staff counsel advised the Board by letter that Staff would take no position on this controversy.

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's Finally, the State points out that the definition which LILC0 has adopted of "New York State" and "New York State personnel" could include federal or local government personnel as well as private citizens. It notes that much of the information which LILC0 seeks is available from FEMA or the NRC (including the NRC's public document room).

Consequently, the State argues that the request is indeed unduly burdensome. (See response, pp. 10-11.)

On December 9, LILC0 filed a reply to the State's response.3 In this reply, LILC0 takes issue with the State's relevancy arguments by pointing out that:

1. Failure to consider the existing practice with respect to what constitutes a " full participation exercise" would open the door to unstructured de novo reviews by licensing boards;

2. The discovery requests are aimed at determining whether the alleged deficiencies in the Shoreham exercise (resulting from the failure to test certain specific elements) were present in other full participation exercises; and

3. Reliance on rulings made on another phase of this proceeding is misplaced. (See reply, pp. 1-4.)

LILC0's reply (pp. 5-6) interprets the State's position that each emergency planning situation is unique as advocating the position that 3

The reply was accompanied by a motion for leave to file it. We grant this motion and consider the reply.

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Shoreham be held to a higher standard than other plants. LILC0 urges that this position be suninarily rejected. Finally, the reply (pp. 6-7) takes issue with the State's argument that the request is unduly burdensome by defending the definition of "New York State" and "New York State personnel" in terms of prior, accepted practice in this proceeding.

We agree with the State that each nuclear plant site presents its own unique emergency planning situation and that what may be sufficient r one site may not be for another. And we recognize that we held in the October 3 Prehearing Conference Order that, in order to be admitted, it was not necessary for a contention challenging the scope of this exercise to allege that the scenario of this exercise was materially different from other exercises. However, these conclusions do not dictate that LILC0's discovery requests be denied.

LILC0 correctly points out that the issue of whether this exercise constituted a full participation exercise should not be addressed in a vacuum. Indeed, we believe that information regarding the scope of other full participation exercises is necessary in order to intelligently address that issue.4 While it is true that what constitutes an acceptable full participation exercise for other New York plants will not necessarily establish the standard for the Shoreham 4

We anticipate that we may have questions for Staff with regard to its experience with full participation exercises.

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y exercise, it will at a minimum provide valuable background information.

The unique aspects of the Shoreham situation must be taken into account against this background.

This conclusion in no way conflicts with the conclusion that contentions need not allege a deviation from past practice with regard to the exercise scenario. The latter conclusion merely reflects the fact that each nuclear emergency planning situation is unique; it does not dictate the conclusion which'New York reaches that nothing of value can be learned from other situations. LILC0 is correct that the experience gained in other situations will be useful in reviewing the Shoreham exercise.

New York asserts that permitting LILCO's inquiry will unnecessarily broaden the scope of the proceeding. We do not agree. LILC0's interrogatories are clearly tied to the admitted contentions. They inquire after the treatment in other exercises of matters whose omission from the Shoreham exercise is regarded by New York as a de'ficiency. As noted above, this information will, at a minimum, provide valuable background against which to view the Shoreham exercise. In this connection, we must note that we have also denied LILC0's request to limit the scope of the Intervenors' discovery to the day of the exercise on the ground that the broader inquiry may well provide valuable infonnation on the " full participation" issue. These inquiries, we suspect, will of necessity be broader than those by LILCO.

We are in agreement with New York with regard to the burdensomeness of LILC0's interrogatories, and consequently limit them to a more l

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manageable scope. While LILC0's definition of "New York State" and "New York State personnel" may well be based on past practice, in the context of this inquiry it is too broad. There are several nuclear plants which will be captured by this request. We do not think it reasonable to require the State to respond with respect to ". . . any . . .

consultant, contractor, technical advisor, representative or other person acting for or on behalf of [it], or at [its] direction and control, or in concert with or assisting [it]." (FirstSetof Interrogatories, p. 1.) This portion of the definition is stricken.

With that change, the burden on the State should not be unreasonable.

LILCO's motion for a protective order seeks blanket authority to refuse to answer any questions that:

1. Address pre-exercise events related to the development of scenarios, objectives, or preparations for the exercise;

2. Address pre-exercise LER0 training; and

3. Address post exercise training unrelated to matters raised in Contention Ex 50.

The Intervenors responded on Decerrber 15. By letter of December 16, Staff counsel advist:d that Staff would not respond.

The matters raised in this motion were addressed in our December 12 Memorandum and Order ruling on Suffolk County's motion to compel a response by LILC0 to its first set of interrogatories. There we held that LILC0 must respond to questions regarding pre-and post-exercise events to the extent that the response bears on the question of the exercise's compliance with the regulatory standards governing full l

y participation exercises. We also held that LILC0 need not respond to questions concerning training which are not directly tied to Contention Ex 50.

LILC0's motion was filed prior to our December 12 Memorandum and Order. We see nothing in it or in Intervenors' response which dictates a departure from that ruling. Moreover, we are reluctant to issue a sweeping protective order in the absence of a more sharply focussed dispute.5 Consequently, we deny LILC0's motion without prejudice to its resubmittal should an appropriate dispute arise. All parties are to follow the guidance contained in our December 12 Memorandum and Order.6 In consideration of the foregoing, it is this 19th day of December, 1986, ORDERED

1. LILC0's motion for an order compelling the State of New York to answer LILC0's first set of interrogatories and requests for production of documents is, with the modification to the definition contained in the interrogatories noted above, GRANTED; and 5

Unparticularized references to the Tanzman deposition and exhibits do not provide the necessary focus.

6 In their response (p. 4), the Intervenors asserts that pre-exercise training is addressed by the second paragraph of Contention Ex 50.

That paragraph merely sets out background information and does not challenge the test of the training program in the exercise.

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2. LILCO's motion for a protective order is DENIED without prejudice to its resubmittal should a sharply-focussed dispute arise.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

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Johns H(Frye, III, Chaiman ADMDIISTRATIVE JUDGE Bethesda, Maryland