ML20080J663
| ML20080J663 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/13/1984 |
| From: | Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL-3, NUDOCS 8402150162 | |
| Download: ML20080J663 (18) | |
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d 00CKE1E0 u nitC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g4 F014 Pi2:26 Before the Atomic Safety and Licensing Board - -
)
In the Matter of )
) ;
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emerhency Planning)
(Shoreham Nuclear Power Plant, )
Unit 1) )
)
SUFFOLK' COUNTY REPLY TO LILCO'S OPPOSITION
.TO COUNTY MOTION TO CHANGE SCHEDULE On February 9, 1984, LILCO filed an Opposition to Suffolk County's Motion to Change Schedule (hereinafter " Opposition").
In its Opposition, LILCO makes the following erroneous statements that must be corrected.
First, LILCO suggests at page 2 of its Opposition that the estimate provided by FEMA's counsel concerning how long it will take FEMA to prepare testimony (two weeks), is "a truncated, off-the-record estimate" that is uncertain and, impliedly, not credible or reliable. -The County understands, however, that the March 14 testimony filing date provided by FEMA's counsel was, in fact,. communicated by FEMA'.s counsel to the Board (via a tele-
. phone conversation with the Board's law clerk), after the Board received notification from the NRC Staff of the new March 1 anti-cipated release dat? for the RAC report. Presumably FEMA's coun-sel' considered the pertinent facts before he made such a repre-sentation to the Board. Therefore, LILCO has no basis for NO O , )
' suggesting that FEMA's counsel's best updated estimate, based on the new information available to him concerning the anticipated completion of the RAC review, is uncertain or unreliable. Past changes which FEMA has made in its testimony filing date have always been in response to changes in the circumstances of the RAC review. In some instances, these changes were prompted by LILCO's belated submittal of voluminous revisions of its emcr-gency plan. LILCO's suggestion that the representation made by FEMA's counsel to the Board should be ignored is thus both unfit-ting and unfounded.
Second, LILCO states that the County has failed to demon-strate that Group II issues "cannot be heard . . . absent the FEMA RAC Review," (see this Board's November 18, 1983 Order Establishing Supplemental Agenda for Conference of Counsel) other than by the statement in the County's Motion that "the FEMA wit-nesses will constitute the bulk of the Staff's testimony on Group II issues." Opposition at 3. LILCO is totally incorrect. Con-trary to the' implication in LILCO's Opposition, the statement contained in the County's motion that FEMA's witnesses will pro-
-vide the bulk of the Staff's testimony is not just an " assertion" by the County. In fact, at the Conference of Counsel which followed the November 18 Order, counsel for the NRC Staff stated that "the bulk of the [ Staff's] testimony on Group II will be FEMA's" (Tr. 730), although there might be "a few discrete areas"
where one Staff witness would file testimony on a "very small percentage" of " subparts of contentions," which FEMA's witnesses might also address. (See Tr. at 725-26, 730-31, and 757.)
-Moreover, as-LILCO knows, the. original agreement among the parties to divide offsite emergency planning issues into Group I and Group.II was made p.recisely for the purpose of allowing the 1
litigation of Phase II emergency planning issues to go. forward on
. contentions'that would not be'affected by the RAC review nor
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addressed in testimony by FEMA's witnesses. Indeed, a joint
. pleading (Joint. Scheduling Submission Of The Parties On Emergency Planning; Matters [ hereinafter " Joint Submission")) filed by the
- . par %ies, including LILCO, on October 21, 1983 explained to the
. Board an agreement. reached'by them at a meeting convened on that
- date to discuss the division of Phase II emergency planning
. issues. As stated in.the Joint Submission:
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During that meeting, it became apparent that, because the FEMA RAC review is scheduled to be g completed early in December and because the
-parties-beli~ eve that'the results of the RAC review will be useful in preparation of testi-many on pertinent issues, certain testimony cannot be fruitfully prepared prior to comple-tion of the RAC review..
Accordingly, the parties have agreed upon the attached prcposed division of testimony into
- two groups,1with corresponding schedules for the filing of motions and commencement of hearings. All parties at the meeting have indicated their agreement with this schedule
. . . . (Emphasis added).
Joint Submission at 1. Thus, the issues that can proceed to hearing without FEMA input have already been identified jointly by the parties. They are the Group I issues.
In addition, the County explained to the Board in detail during the December 1, 1983 Conference of Counsel why Group II issues cannot be heard absent FEMA's RAC review. (Tr. 728-729, 752-754). Those reasons were reiterated by the County on January 27, 1984 during the Group I hearings. (Tr. 3669-3670).
However, as noted in its Motion ac 2, for the sake of brevity the County merely cited in its Motion the pertinent transcript pages rather than repeating the arguments made to the Board at that conference concerning the need for scheduling change. For the convenience of the Board, those transcript pages are attached hereto. They further demonstrate that, contrary to LILCO's erroneous assertions, the County has indeed presented detailed arguments as to why the Grcup II issue s should not be heard 4
absent FEMA's review.
Third, LILCO asserts that "to make FEMA's review the center-pieca of this proceeding is to distort its function." (0pposi-l tion at 4.) This assertion mischaracterizes the County's posi-tien. FEMA's function in this proceeding is to provide testimony for submission to the Board by the NRC Staff, pursuant to the re-quirement of 10 C.F.R. Section 50.47(a)(2) that:
The NRC will base its finding on a review of the Federal Energy Management Agency (FEMA) findings and determination; as to whether State and local emergency plans are adequate and whether there is reasonable assurance that
they can be implemented. . . . In any NRC licen.ing proceeding, a FEMA finding will constitute a rebuttable presumption on ques-tions of adequacy and implementation capabil-ity. (Emphasis added)
It is precisely because of that function, mandated by the regula-tions, that the County submits that a change in schedule is necessary.
The County is not attempting to make FEMA's review a "cen-terpiece"'of any kind. Indeed, there is no basis for concluding that the testimony of one of the major parties to this litigation is any more central than that of the others. That is an impor-tant reason why it is fundamentally unfair to permit one party to file testimony after all others have done so.
Nevertheless, FEMA's findings, under the NRC's regulations, constitute a rebuttable presumption. Thus, the parties must be permitted the opportunity to address those findings in their direct testimony -- otherwise the NRC regulation would be ren-dered meaningless. The purpose of this hearing is to evaluate I;ILCO's Plan, and FEMA's mandated review is thus of critical importance. FEMA's review will focus on the very same issue.
L FEMA's review also will be based upon the criteria set. forth in
- NUREG 0654 -- the very criteria that will goide this Board's consideration of the contentions presently before it. (Memoran-dum and Order Denying Suffolk County's Motion To Terminate The l
Shoreham Operating License Proceeding at 62 (April 20, 1983.) It makes no sense, from a standpoint of efficiency or fairness, to
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require the parties to file testimony on the LILCO Plan without the benefit of the results of FEMA's review of the central issue before this Board. To do so would deprive the parties of their right,under the Commission's regulations to consider and, if necessary, rebut FEMA's findings in their testimony.1!
Fi nally, the Board should note that the County is not seek-ing a substantial change in the Group II schedule. F.ather, the County's proposed change in the schedule calls for Group II test-imony to be filed only 12 days after the currently scheduled filing date. Given the added efficiency of allowing the parties to consider and address PEMA's findings in their direct testi-mony, instead of in protracted rebuttal proceedings, the County's proposed change is reasonable and fair.
1! LILCO suggests (Opposition at 4-5) that if the County sees the need to rebut FFMA's findings it can always file rebuttal testimony based on a showing of good cause. LILCO, however, has misinterpreted the NRC's regulations. 10 C.F.R. 50.47(a)(2) grants all parties an absolute right to rebut FEMA's findings.
Therefore, the County submits that if the Board rules that FEMA may file its testimony after other parties, the remaining hear-ings will be split into two more phases - the first based upon all of the parties' direct testimony and the second based upon the parties' rebuttal testimony which may be filed as an absolute right under Section 50.47(a)(2). Since FEMA will presumably be addressing almost every aspect of LILCO's Plan and evaluating the Plan against the criteria and sub-criteria of NUREG 0654, this potential additional rebutt.a1 phase could be quite extensive.
Taking into account the additional hearing time that will be required and the time needed for the parties to draft rebuttal testimony, such further bifurcation of the emergency planning proceedings would be inefficient and needlessly time-consuming.
CONCLUSION For the reasons stated above, the Board shculd grant Suffolk County's Motion To Change Schedule.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New Ycrk 11788 A ?% n Herbert H.6 Brown /
Karla J. Letsche Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, NW Washington, DC 20036 Attorneys for Suffolk County Dated: February 13, 1984
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/ /[f3 1 JUDGE LAURENSON: What's the County's position on 2 that?
3 MR. LANPHER: Judge Laurenson, a couple of thoughts 4 on that. First, if a major party in this proceedng is going 5 to be exempted from t estimony until s ome later time, but other 6 parties are going to have to forward with testimony, we think 7 that's fundamentally unfair.
8 More imoortant, however, in an emergency planning 9 proceeding, PEMA RAC review -- or the FEMA review -- it's 10 a RAC review in t!..3 instance -- constitutes, according to 11
- 50. 47 (a) (2) , this rebuttable presumption regarding adequacy i 12 or inadequacy on the various items of the plantthat they revier .
13 And they reveiw essentially everything.
14 I think Mr. Glass has said before how can a party 15 put in testimony on January 18th -- the present schedule, 16 I believe -- when the so-called rebuttable presumption isn't 17 going to be even filed or made available for several weeks 18 thereafter. I think we are at loggerheads here. I think it 19 would be fundamentally unfair to require parties to file 1
20 testimony in advance, not only of the FEMA Staff's testimony, 21 but even the RAC review.
22 And so I think it's something we have to confront 23 and no one here necessarily designed this whole croceeding for 24 FEMA to be the pacing item -- I guess the term was. But be 25 that as it may, FEMA does play -- and their RAC review does
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olay a crucial role in emergency planning procedings. We 2 just can't hide from that. That's a fact of life. And we 3
think that the results of this, we're going to have to defer 4
Groun II testimony until after that RAC review is completa.d.
5 i JUDGE-LAURENSON :
Let-me-go-back-to-the-Staf f fe7 6 a econd, and then I'll get to LILCO.
7 What is the Staff's view on this? Basically', it's 8 the Sta that granted that 60 day delay. Was it your 8 assumption hat that was going to cause a 60 day' slip in the 10 schedule, as u understood it at that time?
11 MR. B ENICK: No. That really didn't enter into 12 the picture, as Mr. eis earlier said. Based on the wording 13 of the FEMA request, f ankly we felt we had no choice but to 14 grant the extension. And . Glass says he would like to 15 respond to that, but having swered the first part of your 16 q uestion, it's the Staff's pos t, ion that the hearing can go 17 ahead in the absense of the comp tion of the RAC review.
18 N I think we have a situation somewhat analogous to 19 N
what we had. I hate to keep referring back to previous
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-# experience in this Shorehan: proceeding, bu'tN1ast year --
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21 acain in the. QA contentions, we had a situation where part of N
22 t he County's contentions involved operational Qu'ality Assurance N
23 The Sta'ff, on the same schedule as the other carti
's, did N
x 24 gile' testimony. That testimony was divided -- or consisted 25
/a panel that included peonle from the Offiee of Nucle \
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JUDGE LAURENSON: Back on the record now.
2 I assume everything has been resolved during 3 the recess?'
4 (Laughter) 5 At least there are no bodies laying on the floor.
6 I think we had recessed at the point where the 7
Board had called upon parties to submit their suggestions as t o 8
what ought to be done. v.r . Lanpher is about to tell us.
O MR. LANPHER: I want to start off with one thing, 10 Judge Laurenson. Earlier today I stated that the County w.as 11 not going to object to stipulating the admissibility of the 12 Emergency Response Plan of LILCO. I can.'t hold to that any 13 longcr, given -- up to Revision 2, fine.
14 If we have got this contantly moving target, we 15 are just going to have to reevaluate when we see what comes 16 in on that. That is an aside, but I didn't want to forget 17 it.
18 In terms of what we should do, given the RAC 19
, situation and Revision 3, we start from the premise that you 20 raised also, Judge Laurenson, the waste of time, or the 21 potential waste of time that the partias incur in doing work 22 that subsequently gets supercaded and that sort of thing is 23 a very serious concern.
24 Right now, particularly Suffolk County Policc-25 Department witnesses who sponsor testimony, are spending
752 mm2 1 a lot of tima redoing thair Group I traffic testimony, 2 instead of preparing for cross-examination on that, or mors 3 important, working on Group II testimony.
4 We have other witnesses who arc in the process of 5 working on Group II testimony based on Revision 2 of the 6 Emergency Plan, and we now have a concern that some of the 7 work that they are doing is going to be superceded in whole 8 or at least in part, by whatever may come out in Revision 3.
9 Same problems can arise, of course, rith 10 Spmmary Disposition Motions.
11 The other proposition that we start with, we 12 think that it is juut fundamentally unfair for several parties 13 in this proccading to go forward with testimony on one day, 14 and for other parties, and major parties -- especially FEMA ---
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ths PEMA and NRC together -- to go forward with testimony 16 at a significantly later date, or at any later date.
- 17 If we wer? not talking about needs for everything to '
18 gat going and all this kind of stuff, I think the only 19 rational thing that anyone could concludc is that we should 20 key the filing of testimony and summary disposition motions 21 on the complt tion of th: RAC Revicw.and the filing and 22 review of Rcvision 3. Ind that is the idsal situation.
23
' chat puts us into February sometime. I rccognize that.
24
.ihere is work that would be done in the meantime.
26 I can imagine maybe soms of the Board's proposcls regarding l
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753 mm3 1 proposed findings would have more time to bear fruition:
2 some of the discovery matters that LILCO has raised might Ec 3 -able to be fit in a little more easily, some of the 4 discovery needs that we may have on Revision 2, and who 5 knows, Revision 3 would also be fit in.
6 That is the ideal solution, Judge Laurenson, 7 those two fundamental facts, Revision 3 and RAC, they 8 ought to get done before we go forward with this other 9 stuff.
10 At a minimum -- I mean, if you have to have 11 a fallback position, I really don't like to because you have 12 asked me my views -- it seems to me at a minimum we need 13 to avoid wasted work by people on Revision 2, if Revision 14 3 is going to change it in any way. I'm very worried 15 about our people continuing to prepare testimony in this 16 on Revision 2, when we know that in the near future some
- 17 additional material 2 are going to come out that could 18 certainly change some of their testimony.
19 So I think that at a minimum we would have to
" key the submittal of testimony and motions on an opportunity 21 to review Revision 3 of the Emergency Response Plan.
22 In addition, you know my views regarding RAC.
23 There has to be -- that there has to be an opportunity to 24 rebut that rebuttable presumption or to confront it. If l the Board feels that people should -- that LILCO and k __
j 754 :
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/ Suffolk County should be singled out to be required to 2
file testimony before the Staff and FEMA, we think that 3
is fundamentally wrong.
We believe there has to be an 4
absolute right -- not just a discretionary one -- but an 5
absolute right after the RAC Review comes in for the 6
County -- and the FEMA testimony -- for us to file 7
additional testimony, bring back our witnesscs. And 8 parhaps, if we have gone forward with some cross-examination 9
for instance of LILCO's panels on Group II issues, we 10 might want to cal-1 them.back in light of some of ths RAC 11 material.
12 I don't think any of that is efficient. But 13 if you are going to require us to go forward with 14 testimony somEtime prior to FEMA and the Staff going 15 forward with testimony, we think you have to build in that 16 absolute right to come back and present new evidence.
17 Of LILCO's, I don't mean just Suffolk County, but anyone 18 who is forced to file testimony that earlier time.
19 I'm afraid I will gtt just redundant if I keep 20 going.
I think you understand the County's position, 21 Judge Laurenson.
22 JUDGE LAURENSON: Okay.
23
-Mr . I-r w i W 24 MP.
I E W14:- -O ne.-ofJr-La nphe r ' s - .- r e ml;s 25 illustrates--ons-of--ths dif ficultiec '- c fc cc i n --t-hic procc c c ,
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3639
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21pb4 t' ,,_ iness would be the report from Mr. Glass on 2 ofFENkconcernin time sched the completion of 3 the RAC Review lth FEMA's e of when their 4, imony will be available to be filed.
5i MR. GLASS: Number one, as we have said all along, ,
6 we expected on or about February 1st, we have been talking l
7 about for a number of weeks, February 7. And I think it's I 8 safe to report that the NRC will receive by February 7th, 9 the RAC Review assuming that the Board has ruled on the 10 revised contentions.
11 FEMA will need at least three weeks from the 12 filing of the RAC Review in order to complete its testimony.
13 J*.DGE LAURENSON: Now, the schedule that is 14 curr;ently in effect says that all parties shall file their 15 testimony on Group II issues on February 14th. So what 16 you're telling us then is that you need a two-week extension
't* 17 of time. Is that correct?
18 MR. GLASS: That is correct. !
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19 JUDGE LAURENSON: That's your position?
f 20 MR. GLASS: That is my, position.
! 2 ll E 21 I'?DGE LAURENSON: What does that do to the other l
g 22 parties and your schedule for Group II?
23 MS. LETSCHE: Well, Judge Laurenson, the schedule i 24 that the county wculd propose in light of all the additional 25 discovery in Group I things that are also going to be going ,
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3640 21pb5 .i. il on, cledrly
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before or during the currently scheduled filing 2 date for Group II testimony, is that all parties file 3 Group II testimony on March 2nd.
4 That is a three-weed slippage. Twc of the weeks 3 have been requested by FEMA. The county's position with 6 respect to the simultaneous filing of testimony has been 7 stated before and I'll state it again. That all parties a in this proceeding should be filing testimony at the same 9 time. There should be no favoritism shown.
o If one party is going to have trouble making tha si deadline, the deadline should be moved for all parties. If 12 FEMA needs three weeks after the submission of the RAC 13 Review to review that review and incorporate in its testimony, 14 I think it's only fair that the other parties in the 15 proceeding who have to address the contents of that RAC 16 Review, since it is a rebuttable presumption in this
!' 17 proceeding, should have an equal amount of time to do so, O
ll is and address it in their testimony. l
!I
'# 19 More fundamentally, or in addition to that, lr guess, th , actical considerations are that e now l
f 20
'lE 21 talking about havi wo weeks of deo tions from February lg 22 6th to the 17th, additional ositions of the state's f 23 Group I witnesses. xt week, the f1 of additional 8
l 24 testimony ", ILCO. The opportunity for all p ies to l
25 p fild' motions to strike LILCO's supplemental testimony. 11, l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY REPLY TO LILCO'S OPPOSITION TO COUNTY MOTION TO CHANGE SCHEDULE, dated February 13, 1984, have been served to the following this 13th day of February 1984 by U.S. mail, first class, except as otherwise noted.
4 James A. Laurenson, Chairman
- Ralph Shapiro, Esq.
Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C. 20555 New York, New York 10016 Dr. Jerry R. Kline
- Howard L. Blau, Esq.
Administrative-Judge 217 Newbridge Road Atomic Safety and Licensing Board Hicksville, New York 11801 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.#
Hunton & Williams P.O. Box 1535 707 East Main Street Mr. Frederick J. Shon
- Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board Mr. Jay Dunkleberger L U.S. Nuclear Regulatory Commission New York State Energy Office Washington, D.C. 20555 Agency Building 2 Empire State Plaza Edward M. Barrett, Esq. Albany, New York 12223 General Counsel l.
Long Island _ Lighting Company James B. Dougherty, Esq.
250 Old Country Road 3045 Porter Street, N.W.
Mineola, New York 11501 Washington, D.C. 20008
- m-pi-.e y .-_-,e. ,- -,-y, ,9 s c. .- w.- m- --,s. =-,mp---1y 9 ,
Mr. Brian McCaffrey Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham a Shea 175 East'Old Country Road P.O. Box 398 Hicksville, New York 11801 33 West Second Street Riverhead, New York 11901 Jeff Smith Marc W. Goldsmith Shoreham Nuclear Power Station Energy Research Group, Inc.
P.O. Box 618 400-1 Totten Pond Road North Country Road Waltham, Massachusetts 02154 Wading River, New York 11792 Joel Blau, Esq. MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Atomic Safety and Licensing Board Ezra I. Bialik, Esq.
Panel Assistant Attorney General U.S. Nuclear Regulatory Commission Environmental Protection Washington, D.C. 20555 Bureau New York State Department Docketing and Service Section of Law Office of the Secretary 2 World Trade Center U.S._ Nuclear Regulatory Commission New York, New York 10047 1717 H Street, N.W.
Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Bernard M. Bordenick, Esq.* U.S. Nuclear Regulatory David A. Repka, Esq. Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C.
20555 Jonathan D. Feinberg, Esq.#
Stuart Diamond Staff Counsel Environment / Energy Writer New York State Public NEWSDAY Service Commission Long Island, New York 11747 3 Rockefeller Plaza Albany, New York 12223
Stewart M. Glass, Esq. Gerald C. Crotty, Esq.
Regional Counsel Counsel to the Governor Federal Emergency Management Executive Chamber Agency State Capitol 26 Federal Plaza, Room 1349 Albany, New York 12224 New York, New York 10278 Fabian Palomino, Esq.#
Special Counsel to Nora Bredes the Governor Executive Director Executive Chamber, Room 229 Shoreham Opponents Coalition State Capitol 195 East Main Street Albany, New York 12224 Smithtown, New York 11787 Eleanor L. Frucci, Esq.*
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Spence Perry, Esq.
Associate General Counsel Federal Emergency Management Agency Washington, D.C. 20472
< A -
Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL,
. CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: February 13, 1984
- By Hand
- By Federal Express >
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