ML20094A040
| ML20094A040 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/01/1984 |
| From: | Mark Miller KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | |
| References | |
| OL-3, NUDOCS 8408030086 | |
| Download: ML20094A040 (15) | |
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wwr, c,.m r,-~;ogyz UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board DCk! QED wa ~
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IYO '2 4J :32 In the Matter of
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Docket No. 50-322-OL-3r LONG ISLAND LIGHTING COMPANY
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(Emergency Planning)f
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(Shoreham Nuclear Power Station,-
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Unit 1)
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MEMORANDUM TO SHOW CAUSE WHY SUFFOLK COUNTY'S JULY 26 APPEAL SHOULD NOT BE DISMISSED On July 26, 1984, Suffolk County filed a notice of appeal and supporting brief from the Atomic Safety and' Licensing Board's ("ASLB's") July 10, 1984 oral Order # denying the Coun-ty's Motion to Compel Production of Documents by FEMA, and to Postpone the Cross-Examination of FEMA's Witnesses, and for Is-suance of Subpoenas to the Members of the RAC, dated July 6, 1984 (hereinafter, the " July 6 Motion").
The following day, on July 27, 1984, this Board issued an Order directing the County to show cause, in a memorandum to be filed by noon, Wednesday, August 1, 1984, "why the appeal should not be summarily dis-missed in light of the prohibition in the Rules of Practice against interlocutory appeals."
Order, at 1.
The County was also requested to address the question whether, " assuming that the July 10 oral order is appealable, the appeal nonetheless should be dismissed because it was not filed within ten day of
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the entry of that order." -Order, at 1-2.
In accordance with the Appeal Board's July 27 Order,;the County hereby_ submits
.this Memorandum.
I.
The Issues Underlying the County's Appeal and the Interests of the Parties Are of Sufficient Importance to Warrant Review by This Board As this Board has pointed out, the Commission's Rules of Practice contain a general prohibition against interlocutory appeals.
- See, e.g.,
Commonwealth Ediso:
Co.
(Zion Station, Units 1 and 2), ALAB-ll6, 6 AEC 258 (1973).
Nevertheless, there are exceptions to this prohibition.
Fer example, discretionary interlocutory review is permitted When it is demonstrated that failure to resolve an issue promptly s
will cause " detriment to the public interest or unusual delay or expense."
See 10 CFR 2.730(fi.
See also Public Service Co.
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of Indiana (Marble Hill), ALAB-405, 5 NRC 1190, 1192 (1977),
and cases cited therein.
In addition, the Commission has encouraged appellate re-view of interlocutory appeals "if a significant legal or policy question is presented."
Statement of Policy on Conduct of Li-censing Proceedings, 46 Fed. Reg. 28533, 28535.
Moreover, in-Lerlocutory review may be appropriate Where the ruling in ques-tion affects "the aasic structure of the proceeding in a 2-I L
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pervasive and. unusual manner," Houston' Lighting and Power Co.
(Allens Creek Station), ALAB-635, 13 NRC 309, 310-(1981), or
'" threatens the party adversely affected by it with immediate and serious irreparable impact" Which, as a practical matter, can not be alleviated by a later appeal.
Houston Lighting and Power Co._(South Texas Project), ALAB-608, 12 NRC 168, 170 (1980).
In the-County's view, the issues involved in its appeal to this Board from the'ASLB's July 10 ruling meet all of the above standards, any one of Which is sufficient to justify appellate review of interlocutory rulings.1/
For example, the public in-terest would-be served by prompt resolution of the issue _s now before this Board.
The County's need for'the FEMA documents at issue is substantial and compelling.
The documents sought are i
the factual findings Which underlie and form the basis for the RAC findings upon Which the FEMA witnesses rely for the opin-ions and conclusions stated in their testimony.
Without access to these documents, the County has been unable to cross-examine fully and completely the FEMA witnesses, to probe, challenge, i
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The arguments and background materials contained in previ-ous filings made on the Board by the County will not be repeated here, but are incorporated by reference.
- See, the brief filed by the County in support of its July j
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26 appeal.
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4 or impeach-their conclusions, or otherwise to present'on the
.rebord of the emergency planning proceeding before the ASLB all the' relevant facts pertaining to the opinions of the FEMA wit-nesses.2/
To deny the County access to the documents, as the ASLB has done,.therefore-constitutes a violation of the Coun-ty's rights under NRC regulations (see, e.g., 10 CFR 2.743(a)
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'and 50.47(a)(2)) and, in effect, has accorded special preferen-tial treatment. to FEMA's witnesses by shielding them from any meaningful' inquiry or challenge.
It must be understood that.the documents here at issue in-volve FEMA's review of the offsite emergency response plan at issue in the' proceeding before the ASLB -- a plan which,_
according to LILCO, provides " reasonable assurance" that ade-quate-protective measures can and will be taken in the event of a radiological emergency at Shoreham.
Clearly, the public in-terest would be served by permitting meaningful inquiry to be made of the witnesses chosen by FEMA to submit testimony regarding the LILCO Plan's adequacy.
This, however, is net possible without providing the County and the other parties
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As this Board is no doubt aware, the FEMA witnesses were cross examined by the County and the other parties during the week of July 10.
At this time, the FEMA witnesses arr.
scheduled to testify.again during the week of August 14.
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access to the underlying documents -- documents which involve the actual RAC review of'the LILCO Plan conducted by FEMA.
This review, and, more specifically, the findings upon which the FEMA witnesses rely for the opinions and conclusions contained in their testimony, perhaps constitute a rebuttable presumption'in the proceeding before the ASLB, and both the parties and the ASLB must be able to probe their bases and as-sess their accuracy.
The County is also entitle 1 to the issuance of subpoenas against the RAC members so that they can be deposed.
The FEMA depositions which have been taken have made apparent that FEMA's witnesses are unable or unwilling to explain what_indi-vidual members of the RAC did in reviewing LILCO's Plan or what their opinions were as a result of that review.
- Clearly, therefore, the public interest uld be served by permitting the County to depose the RAC members, especially since it would appear that such depositions may provide the only way for in-formation highly relevant to the RAC review process concerning the adequacy of the LILCO Plan to be discovered.
In addition to raising issues that, if left unanswered, will cause detriment to the public interest, the County's ap-peal involves issues that raise significant legal and policy 4 I
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Indeed, to the County's knowledge, the pending appeal raises significant legal issues of first impression con-cerning the proper scope and interpretation to be given to FEMA's claim of, executive priviltge as a means to keep secret the methods and findings involved in FEMA's_RAC process.
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.If this Board were not to hear the County's appeal and re-verse the ASLB's ruling, it would be sanctioning FEMA's inex-plicable and groundless claim that the public is not entitled to know about, or inquire into, the workings or conclusions of the RAC -- a group comprising the public's representatives, re-sponsible for determining whether the public can and will be adequately protected in the event of a radiological emergency, and.upon whose findings the NRC may base its conclusion that the operation of a nuclear power plant will not endanger the public health and safety.
Such a ruling would defy logic as well as law.
Further, a decision by this Board not to hear the pending appeal would be inconsistent with the position taken earlier by the Board, when it exercised its discretion in favor of ' reviewing FEMA's interlocutory appeal from the ASLB 's May 18 Order compelling FEMA to produce the documents in question.
The ASLB's July 10 ruling has also affected the basic structure of the proceedings below in a pervasive and unusual,
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The FEMA witnesses have been presented to testify on almost every contention before the ASLB -- contentions which have so far taken over 60 days to litigate.
T:.eir testimony is
-based largely upon the findings of the RAC review process; yet the -County. has been barred from inquiring into that process.
By hearing and promptly granting the County's appeal, this sit-uation can be re:nedied without delay to the proceedings below,
-since the County.will have an opportunity to cross examine the FEMA witnesses when they return to the hearings during the week of. August 14.
However, should this Board fail to reverse the ASLB's ruling, the County's right to discovery will have been violated, and the County will have been effectively prohibited from making a true and complete factual reco$b at the ' hearings, since there are no means other than through the documents at issue and deposition of the RAC members for the County to ob-tain the information it has requested from FEMA.
Furthermore, reversal of the ASLB's ruling -- holding in-violate and untouchable the FEMA testimony by prohibiting in-quiry into the bases for the FEMA findings -- is necessary if the County is not to be deprived of its right to a hearing, which is guaranteed by NRC regulations.
The Board should therefore hear the appeal filed by the County in order to pre-vent the immediate and serious irreparable impact to the c.
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l County's ' case which has resulted from the ASLB's decisica to award' preferential treatment to FEMA's witnecues.
Yn circum-
. stances such as are present here,-where. FEMA's testimony.tou-
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ches virtually every issue'before the ASLB, it makes no sense to await an-initial decision to remedy.this harm.
Moreover, in the County's opinion, the issues involved here~ concern not merely an isolated 2 ruling on a discovery dis-pute, but-raise generic issues affecting all the contentions I
admitted in/ the ASLB upon which FEMA has filed testimony in
'this case.
Thus, there is a substantial likelihood that, with-out review by the' Appeal Board at this time, the ASLB's ruling I
will ultimately be determined after hearing and on appeal toIbe incorrect, and very substantial delay and expense will have been unnecessarily incurred.
Perhaps most significantly, the issues involved in the pending appeal may affect the rights of parties in other cases to inquire into the bases and conclusions of FEMA's review, through the the RAC process, of other offsite emergency re-sponse plans.
In other words, the issues involved here have a 4
high potential for being raised in future proceedings, now that they have been raised before this Board.
Therefore, there should be clear guidance from the Appeal Board on these issues.
In this way, the public interest would.best be served..
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II..
Good'Cause Exists for the. County's Failure to Have Filed its Appeal Within Ten Days of the ASLB's July 10 Ruling In its July 27 Order, the Board requested the County to address whether its July 26 appeal should be dismissed, assum-ing the ASLB's ruling is found. to be appealable, because it was not filed within ten days of the entry of that ruling.
- Order, at 1-2.
The only two provisions of the Commission's. Rules of Prac-tice specifically authorizing appeals from Licensing Board ac-tion both provide a ten-day period for the filing of the ap-peal.
See 10 CFR 2.714a, 2.762(a).
These provisions, however, pertain specifically to appeals from Licensi~ng Board decisions on petitions for leave to intervene (2.714a) and from initial decisions on the issuance of a license (2.762(a)).
Neither provision is applicable to tne present appeal, which is concerned with a ruling of the ASLB which has impaired the County's ability to conduct meaningful cross examination of FEMA's witnesses.
In fact, to the County's knowledge, no pro-vision of the NRC regulationa specifically establishes a time limit for appeal from such a ruling.
Thus, there is no regula-tory basis to conclude that the instant appeal is untimely.
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Nevertheless, even assuming that a ten-day appeal period applies to'the instant appeal, it is not jurisdictional in the sense that the Appeal Board lacks the power to entertain an ap-peal which is not filed within ten days after the ruling in question.
Rather, a belated appeal may be accepted when good cause is shown for the failure to have filed on time.
See Houston Lighting and Power Co. (Allens Creek, Unit 1),
ALAB-547, 9 NRC 638, 639 I'979).
See also Nuclear Engineering Company-(Sheffield, Illinois, Low-Level Radioactive Waste Dis-posal Site), ALAB-606, 12 NRC 156, 160 (1980).
Here, the notice of appeal and brief in support thereof were filed 16 days after the issuance of the, ASLB 's July ruling -- a ruling which was made on the first day of a two-week session of the emergency planning hearing in Which counsel for the County were required to participate.
The Coun-ty could not have filed the appeal any earlier, because the emergency planning hearings in Which cognizant counsel for the County were involved did not adjourn until Friday, July 20.
In light of the complexity and the number of the issues which were required to be addressed by the County's counsel in preparing and filing its appeal, the fact that the appeal was brought six days after the time arguably permitted under the Commission's Rules of Practice should not bar the appeal and this Board's consideration of the significant issues raised by the appeal.
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I III. Conclusion For'the reasons stated above, Suffolk County respectfully requests that-the Appeal Board exercise its discretion to re-view the County's July 26 appeal from the ASLB 's July 10 ruling.
Such review is warranted by the importance of the is-sues underlying the County's appeal and the interests of the parties,in having those issues promptly resolved.
- Further, there is good cause for the. County's failure to have filed itn appeal after the time arguably permitted under-the Commission's Rules of Practice and therefore F ' appeal should be heard by this Board.
If necessary to the County's request for appellate review, the County requests that this Memorandum be treated as a motion for certification or referral under the Commission's Rules of Practice.3/
Similarly, if deemed necessary by this Board, the County requests that this Memorandum be treated as a request for extension of time within Which to have filed the appeal at issue.
See 10 CFR 2.711(a).
Respectfully submitted, 3/
The Rulet appear to contemplate " certification" under 10 CFR 2.718(i) Where a board does not first decide the dis-puted-question, and " referral" under 10 LFR'2.730(f) Where the board first rules and then requests interlocutory re-view.
The distinction, however, appears to be unimportant.
See Southern California Edison Company (San Onofre), LBP-81-36, 14 NRC 691, 699, n.
7 (1981).
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Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Suffolk County Department of Law H.
Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 k'
Lawrence Coe Lanpher Karla J.
Letsche Michael S.
Miller Christopher M.
McMurray KIRKPATRICK, LOCKHART, HILL CHRISTOPHER & PHILLIPS 1900 M~ Street,~ N.W.
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Washington,:D.C. 20036 ~
Attorneys for Suffolk County Dated:
August 1, 1984 I
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r-UNITED STATES OF AMERICA j
NUCLEAR' REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board
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In the Matter of
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-LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency. Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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CERTIFICATE OF SERVICE I hereby certify that copies of Memorandum to show Cause Why Suffolk County's July 26 Appeal.Should Not be Dismissed have been served to the following'this 1st day of August 1984 by U.S. mail, first class, except as otherwise noted.
- James A. Laurenson, Chairman James B.
Dougherty, Esq.
Atomic Safety and Licensing Board 3045 Porter Street, N.W.
U.S. !!uclear Regulatory Commission Wa dtington,
D.C.
20008 Washington, D.C.
20555 Mr. Jay Dunkleberger
- Dr. Jerry T. Klit.e New York State Energy Office Administrative Judge Agency Building 2 Atomic Safety and Licensing Board Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington,~D.C.,
20555
- W.
Taylor Reveley, III, Esq.
- Mr. Frederick J. Shon Hunton & Williams Administrative Judge' P.O.
Box 1535 Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C.
20555 Edward M. Barrett, Esq.
Spence Perry, Esq.
General Counsel Associate General Counsel Long Island Lighting Company Federal Emergency Management 250 Old Country Road Agency Mineola, New York 11501 Washington, D.C.
20472
_ Mr. Brian McCaffrey Stephen B. Latham,-Esq.
_Long Island Lighting Company Twomey, Latham'a Shea y
'Shoreham Nuclear Power Station P.O.
Box 398 i
P.O..Eox'618' 33 West Second Street North. Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes
' Marc-W. Goldsmith Executive Coordinator Energy Research Group, Inc.
Shoreham Opponents' Coalition 400-1-Totten Pond Road 195 East Main Street Waltham, Massachusetts 02154 Smithtown, New York 11787 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-Veteran's Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Panel Commission U.S.' Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and' Service Section Jonathan D. Feinberg, Esq.
Office of the Secretary Staff Counsel U.S. Nuclear Regulatory Commission New York State Public 1717 H Street, N.. W.
Service Commission Washington, D.C.
20555 3 Rockefeller Plaza Albany, New York 12223
- Bernard M.
Bordenick, Esq.
David A. Repka, Esq.
Stuart Diamond Edwin J. Reis, Esq.
Business / Financial U.S. Nuclear Regulatory Commission New York Times Washington, D.C.
20555 229 W.
43rd Street New York, New York 10036
- Stewart M. Glass, Esq.
- Eleanor L. Frucci, Esq.
Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 Washington, D.C.
20555 l
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..... - - ** Fabian Palomino, Esq.
- Mr. Howard A.
Wilber Special Counsel to Atomic Safety and Licensing the Governor Appeal Board Executive Chamber, Room 229 U.S. Nuclear Regulation State Capitol Commission Albany, New York 12224 Washington, D.C.
20555
- Allen S. Rosenthal, Chairman Atomic Safety and Licensing
- Mr. Gary J. Edles Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S.. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Jo Michael S. Miller KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS
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1900 M Street, NW, Suite 800 Washington, D.C.
20036 Dated:
August 1, 1984 By Hand By Federal Express i
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