ML20101P118

Motion for Leave to File Reply to Applicant Opposition & NRC Response to Suffolk County & State of Ny 841207 Motion to Vacate & to Strike.Certificate of Svc Encl

ML20101P118
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/02/1985
From:	Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
CON-#185-923 OL-3, NUDOCS 8501070028
Download: ML20101P118 (9)

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S UNITED STATES OF AMERICA 0{,%TfD'

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NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board AE !30

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In'the Matter of )

) Docket No. 50-322-OL-3 i

LONG ISLAND LIGHTING COMPANY ) (Emergency Planning)

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(Shoreham Nuclear Power )

' Station, Unit 1) )

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, SUFFOLK COUNTY AND STATE OF NEW YORK f[c- MOTION FOR LEAVE TO FILE REPLY TO LILCO'S OPPOSITION.AND NRC STAFF RESPONSE

>. ,, TO DECEMBER 7 MOTION TO VACATE AND TO STRIKE

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LILCO's December 20, 1984 Opposition to Intervenors' Motion to Vacate Summary Disposition Order and to Strike Portions of f LILCO's and Staff's Proposed Findings (hereinafter, " Opposition"),

and the-NRC Staff Response to Suffolk County and New York State Motion to Vacate Order Granting LILCO's Motion for Summary Dispo-sition on Contention 24.B and to Strike Portions of LILCO's and

s. ' ,the Staff's Proposed Findings (hereinafter, " Response") contain certain' statements and arguments which require a response. Accor-

's dingly, pursuant to 10 CFR 82.730(c), Suffolk County and New York 1,; ,.

hereby request leave to file a reply to the LILCO Opposition and Q y.y' ' U-the Staff Response. The reply is necessary to address the follow-h .i g matters:

l. The County and State seek leave to demonstrate that LILCO's characterization of statements by the President of'the 8%1 fo , [L

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letters,' written "in the heat of an electoral race" containing "rhetofical generalities" (Opposition at 1 n.1, 6, 8) must be rejected., First, the County and State reply would assert that

_LILCO does_not speak for the President or the Administration; g?

LILCO, we submit, could not show otherwise. Second, the County V

- _ + and State reply would assert that there is no basis for LILCO's arrogant suggestion that a statement of Administration policy by n, "V <

President Reagan ' is *'~' political rhetoric" that should be

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disregarded here.

-2. -LILCO's Opposition is itself baseless, because it opposes a red herring Motion created by LILCO - a nonexistent " Motion to

. Reopen the Record after Decision." Opposition at 2 and through-W j,77.. .out. _The County and State seek leave to demonstrate not only that LILCO'sl; Opposition is non-responsive and. inapposite, but that con-m

_trary to LILCO's and the Staff's suggestion (id. and Response at 4-7), a motion to reopen would not even be appropriate. No evi-dence was received by the Board on Contention 24.B. Therefore,

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the so-called " evidentiary record" on that subject was never "open" or " closed." It simply does not exist.

The motion filed by the County and State seeks to have the

-Board vacate'a legal ruling-that was made by the Board. See'10 C7R;62.749(d) (summary disposition to-be rendered if the moving Ep!% arty is entitled to 'a decision as a 3atter of law). In a reply,

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ithe-County and State would show titt :ney do not seek by their

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motion to create or to challenge any evidence;1/ rather, they seek to inform the Board of the existence of clear statements of policy by the President and the Secretary of Energy which directly con-tradict the Board's ruling "as a matter of law" concerning.the availability of Federal authority to implement the LILCO Plan.

The reply would demonstrate, further, that since neither LILCO nor the Staff had seen fit to inform the Board of these statements by the individuals who make and implement the policies which govern the performance of tasks assigned by the LILCO Plan to Federal agencies, Suffolk County and the State of New York believed it was incumbent upon them to provide such information to this Board so that the Board could properly and realistically correct its

" legal" rulingLto reflect actual facts. See Duke Power Company (McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 (1973).

3. The County and State seek leave to demonstrate that the suggestion that Intervenors are under some kind of obligation to make an offer of proof, to file affidavits, or otherwise to satis-fy a " heavy burden of proof" (see Opposition at;2, 6-7); Response at 4 ) , is completely without basis. The County and State reply would demonstrate that there-is no such requirement in connection with the filing of a motion to vacate a legal ruling or a notion 1/ As-noted in the County / State Motion, however, for the reasons set forth in the March 5, 1984 Suffolk County Memorandum in Oppo-sition to LILCO's Summary Disposition Motions on Contentions 24.B, 33, 45, 46 and 49, the County and State believe the Board's April 20 ruling was incorrect, including the Board's finding that "the degree of response to be furnished by DOE [was] not in dispute."

(Order at 9-10). Motion at 2.

-*' to strike portions of another party's proposed findings of fact.

A reply would show, further, that the burden of proof on admitted contentions in this proceeding rests squarely on the shoulders of LILCO. Accordingly, it is absurd to suggest that Intervenors are somehow deficient in fulfilling their obligations when, as a re-sult of the failure of LILCO and the NRC Staff to do so, Inter-venors have been forced to bring important information concerning the proposed implementation cf LILCO's Plan to the attention of this Board.

4. The County and State seek leave to demonstrate that the substance of the Opposition and the Response belie the LILCO and

Staff assertions that the County / State motions should be denied.

As noted in the County / State motion, one basis for the motion to vacate is that the Board's finding that there is no factual dis-pute concerning Contention 24.B is incorrect. The County and

-State reply would show that.the efforts by LILCO and the Staff to speak-for or otherwise " interpret" the plain words of President Reagan and Secretary Hodel by concluding that those words do not mean what they say, itself demonstrates the existence of a dispute both as to facts and also as to their significance. See, for-example, LILCO's assertion that despite the policy statements by the-President and Secretary Hodel "the federal government intends" to implement LILCO's_ proposed emergency plan (Opposition at 6), ,

and the Staff's assertion-that the letters "do not suggest that the Administration would. oppose or preclude DOE and the Coast Guard from performing their respective emergency roles" under the

.a 9-- LILCO' Plan (Response at 5). The County and State seek leave to demonstrate that such LILCO and Staff arguments directly contradict President Reagan's statement that "this 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 emergency evacuation plan for a nuclear plant such as Shoreham," and that this Board must address that contradiction.

5. LILCO argues that the Board's prior ruling on Contention 24.B should not be vacated because any error in that ruling "would likely~sarface during an exercise." Opposition at 7. In a reply, the County and State would demonstrate that-LILCO's argument should be rejected because (a) it is based on an unsupported assumption that an exercise would or could take place over the objections of the State and County governments, and (b) there is no basis in the regulations or NRC case law'for the suggestion that dispositive rulings on contentions. admitted for litigation could or should properly be delayed until after an~ exercise'has occurred, particularly in light of statements by the highest gov-ernment officials which clearly indicate that prior legal rulings are incorrect.

6. . Finally, the Staff of the NRC surely is in'no position to say what the President of,the United States meant by his own words. The Staff's effort to erase the impact of the President's statement is not only based on result-oriented speculation, but it is also a contradiction of Federal policy that is purely within

a the province of Executive Branch authority. Indeed, it is for the President -- not the NRC Staff -- to state with authority how the resources of the President's Administration will ha used.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 0>

Hetbert H. StowK Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1900 M Street, N.W.

Suite 800 Washington, D.C. 20036 Attorneys for Suffolk e.ounty MARIO M. CUOMO, Governor of the State of New York Byt:

FABIAN G. FALOMINO, ESQ.

Special Counsel to the Governor of the State of New York

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Dated. January 2, 1985

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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 l I hereby certify that copies of Suffolk County and~ State of

.New York Motion for Leavo to File Reply to LILCO's Opposition and NRC Staff Response to December 7 Motion to Vacate and to Strike-have been served to the following this 2nd day of-January, 1985, by U.S. mail, first class, except as otherwise noted.

• James A. Laurenson, Chairman - Edward M..Barrett, Esq.

Atomic. Safety and Licensing Board General Counsel

~D.S. Nuclear Regulatory Commission Long Island-Lighting Company Washington, D.C. 20555 250 Old Country Road

.Mineola, New York 11501

'Dr. Jerry R. Kline

. ** W. Taylor Reveley III, Esq.

Atomic Safety and' Licensing Board Hunton r. Williams U.S. Nuclear Regulatory Commission P.O.. Box 1535 Washington, D.C. 20555 707' East-Main Street Richmond, Virginia 23212 Mr. Frederick J. Shon Atomic' Safety and Licensing Board Mr. Jay Dunkleberger

U.S.. Nuclear Regulatory Commission New York State' Energy Office-Washington, D.C. 20555 Agency Building.2 Empire State Plaza Albany, New York'12223

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tir. Brian McCaffrey Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station P.O. Box 398 P.O. Box 618 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Nora Dredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition 1717 H Street, N.W.

195 East Main Street U.S. Nuclear Regulatory Comm.

Smithtown, New York 11787 Washing ton, D.C. 20555 James B. Dougherty Hon. Peter Cobalan ,

3045 Porter Street, N.W. Suffolk County Executive H. Lee Dennison Building Washington, D.C. 20008 Veterans Memorial Highway Hauppauge, New York 11788 MHB Technical Associates

• Ms. Donna D. Duer 1723 Hamilton Avenue Atomic Safety and Licensing Suite K Board Panel San Jose, California 95125 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Joel Blau, Esq. Martin Bradley Ashare, Esq.

New York Public Service Commission Suffolk County. Attorney The Governor Nelson A. Rockefeller H. Lee Dennison Building Building Veterans Memorial Highway.

Empire State Plaza Hauppauge, New York 11788 Albany, New York 12223 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Washing ton, D.C. 20555

• Edwin J. Reis, Esq. Jonathan D. Feinberg, Esq.

Bernard M. Bordenick, Esq. Staff Counsel, New York State U.S. Nuclear Regulatory Commission Public Service Commission Washington, D.C. 20555 3 Rockefeller Plaza Albany, New York '12223 Stuart Diamond Stewart M. Glass, Esq.

Business / Financial Regional Counsel NEW YORK TIMES Federal Emergency Management 229 W. 43rd Street Agency New York, New York 10036 26 Federal Plaza New York, New York 10278

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-3 Spence Perry, Esq.

Associate General Counsel Federal Emergency Management Agency Washington, D.C. 20471

-*** Fabian Palomino, Esq.

Special Counsel to the Governor Executive Chamber Room 229 State Capitol Albany, New York 12224 Karla J. Lets e KIRKPATRICK LOCKHART DATE: January 2, 1985 4

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