ML20113E214
| ML20113E214 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/18/1985 |
| From: | Letsche K, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-185 OL-3, NUDOCS 8501230355 | |
| Download: ML20113E214 (53) | |
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i i YMD l UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION ,,-
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Before the Atomic Safety and Licensing Board 04 In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 i
) (Emergency Planning) l (Shoreham Nuclear Power Station, )
Unit 1) )
)
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l SUFFOLK COUNTY AND STATE OF NEW YORK OPPOSITION TO LILCO'S MOTION TO , REOPEN TH8 RSCORD i
Pursuant to the Board's January 4, 1985 bench order, l
j Si1EEolk County and the State of New York hereby respond to f LILCO's Motion to Reopen Record, filed January 11, 1985 (here-l- inafter, " Motion"). See Tr.-15,793-94. For the reaso'ns de-tailed below, the State and County oppose the Motion and submit that the evidentiary record on emergency planning abould not be reopened to permit LILCO to attempt, for the fourth time, to meet its burden of proof on the relocation center issues which were litigated during the period March 2 to August 22, 1984.
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In essence, this. Opposition asks simply that the Board apply to LILCO the same legal principles that the Board has ap-i plied to the County and State -- principles which LILCO and the Staff have repeatedly articulated throughout this proceeding as l
f S 'o & ly PDR
being "the law." LILCO's call for the Board to apply a less stringent standard to LILCO than to the other parties is at its roots Orwellian, if not shameful too. Before this Board, all parties are equal; LILCO is not more equal than the others.
For this reason alone, LILCO's Motion must be denied.
Further, LILCO's Motion must be denied for an additional reason. Having had three chances already on relocation issues, LILCO, after the close of the record, has generated new argu-ments on why it believes it should prevail on these issues.1/
If LILCO is permitted to advance these arguments at this late date, the same opportunity must be granted to the State and County: that is, on any issue where we have thought up new bases upon which to prevail,'we should have an opportunity for new litigation. We submit that if this new standard applies (and it must if the Board grants LILCO's Motion), the emergency .
planning litigation will indeed be endless -- a result that cannot be contemplated by the NRC's rules.
1/ We note that in its proposed Findings of Fact , LILCO has asserted that it-should prevail on these issues based on
-the existing evidentiary record.
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p I. Background'and Chronology An understanding of the events which preceded the filing of LILCO's Motion is most important in evaluating whether LILCO's Motion should be granted. It is particularly important to set forth this background and chronology since LILCO ignores it completely in its Motion. -
Intervenors' Emergency Planning Contentions, including the four which deal directly with the NUREG 0654 requirements con-cerning relocation centers (Contentions 24.N, 24.0, 74 and 75) ;
were filed on July 26, 1983.2/ Those contentions were based on the original version of LILCO's Plan, Revision 0, issued in late May 1983, which proposed Suffolk County Community College, BOCES'Islip Occupational Center and the. State-University of New York at Stony Brook ("SUNY-Stony Brook") as " primary" reloca-tion centers, and the State University of New York at Farm -
ingdale ("SUNY-Farmingdale") and St. Joseph's College as "back-up" relocation centers.
Contentions 24.N, 24.0, 74 and 75, which we do not repeat-
'here since they are known to the Board and parties, all relate f
( 2/ The first version of these contentions, which was presented in a different organizational format, was filed on June 23, 1983.
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to the requirements of NUREG 0654 that an offsite emergency plan must include:
(1) Identification of relocation centers (Sections II.J.10.a, 10.g and 10.h);
(2) Agreements governing the availability and use of all facilities relied upon (Sections II.A.3 and II.C.4);
(3) Relocation centers at particular locations (Section II.J.10.h); and (4) Relocation centers with particular capacities, facil-ities and equipment, including a capability of monitoring evacuees within a 12-hour period (Sections II.J.10.g and J.12).
The contentions identify particular' deficiencies in LILCO's proposed relocation center plans, including LILCO's failure to comply with each of the NUREG 0654 requirements summarized above.
The subsequent Revisions 1, 2 and 3 of the LILCO Plan, which were issued in August, November, and December 1983, re-spectively, made no change in the relocation centers originally proposed by LILCO, despite the specific deficiencies, including the lack of agreements with the owners of such centers and the
unavailability of Suffolk County Community College for use by ;
LILCO, which were identified in Intervenors' Contentions 24.N, 24.0, 74 and 75 and their respective preambles.
On March 2, and March 21, 1984, pursuant to a schedule set by the Licensing Board, LILCO and Suffolk County each filed di-rect written testimony on Contentions 24.N, 24.0, 74 and 75, addressing the proposals contained in Revision 3 of the LILCO Plan. Subsequent to the filing of that testimony, however, LILCO indicated that it intended to change the relocation cen-ters relied upon in its Plan because some of those facilities were in fact not available for use by LILCO. Of course, the unavailability of the Suffolk County Community College was well known to'LILCO at least as early as the summer of 1983, when Intervenors' contentions were filed; similarly, LILCO presuma-bly was always aware that neither it nor the Red Cross had any agreements with the owners of the BOCES and SUNY facilities for the use of those buildings by LILCO during a radiological emer-gency. Nonetheless, it was not until after the parties had filed testimony concerning those facilities, and more than nine months after the contentions had been filed, that LILCO ac-knowledged its inability to respond to those contentions with-out changing its relocation scheme.
Thus, by letter dated April 27, 1984, LILCO suggested that because the facilities relied upon by LILCO would have to be changed, the parties should file supplemental testimony regarding the relocation center issues. The County and the State did not disagree with LILCO's proposal that supplemental testimony should be filed to reflect whatever changes might be made by LILCO in the relocation centers to be relied upon in its Plan. The County suggested, however, that the parties postpone filing such supplemental testimony until Revision 4 of the LILCO Plan was released (according to LILCO, Revision 4 was then being prepared); alternatively, the County proposed that LILCO file its supplemental testimony before the County or State filed theirs, since information regarding the relocation conter issues, and whatever new proposals LILCO intended to make, was available at that time only to LILCO and not to the County or State. See, e.g., Tr. 10,713-15. On June 8, 1984, the Licensing Board adopted the County's. proposal and ordered L LILCO to file its supplemental testimony on the relocation cen-ter issues on June 15, and the County and/or State to file on June 26, 1984. Tr. 10,972-73.
l LILCO filed its first round of " supplemental" relocation l
l center testimony on June 15, 1984. It discussed a new LILCO proposal to use the BOCES II Center, SUNY-Farmingdale, and St.
_ Joseph's College.as " primary" relocation centers, and Dowling College as a " backup" center. LILCO's June 15 testimony indi-cated that this proposal would be contained in Revision 4 of the Plan, which had not yet been issued. On June 26, 1984, Suffolk County filed revisions to its previously filed direct testimony on the relocation center issues.
On July 6, 1984, LILCO requested additional time within which to pursue discovery and file a motion to strike the Coun-ty's June 26, 1984 testimony, arguing that because of what LILCO asserted was "new" information , it was necessary for LILCO to conduct additional discovery on the relocation center issues. The Board denied this request (Tr. 12,830) because in the Board's view it was untimely and lacked good cause, and -
ruled that any additional revised or supplemental testimony filed by LILCO on the relocation center issues had to be filed on or before July 31, 1984. Tr. 12,834. The Board stated as follows:
If LILCO intends to change, revise, supple-ment or in.any way alter its testimony on relocation centers, such testimony must be filed on or before July 31, 1934, or it must meet our test for admission as rebut-tal testimony.
Because the subject of relocation centers will be among the last subject of this 1 -
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_ hearing, we will not permit the filing of supplemental testimony after that time. If any party wishes to amend, revise, or sup-i plement its testimony on this subject, it must do so on or before July 31, 1984. l Tr. 12,831-82, 12,834.
On July 30, 1984, LILCO requested that the Board allow f LILCO to withdraw its previously filed testimon'y on Contentions 24.0, 74 and 75 -- i.e., that filed by LILCO on June 15 -- and requested permission to replace that testimony with a new piece of revised testimony on the same issues. LILCO's proposed re-vised testimony dated July 30, 1984 -- its third attempt to ad-dress-relocation center issues -- failed to identify any relo-cation centers to which LILCO intended to send evacuees.3/ The July 30 testimony asserted that LILCO intended, at some -
3/ The testimony did include a long list of institutions and-building owners which purportedly represented buildings that LILCO might consider for use'in housing evacuees dur-
, ing an emergency. The list included buildings such as fire truck garages and churches, and entire public school districts. None of the facilities was designated as a re-location center, however, and no agreements foe their use by LILCO were submitted.- Furthermore, LILCO-also testified on cross examination that the particular facili-
. ties to be used to house evacuees during an emergency would not in fact even be determined until an actual emer-gency, after evacuees had.left.the EPZ and appeared at whatever location LILCO hoped in the future to identify as the facility where monitoring and decontamination would be performed. See Tr. 14,801-02 (Rasbury).
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4 unidentified time in the future, to identify relocation centers; it acknowledged that LILCO had no agreements to use ,
Suffolk County Community College or SUNY-Stony Brook as reloca-tion centers, and stated that they were not relied upon in Re-vision 4 of the LILCO Plan.
On August 13, 1984, the County and the State filed a Joint Motion for Summary Disposition of Emergency Planning Conten-tions 24.0, 74 and 75 (Relocation Centers) and Opposition to LILCO's Motion to Admit Revised Testimony on Contentions 24.0, 74 and 75. The summary disposition motion, which was accompanied by a " Statement of Material Facts Not in Dispute,"
was based upon the fact that neither the LILCO Plan nor LILCO's July 30 thir'd round of testimony designated specific relocation -
centers upon which LILCO intended to rely in the event of an emergency, and that LILCO had failed to controvert or even ad-dress the issues raised in Contentions 24.0, 74 and 75 since it had not identified the facilities it intended to use. The County and State also asserted in that Motion that:
LILCO has had three chances to address the relocation center contentions. It has re-peatedly failed to do so. Its latest at-tempt [the proposed testimony dated July 30, 1984] should be rejected, and the pro-posed testi,qony should not be aimitted by the Board.F 4/ Joint Motion of Suffolk County and Governor Mario M.
Cuomo,' Representing the State of New York, for f.unmary (Footnote cont'd next page)
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- The County and State's Summary Disposition Motion was stricken by the Board (Tr. 14,648) and LILCO's Motion for Admission of its July 30 testimony was granted. Tr. 14,663.
During cross-examination of LILCO's witnesses in August, 1984, concerning the July 30 version of LILCO's testimony, it became clear that contrary to all its prior re' location center schemes and contrary to the statements in the new Rev:.sion 4 of the LILCO Plan, LILCO was at that time proposing to rely on two different types of relocation facilities -- one or more very large ones called " reception centers," and approximately 50 smaller ones called " congregate care centers." Tr. 14,'779 (Rasbury). All radiation monitoring and decontamination activ-ities would take place at the so-called " reception centers,"
according to LILCO's oral testimony (Tr. 14,810-11 (Weismantle)), but no proposed, much less actual, reception centers were designated or identified by LILCO.
Furthermore, LILCO's witnesses refused even to identify the candidate facilities then under consideration and with (Footnote cont'd from previous page)
Disposition of Emergency Planning Contentions 24.0, 74 and 75 (Relocation Centers) and Opposition to LILCO's Motion to Admit Revised Testimony on Contention 24.0, 74 and 75, dated August 13, 1984, at 11.
. which negotiations were underway. Tr. 14,793-94 (Rasbury). In addition, the identities and locations of the so-called " con-gregate care centers," which were part of the new proposal which became known upon cross-examination of LILCO's witnesses, were not even to be determined until after evacuees appeared at the unidentified " reception centers" during an actual emergen-cy. Tr. 14,801-02 (Rasbury).
Thus, even though at the time of LILCO's oral testimony, LILCO's witnesses knew the identity of facilities which LILCO proposed to use as " reception centers," there was no effort by LILCO to submit any evidence concerning the identity, much less the availability or capacity o.f, or facilities contained in, any such proposed " reception centers." See, e.g., Tr. -
14,793-94. Indeed, LILCO vehemently opposed the efforts by Suffolk County and New York State to ascertain the identity of the facilities. See, e.g., Tr. 14,794-95. In the face of the foregoing situation, on August 21, 1984 the Board noted point-edly:
[T]here is a void in the record on this matter and . . . LILCO has not at this stage sustained its burden of proof that a relocation center has been designated. . .
. [T]he void in LILCO's proof on this record remains.
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- Tr. 14,806-07 (Laurenson). On August 29, 1984, the evidentiary record was closed, without any effort by LILCO to submit any additional evidence on the relocation center issues and without LILCO asking that the record remain open to receive evidence to fill the void that LILCO knew existed.
Following the close of the evidentiary record.and pursuant to a schedule set by the Board, LILCO on October 5, 1984, sub-mitted proposed findings of fact and conclusions of law on all emergency planning contentions, except those dealing with legal authority. Intervenors submitted their proposed findings on October 26, 1984, and the NRC Staff submitted theirs on November 5, 1984.
On October 30, 1984, LILCO sent to the Licensing Board and parties a letter dated October 1, 1984, from the Nassau County Executive to the lessee of the Nassau Coliseum; a September 25, 1984 letter from LILCO's president to Hyatt Management Corpora-tion of New York (the lessee of the Nassau Coliseum); and an l
l October 23, 1984 letter from LILCO to Mr. Rasbury of the Nassau l County Red Cross, all relating to a new LILCO proposal -- its L
fourth relating to relocation centers -- to use the Nassau Col-iseum as a reception center. In its cover letter to the Li-l censing Board, LILCO asserted that it "[did] not believe that l
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. it is necessary to reopen the record," because, in LILCO's opinion, the three letters constituted merely " confirmatory in-formation."
By letter dated November 7, 1984, the County and the State of New York stated that: (1) in light of the void in the exist-ing and closed evidentiary record and the character of the new
. LILCO information, the items attached to LILCO's October 30 letter could not be termed " confirmatory"; and, (2) unless LILCO made the showing necessary to justify reopening the evi-dentiary record, and the Board determined that the record should be reopened to permit litigation of the new proposals put forth by LILCO on October 30, the October 30 extra-record communication m'ust be disregarded. LILCO took no action in re- -
sponse.to the filing made by the County and the State, except to cite its newly submitted extra-record materials in its November 14, 1984 Reply Findings.
By Order dated December 13, 1984, the Board scheduled a
- conference of counsel for January 4, 1985. Item one on the agenda was the " Procedure for dealing with LILCO's letter of
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October 30, 1984 concerning agreements to use the Nassau Veter-ans Memorial Coliseum as a relocation center and the objections i
of Suffolk County and New York dated November 7, 1984."
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During the conference of counsel on January 4, 1985, LILCO reiterated its argument that the information relating to its fourth relocation center scheme -- its new proposal to use the Nassau Coliseum as a reception center -- was merely
" confirmatory" and did not require a reopening of the evidenti-ary record. That position was flatly rejected by the Licensing Board. The Board indicated that it adhered to its p'revious finding that there was a " void" in the evidentiary record, and it found further "that the identification of the Nassau Colise-um as a relocation center is not merely a confirmatory item, considering the state of this record." Tr. 15,739-40 (Laurenson). The Board also noted that following the Board's observation in August about the void in the record, "LILCO al-lowed the record to close at that point, shortly thereafter, without any request that it be kept open." Tr. 15,730 (Laureason).
. It was not until after these clear rejections by the Board l
of LILCO's persistent refusal to acknowledge its failure to l sustain its burden of proof, that LILCO first indicated it l
l would file a motion to reopen the evidentiary record. In so l
doing, however, LILCO continued to argue that its fourth relo-cation center scheme was a very minor matter that did not re-quire much if any evidentiary attention or response by l
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Intervenors. See, e.g., Tr. 15,731-32, 15,740, 15,781, 15,788-89 (Irwin). However, the Board ruled that LILCO would first have to meet the legal requirements for reopening the record before there could be any consideration of the substance of the evidence LILCO intended to submit. Tr. 15,783 (Laurenson). In addition, the Board stated:
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LILCO is the party that has been stressing throughout this litigation that it must be moved, it must be moved at a fast pace and so forth. And now the problem that we have, at least in connection with this mat-ter, is LILCO's problem. And so whatever delays are going to result from this are in fact due to the position that LILCO is in right now.
Tr. 15,788 (Laurenson). LILCO submitted its motion to reopen the record on January 11, 1985.
II. LILCO Does Not Meet the Reopening Standards A. The Interpretations of the Reopening Standards Applied by LILCO, the Staff, and NRC Licensing Boards to Intervenors' Motions Must Also Be Applied to Deny LILCO's , Motion.
LILCO and the NRC Staff have, on numerous occasions during this proceeding, cited and interpreted the NRC's reopening criteria to support their arguments that efforts by Intervenors to reopen, continue, or supplement litigation on particular w- -w - - , - - - ,.- .-,..,,,--,,.-~,.--.-y.-~- ----e ,- - ,n, ,- - - - - -- . - - , - ---,- ----- -
issues should not be permitted. There is no dispute that the criteria which govern the reopening of an evidentiary record in NRC proceedings are well-established in NRC case law.5/ They can be summarized as follows:
- a. The motion must be timely.
- b. The new evidence must deal with a sig- '
nificant safety or environmental issue.
- c. The proponent must show that the new evidence is likely to have a material effect on the outcome.
These criteria have been cited by LILCO and the NRC Staff, and applied by Licensing Boards, to deny many motions filed by In-tervenors throughout this proceeding. The following statements made by LILCO, the NRC Staff, and various NRC adjudicatory pan-els must be applied with equal force here to deny LILCO's un-timely motion.
5/ Although LILCO refers to a propcsed rule that was published for comment on December 27, 1984-(see LILCO Mo-tion at 4), that rule has not been adopted and has no precedential authority. We also note, however, that it contains no mention of any separate, different or less stringent set of criteria to be applied if an applicant, as opposed to an intervenor, seeks to reopen the evidenti-ary record.
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- 1. In opposing the reopening of the evidentiary record to include an affidavit of NRC Staff member James H. Conran, Sr., which supported the position of Intervenors on health and safety Contention 7B, LILCO stated that the reopening standard j includes, among others, the following requirements: i 1
- 1. The proponent of a motion to reopen
, has a heavy burden, Kansas Gas and
, Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320-338 (1978);
. 2. The motion must be timely. Id.;
- 3. There must be newly discovered evi-dence having a material bearing upon the results in the proceeding, Duke l Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453-465 (1982). ~.
.In addition, LILCO cited the Appeal Board as implying that "there must be some.new circumstances, trend or fact discovered" to support a motion to reopen,. citing Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619-620 (1976).
LILCO asserted that while many of the reopening cases it
( cited I
i i were based on motions to reopen following i
the issuance of a partial initial decision,
, those cases and their rationalia are also apposite here [i.e., where no initial r .
. decision had yet been issued on Contention 7B]. The significant event is the closing of the record on an issue, particularly where, as here, the record closed long af ter testimony was given on the issue.
Moreover, those decisions are,all the more :
applicable where, as here, proposed find ,
I ings of fact and conclusions of law have already been submitted.
l LILCO also noted that while some of the reopening elements 4
l may be similar to one another, it is clear from all the cases that they are regarded 4
as additive not alternative: all, not just one, of them must be satisfied to justify a party in reopening a record.
With particular regard to the timeliness issue, LILCO stated:
(A] significant consideration in .
determining the timeliness of a. motion to reopen is whether the asserted new informa-tion could have been raised prior to the close of the record. Vermont Yankee 4 Nuclear Power Corp. (Vermont Yankee Nuclear 4 Power Station), ALAB-138, 6 NRC 520-523
, _ (1973). Clearly, the bulk of the informa-tion relied upon by Mr. Conran was known to 4 him prior to the close of hearings on [ Con-tention] 7B, and certainly long before the closing of the record and the filing of 4 proposed findings of fact.
LILCO argued that untimeliness was " manifest" with respect to the Conran affidavit because the event relied upon as a basis for the motion to reopen occurred in August 1982, and the motion was not filed until February 1983. LILCO also stated:
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E The untimeliness of.the affidavit on this issue is confirmed by [the Brenner] Board's previous ruling with respect to LILCO's mo-tion to admit a portion of the deposition of Dr. Budnitz [a County witness). In that instance, th[e] Board stated that the mo-tion was untimely where the deposition was taken in August 1982 and the motion to admit portions of that deposition was not i filed until January 1983. See Tr.
19,357-8. The same result should obtain here.
a See LILCO's views on the Af fidavit of James H. Conran, Sr.,
i dated-February 22, 1983, at 3, 4, 6-7, and 8 (emphasis added).
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- 2. In opposing a Suffolk County motion to reopen the record on health and safety Contention 11, LILCO cited Wolf Creek, Catawba, and Vermont Yankee for the propositions i
- mentioned above, and stated
The proponent of a motion to reopen a record has a heavy. burden. . . . To pre-vail on its motion, the County must demon-strate timeliness, the gravity of the issue, and the value of taking further evi-dence to resolve it.
l LILCO also characterized the timeliness criterion as "a thresh-t l old requirement" for the granting of a motion to reopen. See I LILCO's Response to SC's " Motion to Reopen Record on Suffolk County Contention 11" and Report on Discussions Regarding the Substantive and Procedural Aspects of the Motion and on the
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Settlement' Status of SC Contention 11, dated April 22, 1983, at 2, 3 (emphasis added).
- 3. LILCO also opposed a Suffolk County motion to file an emergency diesel generator contention which was filed May 2, 1983. The record had been closed , less than a month earlier, on April 8, 1983. LILCO cited Wolf Creek, McGuire, and Catawba in arguing that the County had not satisfied its " heavy burden" or the other requirements for reopening, and argued that each of the reopening elements must be satisfied because they are addi-tive and not alternative requirements. LILCO also stated:
It is settled that the, test for timeliness is whether the issues could have been raised earlier. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520-23 (1973).
LILCO asserted that the County had not satisfied the time-liness requirement because the County was aware of the infor-mation upon which its contention was based more than three months prior to the filing of its motion. LILCO stated:
In summary, some of the data rel_ied upon by the County . . . have been available for more than three months and most of it had been available more than a month prior to the filing of the contention. Under other circumstances a delay of one to three months might be considered timely action; here it is not. The County was fully aware of the massive hearings that had been
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completed and certainly knew of the impending close of the record. Under these circumstances, the County had a duty to act _
as expeditiously as possible to bring any new issues to the attention of the Board and parties,-but chose not to do so.
LILCO also asserted that the County's new contention was not based on significant new facts and circumstances because "the gravamen of the new contention is substantially based on infor-m'ation which was in the County's hands three months ago." In arguing that the-County's motion should be rejected as untime-ly, LILCO stated:
Indeed, under the NRC rules of practice, a new intervenor must react to a. Federal Reg-
> ister notice within thirty days of its pub-lication in order to be considered. timely.
10 CFR S 2.105. Certainly the Board should apply at least as stringent a_ti_meliness _
standard when, as here, a party has active-ly participated in all aspects of the pro- _
ceeding for years 2_was acutely aware-of its long and tortured history, and knew full
.well that the record was about to close on~~
all issues.except [mergency planning. In-deed, the County waited over three weeks after the close of the record to act. The County has not eXtaEfished good ~cause for late. filing of its contention.
See LILCO's Opposition to Suffolk County's Motion to Add an Emergency Diesel Generator Contention, dated May 16, 1983, at 8-9, 12, 14-15, and 21 (emphasis added).
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, 4. The NRC Staff also opposed the County's motion for leave to file an emergency diesel generator contention, and stated as follows:
An additional factor to be considered in deciding the merits of a motion to reopen is whether the motion was timely filed.
Although a motion to reopen may be filed, and the Licensing Board may at any time en- '
tertain it, prior to issuance of the full initial decision, . . . the question of timeliness hinges more on whether the mat-ter sought to be addressed on the reopened record could have been raised ear _1_ier.
Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4),
LBP-78-2, 7 NRC 83 (1978).
See NRC Staff Response to the Suffolk County Motion for Leave to File a New Contention Concerning the Shoreham Emergency Die-sel Generators, dated May 18, 1987, at 5, n.5 (emphasis added, citations omitted).
- 5. In-ruling on the County's motion to admit an emergen-cy diesel generator contention, the Brenner Board stated:
Where a party seeks to provide or otherwise adduce new evidence for the purpose of sup-plementing the record on a contention on which the evidentiary hearing has been com-
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pleted, such evidence must meet the stan-dards for reopening the record. This is so even if other unrelated contentions remain to be litigated in the evidentiary hearing.
The rationale that litigation must end sometime and that, therefore, timely presented significant new evidence which might change the outcome must be shown to exist in order to justify revisiting a con-tention already litigated applies no later than the completion of the litigation of the pertinent issue.
In denying admission to a portion of the County's proposed con-tention,-the'Brenner Board found it co be untimely as a motion to reopen the record. The Board found that "a delay of almost two months . . . is too long." See Memorandum and Order Ruling-on Suffolk County's Motion to Admit New Contention, LBP-83-30, dated June 22, 1983, at 5, 22 (emphasis added).
- 6. LILCO opposed Suffolk County's motion to admit a new contention relating to the LILCO strike, which LILCO character-ized as "a thinly veiled attempt to reopen the record on issues that have already been litigated." The LILCO strike occurred
!- on July 10, the Board identified strike issues on July 24, and the County's motion was filed on August 20, 1984. LILCO argued that it was untimely. In addition to asserting that the County should have filed its motion prior to the occurrence of the
-LILCO strike because it should have fores'een the possibility of such a strike, LILCO also argued as follows:
Even if one accepts that a significant, un-foreseen event occurred with the start of the strike, on July 10, Suffolk County was i
still inexcusably tardy in filing its pend-ing motion. For two_ weeks,,_from July 10 to
. July 24,_Suffolk County could have filed
- 2 3 --
its current motion; it did not. Following this Board's July 24 Memorandum and Order, Suffolk County claims to have interpreted that Order as including the issues raised by its pending motion and then to have relied on that interpretation until August 8 when the Board ruled that the issues of the long-term effects of the strike were not covered by its three questions. The plain language of the three questions posed in the Board's July 24 Order should have indicated to Suffolk County that its earli- '
er articulated concerns had not been ac-cepted by the Board for litigation. . . .
Suffolk County's_ tardiness in filing its motion should not be excused based,, solely on Suffolk Coun_ty's own misinterpretation of the Board's Order. Cf. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 796-98 (1977);
Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1977) (tardiness of potential intervenor is not excused by claim that intervenor was lulled by the intervention of another which later withdrew). Finally, even after the Board's clarification of August 8, Suffolk County took nearly two more weeks -- 12 days -- to file its Motion. In tota,la 40 days passed betwee_n the occurrence of the
" unforeseen circumstances" on which Suffolk
~
County bases its showing of gddd'dause and the filing of its pending motion. There can be no question that Suffolk County has failed to file its motion in a timely man-ner and to establish good cause.
See LILCO's Answer to Motion of Suffolk County to Admit New Contention, dated August 27, 1984, at 5-6 (eaphasis added).
- 7. This Licensing Board agreed with LILCO and denied the County's motion to admit a new contention on the strike issues.
In so ruling, the Licensing Board adopted LILCO's arguments concerning timeliness, and stated as follows:
On the first factor of " good cause" for late-filing, the Board agrees with LILCO that the County has failed to meet its bur-den. We note that it was the County's fail're u to take any action concerning the strike of LILCO workers (on July 10] that resulted in this Board's sua sponte Order of July 24. Indeed, as early as July 17,
. Suffolk County Deputy Inspector Peter F.
Cosgrove testified concerning the subject matter raised in the instant "new conten-tion." Tr. 13,289-90. The County waited 40 days from the time the strike began until it filed its new contention. More-over, the new contention was filed at a time when the County knew that the hearing was scheduled to end in less than two weeks. While the Board believes that the first sua sponte issue was clear and unam-biguous', 'we find that, even if the County
~
were correct in'its construction of that issue, the County did not act promptly after August 8 when it was notified that the Board did not accept the County's in-terpretation of the sua sponte issues. The County made no statement at the Conference of Counsel on August 8 or at any time dur-ing the week of August 14 that it intended to raise an additional issue in this pro-ceeding. Upon consideration of all the facts and arguments concerning " good cause," we find that that the County has not established good cause for failure to i file its new contention in a timely manner.
i=
See Memorandum and Order Denying Motion of Suffolk County to Admit New Contention, dated September 7, 1984, at 7-8 (emphasis added).
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- 8. Most recently, LILCO opposed Intervenors' December 7, '
1984 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, by characterizing it as "in essence, a motion to reopen the record . . . . Thus, on December 20, 1984, LILCO stated:
Any party seeking such a reopenin9 bears a
" heavy burden," Pacific Gas and Electric Company (Diablo Canyon 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.
LILCO argued that Intervenors motion was " grossly untimely" be-cause "Intervenors knew of the October 2 and 11 letters [which triggered the motion} for over seven weeks before filing their motion." See LILCO's Opposition to Intervenors' Motion to Va-cate Summary Disposition Order and to Strike Portions of LILCO's and Staff's Proposed Findings, dated December 20, 1984, at 2, 3 (emphasis added).
- 9. The NRC Staff also opposed Intervenors' December 7, 1984 Motion to Vacate which it, too, characterized as a motion to reopen the record, af ter asserting that "the closed record must be reopened if the two letters attached to Intervenors' I
I l
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Motion are to be substantively considered." As recently as December 27, 1984, the Staff cited Diablo Canyon, Wolf Creek, and Vermont Yankee, and asserted:
A party seeking to reopen the record bears a "hea.vy burden," and must demonstrate that the motion is timely; that the "new evi-dence" raises a significant safety or envi-ronmental issue; and that the "new evi-dence" might materially affect the outcome
- of the proceeding.
The Staff argued that Intervenors had not " satisfactorily dem-onstrated that their motion is timely," in urging that Interve-nors' motion, filed roughly two months after issuance of the letters on which they were based, should be denied. See NCR Staff Response to Suffolk County and New York State 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, dated December 27, 1984, at 4, 6.
B. LILCO's Timeliness Arguments Must be Rejected, In its Motion, LILCO asserts that its motion is timely.
It argues that it was filed only a week after the Board's January 4 rejection of LILCO's "merely confirmatory informa-tion" assertion; that its reliance on the accuracy of its "merely confirmatory" theory was reasonable; that its fourth
relocation scheme proposal does not raise new issues or impact any contentions except the " narrow" Contention 24.0; that no party could be prejudiced by the timing of its motion; and that "there has been no dilatoriness" on LILCO's part. Motion at 5-6. All LILCO's assertions must be rejected.
First, even using LILCO's view of the facts, LILCO delayed .
for at least three months before filing its motion to reopen the evidentiary record. At the latest, it was aware of its in-tention to itse the Nassau Coliseum as a reception center, and its desire to have the Licensing Board consider that fact in its decision, by September 25, 1984, the date of the letter from LILCO's president to the lessee of the Coliseum. It ap-pears obvious, however, that LILCO must have known of its in-tention to use the Nassau Coliseum and to have the Board con-sider that fact in its decision much earlier than the end of September. In fact, according to the testimony of LILCO's wit-nesses which took place in August prior to the close of the ev-identiary record, at least one of those witnesses knew then the identity of the facility being pursued by LILCO; nonetheless, LILCO did not bother to file its motion to. reopen the record until January 1985 -- five months later. Based upon the many LILCO and Staff arguments and Board rulings against Intervenors on timeliness matters when the so-called " dilatoriness" of
I 1
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- Intervenors ranged from three months to as little as 12 days, l
LILCO's deliberate delay for a minimum of three months and a 1
more likely maximum of five months clearly mandates a denial of LILCO's motion.
Furthermore, LILCO's argument that "a less superficial analysis" shows that LILCO did not even delay for three months before filing its motion (Motion at 5), must be rejected.
LILCO argues that it " believed that the void in the record identified by the Board was not so significant as to require a reopening of the record," and that, in its opinion, "this was not an unreasonable judgment" by LILCO. Motion at 5. As noted above, however, reliance by Suffolk County upon its not unrea-sonable interpretation of a Board order has been ruled an un-justifiable basis for Intervenor " delay" of only 27 days. See LILCO Answer and Board Order cited in Sections II.A.6 and 7 above concerning the County's proposed contention relating to the LILCO strike.
Similarly, in its denial of a petition for leave to inter-vene and file contentions in support of LILCO, which was sub-mitted by the Citizens for an Orderly Energy Policy, the Appeal Board affirmed this Board's denial of the petition on the basis of untimeliness resulting from a four-month delay in filing
, .-. . . =.
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following the triggering event (a Suffolk County Legislature Resolution). The Appeal Board held that although during that j four-month period the Licensing Board and the Commission were grappling with a pending motion to dismiss the proceeding:
^
That fact cannot be taken as a satisfactory explanation for Citizens' continued inac-t tion . . . . To our knowledge, it has .
never been suggested, let alone held, that i one whose interest in the outcome of a pro-ceeding is clearly affected by a new devel-opment is entitled to_ withhold asserting that interest to await the results of pre-liminary legal skirmishing concerned with the development. To the contrary,-the ex-pectation has always been that, upon learn-ing of the developments, the would-be in-
-tervenor will promptly spring into action.
Long Island Lighting Co. (Shoreham Nuclear Power Station),
4 r
ALAB-743, September 29, 1983, at 19 (emphasis added).
i-Clearly, it is no answer to LILCO's three to five month l delay in filing a motion to reopen that LILCO " reasonably" believed that a motion to reopen was unnecessary, particularly in light of the Board's earlier unequivocal statement that there was a void in the evidentiary record and that LILCO had failed to sustain its burden of proof. This Board rejected such arguments when advanced by the State and County; it must reject those arguments when now made by LILCO.
t 1
Second, the basis for LILCO's so-called " reasonable" judg-ment that it did not have to file a motion to reopen the evi-dentiary record to have the Board and parties consider its fourth relocation center scheme, is transparently self-serving as well as wrong. In essence, LILCO's timeliness argument con-stitutes nothing but a rehash of its earlier, already rejected argument that its latest relocation center proposal is merely a
" confirmatory" item. Thus, its assertions that the emergency plan "had been thoroughly litigated," and that "just about every aspect of relocation centers . . . was aired at the hear-ings" (Motion at 6) simply ignore the plain state.aent by the Board that there was a " void" in the evidentiary record.
LILCO's argument also suggests .the preposterous: that litiga-tion concerning LILCO's third relocation scheme -- which was a
" plan" that had (a) no identified reception centers at all, and (b) acknowledged substantial uncertainty about whether a two-tiered scheme (separate " reception" and " congregate care" centers) would be used at all (see, e.g., Tr. 14,813, 14,804-05, 14,810-11) -- could constitute a " thorough litiga-tion" of its latest brand new proposal to use the Nassau Coli-seum as a reception center. LILCO's fantasies must be laid to rest by this Board.
- Third, LILCO's argument that "only Contention 24.0, a nar-row contention alleging that 'there is no relocation center' is affected by the identification of Nassau Coliseum" (Motion at 6), is not even close to being accurate.5/ For example, con-trary to LILCO's assertion (see Motion at 6), Contention 75 does not deal only with congregate care centers; clearly the question of necessary facilities and services to be provided at a reception center -- including those related to the necessary monitoring and decontamination of evacuees -- is covered by Contention 75. Similarly, contrary to LILCO's suggestion (id.), it is obvious that Contentions 74 and 75, as reflected .
in their preamble and the evidence already in the record, raise the question of the location of the facility where monitoring and decontamination is proposed to occur. Under'LILCO's pro-posed fourth relocation scheme, that facility is to be the Nassau Coliseum. Notwithstanding LILCO's glib arguments con-
. cerning its interpretation of_the prior FEMA testimony, it can-not be denied that the prospect of requiring all evacuees to drive for the length of time necessary to reach the Nassau Col-iseum before.they are even monitored, much less decontaminated, 6/ LILCO makes a similar argument in the portion of its Mo-tion which discusses "Further Proceedings," where it as-serts that its new information "is extremely narrow." Mo-tion at 12.
! - and the prospect of having tens of thousands of potentially contaminated evacuees and vehicles driving through 40-50 miles of Suffolk and Nassau Counties, are issues raised by LILCO's new proposal which must be addressed. ,
In addition, LILCO's latest relocatign scheme clearly l
raises the issues identified in Contention 75 and NUREG'0654 Section II.J. concerning LILCO's ability to perform monitoring and decontamination in an adequate and timely manner, and whether the proposed relocation center has appropriate and suf-ficient facilities and services necessary to provide adequately and properly for the need's of evacuees. There is also a sub-stantial question created by LILCO's latest relocation center proposal as a whole, as to whethe'r the plan to transfer s
evacuees and somehow reunite families, apparentby on an ad hoc l basis without advance planning, back and forth between the Nassau Coliseum and fire truck garages, school districts, and L similar buildings at various (unidentified) locations can work l
! at all, much less whether it would provide adequat.e protection to evacuees. All these issues must be addressed.
( Finally, even if LILCO were correct that only Contention l
24.0 is impacted by its new evidence (which it plainly is-not),
that fact would provide no justification whatever for LILCO's I
1.
l c de' lay of several months in filing its motion to reopen the l record.2/
l 7/ LILCO's related suggestion at pages 11-12 of its Motion, that "the reopening of the record to include the identity of the Nassau Coliseum, while apparently dispositive on one discrete issue, will not have any broader effect on preparation of an initial decision that must encompass scores of other issues," is also plainly incorrect. Even ~
someone not familar with this litigation can see that the change involved in having all evacuees, and relocation center-assigned LERO and Red Cross workers, go to the Nassau Coliseum, rather than to three or five separate fa-cilities located in diverse directions but within an aver-age of roughly 12 miles of the EPZ, must have a substan-tial impact on many already litigated aspects of LILCO's Plan, including, for example: (a) the appropriateness of LILCO's original prescribed evacuation routes (which were designed to spread evacuating traffic among the various routes to the (then) three separate relocation centers);
(b) the accuracy of LILCO's calculated evacuation times in light of the new proposal that everyone go to the Nassau Coliseum; (c)~LILCO's proposals and evacuation times for transporting persons'without cars to relocation centers; (d) LILCO's proposals and evacuation times for trans-porting.some institutionalized persons to the relocation centers used by.the public; (e) mobilization-times for LERO workers; (f) the need for extended services, and for coping with hundreds of thousands of automobiles and indi-viduals, well beyond the EPZ and well into Nassau County; (g) the evacuation shadow phenomenon, in light of the new directive to be given to the public that evacuees must travel between 30 and 50 miles through (presumably) uncontarainated portions of Suffolk and Nassau Counties; (h) LILCO's ability to exercise command and control of an emergency response which during the emergency would extend well beyond a 5.0-mile area and encompass two counties; and (i) the health effects of requiring evacuees to travel to the Nassau Coliseum, and the resulting adequacy of protec-tion to be provided by LILCO's latest relocation scheme.
Clearly, the suggestion that reopening the evidentiary record would have no impact on any litigated issues being decided now by this Board except Contention 24.0, is pre-posterous.
. Fourth, LILCO's argument that itr request to put into evi-dence its fourth relocation scheme does not " raise new issues,"
is simply irrelevant to a motion to reopen an evidentiary record. The question presented here is whether LILCO should be permitted, at this late date and after three prior unsuccessful attempta, to submit a new round of evidence. The question is noti whether new issues have been or should be raised by LILCO's motion to reopen. The fact is that the issues in this litiga-tion relating to relocation centers have been before this Board and well known to LILCO since the Summer of 1983; those issues have never changed. They always have been, and remain today, whether LILCO has agreements to use the facilities it purports to rely upon, and whether the facilities would provide the nec-essary, proper, and required services to evacuees in an ade-quate and timely manner to render evacuation an adequate pro-tective action. The only changes relating to relocation cen-ters in this litigation were caused by LILCO's repeated, unsuccessful attempts to meet those issues by filing several different proposed relocation center schemes. None of LILCO's many proposals adequately addressed the issues raised by Inter-venors' contentions; indeed, LILCO's repeated need to come up with new proposals, and its ultimate admission on the record that it=had no proposal whatsoever, is clear evidence of its inability to address adequately the issues raised by those contentions. There is absolutely no justification for allowing LILCO yet another try.
Fifth, LILCO's final argument in its attempt to. justify its delay in filing a motion to reopen is that "There is no danger here that any party has been surprised or otherwise .
prejudiced by the timing of this motion." Motion at 6. This LILCO argument is the most disingenuous of them all. Clearly, Intervenors have already been sub'atantially prejudiced throughout this proceeding by LILCO's actions relating to its relocation center evidence. As Intervenors have pointed out in filings concerning LILCO's many revisions and re-revisions of its Plan and its testimony, each of the innumerable new LILCO proposals required substantial additional expenditures of In-tervenors' resources and rendered the prior expenditures relating to earlier, but subsequently abandoned, LILCO propos-als useless and wasteful. To require Intervenors to perform the necessary factual investigations and other litigation-related efforts necessary to respond to LILCO's belated fourth attempt to satisfy its burden of proof at this late date --
long after Intervenors' consultants and expert witnesses have concluded their litigation-related work concerning LILCO's Plan, and long after the litigation has ended and post-trial l
- briefs completed -- would be, without question, highly prejudicial and grossly unfair. See, e.g., Texas Utlities
~ Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), 19 NRC 509, 531 (1984) (reopening the record "does not seem fair" since intervenor "has been put to unnecessary expense be-cause it will have to prove its case.twice. In addition, the need to continue disputing an already closed issue is an unnec-essary tax on its volunteer resources.").
Intervenorc expended substantial effort and resources in the emergency planning litigation. Such efforts were not in-tended to be an exercise in futility; they were undertaken se-riously and with the intention of prevailing in this proceed-ing. Intervenors clearly did prevail on the relocation center contentions, among many others. Simply because, following the submission of findings of fact and long.after the close of the record, LILCO allegedly managed to create some additional evi-dence which it believes might change that result and create a victory for LILCO on the relocation center issue, Intervenors' rights and legitimate expectations of fair treatment cannot be thrown out the window. See Comanche Peak, cited above, at 531
("At some point, prolongation of hearings would represent a de-nial 'of due process to one or more of the parties.").8/
8/ Furthermore, if the standard for reopening is as LILCO
~
suggests -- that reopening and repetitive litigation is (Footnote cont'd next page) l l
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- To be blunt, enough is enough. LILCO has already had its allotted three strikes. It is out of the batter's box on relo-cation center issues, and its Motion to Reopen for a fourth try must be denied.
Significantly, an identical argument by LILCO -- but relating to a mere third try by Intervenors rather than this -
fourth one by LILCO -- was accepted by the Brenner Licensing Board on an issue relating to the onsite emergency planning litigation. Intervenors had filed emergency planning conten-tions followed, pursuant to Board orders, by two revisions of those contentions which were designed to respond to LILCO ob-jections concerning specificity and lack of basis. LILCO stat-ed the following in response to Intervenors' second set of re-vised contentions (which were dated August 20, 1982):
The Board and the parties are now facing the County's third attempt at drafting con-tentions that are adequately particularized and have factual bases as required by 10 CFR S 2.714(b).
(Footnote cont'd from previous page) proper merely because a party thinks of a different way to present its case, or a new argument or new evidence it can present which it believes could provide additional bases to support a result in its favor -- there are several.is-sues which Intervenors would like at this point to "re-open."
LILCO requests that, should the Board agree that certain of the August 20 contentions are still not adequately particularized, or lack bases, or both, that the Board deny admission of those contentions with preju-dice. The County and SGJ are not pro se litigants, but are re6 resented by counsel with extensive experience in_NRC licensing proceedings. . . . The County and SOC have not met their obligations. The aggropriate sanction is to deny admission of their con-tentions. See, e.g., Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 16 N".C (June 17, 1982). Therefore, . . . LILCO has re-quested that the Board dismiss contentions lacking adequate bases or particulariza
. tion, rather than permitting the County a dd SOC to submit these contentions a fourth time.
i i LILCO's Objections to the Intervenors' . Phase I Consolidated
' Emergency Planning Contentions, dated August 24, 1982, at 3-5
- (emphasis added).
1 In denying admission to one of Intervenors' contentions, the Brenner Board adopted the LILCO argument'and stated:
. We believe that Intervenors should not be given yet another opportunity to t
particularize this contention. As we noted 4 in the preamble _to this Order, this is In-i tervenors' third attempt to state properly particularized contentions. . . . In light of all the opportunities which Intervenors have had to state a litigable version of this contention,'and their continuing fail-ute to do so, we do not believe it would prove fruitful to permit Intervenors yet F
- another opportunity to particularize this contention.
Supplemental Pre-Hearing Conference Order (Phase I -- Emergency Planning) (ASLBP No. 81-462-01 CA), September 7, 1982, at 13-14 (emphasis added).
The same rule must apply in this case to LILCO. It should not be given four bites at the relocation center apple. Its motion to reopen the record must be denied.
III. No Different Standards Apply to_LILCO LILCO devotes four pages of its Motion to an argument that the well-established reopening standards should not apply if the party seeking the reopening is a license applicant rather This LILCO argument is simply another man--
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- than an intervenor.
ifestation of LILCO's arrogant double standard approach to lit-igation which cannot be countenanced by this Board.
The suggestion that procedural rules and principles of fairness should apply to the conduct of applicants only if such application would lead to the desired favorable licensing deci-sion, and the obverse -- that such rules should not apply to applicants if they could result in a decision favoring interve-nors -- flies in the face of every principle of fairness embedded in basic American jurisprudence.9/ Indeed, the Appeal 9/ LILCO cites Texas Utilities _ Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-10, 19 NRC (Footnote cont'd next page)
Board in this case, in denying the petition to intervene which was filed by the Citizens for an Orderly Energy Policy, an or-ganization which supported LILCO's license application, stated definitively that a decision in that instance to permit untime-ly intervention (four months. delay) would have violated the basic principle of fairness upon which the NRC's rules are pur-portedly based. The Appeal Board stated:
Citizens seek to intervene in support of the utility application under adjudication.
Although this fact might well bear upon Citizens' standing to intervene -- a ques-tion that . . . we need not here reach --
it manifestly can be assigned no weight in the determination of the lateness matter.
Stated otherwise, the five S 2.714 (a) factors are to be applied _ Ln the same man-ner in the evaluation of all tardy peti-tions, irrespective of whether_the ,geti-tioner favors or, instead, opposes the li-censing of the f acil fty ~in question.
(Footnote cont'd from previous page) 509 (1984), to support its argument that "a less stringent standard" should apply to an applicant's request to re-open. See Motion at 10. The Comanche Peak case, while it contains the language quoted by LILCO, is distinguishable on its facts, and, as we note above, that Board was fully .
L cognizant of the due process implications of permitting i the unending prolongation of hearings and requiring par-ties to re-litigate issues over and over. If, in fact, the. Comanche _ Peak Licensing Board intended to state the principle for which it is cited by LILCO, the County and State submit that the Board's decision is wrong and enti-tied to no precedential weight.
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n . . .
. Indeed,_given the prior jurisprudence in this area, we think that any dif ferent out-come (i.e., other than the ASLB's denial of the petition] could have rested on no foun-dation other than the impermissible one that there is one test for untimely peti-tioners who would oppose the license appli-cation in contest and another, and more le-nient, test for those who seek to support the application.
Long Island Lighting Company (Shoreham Nuclear Power Station),
ALAB-743 (September 29, 1983) at 15, 29 (emphasis added).
Clearly, LILCO's argument that it is entitled to special, less stringent standards, must be rejected out of hand.
Furthermore, LILCO's attempted reasoning and analysis to support its. double standard argument does not withstand scruti-ny, and does not support the result sought by LILCO. First, even if LILCO's proposed double standard criteria were adopted, LILCO would still have to satisfy the timeliness requirement.
See, e.g., LILCO Motion at 10 ("LILCO believes that the appro-priate inquiry when an applicant moves to reopen the record is whether the new information is timely and whether it relates to a significant issue."). As we demonstrated above, however, LILCO's Motion to Reopen is not timely, by LILCO's own articu-lation of "the law" as well as by the standards previously ap-plied against Intervenors by this and other licensing boards. ,
e
- Second, LILCO's suggestion that a separate standard should be applied to applicants because applicants face some kind of unique "significant dilemma" (Motion at 9) is ridiculous.
Clearly, the so-called " dilemma" described by LILCO faces every proponent of a motion to reopen concerning an already litigated issue.
Third, LILCO's argument that "there should be a strong presumption of significance when the applicant seeks to re-open," (Motion at 10-11) is absolutely without basis. LILCO cites no legal authority to support this outlandish suggestion; clearly, there is no basis for any such " presumption," nor is there is any legal basis for determining, as LILCO so arro .
gantly does, that this " presumption" of LILCO's invention auto-matically supercedes all legitimate expectations of fairness and due process to which intervenors are entitled.
Fourth, LILCO's citation of Cleveland , Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
LBP-83-52, 18 NRC 256 (1983), and Commonwealth Edison Co.
(Byron Nuclear Power Station, Units 1 and 2),'ALAB-770, 19 NRC 1163 (1984), as support for the suggestion that a double stan-dard should apply, is misplaced. Neither of those cases stand for such a prepostrous proposition. First, the Perry case involved a motion to reopen filed by Intervenors, not an applicant, and the most the language quoted by LILCO can be said to stand for is the notion that if no decision has yet been reached on the issue which is to be reopened, no finding that the new evidence would change the result would be neces-sary. Moreover, if the ruling in Perry, which denied the mo-tion as untimely, were applied here, it would require the deni-al of LILCO's motion. Thus, Intervenors' motion was denied as untimely in Perry because the "new information," acquired i
through a Freedom of Information Act request, could have been obtained prior to the hearing, if Intervenors had made the doc-4 ument request earlier. As the Perry board stated, if Interve-
. nors had acted earlier, the documents "could have been used for cross examination . . . (which] would have clarified the issues in a fair and efficient manner . . . . 18 NRC at 258. The same is true of LILCO. It could have come up with this latest relocation center scheme much earlier; it was on notice as of June 1983_ of the unavailability of the facilities it persisted in relying upon from May 1983 until July 1984.
Second, the Bryon case is completely inapposite. It doer
- not deal with a motion to reopen a closed record that had been filed with a licensing board.,
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- Finally, LILCO's proposed double standard smacks of a tastelessness that evokes Orwellian dogma - "all parties are equal before the NRCr but some are more equal than others."
Such a proposition has been alien to Anglo-American ju-risprudence since the Teutonic invasion of England. Now is not the time to break precedent with 15 centuries of fair princi-ples.
IV. LILCO'S Discussion of "Further Proceedings" Is Premature LILCO devotes four and a half pages of its Motion to a discussion of its views concerning what should happen after this Board grants its Motion. The County and State do not dis-cuss this matter at any length here because,'as this Board recognized during the January 4 conference of counsel, such a discussion is premature. This Board first must find that LILCO meets the reopening standards which, for the reasons set forth above, we submit cannot be found. The Board stated that only af ter -- and if -- such a decision is rendered, does it intend to take up the wholly separate questions concerning the neces-sary procedures to deal with evidence submitted by other par-ties and the procedures following such submission. See Tr.
15,794 ("LILCO will file with its Motion the evidence it pro-poses to have considered, no other party will have to file its I
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set a schedrie for anyone else's evidence and decide how to proceed thereafter."). However, several statements contained in this portion of LILCO's Motion require-a brief response.
First, LILCO's assertion that a so-called " extremely lim-ited self-contained" reopening was " signaled" by the Board's statement concerning a void in the record, is completely with-out basis. How such a " signal" could have been divined by LILCO from the clear statement by the Board that LILCO had
' failed to sustain its burden of proof is difficult to imagine.
Second, LILCO's assertion that "nothing is required except the admission of the proffered documents into evidence," be-cause LILCO's Motion is nothing but "the formal placing on the record of information requested by the Board," is also pure in-vention. The County and State are aware of no " request" by the Board that LILCO place any information on the record. Indeed, to the contrary, the Board expressly stated that LILCO's re-sponse to the void in the evidentiary record was "LILCO's prob-lem." In response to LILCO's counsel's statement that "if it is the Board's pleasure we make a proposal today, we will make it" (Tr. 15,741 (Irwin)), Judge Laurenson responded: "We're not telling you you should make a proposal. All I'm saying is e
that whatever has to be done on this matter has to be done very promptly. That's all we're telling you at this point." Tr.
15,741. . Judge Laurenson also stated: "the point is that we have made this determination [that the void in' the record re-mains and that identification of.a new relocation center is not merely a confirmatory item 3, it is up to LILCO now to decide what to do." Tr. 15,787. Clearly, LILCO's self-serving at-tempt to attribute its need to reopen the evidentiary record to cure its own prior default on the relocation center-issues to an imaginary " request" by the Board, must be rejected.
Third, LILCO's argument that the situation presented by its Motion to Reopen "is analogous to the strike issue of last summer, which was raised by the Board" (Motion ~at 14), and that therefore intervenors "have a considerable burden to bear" in j'Istifying the. holding of further proceedings assuming LILCO's motion were granted,.is ridiculous.1S/ LILCO's premise that its requested reopening of the record "is something prompted by the Board" (Motion at 14,. emphasis in original), is false; and the suggestion that "it is the Board that must be satisfied, not the Intervenors" (id.) mischaracterizes the issue; and the 10,/ =As noted above, however, the application to LILCO's Motion.
of the Board's. ruling on Intervenors' ' strike contention motion, clearly mandates the denial of LILCO's Motion.
u ,
i 8-suggestion that Intervenors, rather than LILCO, have any kind of burden arising out of LILCO's failure to sustain LILCO's burden of proof is simply absurd.
As noted, LILCO's need to reopen the record was not re-quested, prompted, or raised sua sponte by the Board. The sole reason that such reopening is being sought is LILCO's inabili-ty, despite three prior attempts, to sustain its burden of proof on contentions that were admitted in 1983. Futhermore, t
contrary to LILCO's suggestion, this litigation does not in-volve any question of whether the Board is " satisfied" by the state of the evidentiary record. The record is what the par-ties make it; the Board's " satisfaction" with that record is irrelevant. Whether additional proceedings are required, as-suming LILCO's Motion is granted, is governed not by any Board
" satisfaction," but rather by the NRC's Rules of Practice, and well established principles of due process and the right to a fair hearing. There can-be no question that if LILCO's proffered evidence is accepted tr to the record and relied upon by this Board in an eventual decision, other parties have an absolute right not only to cross-examine that evidence, but also to submit their own evidence on the same matters foc con-sideration by the Board. See, e.g., ICC v. Louisville &
Nashville Ry. Co., 227 U.S. 88 (1912); Ohio Bell _Tel,ephone Co.
1 8 v. Public Utilities Comm., 301 U.S. 292 (1937); Morgan v. U.S.,
304 U.S. 1 (1938); Bowden v. McKenna, 600 F.2d 282 (1st Cir.
1979); Golden Grain Macaroni _Co._ v. FTC, 472 F.2d 882 (9th Cir.
1972), cert. denied, 412 U.S. 918 (1973).11/
LILCO's transparent attempt to shift to Intervenors the
" heavy burden" which rests upon its own shoulders as a result ,
of its prior default, and LILCO's proposal to prejudice Inter-venors by requiring them to litigate LILCO's fourth relocation scheme, cannot be countenanced by this Board. The County and State will submit their views concerning the details of the procedures to deal with LILCO's new evidence, if and when the Board requests them to do so. We submit however that such dis-cussion should never be necessary, because LILCOs Motion to Reopen the Record must be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building
- Veterans Memorial Highway Hauppauge, New York 11788 11/ Indeed, in a recent filing with the Commission in this case, LILCO itself argued that the Commission could not consider in any decision a sworn Affidavit submitted by New York State and Suffolk County, stating: "To consider such a filing not subject to the scrutiny of discovery or cross-examination would be procedurally improper . . . . "
LILCO's Objections to Suffolk County and State of New York Supplementary Af fidavit, dated December 12, 1984, at 3.
l l
e H%rbgrt H. Brow Lawrence Coe L pher Karla J. Lets' e 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 R# chard 87 46hnK pter Assistant Speci W Counsel to the Governor of the State of New York Dated: January 18, 1985
{
J
! 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 l ) (Emergency Planning) l (Shoreham Nuclear Power Station, )
Unit 1) , )*
I CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY AND STATE OF NEW YORK OPPOSITION TO LILCO'S MOTION TO REOPEN THE RECORD, dated January 18, 1985, have been served on the following this 18th day of January 1985 by U.S. mail, first class, except as.otherwise noted.
James A. Laurenson, Chairman
- Edwin J. Reis, Esq.*
Atomic Safety and Licensing Board Bernard M. Bordenick, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Com.
Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline
- W. Taylor Reveley, III, Esq.#
Administrative Judge Hunton a Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission 707 East Main Street Washington, D.C. 20555 Richmond, Virginia 23212 Mr. Frederick J. Shon
- Ms. Donna D. Duer*
Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Edward M. Barrett, Esq.
General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office
-250 Old Country Road Agency Building 2 Mineola, New York 11501 Empire State Plaza Albany, New York 12223 9
I
a 1
Spence Ferry, Esq. Stephen B. Latham, Esq.
Associate General Counsel Twomey, Latham & Shea Federal Emergency Management Agency P.O. Box 398 Washington, D.C. 20472 33 West Second Street Riverhead, New York 11901 Mr. Brian R. McCaffrey Long Island Lighting Company Ms. Nora Bredes Shoreham Nuclear Power Station Executive Director P.O. Box 618 Shoreham Opponents Coalition North Country Road 195 East Main Street Wading River, New York 11792 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 Albqny, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Fabian Palomino, Esq.#
Special Counsel to the Atomic Safety and Licensing Board Governor Panel Executive Chamber U.S. Nuclear Regulatory Commission Room 229 Washington, D.C. 20555 State Capitol Albany, New York 12224 Docketing and Service Section office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 James B. Dougherty, Esq.
3045 Porter Street, N.W. Jonathan D. Feinberg, Esq.
Washington, D.C. 20008 Staff Counsel New York State Public Mr. Stuart Diamond Service Commission Business / Financial 3 Rockefeller Plaza NEW YORK TIMES Albany, New York 12223 229 W. 43rd Street New York, New York 10036
)
- . l -
i 1
Stewart M. Glass, Esq.
Regional Counsel Federal Emergency' Management Agency 26 Federal Plaze, Room 1349 New York, New York 10278 W M Lawrence Coe Lanpher '
KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: January 18, ,1985 By Hand
- By Federal Express 4
1