ML20101E907

Motion Opposing Suffolk County & State of Ny 841207 Joint Motion to Vacate Summary Disposition Order & to Strike Portions of Util & NRC Proposed Findings.Certificate of Svc Encl

ML20101E907
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/20/1984
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-764 OL-3, NUDOCS 8412260443
Download: ML20101E907 (13)

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g .LILCO, D;ctmbar 20, 1984 '# ,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

.?A DEC 24 pja;5g Before the Atomic Safety and Licensina Bo h8 t, In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No.-50..3.22-OL-3

) (Emergency Planni'ny'*' .

(Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO'S OPPOSITION TO INTERVENORS' MOTION TO VACATE

SUMMARY

DISPOSITION ORDER AND TO STRIKE PORTIONS OF LILCO'S AND STAFF'S PROPOSED FINDINGS On December 7, 1984, Intervenors Suffolk County and the State of New York filed a joint " Motion to Vacate Order Granting LILCO's Motion for Summary Disposition on Contention 24.B and to Strike Portions of LILCO's and the Staff's Proposed Findings." In'that motion, Intervenors ask this Board to vacate its April 20, 1984 Order granting summary disposition to LILCO on Contention 24.B, on i the grcund that allegedly new material, contained in one substantively equivalent sentence in each of two letters dated October 2 and October 11, 1974,1/ assertedly supersedes the August 1/ The letters, written by the President and the Secretary of Energy to incumbent Long Island Republican Congressman William Carney in the heat of an electoral race, are plainly campaign documents which anticipate the benefit of Congressman Carney's (footnote continued) -

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20, 1983- letter of agreement between LILCO and DOE which was the basis of summary disposition. In addition, the Intervenors ask the Board to strike certain portions of LILCO's and the Staff's-l Proposed Findings on the ground that the October 2 and October 11 l letters " contradict" certain references made to the use of federal agencies such as DOE and the United States Coast Guard in the im- '

plementation of LILCO's Plan.

Intervenors' motion was filed after disposition on the merits of. Contention 22.D; thus it is, in essence, a motion to reopen the record after decision.2/ Any party seeking such a reopening bears a " heavy burden," Pacific Gas and Electric Company (Diablo Canyon t

Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983); Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978), and must meet all parts of a three-part test. First, the motion must be (footnote continued) ,

" continued wise counsel" and " working with you" "in the years ahead", i.e., following 'nis re-election. Each letter includes

. a sentence containing the assertedly offending statement that

. the Reagan administration "does not favor the imposition of Federal Government authority over the objections of state and local governments in matters regarding the adequacy of an emer-gency evacuation plan for a nuclear power plant such as Shcreham."

2/ The second portion of Intervenors' motion -- to strike certain references to letters of agreement from findings -- is a corollary of the request to vacate, and will be analyzed as such.

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e timely; second, it must be addressed to a significant safety or environmental issue; and third, the material submitted in support of the motion must be sufficiently probative that a different re-sult would have been reached initially if it had been initially considered. Id.

Intervenors' motion is deficient on all titrae counts. First, it is untimely: Intervenors knew of the October 2 and 11 letters for over seven weeks before filing their motion. Secondly, the issue only generally addressed by the letters -- an undefined no-tion of " imposition of Federal Government authority" -- has not been shown to be, and is not, the same as normal federal response pursuant to letters of agreement to fulfill NUREG-0654 criteria.

Since that latter issue is the relevant one in this proceeding, the cited letters do not raise a significant issue. Finally, while abrogation of letters of agreement between LILCO and DOE or other federal agencies to fulfill NUREG-0654 criteria could raise significant issues, Intervenors' motion does not adduce any evidence, much less sufficient evidence to have produced a different result on the merits, that the letters of agreement with LILCO are affected.

1. The motion'is grossly untimely. The letters it cites are dated October 2 and October 11 and are over two months old. The letters were publicly reporte.d at the time they were issued.1/

1/ The letters were referred to by their addressee, Congress-man Carney, in an October 18 press conference and were reported (footnote continued) l l

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Suffolk County and its coudhel were aware of and commented on them to the press on October 18, offering their opinions that the Carney campaign letters confirm " exactly what the County maintains to be our position" (Cohalan)i/ and that "the plant cannot now be licensed consistent with what the President of the United States and the Department of Energy have said" (Brown).E/ Subsequently, however, numerous filings have been made by all parties, without contradiction by Intervenors, which presume the continuing vitali-ty of LILCO's letter of agreement with DOE: Suffolk County's own proposed findings on emergency planning (October 26), the NRC Staff's proposed findings on emergency planning (November 5), and LILCO's reply findings on emergency planning (November 14). In-tervenors, despite their knowledge of and professed views on the Carney campaign letters, made no comment whatever on them before this Board at any of those times, and have offered no explanation whatever for that failure. Intervenors' failure is particularly (footnote continued) and quoted from in articles appearing the following day in Tra New York Times, Newsday, and the New York Daily News (Attachments 1-3). Suffolk County was on contemporaneous actual notice of them: County Executive Peter Cohalan appeared at Congressman Carney's news conference (Attachment 2 (Newsday Article), col. 2) and Suffolk County counsel Herbert Brown, Esq. was quoted on them (Attachment 1 (NY Times article), col.

2).

1/ Attachment 2, col. 2.

1/ Attachment 1, col. 2.

-6 egregious in light of their professed views of the letters' impor-tance back in October. Intervenors' motion is fatally out of time and should be rejected on that basis alone.5/

2. Substantively, the contents-of the letters do not, con-

, trary to Intervenors' suggestion, contradict the evidence of

. record that federal agencies would participate pursuant to agree-ment in response to an emergency at Shoreham. The sentence in each letter cited by the Intervenors states only, as a general e.3tter, that DOE and the Administration do "not favor the imposition of Federal Government authority over the objections of state and. local governments in matters regarding the adequacy of an emergency evacuation plan for a nuclear power plant such as Shoreham." Participating in an emergency response pursuant to agreement and normal federal procedures is not "imposir.g federal government authority"; thus on their face the letters do not say what the Intervenors think they say. Second, the letters are not i

1/ This is not the first time of late that Intervenors have i been dilatory in raising Issues of professed importance. This Board has found the County fatally untimely in raising issues concerning the LILCO strike last summer. Docket No. 50-322-OL-3, Memorandum and Order Denying Suffolk County Motion to Admit i New Contentions, September 7, 1984 (slip op.). Similarly, the Brenner Board has found Intervenors to have been fatally late in seeking to raise a financial-qualifications contention.

Docket No. 50-322-OL, Memorandum and Order Denying Suffolk

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County and the State of New York Petition for Exemption from Regulations Precluding Financial Qualifications Contention and Motion for Certification to the Commission, August 13, 1984, LBP-84-30, NRC (slip op.).

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-s an operational directive of any sort to any federal agency.

Nothing in the quoted sentence states that any of the agreements included in the LILCO Plan have been or were intended to be abrogated. Certainly, LILCO has not received any information from DOE or any other federal agency suggesting anything other than that the federal government intends to honor its agreements and to continue to fulfill its normal duties regarding response to a nu-clear power plant emergency, at Shoreham as elsewhere. Thus the Carney campaign letters, even if taken literally, do not effect what Intervenors would claim they do.

3. The Intervenors have made no offer of proof, beyond the rhetorical generalities of the October 2 and 11 letters, that 2

would support their claim that the letters mean that DOE or other agencies would not perform their ordinary duties and respond in an emergency at Shoreham. In seeking to reopen the summary disposi-tion order granted by this Board, as with opposition to a summary disposition motion, the Intervenors cannot simply rely on allega-tions but must set forth specific facts showing that there is a genuine issue of fact. See virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 453 (1980).1/ The Intervenors have not filed affidavits, made 2/ Intervenors have proffered nothing but the unadorned Carney campaign letters. However, a proffer of evidence --

even had evidence been proffered -- sufficient to avoid summary (footnote continued)

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offers of proof, nor suggested what additional evidence they might provide to show that any agencies have repudiated the letters, or to otherwise disprove the continuing vitality of the letters of agreement in the record. Thus Intervenors have not sustained their heavy burden of demonstrating that, upon a reopening of the record, affected federal agencies would disavow at Shoreham their normal agreements to perform emergency response functions.

4. Any inability or unwillingness of any agency, including a federal agency, to respond would likely surface during an exer-cise. LILCO has requested an exercise for the emergency plan for Shoreham. Presumably, any failure or refusal on the part of DOE or any other federal agency to respond would emerge during that exercise and could be addressed by the parties during post-exercise proceedings. On the other hand, participation by DOE and and other federal agencies during the exercise would moot any need

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to reopen the record regarding Contention 24.B.

5, Intervenors' motion to strike all references to the letters of agreement from proposed filings (Motion at 4 and Attachment 3 thereto) totally begs the question of the effect of (footnote continued) disposition is not automatically sufficient to justify reopen-ing of a record. Otherwise, as the Appeal Board noted in supra, 18 NRC at 1345 note 8, movants for re-Diablo openingCanyon, "would Ibe] relieve [d] of the heavy burden imposed by Wolf Creek, ALAB-462, 7 NRC 320, 338 (1978) and decisions cited therein."

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k the October re-election campaign letters. For the reasons out-lined above, the Board should not vacate its April 20 Order granting summary disposition on Contention 24.B. It follows that the references to DOE and other federal agencies in findings of fact should not be struck.

Accordingly, the Intervenors' motion should be denied in entirety.

LONG ISLAND LIGHTING COMPANY

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Donald P. Irwin James N. Christman Kathy E. B. McCleskey Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23219 DATE: December 20, 1984 l I' - - - -

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pears to' hind tb 'gIo, erneneet to that position.

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mielstration does not tower the impool.

tien of Federal Governant amenrtty over the oejecesses of stees and local I spernesato la matters regardb.s the j

gan pkat Illoo's plea. wtdch has the stikty's inster rendure and basem thatmaaidaunnauybe SnedIpy men. Eternen and other goveruseset employees, enests on secural Federal agencies, tachading the Canet Guard.

me Fties and Das Wia ==tson,and as Enver====etal Protocesan agecy, to perform a variety of haettene la a

'Se.o Co.tyand m a sp maa h., e,r,s ativ, carney.ur. eletter to har thstr - tson if ob.

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~~~ Carney has been the target of Shoreham opponents who g

8 claim he has done little to stop Shoreham's opening. Carney OP Cg 6 J maintains the plant should not open ifit does not ha e a safe evacuation plan but also said be has taken a " neutral posi-tion for the last 'six years" on whether the NRC should grant the plant an operating liesase. >

Hochtenachase, who has the endorsement of several anti.

nuclear groups, opposee the opening of the plant for economic R6GFGM -

and safety ra==ana Carney has attacked him for introducing bills in past years to have the New York Power Authority take over and run the centroversal plant.

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ON Carney was fl==had at the news conference by several Republican officials who oppose the plant's ing County Executive Peter F. Cahalan

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' is exactly what we in the county maintain to be our position," Cohalan said." Bill deserves credit for the presulent." LII40 oEl ng this commitment from daefinad comment.

SHOT 6 G Nora Bredes, director of the Shoreham Opponents Coali-tion, said the letter would only be important ifit signaled a

- total irithdrawal of federal partici tion in LII40's emer- l nothing mon than a By Rick Brand gj'4" ,0!berwise, she said, Proeident Ronald Reagan has sent Rep. William Carney a letter saying he "does not favor the imposition of federal au-thority over . . . local governments" in emergency planmng for nuclear power plants such as Shoreham.

b letter reiterates Energy Secretary Donald Hodel's po-sition on the issue. Whether it is significant h=e=ma the sub-ject of debate after Carney (C,R.Hauppauge) released the letter at a news confemoce yesterday.

Some Republican officials who oppose Shoreham's oper-ation on emergency planning grounds said the letter repre-sented a commitment from the administration. But Democrata said the letter was merely an effort to help Carney in a difficult re election campaign in which Shoreham is an issue.

Reagan's letter refers to a statement made by Hodel in July that he would not impose a drill ofIong Island Lighting Co.'s emergency plan for Shoreham over the objections of Gov. Mario Cuomo and Suffolk County odleials.

"I wish to repeat Secretary Hodel's assurance tayou that this administration does not favor the impnaition of federal government authority over the objections of state and local governments matters regarding the adequacy of an emergen.

cy evacuation plan for a nuclear power plant such as Shore-ham," the letter said. .

Carney declared the letter " puts to rest once and for all '

the issue of Shoreham in this campaign." Carney said the letter means "taat_LIILO should clearly get the message that they have to deal with the county emeeutive and gov _tr-nor of New York" if the utility wants to open the plante But Carney's opponent. Assemb. George Hochbrueckner (D Coram), said, "Nothing has changed . . Two weeks be-fore the election, they are trying to use a letter f>om the president to prop up a losing campaign . . He's been wrong Isa the issue and is just trying to recover."

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l 7 hg "p"*h" ,$,,  % l By MICHAEL BANRABAN g Rep.' William Carney (C. toch as Shoh" l ,.

Hauppauge) said yester 11aY Carney is fa; tag a tough that he was " neutral" on the reelection chattenge from George lasue of whether the Assemblyman Shoreham nuclear plant .Hochbrueckner (DCoram).

,should be ned. Carney amid yesterdah that Carney the remarks his letter from. President ' -

l in response to questions at a Reagan was a " pledge" that ' ' i press conference he called the federal government l on the plant.

would not force an evacua. I Cmy eded the. conf

• tion plan en SuffolkCounty.

• ence to announce that he had However, the m obtained President Reagan's . ment will have IMopposNe assurances that his adminis- according to .

tration "does not favor the effect, imposition of federal govern- Hochbrueckner, who showed, asnour m o e sus ment authority over the up as an uninvited guest and . Rep. m Cornq st, objections of state and toegl challenged to yesterday's press in Carney to come opposition governments in matters re- out eengesence.

, garding the adequacy of,an Shoreham. l l

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4 LILCO, Dsccmber 20, 1984

-A CERTIFICATE OF SERVICE

.In the Matter of.

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

(Emergency Planning Proceeding)

Docket No. 50-322-OL-3 I certify that copies.of LILCO'S OPPOSITION TO INTERVE-NORS' MOTION TO VACATE

SUMMARY

DISPOSITION ORDER AND TO STRIKE PORTIONS OF LILCO'S AND STAFF'S PROPOSED FINDINGS were served this date upon the following by first-class mail, postage pre-paid, or (as indicated by an asterisk) by Federal Express.

, James A. Laurenson, Secretary of the Commission chairman

• U.S. Nuclear Regulatory i Atomic Safety and Licensing Commission

' Board .

Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory 1 Bethesda, MD 20814 Commission Washington, D.C. 20555 4 Dr. Jerry R. Kline*

Atomic Safety and Licensing Atomic Safety and Licensing ,

Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.

Bethesda, MD 20814 Bernard M. Bordenick, Esq.*

Oreste Russ Pirfo, Esq. i

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Mr. Frederick J. Shon* Edwin J. Reis, Esq.

Atomic Safety and Licensing U. S. Nuclear Regulatory

Board Commission

U.S. Nuclear Regulatory 7735 Old Georgetown Road

. Commission (to mailroom) i East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.

Bethesda, MD 20814 Stewart M. Glass, Esq.*

Regional Counsel Donna Duer, Esq.* Federal Emergency Management Law Clerk Agency Atomic Safety and Licensing 26 Federal Plaza, Room 1349 1

Board Panel New York, New York 10278 U. S. Nuclear Regulatory

. Commission Stephen B. Latham, Esq.

l East-West Tower, North Tower John F. Shea, F.sq.

4350 East-West Highway Twomey, Latham & Shea l

Bethesda, MD 20814 33 West Second Street P.O. Box 398 i Riverhead, NY 11901 L

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Fabian G. Palomino, Esq.* Ralph Shapiro, Esq.

Special Counsel to the Cammer & Shapiro, P.C.

Governor 9 East 40th Street Executive Chamber New York, New York 10016 Room 229 State Capitol James B. Dougherty, Esq.

Albany, New York 12224 3045 Porter Street Washington, D.C. 20008 Herbert H. Brown, Esq.*

Lawrence Coe Lanpher, Esq. Jonathan D. Feinberg, Esq.

Christopher M. McMurray, Esq. New York State Public Service Kirkpatrick & Lockhart Commission, Staff Counsel 8th Floor 3 Rockefeller Plaza 1900 M Street, N.W. Albany, New York 12223 Washington, D.C. 20036 Spence W. Perry, Esq.*

MHB Technical Associates Associate General Counsel 1723 Hamilton Avenue Federal Emergency Management Suite K Agency San Jose, California 95125 500 C Street, S.W., Rm. 840 l

, Washington, D.C. 20472 Mr. Jay Dunkleberger New York State Energy Ms. Nora Bredes Office Executive Coordinator Agency Building 2 Shoreham Opponents' Coalition Empire State Plaza 195 East Main Street Albany, New York 12223 Smithtown, New York 11787 Gerald C. Crotty, Esq. Martin Bradley Ashare, Esq.*

Counsel to the Governor Suffolk County Attorney Executive Chamber H. Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 j Donald P. Irwin Hunton & Williams 707 East Main Street Post Office Box 1535' Richmond, Virginia 23212 DATED: December 20, 1984 ii . - -

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