ML20133F158
| ML20133F158 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/02/1985 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Edles G, Rosenthal A, Wilber H NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-675 OL-3, NUDOCS 8510100140 | |
| Download: ML20133F158 (8) | |
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Rosenthal, Esq., Chairman Gary J.
Edles, Esq.
Dr. Howard A.
Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Fifth Floor (North Tower)
East-West Highway Bethesda, MD 20814 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)
(Docket No. 50-322-OL-3)
Gentlemen:
This letter responds to the Appeal Board's request at the oral argument last Thursday, September 26, for a report on the status of the New York State Court litigation on emergency planning-related issues.
It also forwards LILCO's views on the latest request by Suffolk County and New York State for an exten-
.sion of time to file their briefs on emergency-planning factual issues limit.yjaccompanied now by a request for enlargement of the page 1/
LILCO recognizes that the Appeal Board has not formally so-licited its or any other parties' views yet and will not do so be-fore receiving petitioners' requests for page extensions on October 3.
However, since the issue is in fact before the Appeal Board now, LILCO believes it useful to set its views on the table at the outset, h
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New York State Court Litigation Cuomo v.
LILCO.
LILCO has initiated an appeal to the New York State Appellate Division from Justice Geiler's March 25 Par-tial Declaratory Judgment, which held that the emergency response actions' contemplated by LILCO under the LILCO plan are illegal under New York state law.
In accordance with New York Civil Prac-tice Law and Rules, LILCO filed, on April 26, 1985, a Notice of Appeal, a Notice of Filing Notice of Appeal, and an Appellate Di-vision Form C civil appeal preargument statement.
In addition, on May 6, LILCO filed an Appellate Division Form D transcript infor-mation civil appeal.
Two remaining motions have been before Jus-tice Geiler since last May:
a Motion for Summary Judgment on the preemption issue, filed by Suffolk County and New York State, and LILCO's Motion to Stay any proceedings on LILCO's affirmative de-fense of federal preemption since that issue has been decided by the NRC Licensing Board and it, on appeal within the NRC.
Justice Geiler has not yet ruled on either motion.
LILCO has not yet taken the remaining steps necessary to perfect the appeal of Jus-tice Geiler's decision on state law issues, pending his disposi-tion of the remainder of the case before him, in the hope that the entire matter (whatever its scope) can be taken up on appeal at one time.2/
Prospect v. Cohalan.
(1) On July 11, 1985 Mr. Kelley, the Chief Deputy Suffolk County Attorney, reported to the Appeal Board that the New York Court of Appeals, on July 9, had affirmed and construed the trial court's invalidation of Suffolk County Execu-tive Order 1-1985.
On July 15, Suffolk County Executive Cohalan issued Executive Order 2-1985, which was forwarded to the Appeal Board by LILCO on July 16.
Since that time, motions to the Court of Appeals by all parties to clarify its July 9 decision or to grant rehearing have been denied.
That litigation thus appears terminated.
(2) On August 13 the Appellate Divi-sion affirmed Justice Brown's July 31, 1985 Order ruling that the Suffolk County Executive had acted within his authority in firing the law firm of Kirkpatrick & Lockhart from further representation 2/
It is LILCO's position that a partial declaratory judgment on state law issues is not a final determination of the entire case before Justice Geiler and therefore need not have been appealed separately in any event.
LILCO noticed its appeal from the Par-tial Declaratory Judgment as a prophylactic measure only, to avoid later disputes regarding the timeliness of the appeal.
< or of the-County on Shoreham-related matters.
No appeal has been no-ticed from that decision.
Matthews v. Purcell.
John W.
Matthews, challenger to incum-bent Francis T.
Purcell in next month's election for Nassau County Executive, filed suit on September 11, 1985 against County Execu-tive Purcell seeking, in essence, the following relief:
(1) a prohibition against Purcell and others from offering the use of Nassau County facilities and personnel in conn'ection with the LILCO plan; (2) a prohibition against any Nassau County employees, including Purcell, taking any action whatsoever to facilitate the use of the Nassau Coliseum in response to a radiological emergency at Shoreham; (3) a. prohibition against Purcell's committing funds in furtherance of the.use of Nassau County facilities in response to a radiological emergency at Shoreham; and (4) an order di-recting Purcell to announce publicly and inform the NRC in writing that Nassau County facilities may not be used in connection with the LILCO plan without prior approval by the Nassau County Board of Supervisors.
Matthews seeks a preliminary and a permanent in-junction in this suit.
LILCO filed a Motion to Intervene on
' September 18, 1985; that motion is pending before the Court.
Purcell and LILCO have each filed a memorandum of law in opposi-tion to the request for a preliminary injunction.
In addition, Purcell has filed an answer to the petition.
All motions are pending.
2.
Requests For Extensions of Briefing Deadlines and Page Limitations Suffolk-County, joined by the State of New York, has again requested an extension of the filing deadline, and now one of the page limit, for petitioners' briefs on factual issues arising from the Licensing Board's April 17 Partial Initial Decision, LBP 12, 21 NRC 644 (1985).. The Appeal Board treated this request, made orally during the September 26 argument on diesel generator issues, as an informal motion for a filing deadline. extension, and permitted one until October 14 (since corrected to October 15).
LILCO does not complain of that extension, the fifth obtained by Suffolk County and New York State on this brief, though LILCO frankly believes that by now, four and a half months since the briefs were initially scheduled and three since they were origi-nally due, more than ample time has passed to remedy whatever dif-ficulties may have faced Suffolk County's legal representatives and to hav or briefs.gjenabled them and New York State to prepare their brief 3/
Petitioners' briefs were originally due, under the Appeal Board's May 15, 1985 Order, on July 3.
That deadline has been (footnote continued)
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A similarly lenient view cannot be taken, however, with re-spect to petitioners' grossly untimely request for a doubling of the page limit from 70 to 140 for each petitioner's brief.
Long ago, in its May 15 Order, this Appeal Board rejected an earlier request of Suffolk County and New York State for a 165-page con-solidated brief (Suffolk County and State of New York Motion for Adjustment of Brief Filing Requirements, May 8, 1985).
No showing was made by either Suffolk County or New York State on September 26 as to why this earlier decision by the_ Appeal Board should be unceremoniously forgotten at the last minute.
The drastic enlargement requested would also be highly preju-dicial both to LILCO and to the Appeal Board's process.
It would increase the number of pages which the Appeal Board would have to digest, and to which LILCO and the Staff would have to respond, from 140 to 280.
Assuming, as one must in this case, that the briefs are competently done, this will substantially increase the effort involved in responding, increase the likelihood that re-sponse time and page extensions will be needed, and generally com-plicate and delay resolution of these issues.
In addition, the fact that no request for modification of the page limit was ever advanced before now, four and a half months and five deadline ex-tensions into the briefing schedule (and barely ten days before the brief would have been due under the then-current, fourth ex-tension), engenders unavoidable doubt about the process of brief preparation to date and about the likelihood that even the most recently requested schedule would be complied with.
Further delay in resolution of these issues will do nothing but contribute to the uncertainty that has hung over Shoreham's head for literally years now.
While it is not profitable to spec-ulate on which of the many possible forms such prejudicial delay could take, it bears note that this Board's decisions can become final agency action in the absence of discretionary Commission re-view, and that LILCO is still endeavoring to schedule a date for the final known litigable hurdle remaining before a full power li-cense:
a graded emergency planning exercise.
Delay in resolving emergency planning issues can only tend to delay the date on which an exercise is held.
(footnote continued) previously extended on June 2 to August 2; on July 19 to August
.30; on August 20 to September 30; and on September 24 to October 7.
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For these reasons, LILCO requests the Appeal Board not to ac-quiesce in any further requests for. extension of the briefing deadline on emergency. planning factual issues, and not to grant any portion of the requested page extension.
Respectfully sub itted,
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Donald P.
Irwin Counsel for Long Island Lighting Company cc:
Attached Service List
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LILCO, October 2, 1985 CERTIFICATE OF SERVICE In.the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
' Docket No. 50-322-OL-3 I hereby certify that copies of a letter to.the Appeal Board from Donald P.
Irwin, dated October 2, 1985, were served this date upon the'following by first-class mail, postage pre-paid or, as indicated by an asterisk, by Federal Express, or, as indicated by two asterisks, by telecopier:
Morton B. Margulies, Secretary of the' Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S.
Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R. Kline Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C.
20555 4350 East-West Hwy.
Bethesda, FID 20814 Bernard M. Bordenick, Esq.*
Oreste Russ Pirfo, Esq.
Mr. Frederick J.
Shon Edwin J.
Reis, Esq.
Atomic Safety and Licensing U.
S.
Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
3 Bethesda, MD 20814 t -
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i Stewart M. Glass, Esq.*
Donna Duer, Esq.
Regional Counsel Federal Emergency Management Attorney Atomic Safety and Licensing Agency Room 1349 Board Panel 26 Federal Plaza, 10278 U. S. Nuclear Regulatory New York, New York Commission North Tower East-West Tower, Stephen B. Latham, Esq.*
4350 East-West Highway Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O. Box 398 Fabian G. Palomino, Esq.*
Riverhead, New York 11901 Special Counsel to the Governor Ralph Shapiro, Esq.
Executive Chamber Cammer & Shapiro, P.C.
Room 229 9 East 40th Street 10016 State Capitol New York, New York Albany, New York 12224 James Dougherty, Esq.
Esq.*
3045 Porter Street Mary Gundrum, Assistant Attorney General Washington, D.C.
20008 2 World Trade Center Jonathan D.
Feinberg, Esq.
Room 4614 10047 New York State Department of New York, New York Public Service, Staff Counsel Spence W. Perry Esq.*
Three Rockefeller Plaza Acting General Counsel Albany, New York 12223 Federal Emergency Management Agency William E. Cumming, Esq.
501 C Street, S.W.
Associate General Counsel Washington, D.C.
20472 Federal Emergency Management Agency 500 C Street, S.W.
MHB Technical Associate Room 840 1723 Hamilton Avenue Washington, D.C.
20472 Suite K San Jose, California 95125 Ms. Nora Bredes Executive Coordinator Jay Dunkleberger Shoreham Opponents' Coalition Mr.
New York State Energy Office 195 East Main Street Agency Building 2 Smithtown, New York 11787 Empire State Plaza Albany, New York 12223
s.s.ms,.,
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. Martin Bradley Ashare, Esq.*
Gerald C. Crotty, Esq.
Suffolk County Attorney Counsel to the Governor H. Lee Dennison Building Executive Chamber Veterans Memorial Highway New York 11788 State Capitol Hauppauge, 12224 Albany, New York Dr. Howard A. Wilber**
Rosenthal, Esq.,**
Atomic Safety and Licensing Alan S.
Chairman Appeal Board Atomic Safety and Licensing Nuclear Regulatory Commission U.S.
Appeal Board Fifth Floor (North Tower)
U.S. Nuclear Regulatory East-West Towers Commission 4350 East-West Highway Fifth Floor (North Tower)
Bethesda, MD 20814 East-West Towers 4350 East-West Highway Bethesda, MD 20814 Gary J. Edles, Esq.**
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory.
Commission Fifth Floor (North Tower)
East-West Towers 4350 East-West Highway Bethesda, MD 20814 Donald P.
Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 23212 Richmond, Virginia DATED:
October 2, 1985 t