ML20206M714
| ML20206M714 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/14/1987 |
| From: | Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3123 OL-5, NUDOCS 8704200160 | |
| Download: ML20206M714 (6) | |
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KIRKPATRICK & LOCKHART SOUTH LOBBY - WH FLOOR 00CKETED EXCHAE PLACE 1800 M STREET. N.W.
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M TENT (20D MH000 (305) U44112 0FFici CF IE Cnt IAW '5"Nm 8mmo mzcoPiEma n"2" 00CHETfNG & EE9VIDEBWCH,PA 19222-2 KARLA J. LETSCHE ijRANCH ela 35545m (202) UH064 April 14, 1987 John H. Frye, III, Chairman Dr. Oscar H.
Paris Mr. Frederick J. Shon Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
Docket No. 50-322-OL-5 (EP Exercise)
Gentlemen:
Over the last two weeks, the Board has held several discus-sions about future scheduling in this Exercise proceeding.
S_qq Tr. 2624-36 (April 2); Tr. 2675-76, 2825-55 (April 6); Tr. 2859-73, 2975-85 (April 7); and Tr. 3134-38 (April 8).
The Board has expressed concern with the rate at which the hearing has pro-ceeded and has announced as a " guideline," that cross-examination in the future should cover approximately one page every 15 minutes.
Under the Board's " guideline," no time is allocated for examination of attachments to testimuny.
Rather, the Boarc appears to have assumed that the examination of the testimony under the 15-minute per page " guideline" generally would also cover any related attachments, regardless of the nature or contents of the attachments, and regardless of the witnesses' reliance upon, or use of them, in drawing their conclusions stated in the main body of the testimony.
The Board also requested during these discussions that if any party believed that it would not be able to comply with the 15-minute per page " guideline" with respect to any particular set of testimony, counsel should notify the Board in advance and explain why the " guideline" could not be met.
In response to statements by counsel for Suffolk County that the 15-minute per 8704200160 870414 PDR ADOCK 05000322 G
PDR g
KIRKPATRICK & LOCkilART.
-John H.
Frye, III, Chairman Dr. Oscar H.
Paris j
Mr. Frederick J.
Shon April 14, 1987 Page 2 page " guideline" could not be met for LILCO's testimony on Contention Ex 50, the Board requested the County to provide its reasons.
Egg Tr. 2865.
We have reviewed LILCO's Contention Ex 50 testimony and
.hereby inform the Board and parties that our best estimate is that it will take approximately 2 weeks at a minimum for the County's cross-examination of the LILCO witnesses' testimony on Contention Ex 50.
The Attachment to this letter explains in detail, and provides specific bases for, this estimate.
A copy of the Attachment is being served only on the Board because it is in the nature of a preliminary cross-examination outline; accordingly, it would be inappropriate to provide other parties with a copy of that material.
Suffice it to say, however, that LILCO's training testimony is far more extensive than merely the 75 pages of prefiled testimony which were submitted.
Rather, as set forth in the Attachment to this letter, many of the attach-ments to LILCO's training testimony contain major substantive data and analyses, upon which the conclusions in the main body of the testimony are based, and which, therefore, will require ex-tensive cross-examination.
In addition, LILCO's training testi-mony and the attachments thereto are generally based upon other data (e.o., a LILCO " survey" of 16 other FEMA exercises, NUREG-3524, and " content analyses" of the Shoreham Exercise and the Indian Point Compensating Exercise) which will require substan-tial examination.as well.
Finally, it should also be noted that as a general matter, cross-examination of a seven-witness panel (such as LILCO's Contention Ex 50 panel) tend to be lengthier than examination of a smaller panel, as a result of witness consultations, supplementation of responses, and the like.
The County is in the process of preparing a similar cross-examination estimate with respect to its examination of LILCO's witnesses on their testimony concerning Contentions Ex 15/16 and 21.
It is impossible to provide a precise estimate at this time, because sufficient review of that testimony has not yet taken place.
Further, the County needs additional data from LILCO in l
order to conduct meaningful review of the testimony; the data
)
have been requested from LILCO.
After we have received the data and reviewed them, we will inform the Board of our best estimate of examination on Contentions Ex 15/16 and 21.
t i
KIRKPATRICK & LOCKHART John H. Frye, III, Chairman Dr. Oscar H.
Paris Mr. Frederick J.
Shon April 14, 1987 Page 3 For the Board's information, however, we can state at the outset'that the Board should not assume that the cross-examination on the Contentions Ex 15/16 and 21 LILCO testimony will be brief.
For example, in their Contention Ex 15/16 testimony the LILCO witnesses rely on a survey of 34 exercises from other plants which they assert provide a basis for comparison with the Shoreham Exercise.
In their Contention Ex 21 testimony, LILCO's witnesses rely on an even broader survey --
covering 38 exercises.
It likely will take substantial time to examine LILCO's witnesses concerning these other exercises, their
" surveys" of them, and their bases for comparing them to the Shoreham Exercise.
In submitting the enclosed materials regarding Contention Ex 50 cross-examination and in agreeing to supply information in the future concerning the examination on the Contention Ex 15/16 and 21 testimony, the County is complying with the request made by the Board last week.
It should be clearly understood, however, that the County disagrees strenuously with what appears to be the underlying premise and " logic" behind the Board's
" guidelines," that is:
the hearing has gone slower than the Board expected; since Suffolk County has conducted the majority of the examination to date, the County is thus " responsible" for the pace of the hearing; and the Board's " guideline" is designed to speed things up, by having the County's counsel attempt to adhere to a four-page per hour cross-examination pace.
As we believe the Board has acknowledged, the Suffolk County examinations on the six pieces of testimony which have been presented thus far have been proper in every sense.
The testimony as filed covered material involving complex analyses and procedures, and the conclusions of the LILCO witnesses required detailed cross-examination, both to get on the record the bases and methods used by them to arrive at their conclusions I
and to probe and establish weaknesses, errors, and flaws in their analyses and conclusions.
The County's counsel moved as quickly as possible through those examinations, interrupted frequently by extensive Board questioning, extensive " speeches" by the LILCO witnesses, and objections, sometimes involving lengthy arguments, by counsel for the NRC Staff, FEMA and LILCO.
And, of course, each panel of witnesses was also subject to questioning by other counsel, and re-direct examination; and hearing time was also taken up with arguments on motions and miscellaneous procedural matters.
Given all the circumstances, the County submits that the length of the hearing to date could not reasonably have been l
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KRKPATRICK & LOCKHART John H.
Frye, III, Chairman Dr. Oscar H.
Paris Mr. Frederick J.
Shon April 14, 1987
-Page 4 appreciably shorter, absent rulings by the Board which would have deprived the County of its right to pursue meaningful cross-examination, and thus deprived the County of its due process rights.
Thus, the need for any additional timing " guidelines" at this time simply does not exist.
And despite the numerous discussions which have taken place, neither the Board nor LILCO nor the Staff has established any such need.
The County is also concerned about the way in which the Board's 15-minute " guideline" was adopted.
It is the County's impression that that " guideline" must have been adopted without careful examination by the Board of the substance of the testi-mony which is still to be heard, particularly since when the
" guidelines" were announced, the Board had not yet even received the parties' Ex 15/16 or 21 testimony.1 An examination of either LILCO's Contention Ex 50 testimony with its extensive substantive attachments, or LILCO's Contention Ex 15/16 or 21 testimony which relies upon facts, data and conclusions about many other exer-cises, makes clear that a 15-minute per page " guideline," in the abstract, is meaningless.
One must look at the substance of the testimony, how its conclusions were arrived at, and how it re-lates to the contention, in order to determine how much time cross-examination will take.
Even examining counsel must under-take such a substantive review before any meaningful estimates of the length of cross-examination can be provided.
The ultimate length of cross-examination may, or may not, have a predictable relationship to the number of pages in the testimony or attach-l ments.
The matters to be covered during a cross-examination and how long it may take to accomplish a cross-examination goal, given unpredictable witness responses (or non-responses) and the like, is dependent upon substance, not numbers of pages.
Thus, absent careful Board review of the substance of up-coming testimony, the imposition of even broad " guidelines" is not meaningful.
Moreover, if such " guidelines" have the poten-tial of becoming absolute limits, or being used as a pretext to i
I 1
In determining the length of time necessary for Suffolk County to conduct cross-examination of LILCO testimony, it is necessary to review not just LILCO's testimony, but also the County's on the subject at issue, since that testimony sets forth what the County seeks to prove with respect to particular con-l tentions.
l
..~
i
.KIRKPATRICK & LOCKHART
~
John H.
Frye,' III, Chairman
'Dr. Oscar H.
Paris Mr. Frederick J.
Shon April 14, 1987
~Page 5 deprive'the County of its right to pursue meaningful and neces-sary cross-examination,2-they would be improper and a violation of the County's due process rights.3 The County has no objection to the Board's inquiring about
.the extent of examination so that the Board may plan-appropri-ately.
The~ County similarly has no problem, if the situation should arise during examination, with the Board's informing counsel, as-it already has upon occasion during the hearing, that it believes certain portions of the examination are taking-too long, or that-the examining counsel should move on to a different subject.
That is part'of the Board's job of managing this pro-ceeding, and disagreements examining counsel may have, if any, can be dealt with at the time,.as they have been during the hearing to date.-
.But.with due respect, the Board's job is n21 to adopt the patently offensive absolute and potentially draconian limitations proposed by LILCO and the NRC Staff in a vacuum, or even under the guise of limiting. legitimate cross-examination.
For purposes of this letter, we assume that the Board recognizes that the 2
LILCO has already attempted to convert the " guidelines" into absolutes.
- Egg, e.g., the letter from Mr. Irwin and Ms. McCleskey-to the Board, dated April 8,~1987, which was hand-delivered-at the hearing last Wednesday.
That letter sought ASLB. adoption of a rigid schedule based upon the Board's " guidelines.". We understand that the Board views the rough predictive " schedule" discussed at the hearings to be "ballpark" scheduling estimates for planning purposes only, since they reflect only the cross-examiners' esti-mates for Contentions Ex 38, 39, 44, 22.F and 49.C, and a mathe-matical computation of four pages per' hour applied to LILCO's testimony on Contentions Ex 50, 15/16 and 21, with no allowance for the examiners' estimates and explanations concerning those pieces'of testimony, questioning by other counsel, redirect examination, and other procedural matters which take up hearing time.
3 In 1984, at the Staff and LILCO urging, the Miller Board sharply curtailed the time for the County and State to prepare for the low power exemption trial.
The U.S.
District Court granted a temporary restraining order to curtail the due process violations.
If the Board's " guidelines" were converted to absolutes as LILCO seemingly would like, new due process concerns would arise.
V KIRKPATRICK & LOCKHART John H._Frye,-III, Chairman Dr. Oscar H.-Paris Mr. Frederick J. Shon April 14,'1987
-Page 6 extent of examination on particular testimony will depend ulti-mately upon the content of that testimony.
Thus, we understand that the-15-minute " guideline" is merely that -- a general. rule of thumb that the Board wishes could be met -- and that the Board recognizes that much of the testimony may-require longer examina-tion depending upon its content.
As the Attachment to this letter demonstrates,'substantially greater examination than 15 minutes per page of testimony (as opposed to attachments) will be required for the.LILCO' Contention Ex 50 testimony.
The County stresses again that it does not object to.in-
_quiries by the Board about the expected or estimated-length of future cross-examination, or about the pace of examinations, or even about the County's substantive intentions about future
' cross-examinations.
The County does object strenuously, however, to limitations imposed in the abstract, without meaningful review of the testimony which is coming up for examination, and to suggestions that a need to cross-examine witnesses on conclusory statements or detailed analyses, if_it is viewed by LILCO or NRC Staff counsel as " lengthy,"_is somehow improper.
Much specula-tion occurred last week concerning what "should be" the scope or length of_ cross-examination on upcoming testimony -- including speculation about examination of testimony (Ex 15/16 and 21) which had not even yet been filed.
No meaningful purpose can be served by such baseless speculation, much less the imposition.of abstract time limits nr absolute schedules, unless the purpose is arbitrarily to limit the legitimate rights of Suffolk County to pursue its interests in this litigation.
The Board should resist such speculation and demand for the cetting of arbitrary new rules for this proceeding, in the future.
(
Sincerely, W
n
~
Lf
/
Lawrence Coe anpher L
Kar'la J.
L. sche l
Michael S. Miller Attachment l
cc:
Service List w/o Attachment i
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