ML20106D092
| ML20106D092 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/07/1985 |
| From: | Gundrum M, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-521 OL-3, NUDOCS 8502130002 | |
| Download: ML20106D092 (13) | |
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s' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION D" KETED
.w Before the Atomic Safety and Licensing Board. fJ1 :38 o
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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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SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR RECONSIDERATION OF BOARD'S FEBRUARY 5 ORDER PROHIBITING DISCOVERY ON LILCO'S PROPOSED USE OF THE NASSAU' COLISEUM I.
Introduction A significant legal issue has been created by this Board's February 5 ruling barring all discovery on LILCO's proposal to use the Nassau Coliseum as a relocation center in the event of an emergency at Shoreham.
That issue is:
did this Board violate the Commission's Rules of Practice and deprive Suffolk County
'and the State of-New York their due process rights by agreeing i
at LILCO's request to reopen the record to consider LILCO's
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factual proffer-designed to fill the " void" which exists on relocation center issues, but denying the County and State any discovery designed to probe the bases for LILCO's factual proffer?
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The County and State submit that the Board's ruling was 4
clearly in error.
By this Motion, we ask the Board to recon-sider _and correct its ruling or, in the alternative, to certify the matter to the Appeal Board so that prompt correction can be made.
Set forth below are the bases for this Motion.
II.
Background
On January 28, 1985, the Board reopened the record for the purpose of " assessing the adequacy of LILCO's proffered evidence concerning the Nassau Veterans Memorial Coliseum as a relocation center to be used in the event of an emergency at Shoreham."b[
The Board made clear, however, that before ruling on LILCO's proffered evidence, it would consider the positions of the other parties, including any testimony or other evidence addressing LILCO's proposed use of the Nassau Coliseum.
Such testimony or other evidence,-together with some indication of what would be the substance of any cross-examination of LILCO's witness, are required to be filed by February 18.
Thereafter, the Board will decide whether "to admit in the record any or all of the l
' evidence proffered or to schedule a further oral hearing."
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-Order, at 9-10.
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Memorandum and Order Granting LILCO's Motion to Reopen Necord (hereinaf ter, " Order"), at 9.
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- In order.to comply with the Board's February 18 schedule, Suffolk County and New York State promptly pursued limited informal discovery concerning LILCO's proposed use of the Nassau Coliseum with LILCO, the NRC Staff and FEMA.
In addition, the County and State noticed the deposition of LILCO's witness on the Nassau Coliseum relocation center issues, and informed the Staff and FEMA that they wished to depose any witness sub-mitting testimony or other evidence on their behalf.
While neither the Staff nor FEMA indicated any opposition to the discovery. sought by the County and State, LILCO opposed the discovery and petitioned the Board for a protective order. !
Over the objection of the County and State, ! the Board, during a transcribed telephone conference on February 5, 1985, granted LILCO's motion for a protective order, ruling that LILCO "need not respond to Intervr.nors' discovery requests made in response to the Board's reopening.
Tr. 15,804.
Thus, the County and State were barred from any discovery on the Nassau Coliseum relocation center issues.
The Board has been advised that, in the County's view, the Board committed clear error in precluding any-discovery on the 2/
LILCO's Opposition to Suffolk County Discovery Requests Eoncerning Use of Nassau Coliseum as a Reception Center, Motion for Protective Order and Request for Expedited Board Ruling, dated February 1, 1985 (hereinafter, " Opposition").
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Suffolk' County and New York State Response to LILCO's 5pposition to Nassau Coliseum Discovery Requests, dated February 4, 1985.
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t issues raised by LILCO's reopening of the evidentiary record.
Tr. 15,806.A[ Accordingly, the County and State request that
.the Board reconsider its February 5 ruling and establish a schedule under which discovery can go forward.
In the alterna-tive, the Board is requested to certify this issue to the Appeal Board.
III.
Argument In requesting certification, the County and State realize that the Commission's Rules of Practice contain a general pro-hibition against interlocutory appeals.
10 CFR S 2.730(f); see, e.g., Commonwealth Edison Co. (Zion Station, Units 1 and 2),
ALAB-116, 6fAEC 258 (1973).
Nevertheless, there are exceptions to this prohibition.
- See, e.g., 10 CFR S 2.718 (i).b[
For example, discretionary interlocutory review is permitted when failure to resolve an issue promptly would cause " detriment to the public interest or unusual delay or expense."
See 10 CFR S 2.730 (f).
See also'Public Service Co. of Indiana (Marble Hill),
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New York State agrees with the County that the Board's February 5 ruling is clear error.
This view was not expressed to the Board during the February 5 telephone conference only because the attorney for the State was not included.in the conference call, apparently due to logistical problems with the telephone company.
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The Commission's Rules of Practice appear to contemplate
' certification" under 10 CFR S 2.718 (i) where a board does not first decide the disputed question, and " referral" under 10 CFR S 2.730 (f).where the board first rules and then requests inter-locutory review.
The distinction, however, appears to be unimportant.
See Southern California Edison Company (San Onofre),
LBP-81-36, 14 HEE 691, 699, n.7 (1981).
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. ALAB-405, 5 NRC 1190, 1192 (1977), and cases cited therein.
In addition, interlocutory appeals are encouraged "if a significant legal or policy question is presented."
Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533, 28535.
Interlocutory review may also be appropriate where the ruling in question affects "the basic structure of the proceeding in a 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, cannot be alleviated by a later appeal.
Houston Lighting and Power Co.
(South Texas Project), ALAB-608, 12 NRC 168, 170 (1980).
The-issues involved here meet all of the above standards, any one of which is sufficient to justify appellate review of interlocutory rulings.
For example, the public interest would be served by prompt resolution of the discovery issues now before the Board. -The need for information concerning LILCO's proposed use of.the Nassau Coliseum is substantial and compelling.
The
-documents sought underlie and form the basis for LILCO's proposal.
l-Without access to such documents, the County and State will be unable to conduct full and complete cross-examination of LILCO's witness, or any witnesses who may testify on behalf of the NRC Staff or FEMA, to probe, challenge, or impeach the conclusions rendered by such witnesses, or otherwise to present on the record' all the. relevant facts pertaining to LILCO's proposed.use of the i
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. Nassau Coliseum.
To deny the County and State an opportunity to conduct discovery, as the Board has done, therefore constitutes a violation of the County and State's rights under NRC regula-tions (see, e.g.,
10 CFR SS 2.740 and 2.743(a)) and, in effect, affords special. preferential treatment to LILCO by shielding its witness from'any meaningful inquiry or challenge.6/
The discovery here sought involves LILCO's proposed use of the Nassau Coliseum as a monitoring and decontamination facility in the event of a radiological emergency at Shoreham.
- Clearly, the public interest would be served by permitting meaningful inquiry to be made of the witness chosen by LILCO to submit evidence regarding the adequacy of LILCO's proposal.
Both the Board and the parties must be able to probe such evidence and assess its accuracy.
This, however, is not possible without pro-viding-the County and State an opportunity to discover relevant documents and depose LILCO's witness on the Nassau Coliseum issues.
The. Board's decision to preclude discovery is not only contrary to the public interest, it raises significant legal and policy' questions.
The Board, when asked to clarify its ruling, made clear that the County and State are expected to:
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The fundamental unfairness of the Board's ruling cannot be ihsked by the Board's implied assertion that there. is no need for discovery, since LILCO's proposal is "not new nor complex" given the fact that LILCO first announced its designation of the Nassau Coliseum as a relocation center in October 1984.
See Tr. 15,803.
During a January 4, 1985 Conference of_ Counsel, the-Board-(then chaired by Judge Laurenson) specifically noted (Footnote continued on next page)
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proffer evidence "without the opportunity for any discovery" on 3
i the Nassau Coliseum relocation center issues -- issues raised by LILCO after the evidentiary record had closed.
See Tr. 15,805-i By not permitting discovery, the Board is sanctioning 06.
LILCO's inexplicable and groundless claim that the public is not entitled to know about, or inquire into, the bases for its pro-l posal to use the Nassau Coliseum as a facility to monitor and, if necessary, decontaminate evacuees from the Shoreham EPZ.
Such a ruling defies logic as well as law.
The Board's ruling also affects the' basic structure of this proceeding in a pervasive and unusual manner.
By granting LILCO's motion to reopen, yet barring the County and State from' discovery, the Board has effectively prohibited the County and State from ascertaining the facts underlying LILCO's proposed use of the Nassau Coliseum.
Accordingly, any decision rendered by the Board,-as.muming it decides to admit LILCO's proffered evidence, will be based upon an incomplete factual record, since there are no means-other than through the discovery here requested for the (Footnote continued from previous page) that, notwithstanding LILCO's October 30, 1984 letter informing the Board and parties of the Nassau Coliseum proposal, "the void in [the] record remains" since "the identification of the Nassau Coliseum as a relocation center is not merely a confirmatory item."
Tr. 15,739-40.
Thus, LILCO's October 30 letter was simply an extra-record communication, outside the evidentiary record, and therefore entitled to no substantive weight or con-sideration.
It was not until the Board on January 28,over the objection of the County and State, agreed at LILCO's request ~to reopen the record that.t became necessary to pursue discovery on the Nassau County relocation center issues.
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i County and State to obtain information about the Nassau Coliseum and its proposed use by LILCO.1!
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The Board should therefore reconsider its February 5 ruling and prevent the immediate and serious irreparable impact to the
. County and State's case which has resulted.from the decision to preclude discovery, thereby awarding preferential treatment to LILCO.
In circumstances such as are present here, where dis-
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covery can be permitted and completed without impacting the Board's February 18 schedule, it makes no sense to await an initial decision to remedy this harm.
Moreover, in the view of the County and State, there is a substantial likelihood that the Board's decision would ultimately be determined on appeal to be incorrect, and substantial delay and expense will have been unnecessarily incurred.
Therefore, the Board should reconsider and reverse its 7/
It is worth noting that the County and State have attempted to obtain information about the Nassau Coliseum and LILCO's proposal to use that facility as a relocation center from the Hyatt Manage-ment Corporation of New York, Inc., the company which leases and
- manages the Coliseum.
Such information was informally requested on behalf of the County and State when counsel for the County tele-phoned the General Manager of the Coliseum to request'information
- relating to the ordinary business use of the Coliseum and its availability for use by LILCO or as a relocation center, a copy of the agreement or contract form generally used by Hyatt Management
. Corporation in permitting the use of the Coliseum, and any docu-ments relating to the physical layout of.and facilities available in the Coliseum.
Counsel for the County was informed during this telephone call that there is no reason for Hyatt Management Corporation or the Coliseum to provide any information to the County or State.
_9-February 5 ruling, or in the alternative, immediately certify its ruling to the Appeal Board. !
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.In order to expedite consideration of the relief requested Ey the County and State, copies of this Motion have been filed wi th the Appeal Board.
For purposes of background, the Appeal Board has also been provided copies of the following:
LILCO's October 30, 1984 letter regarding the Nassau Coliseum proposal; Objection of Suffolk County and New York. State, dated November 7, 1984;-Board Order Scheduling Conference of Counsel, dated Decemberjl3, 1984; pertinent transcript pages from Conference of Counsel on January 4, 1985; LILCO's proffered evidence accompanying its January 11, 1985 Motion to Reopen Record; Board Memorandum and Order Granting LILCO's Motion to Reopen Record,
' dated January 28, 1985; Informal discovery requests from Suffolk County and New York State to LILCO, the NRC Staff and FEMA,.
dated January 31, 1985; LILCO's Opposition to Discovery Requests, dated February 1, 1985;-Suffolk County and New York State Response to.LILCO's Opposition to Nassau Coliseum Discovery Requests, dated February 4, 1985; and transcript of telephone conference and Board's ruling on discovery requests, dated February 5,.1985.
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Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 s
Lawrence Coe~Lanpher Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County MARIO M. CUOMO, Governor of the State of New York By:
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F&bian G. Palomino Special Counsel to the Governor of the State of New York and ha% = = (N)M]
Mary Guhdrum Assistant Attorney General New York State Department of Law Dated:
February 7, 1985
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O :h:
Before the Atomic Safety and Licensing Board' E
'85 H911 A11 :39
)
In the Matter of
)
L r K..
)
DCuit I; ;j ;.jE A f LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322aOL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
Certificate of Service I hereby certify that copies of Suffolk County and State of New York Motion for Reconsideration of Board's February 5 Order Prohibiting Discovery on LILCO's Proposed Use of the Nassau Coliseum have been served to the following this 7th day of February, 1985 by U.S. mail, first class, except as.
otherwise noted.
- Morton B. Margulies, Chairman Edward M. Barrett, Esq.
Atomic Safety and Licensing Board General Counsel U.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 a Williams U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C.
20555 707 East Main Street Richmond,-Virginia 23212 i.
- NW. Frederick J. Shon Mr. Jay Dunkleberger Atomic Safety and Licensing Board New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223
.By Hand By Federal Express
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- Mr. Brian McCaffrey Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham a Shea Shoreham Nuclear Power Station P.O.
Box 398 33 West Second Street P.O.
Box 618 North Country Road Riverhead, New York 11901 Wading River, New York 11792 Nora Bredes Docketing and Service Section Executive D% rector /
Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555
- Ms. Donna D. Duer Hon. Peter Cohalan Atomic Safety and Licensing Suffolk County Executive Board Panel H. Lee Dennison Building U.S. Nuclear Regulatory Comm.
Veterans Memorial Highway Washington, D.C.
20555 Hauppauge, New York 11788 MHB Technical Associates James B. Dougherty 1723 Hamilton Avenue 3045 Porter Street, N.W.
Suite K Washington, D.C.
20008 San Jose, California 95125 Martin Bradley Ashare, Esq.
Jonathan D. Feinberg, Esq.
Suffolk County Attorney Staff Counsel, New York State H. Lee Dennison Building Public Service Commission Veterans Memorial Highway 3 Rockefeller 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 Comm.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555 Edwin J. Reis, Esq.
- Fabian G. Palomino, Esq.
- Bernard M.
Bordenick, Esq.
Special. Counsel to the Governor U.S. Nuclear Regulatory Comm.
Executive Chamber, Room 229 Washington, D.C.
20555 State Capitol Albany, New York 12224 Spence Perry, Esq.
Stuart Diamond Associate General Counsel Business / Financial Federal Emergency Management Agency NEW YORK TIMES Washington, D.C.
20471 229 W.
43rd Street New York, New York 10036
e 1-o Joel Blau, Esq.
- Stewart M. Glass, Esq.
New York Public Service Commission Regional Counsel The Governor Nelson A. Rockefeller Federal Emergency Management Building Agency 26 Federal Plaza Empire State Plaza Albany, New York 12223 New York, New York 10278
- Alan R.~ Rosenthal, Chairman
- Mr. Gary J. Edles Atomic Safety and Appeal Board Atomic Safety and Appeal Board 4350 East-West Highway 4350 East-West Highway Bethesda, Maryland Bethesda, Maryland
- Mr. Howard A. Wilber Mary Gundrum, Esq.
Atomic Safety and Appeal Board New York State Department 4350 East-West Highway of Law Bethesda, Maryland 2 World Trade Center Room 4614 New York, New York 10047 Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W.
Suite 800 Washington, D.C.
20036 Dated:
February 7, 1985