ML20082D400

Movant-intervenors Motion for Change of Venue of Prehearing Conference.* Intervenors Request Change of Venue of 910730 Prehearing Conference from Hauppauge,Ny to Washington DC Area.W/Certificate of Svc

ML20082D400
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/12/1991
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM, NY
To:	Atomic Safety and Licensing Board Panel
References
CON-#391-11985 91-631-03-OLA-2, 91-631-3-OLA-2, ALAB-436, ALAB-488, ALAB-556, ALAB-562, CLI-82-15, LPB-75-74, LPB-77-49, LPB-78-16, LPB-78-34, OLA-2, NUDOCS 9107240033
Download: ML20082D400 (8)

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.;M ;i D UNITED STATES OF AMERICA "26C NUCLEAR REGULATORY COMMISSION Before Administrative Judges: 3 SbP Morton B. Margulies, Chairman i

.Dr. George A. Ferguson I Dr. Jerry R. Kline

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In the Matter of ) Docket No. 50-322-OLA-2

) l' LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-631-03-OLA-2

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-(Shoreham Nuclear Power Station, ) (Possession Only License)

Unit 1) )

) l MOVANT-INTERVENORS' MOTION FOR CHANGE OF VENUE l OF THE PREHEARING CONFERENCE l 1

In response to the Atomic Safety and Licensing Board's l

("ASLB") Chairman's letter to counsel of July 10, 1991, Movant-Intervenors Shoreham-Wading River Central School District (" School 1

District") and Scientists and Engineers for Secure Energy, Inc. 2

("SE2 ") , by counsel, hereby move the ASLB to change the venue l

' for the prehearing conference currently scheduled for July 30, 1991 in the above-captioned matter from Hauppauge, New York, to the Washington, D.C. area for the convenience and economy of the participants and the ASLB itself since Nuclear Regulatory Commission ("NRC") policy does not indicate that such hearings must, or even should, be held in the vicinity of the licensed 1/ The ASLB has wide discretion in establishing the venue of the hearing pursuant to 10 C.F.R. S 2.718(e) (1991). The Commission will only reverse the ASLB's choice of venue for the hearing if it believes "that the board has abused its discretion in" the choice of the venue for a hearing. Consolidated Edison Conpany of New York (Indian Point, Unit 2) el gl., CLI-82-15, 16 NRC 27, 37-38 (1982).

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activity. Undersigned counsel for the School District and SE2 is informed by counsel for the NRC Staff, Mitzi A. Young, Esq., and counsel for Long Island Power Authority ("LIPA"), John D. Holum, Esq., that they do not object to the granting of this motion, and by the licensee's counsel Donald P. Irwin, Esq. that he will inform the ASLB of his position independently.U The School District and SE2 recognize that "[ijt is the Commission's policy and practice to benin the evidentiary hearing in the vicinity of the site of the proposed facility." 10 C.F.R. Part 2, App. A.I.(a) (1991) (emphasis added). That statement suggests that this NRC " policy and practice" does not apply to any j hearings except the (a) initial ("begin"), (b) " evidentiary" hearing en a (c) " proposed facility." The prehearing conference is not an evidentiary hearing, much less an initial evidentiary hearing, and, in this case, it does not address issues related to a

" proposed facility," but a fully licensed facility. Thus, the policy'does not indicate that the prehearing conference should bc

, held.in the vicinity of the Shoreham facility.

The prehearing conference is not an " evidentiary" hearing, but will consist of merely legal argument. In denying a l

l petition for rulemaking to require, among other things, that "all i

hearings and NRC-licensee / applicant meetings be held at a site and at times which will maximize attendance by a majority of the 2/ Others identified on the service list were not contacted i because they have not participated in proceedings before the ASLB in these matters.

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persons potentially affected," the Commission noted that

"[a)ppellate oral arguments in adjudicatcry proceedings are, however, generally heard in Washington, D.C. area." Citizens Advisory Board of the Metropolitan Area Plannino Council for Omaha m Nebraska, and Council Bluffs. Iowa, DPRM-81-1, 13 NRC 429, 441 (1981). Since the prehearing conference will be devoted solely to legal argument, it is much more akin to appellate oral argument then an evidentiary hearing. Thus, the site of the prehearing conferenceF is more appropriate to the Washington, D.C. area than to Haupauge, New York.

And there is ample precedent for conducting prehearing conferences in the Washington, D.C. area rather than near the reactor site even in the case of " proposed" facilities. Eigt, Houston Lichtino and Power Company, et al., ALAB-86-15, 23 NRC 595, 609 (Phase II), 610 (Phase III) & 680 (Phase II) (1986); Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-488, 8 NRC 187, 1889-89 & n.4 (1978).

Further, since there is no compelling reason to hold the hearing near the facility in question, "the governing consideration in determining the place of this hearing both can and should be the convenience of those who will play a direct role in it . . . .

Philadelphia Electric Company, el gl. (Peach Botton Atomic Power Station, Units 1 and 2) gt al . , ALAB-5 56, 10 NRC 527, 531 (1979) 3/ Prehearing conferences can even be conducted by telephone.

E.o., Philadelphia Electric Company, gt al. (Peach Bottom Atomic Power Station, Units 2 and 3) gt al., ALAB-562, 10 NRC 437, 448 (1979).

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l (where another consideration was the fact that the hearing involved four different plants).

Given that the service addresses for two members of the ASLB are Washington, D.C., and the third member's address is Columbia Beach, Maryland, it appears that the Washington, D.C. area would be significantly more convenient for all ASLB members than Haupauge, New York. In addition, counsel for the NRC Staff, lead counsel for amicus curiae LIPA, and counsel for the School District and SE2 also maintain their offices in the. Washington, D.C. area; and lead counsel for the licensee, Long Island Lighting Company

("LILCO") is located in Richmond, Virginia and has officer. in Washington, D.C. Thus, it would appear that the convenience of all persons concerned with the prehearing conference would be much better served by holding that prehearing conference in the Washington, D.C. area than in Haupauge, New York.

I And holding that prehearing conference in the Washington, D.C. area would accomplish a significant economic savings for the licensee, the United States Government, the state political L

subdivision intervenor School District, and the non-profit l

organization intervenor SE, as well as amicus curiae LIPA (which l

has had its State funding totally eliminated) by eliminating costly I

travel, housing and related expenses, as.well as allowing the more l

l efficient utilization of time by all concerned, including.both the l

l elimination of travel days that would otherwise be spent in useful Government service and a reduction in legal fees that would

otherwise be incurred during travel time for the non-federal government participants.

Although the School District and SE2 recognize that such expenditures may!' be necessary if the ASLB decides to hold evidentiary hearings or. Long Island, New York, in the future, travel and related expenses for a prehearing conference in Haupauge would constitute an economic hardship for the School District and SE2 without serving a substantial public interest.

1 A/ The School District and SE emphasize "may" because even evidenticrv hearings on "propos,ed" nuclear power plants may be-held in the Washington, D.C. area rather than near the site of a proposed plant. E.qt, Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3), LBP-78-34, 8 NRC 470, 482 (1978);

Qug,uesene Licht Company, p1 al. (Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 814 (1978); Consolidalgd Edison Company of New York. Inc., el gl. (Indian Point, Units 1, 2, and 3), ALAB-436, 6 NRC 547, 550 (1978) (six days of hearings); Epshinoton Public Power Supply SvEtsa (WPPSS Nuclear Project Nos. 3 & 5), LBP-77-49, 6 NRC 257, 260-(1977);

Commonwealth Edison Company (Byron Station, Units 1 and 2 and Braidwood Station, Units 1 and 2), LBP-75-74, 2 NRC 972, 974 (1975). Thus, the School District and SE2 hope that the ASLB will also give serious consider.lon to holding future hearings in the Washington, D.C. area.

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i 6-WHEREFORE, the School District and SEp urge the ASLB to change the venue of the scheduled prehearing conference to the l

Washington, D.C. area.

Respectfully submitted, l

l July 12, 1991 <---. .A", ,%

[6mes P. McGranery dg.

Oow, Lohnes & Alber[dson Suite 500 1255 Twenty-Third St., N.W.

Washington, D.C. 20037 (202) 857-2929 Counsel for Movant-Intervenors Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.

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UNITED STATES OF AMERICA i "I" p NUCLEAR REGULATORY COHMISSION I I

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '91 J1 15 P 4 :28 l i

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In the Matter of ) Docket No. 50-322-OLAt2p, '

)

LONG ISIAND LIGHTING COMPANY ) ASLBP No. 91 - 6 31 -0 3 -O LA-2

)

(Shoreham Nuclear Power Station, ) (Possession Only License)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the Movant-Intervonor's Motion for Change of Venue of the Prehearing Conference in the above-captioned proceeding have been rerved on the following by first-class majl, postage prepaid (except as otherwise indicated below) on this 12th day of July, 1991:

Morton B. Margulies, Chairman Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room E-407 Washington, D.C. 20555 4350 East West Highway Bethesda, Maryland (by telecopy)

George A. Ferguson Thomas S. Moore Administrative Cedge Administrative Judge Atomic Safety & Licensing Board Alternate Chairman U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board 5307 Al Jones Drive U.S. Nuclear Regulatory Commission Columbia Beach, Maryland 20764 Wa ahington, D.C. 20555

'W. Taylor Reveley, III, Esq. Samuel A. Cherniak, Esq.

Donald P. Irwin, Esq. NYS Department of Law Hunton & W1111ams Bureau of Consumer Frauds Riverfront Plaza, East Tower and Prctection 951 East Byrd Street 120 Broadway Richmond, Virginia 23219-4074 New York, New York 10271

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.. . j Michael R. Deland, Chairman Gerald C. Goldstein, Esq.

7 Executive Office of the President Office of General Counsel i Council on Environmental Quality New York Power Authority 722 Jackson Place,-N.W. 1633 Broadway Washington,'D.C. 20503 New York, New York 10019 Stanley B. Klimberg, Esq. Nicholas S. Reynolds Executive Director & David A. Repka General Counsel Winston & Strawn l Long Island Power Authority 1400 L Street, N.W.

l 200 Garden City Plaza, Suite 201 Washington, D.C. 20005 Garden City, New York 11530 Carl R. Schenker, Jr., Esq. Edwin J. Reis, Esq.

l O'Melveny & Myers Mitzi A. Young, Esq.

! 555 13th Street, N.W. Office of General Counsel Washington, D.C. 20004 U.S. . Nuclear Regulatory Commission Washington, D.C. 20555 '

l Stephen A. Wakefield, Esq.

General Counsel i.

U.S. Department of Energy 1000 Independence Avenue Room 6A245 Washington, D,C. 20585 V

0w S!.~Qf s_ Q m,n.

Jpmes P. McGrane ry ,/4r . N Counsel for the Pefliioners l

Shoreham-Wading River Central l

School District and Scientists and Engineers for Secure Energy, Inc.

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