ML20141F863
| ML20141F863 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/06/1986 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20141F810 | List: |
| References | |
| OL-3, NUDOCS 8601090572 | |
| Download: ML20141F863 (17) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *86 d4,l ~g -
Before the Atomic Safety and Licensing Appeal Board
/
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
-)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF S0lTTHAMPTON REPLY BRIEF ON APPEAL OF LICENSING BOARD AUGUST 26, 1985 CONCLUDING PARTIAL INITIAL DECISION ON EMERGENCY PLANNING January 6, 1986
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8601090572 860106
$DR ADOCK 05000322 PDR t
O TABLE OF CONTENTS I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . .1 II. DISCUSSION . . .. . . . . . . . . . . . . . . . . . .1 A. Background and Overview . . . . . . . . . . . . . .1 B. The ASLB's Errors . . . . . . . .. . . . . . . . .4
- 1. The ASLB's Error in Barring Discovery . . . . .4
- 2. The ASLB's Error in Denying Admission of Appellants' Testimony and in denying Appellants' Motion to Reopen the Record . . . .5 C. The Licensing Board's Error on the Guard Issue. . .9 I
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TABLE OF AUTHORITIES CASES Citizens for an Orderly Energy Policy, _Inc.
- v. Suffolk County, 604 F. Supp. 1084, (E.D.N.Y. 1985) . . . . . . . . .............2 Cuomo v. LILCO, Consol. Index No. 84-4615 (N.Y. Sup. Ct., February 20, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Guard v. NRC, 753 F.2d 1144
=(D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . .9, 10 In re Prospect v. Cohalan, 65 N.Y. 2d 867, 493 N.Y.S. 2d 293 (1985). . . . . . . . . .2
. UNPUBLISHED SHOREHAM ORDERS Memorandum and Order (Reopening of the Record)
(May 6, 1985) . . . . . . . . . . . . . . . . . . . . . . .5 REGULATIONS 10 CFR $ 2.743. . . . . . . . . . . . . . . . . . . . . . . .9 10 CFR $ 50.47(b)(12) . . . . . . . . .. . . . . . . . . . .9, 10 MISCELLANEOUS Commission Statement of Policy on Emergency Planning Standard 10 CFR Section 50.47(b)(12), 50 F.R. 20892 (May 21, 1985). . . . . . . . . . . . . . . . . . . . . . .10
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY BRIEF ON APPEAL OF LICENSING BOARD AUGUST 26, 1985 CONCLUDING PARTIAL INITIAL DECISION ON EMERGENCY PLANNING I. INTRODUCTION Suffolk County, the State of New York, and the Town of Southampton
(" Appellants") respond herein to certain matters raised in LILCO's Brief in Opposition to Intervenors' Appeal of the Na,sau Coliseum and Guard Issues, December 11, 1985, (the "LILCO Brief"), and the NRC Staff Brief in Response to Intervenors' Appeal of Licensing Board's August 26, 1985 Concluding Partial Initial Decision on Emergency Planning, December 23, 1985, (the " Staff Brief").
II. DISCUSSION A. Background and Overview LILCO and the Staff argue that Appellants are responsible for LILCO's " difficulties" in finding facilities suitable for use as
2-relocation centers during a Shoreham emergency.1 First, Appellants have acted lawfully, as found by the Courts.2 The LILCO and Staff allegations, therefore, reflect nothing more than their disappointment that the law is not different. Second, LILCO has only itself to blame for any " difficulties" it has encountered on the relocation center issues. LILCO knew it had no real agreements with the owners of any of the facilities it had " designated" as relocation centers prior to the Nassau Colisene. See Appellants' November 6 2-ief at 8-16. LILCO nonetheless insisted upon " litigating" its three prior relocation schemes. That litigation, necessitated only by LILCO's refusal to acknowledge its failure to obtain agreements from facility owners before announcing its intention to use the facilities, resulted in LILCO's repeatedly having to face its failures. It could all have been avoided had LILCO bothered to obtain the necessary agreements prior to announcing its readiness to litigate.
Contrary to LILCO's assertion (LILCO Brief at 5), Appellants have
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not merely " suggested" that LILCO's witness, Mr. Rasbury, misspoke when he said that the Red Cross had agreements with congregate care centers.
Rather, Appellants submit that the representations made by Mr. Rasbury See, e.g., LILCO Brief at 4 ("LILCO's difficulties over the Coliseum are the direct result of [ Appellants') own refusals to agree to let public buildings be used to help the public in an emergency"); Staff Brief at 21, n. 17 ("Nor can one ignore the history of this issue, with LILCO's attempting to identify facilities for use as relocation centers while the State and County encouraged facilities not to cooperate").
2 Appellants have no duty to help LILCO or to adopt or implement a plan for Shoreham. See Citizens for an Orderly Energy Policy, Inc. v. Suffolk County, 604 F. Supp. 1084 (E.D.N.Y. 1985); In re Prospect v. Cohalan, 65 N.Y. 2d 967, 493 N.Y.S. 2d 293 (1985); Cuomo v. LILCO, Consol. Index No.
84-4615 (N.Y. Sup. Ct. Feb. 20, 1985).
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concerning the alleged agreements with and availability of congregate care centers for use during a Shoreham emergency were false. See Appellants' November 6 Brief at 54-56.
Mr. Rasbury's testimony that there exist agreements for the use of facilities as congregate care centers was directly contradicted by undisputed facts known to the ASLB. The direct testimony of Suffolk County witness Leon Campo and the supplement thereco,3 for example, documented that at least nine of the Nassau County school districts relied upon for use by LILCO and Mr. Rasbury as congregate care centers are, in fact, not available for such purpose. This evidence was part of that denied admission by the Margulies ASLB. Furthermore, 30 facility owners (out of the 52 facilities relied upon by LILCO and Mr. Rasbury),
which collectively account for approximately 31,000 of the projected 48,000 capacity, sent lettert to the ASLB stating that they never agreed to LILCO's or the Red Cross' use of their facilities in a Shoreham emergency. The Margulies ASLB also ignored this information which was presented directly to it. In addition, four other facilities, which account for an additional capacity of approximately 3,000, have notified the Red Cross of the unavailability of their facilities. And, during the
. reopened proceeding, after the ASLB precluded Appellants from cross-examining LILCO's witness on the existence or the adequacy of the proposed congregate care centers (see Tr. 15,932, 15,939-40), counsel for Suffolk County made an offer of proof which included letters from 3
See Direct Testimony of Leon Campo on Behalf of Suffolk County Regarding LILCO's Proffered Evidence of January 11 (Feb.12,1985);
Supplement to the Direct Testimony of Leon Campo Regarding LILCO's Proffered Evidence of January 11 (April 12, 1985).
facilities, with an aggregate capacity of about 33,000, affirmatively stating that they had not agreed to the use of their facilities in a 4
Shoreham emergency. See Tr. 15,941-44; SC Ex. 97.
Thus, this is not a case where there is a " suggestion" that Mr.
Rasbury's testimony regarding the alleged availability of congregate care centers during a Shoreham emergency was false, or one where different
" interpretations" of events are offered by opposing parties, as LILCO i
asserts.~ See, e.g., LILCO Brief at 5, 17. Rather, this is a case of an
- ASLB closing its eyes to facts which demonstrate the falsity of evidence submitted by LILCO and adopted by the ASLB: the owners of LILCO-designated'" congregate care centers" assumed to accommodate 33,000 evacuees, have stated unequivocally that there are no agreements authorizing the use of their facilities in a Shoreham emergency.
B. The ASLB's Errors
- 1. The ASLB's Error in Barring Discovery Contrary.to LILCO's assertion (LILCO Brief at 12), the information a
sought by Appellants in order to respond to LILCO's written evidence on the Nassau Coliseum was not " publicly accessible." Indeed, Appellants l attempted to obtain such information through means other than formal discovery but were-unable to do so. See, e.g., Appellants' November 6
. Brief at 31, n.30. Moreover, LILCO's argument is beside the point. The ASLB's January 28 Order contemplated both the submission of cross-examination plans concerning LILCO's proffered evidence and the subbission of direct testimony by other parties on the merits of LILCO's i
proposed use of the Nassau Coliseum. Accordingly, Appellants were l
entitled under the NRC's regulations and fundamental principles of due process to discovery on the issues upon which they were expected to cross examine and submit testimony.
In addition, contrary to LILCO's suggestion (LILCO Brief at 12), the ASLB's error in precluding discovery was not somehow cured by the fact that Appellants were offered the opportunity to subpoena the General Manager of the Nassau Coliseum to testify at trial. The ASLB had no authority or basis for requiring Appellants to go forward on LILCO's new relocation center scheme without the benefit of any discovery.
Suggesting that discovery could be conducted during the trial is no remedy.
- 2. The ASLB's Error in Denying Admission of Appellants' Testimony and in Denying Appellants' Motion to Reopen the Record Neither LILCO nor the Staf' addresses Appellants' assertion that, although the " rationale" for the ASLB's exclusion of essentially all Appellants' evidence was that it did not go to the issue of the
" functional adequacy" of the Coliseum to serve as a relocation center, in fact such testimony squarely addressed that very issue. See Appellants' November 6 Brief at 38-42. Because the ASLB's May 6 Order rejecting Appellants' evidence failed to apply its own admissibility criterion to Appellants' evidence, reversal by this Board is required.
LIII0 and the Staff would have this Board believe that Appellants' proffered evidence was properly excluded because it was not raised in the prcper procedural manner, i.e., under the guise of amended contentions or 4
See Memorandum and Order (Reopening of the Record) (May 6, 1985)
(hereafter, "May 6 Order") at 3, 4.
-after petitioning for leave to file new contentions on the relocation center issues. These arguments turn the NRC's procedures into an absurd Catch-22 morass under which only Applicants can prevail and Intervenors are bound and gagged. This Board must reject them.
Appellants submitted relocation center-related contentions -- which concededly were absolutely correct -- when LILCO's Plan first appeared.
Some of those contentions became unrelated to the specifics of LILCO's Plan as LILC0 kept changing its proposals; but, all the parties and the i ASLB recognized that fact and understood that the litigation would continue based on the thrust of the contentions, even though they referred to specific facilities and proposals that were no longer being relied upon or pursued by LILCO.
When Appellants had prevailed on those contentions at the end of the litigation in 1984, it was decided to give LILCO one more chance: at LILCO's request, the record was reopened. LILCO was not required to submit contentions, however, even though it was the party seeking additional litigation; instead, the ASLB arbitrarily chose one of Appellants' contentions (Contention 24.0) which had nothing to do with LILCO's new Nassau Coliseum evidence, and ruled that only that contention would be the framework for the new litigation. The Margulies ASLB ignored the fact that Appellants' other admitted contentions were more relevant to LILCO's new evidence than was Contention 24.0.
See, e.g., LILCO Brief at 15; Staff Brief at 5 ("[ alt no time did the State or County seek to amend the admitted contentions or move for permission to file additional contentions on relocation center issues")
. and 26 ("[n]o new contentions in this area were ever filed").
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T?.et , Aopellar.ts were not only barred from submitting any evidence relating the issues raised in their relevant admitted contentions to LILCO's Nassau Coliseum proposal; Appellants also were barred from submitting such evidence because they had not submitted totally new contentions on the new LILCO-requested relocation center litigation.
And, to make matters eten worse, Appellants also were barred from submitting evidence on the issue articulated by the ASLB as the subject of the new litigation (the functional adequacy of the Coliseum).
Thus, Appellants have been told that: (1) LILCO could submit any evidence it wanted, even four months after litigation had ended and it had lost; (2) in the LILCO-requested litigation, Appellants were limited to addressing only one contention, chosen by the ASLB and of no relevance; (3) Appellants' evidence which directly related to admitted and still very relevant contentions (as well as to the ASLB-defined functional adequacy issue) was barred because Appellants had not submitted new contentions; and (4) their submitted evidence was untimely because it related to earlier litigated contentions. None of this makes any sense. This Board cannot countenance the unlawful distortion of NRC procedure'which the Margulies ASLB perpetrated at the urging of LILCO and the Staff. LILCO is right in asserting that this litigation is not a
" game" (LILCO Brief at 10); however, the NRC's rules must be applied fairly to all litigants, and not in a way that precludes one set of litigants from exercising any of their due process rights.
On a related matter, LILCO's and the Staff's assertion that Appellants' motion to reopen was properly denied because the proffered
testimony was untimely should be summarily rejected. Appellants' evidence fell squarely within the ASLB's articulated reason for reopening, i.e., to address the functional adequacy of the Nassau Coliseum as a reception center in the LILCO Plan. The assertions of LILCO and the Staff that Appellants' testimony on that subject could have been filed in August of 1984 (when LILCO's third relocation center scheme was litigated) or even earlier (e.g., during litigation of evacuation shadow or the 50-mile EPZ contentions) are without merit. First, Appellants' testimony addressing the adequacy of LILCO's proposed use of the Coliseum could not have been filed until LILCO had me:Je known its plan to use that facility, and the ASLB had decided to reopen the evidentiary record to consider that new proposal.
Second, the LILCO and Staff assertions that Appellants' testimony was "gsneric" and could have been raited about other relocation centers designated earlier (see, e.g., LILCO Brief at 29. 'i2, 29, 32-33; Staff Brief at 27-30) must be rejected. Before its designation of the Nassau Coliseum, LILCO had done nothing more thsn list facilities as relocation centers; Appellants knew, as they alleged in their contentions as early 1
as June 1983, that LILCO would in fact never use those facilities because it had never obtained the permission of the facilities' owners for such use. Under such circumstances, there was simply no reason for Appellants to have submitted testimony concerning, for example, SPDES permits or groundwater contamination, with respect to other LILCO-proposed relocation centers. However, once LILCO asserted it had an alleged
" agreement" to use the Nassau Coliseum, and the ASLB admitted LILCO's
- -,-,-4 r-
I evidence on that subject for litigation, Appellants' proffered testimony was submitted because it was probative and relevant to the Coliseum's
" functional adequacy."
Finally, LILCO improperly disputes the merits of the testimony proffered by Appellants, rather than addressing the threshold issue of whether such testimony is admissible under the NRC's regulations. See 10 CFR $ 2.743. LILCO makes factual allegations, draws conclusions and raises arguments concerning Appellants' proffered testimony which would properly be pursued (assuming Appellants' proffered testimony had been admitted by the ASLB) through cross-examination, rebuttal testimony, or in post-trial briefs after all relevant evidence had been considered.
See, e.g., LILCO Brief at 25, 31, 38. Such allegations, conclusions and arguments that, in essence, the County and State witnesses were wrong in their factual assertions and expert opinions, amount to nothing but attempts by LILCO's lawyers to argue the merits of Appellants' proffered testimony, and, accordingly, should be disregarded by this Board.
C. The Licensing Board's Error on the Guard Issue 0
Appellants' November 6 Brief addresses the Guard issue in detail <
and demonstrates the ASLB's errors. LILCO and the Staff do not effectively refute those arguments. But, two related points must be addressed.
LILCO and the Staf f apparently believe that Guard gives the NRC unfettered discretion on how to apply 10 CFR S 50.47(b)(12). It does not. The Guard decision states that the NRC has broad discretion to 6
Guard v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).
change the regulation. See 753 F.2d at 1146. But, unless and until the regulation is changed, the decision does not grant the-NRC discretion to disregard'Section'50.47(b)(12) as construed in Guard, or to grant licenses and dismiss contentions based upon what might happen in the
- future. The NRC must apply its regulations, including Section 50.47(b)(12). Any interpretation of the NRC's May 16, 1985 Policy
-Statement (50 F.R. 20,892 (1985)) which results in the disregard of the regulation which is in effect is unlawful. That is what the ASLB did and what LILCO and the Staff urge this Board to affirm. This Board should refuse.
Second, the Staff argues that the ASLB was correct because there is no guidance regarding how Section 50.47(b)(12) should be applied. See Staff Brief at 41. This is wrong. Unless and until it is changed, Section 50.47(b)(12) must be interpreted and applied in a manner consistent with the Guard decision. This would result in no " broad idebate" (Staff Brief at 42) over the meaning of the regulation; rather, it would result in focussed litigation pursuant to Appellants' proposed contentions regarding a regulation which the Court construed clearly. i The fact that the NRC may later change the regulation does not mean that the regulation presently in effect is unclear in any.way.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
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d ~ Q hekbert H. Br f 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 W
- W Fabian G. Paloinino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Robert Abrams Attorney General of the State of New York Two World Trade Center New York, New York 10047 Attorneys for Governor Mario M.
-Cuomo, and the State of New York M 1 A ~
tephq[9/ B. Latham
[Twomey,Latham&Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton January 6, 1986
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l UNITED STATES OF AMERICA '86 NUCLEAR REGULATORY COMMISSION 'I'Y '8 AJ7 ,.9 Before the Atomic Safety and Licensing Appe'h'5" Board..
~ E!ljg'I' U;,
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
)
Certificate of Service I.hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK,' AND TOWN OF SOUTHAMPTON MOTION FOR LEAVE TO FILE BRIEFS with attached SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY BRIEF ON APPEAL OF LICENSING BOARD APRIL 17, 1985 PARTIAL INITIAL DECISION ON EMERGENCY PLANNING and SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY BRIEF ON APPEAL OF LICENSING BOARD AUGUST 26, 1985 CONCLUDING PARTIAL INITIAL DECISION ON EMERGENCY PLANNING have been served on the following this 6th day of January, 1986, by U.S. mail, first class.
Alan S. Rosenthal, Chairman Stuart Diamond Atomic Safety and Licensing Business / Financial Appeal Board NEW YORK TIMES U.S. Nuclear Regulatory Commission 229 W. 43rd Street Washington, D.C. 20555 New York, New York 10036 Mr. Howard A. Wilber Joel Blau, Esq.
Atomic Safety and Licensing New York Public Service Comm.
Appeal Board The Governor Nelson A.
U.S. Nuclear Regulatory Commission Rockefeller Building
-Washington, D.C. 20555 Empire State Plaza .
Albany, New York 12223
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Mr. Gary J. Edles Stewart M. Glass, Esq.
Atomic Safety and Licensing Regional Counsel Appeal Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, D.C. 20555 26 Federal Plaza New York, New York 10278 Morton B. Margulies, Chairman Anthony F. Earley, 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 & Williams U.S. Nuclear Regulatory Commission -
P.O. Box 1535 Washington, D.C. 20555 707 East Main Street Richmond, Virginia 23212 Mr. Frederick J. Shon 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 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station P.O. Box 398 North Country Road Riverhead, New York 11901 Wading River, New York 11792 Nora Bredes Docketing and Service Section Executive Director 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 Commission Veterans Memorial Highway Washingten, D.C. 20555 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792
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 Commission 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 Commission Executive Chamber, Room 229 Washington, D.C. 20555 State Capitol Albany, New York 12224 Spence Perry, Esq. Mary Gundrum, Esq.
Associate General Counsel New York State Department Federal Emergency Management Agency of Law Washington, D.C. 20471 2 World Trade Center, Rm. 4614 New York, New York 10047 Mr. William Rogers David A. Brownlee, Esq.
Clerk Kirkpatrick & Lockhart Suffolk County Legislature 1500 Oliver Building Suffolk County Legislature Pittsburgh, PA 15222 Office Building Veterans Memorial Highway Hauppauge, New York 11788 Karli J. Let[he KIRKPATRICK & LOCKHART 1 1900 M Street, N.W., Suite 800 )
Washington, D.C. 20036 )
Date: January 6, 1986
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