ML20099L385

Forwards Suffolk County & State of Ny Answer in Opposition to Lilco 850227 Renewed Motion for Summary Disposition.Lower Court Ruling Supports View That Util Preemption Argument Has No Merit

ML20099L385
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/19/1985
From:	Lanpher L KIRKPATRICK & LOCKHART
To:	Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel
Shared Package
ML20099L390	List: ML20099L385 ML20099L392 ML20099L398
References
CON-#185-161 OL-3, NUDOCS 8503200576
Download: ML20099L385 (2)

Text

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March 19, 1985 ne ouvia a.mxsa muml 6- ICI Ns 3 RANCH 202/452-7011 BY HAND ,

Morton B. Margulies, Esq. Dr. Jerry R. Kline Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Room 461A East-West Tower, Room 427 4350 East-West Highway 4350 East-West Highway Bethesda, Maryland 20814 Bethesda, Maryland 20814 Mr. Frederick J. Shon Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission East-West Tower, Room 430 4350 East-West Highway Bethesda, Maryland 20814 Re: Docket No. 50-322-OL-3

Dear Administrative Judges:

Enclosed you will find the Answer of Suffolk County and State of New York in Opposition to LILCO's Renewed Motion for Summary Disposition. The Answer makes clear that this Board should summarily reject the Renewed Motion (Answer, @@ I and II),

but that if the Board decides to address the merits of the preemption issue, further briefing is required (Answer, 6 III).

After the enclosed Answer was prepared, the Honorable-Frank X. Altimari (E.D.N.Y.) issued a decision in Citizens for An Orderly Energy Policy, Inc. v. Suffolk County. LILCO was an intervenor-plaintiff in the action. A copy of Judge Altimari's decision is attached.

Judge Altimari ruled that "the conduct of the defendant has not'in fact amounted to a regulation of nuclear power production" l

and thus rejected plaintiffs' contention that the County's 1

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F KIRKPATRICK & LOCKHART Morton B. Margulies, Esquire Dr. Jerry R. Kline Mr. Frederick J. Shon March 19, 1985 Page 2 actions were preempted.1/ This holding supports our view that LILCO's preemption argument has no merit.

If the merits of the Renewed Motion are considered by this Board, the enclosed U.S. District Court ruling will need to*be addressed in further briefing by the parties.

Sincerely yours, W i Lawrence Coe Lanpher LCL:me Enclosures A! See Decision at 24. We note also that LILCO has several times relied upon the Brenner Board's discussion of preemption in LDP-83-22, 17 NRC 608 (1983). See LILCO's August 6 Brief at 28-29; LILCO's October 15 Brief at 19, 3

29. The Citizens Decision rejects the grounds upon which the Brenner Board found that preemption might have ,

occurred.

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