ML20148D154
| ML20148D154 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/19/1988 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20148D035 | List: |
| References | |
| OL-3, NUDOCS 8801250335 | |
| Download: ML20148D154 (13) | |
Text
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4 January 18, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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AFFIDAVIT OF LAWRENCE COE LANPHER Lawrence Coe Lanpher, being duly sworn, states as follows:
1.
I am a partner with Kirkpatrick & Lockhart, which has represented Suffolk County since early 1982 in the NRC Shoreham operating license proceedings (Docket No. 50-322-OL).
I have been personally involved, as one of the counsel representing Suffolk County, in the litigation conducted before the Atomic Safety and Licensing Board, the NRC Appeal Board, and the Commission concerning LILCO's proposed offsite emergency plan for Shoreham.
I have also been involved on behalf of Suffolk County i
in various litigation proceedings outside the NRC, including the U.S. District Court for the Eastern District of New York, the
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U.S. Court of Appeals for the Second Circuit, and the New York State Supreme Court, Appellate Division, and Court of Appeals.
2.
I have read LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR S 50.47(c)(1)(1) and (ii), dated December 18, 1987.
This affidavit is submitted pursuant to 10 CFR S 2.749(c) to demonstrate that in the absence of discovery, it is not possible for the Governments to contest fully all aspects of LILCO's Motion.
3.
LILCO's Motion is premised upon the NRC's amended emergency planning rule, adopted by the NRC on October 29, 1987.
Egg 52 Fed. Reg. 42078 (Nov.
3, 1987).
The amended rule adopted 10 CFR S 50.47(c)(ii), which states as follows:
The applicant has made a sustained, good faith l
effort to secure and retain the participation of the pertinent state and/or local govern-I mental authorities, including the furnishing of copies of its emergency plan.
4.
The foregoing standard has never before been an issue in the Shoreham operating license proceeding.
Accordingly, in the extensive discovery and litigation which has proceeded l
l previously before the NRC, as well as the various court litiga-tion which also has taken place since 1982, there has been no opportunity, indeed no need, ever to attempt to determine whether LILCO has made a "sustained, good faith effort" to secure and 1
retain the Governments' participation in emergency planning for l
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Accordingly, the past discovery and litigation has provided no basis for the Governments to be prepared to respond in detail to the factual allegations proffered by LILCO relating to the foregoing standard, particularly as regards LILCO's intentions in taking certain actions.
5.
The NRC's "sustained, good faith effort" standard is inherently a subjectiv6 standard, which requires the parties and the Licensing Board to focus upon LILCO's intentions, motiva-tions, and similar subjective indicia of conduct over an extended period of time.
While LILCO'c conduct, such as described in the affidavits of Frank R. Jones, Gregory J. Blass, Frank P. Petrone, and Fabian G. Palomino, presents a strong basis for challenging LILCO's assertion that it has made a sustained, good faith effort to secure and retain the participation of Suffolk County and the S at' of New York in emergency planning for Shoreham, there is no c.>bstitute for the opportunity to pursue discovery of LILCO personnel and documents in order actually to determine the inten-i tions, motivations, and other indicia of intent which guided LILCO over a sustained period time regarding emergency planning l
for Shoreham, l
l 6.
In the absence of discovery, the Governments are able to contest LILCO's Motion solely by reliance upon external indica of conduct, as described in the other affidavits submitted with the Governments' response.
Those affidavits document that there I
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are material issues of fact which are genuinely in dispute and thus preclude the grant of summary disposition in favor of LILCO.
There has been no opportunity for the Governments to probe LILCO's motivations and intentions in order to determine whether a sustained, good faith effort has in fact been carried out by LILCO.
Accordingly, under 10 CFR S 2.749(c) the Board should j
reject the LILCO Motion or order a continuance until the Govern-ments have had an adequate opportunity to pursue discovery and other remedies so that they may be in a fair position to centest the allegations made by LILCO in the Motion.
7.
In the instant situation, the Governments are faced i
with r new regulatory standard and untested LILCO assertions that it has complied with that standard.
The LILCO assertions --
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pertaining to its motivations, intentions, and good faith -
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inherently matters within LILCO's control.
The Governments have never had an opportunity to test those matters and now are faced with LILCO's self-serving assertions that it has complied with the regulatory standards.
This is exactly the type of situation contemplated in 10 CFR S 2.749(c) where it is incumbent upon the Board to deny summary disposition because of the non-moving parties' lack of oppor6;nity to contest 6.he factual bases for the Motion.
D57 Ate r oF C o u s m df 4,rs.,.
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Lawrence Coe Lanpher (date) l
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s' Sworn _to and subscribed to before me this g day of January 1988.
h e.h V
(Notary Public)
My Commission Expires:
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January 18. 1988 Statement of Material Facts as to Which There Exists a Genuine Issue to be Heard on Matters Raised by LILCO's Motion for Summary Disposition of Contentions 1-10 With Reseect to 10 CFR S 50.47(c)(1)(i) and (ii)
Based upon the Governments' review of LILCO's Motion, LILCO's Statement of material facts as to which there is alleged to be no dispute, the Governments' Response in Opposition to LILCO's Motion, and the affidavits of Frank R. Jones, Gregory J.
l Blass, Frank P. Petrone, and Fabian G. Palomino, the Governments hereby submit a preliminary list of material facts as to which a genuine dispute exists and which must be resolved at trial.
Additional facts which need to be resolved may also be identified after an opportunity ~or discovery, as described in Section IV.B of the Governments' Response and tne Affidavit of Lawrence Coe Lanpher.
1.
LILCO's inability to comply with 10 CFR S 50.47(b) because of lack of legal authority is not wholly or substantially the result of the non-participation of the suffolk County and New York State governments.
2.
Even with the participation of the Suff^'4 County and i
New York State governments, LILCO would have no legal authority 1
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2-to carry out the actions which are contemplated under its emergency plan.
3.
Aside from legal authority matters, there are independ-ent reasons for LILCO's inability to comply with 10 CFR S 50.47(b), thus necessitating a finding that LILCO has not satisfied 10 CFR S 50.47(c)(1)(1).
j 4.
LILCO has not made a sustained, quod faith effort to secure and retain the participation of the Suffolk County and/or New York State governments in emergency planning for Shoreham.
5.
Actions of LILCO prior to the NRC's adoption of offsite emergency planning requirements on August 19, 1980 (45 Fed. Reg. 55402 (1980)) are not pertinent to consideration of whether LILCO has complied with 10 CFR S 50.47(c)(1)(ii).
6.
LILCO's allegation of Suffolk County and LILCO cooper-ation in emergency planning during the 1970s, prior to the 1980 adoption of 10 CFR S 50.47, to the extent it existed at all, was so limited as to be irrelevant to any consideration in the context of 10 CFR S 50.47(c)(1)(ii).
7.
LILCO's conduct in the early and mid-1970s, including its refusal to engage in serious emergency planning for Shoreham I
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before commencing construction of the plant as the intervenors in the NRC's Shoreham construction permit proceeding requested, shows that LILCO did not make a sustained, good faith effort to secure and retain the participation of the Suffolk County and/or State of New York governments in emergency planning for Shoreham.
8.
LILCO's opposition to Suffolk County's 1977 emergency planning contentions before the AOLB shows that LILCO did not make a sustained, good faith effort to secure and retain the participation of the Suffolk County and/or New York State govern-ments in emergency planning for Shoreham.
9.
LILCO was not cooperative with Suffolk County during 1982 when Suffolk County was in the process of preparing a draft County emergency plan for Shoreham, and LILCO did not during 1982 engage in a good faith effort to secure and retain the participa-tion of the County in emergency planning for Shoreham.
I 10.
LILCO's purported efforts in 1982 to persuade the County to resume planning with LILCO did not constitute a good faith effort to secure and retain the County's participation in emergency planning for Shoreham.
i 11.
LILCO's unauthorized submittal of an e.11eged Suffolk County emergency response plan to the New York State Disaster 1
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9 1 Preparedness Commission ("DPC") in 1982, and LILCO's submission of the same document to NRC and FEMA authorities, all the while knowing that Suffolk County had rejected and discarded a major portion of the materials which formed the basis for the document submitted by LILCO and all the while knowing that Suffolk County strongly disapproved of LILCO's unauthorized actions, was not a good faith act and was indicative of the fact that LILCO did not make a good faith effort to secure and retain the participation L
of the Suffolk County and/or New York State governments in emer-gency planning for Shoreham.
12.
LILCO's participation in the hearings conducted by the Suffolk County Legislature in January and February 1983 concerning a draft County emergency plan, including LILCO's secret recruitment of the testimony of witnesses favorable to LILCO at the hearing in Middletown, Pennsylvania, in February 1983, was not a good faith act and is indicative of the fact that 1
LILCO did not make a good faith effort to secure and retain the participation of the Suffolk County and/or New York State govern-ments in emergency planning for Shoreham.
i 13.
Actions of LILCO during 1982 and early 1983 did not constitute part of a sustained, good faith effort to secure and
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retain the participation of the New York State government in emergency planning for Shoreham.
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LILCO's submittal to the NRC in May 1983 of a document which LILCO purported to be "plans" of Suffolk County and New York State did not constitute a good faith effort to secure i
and retain the participation of Suffolk County and/or New York State in planning for Shoreham.
15.
LILCO's actions before Governor Cuomo's Marburger Commission in 1983, including LILCO's December 14, 1983, letter to Governor Cuomo, were not part of a sustained, good faith j
effort by LILCO to secure and retain the participation of the New York State government in emergency planning for Shoreham.
16.
The deposition and trial statements of LILCO's counsel in 1983-84 (LILCO Motion at 11-12) are not evidence of a 1
sustained, good faith effort by LILCO to secure and retain the participation of Suffolk County in emergency planning for Shoreham.
17.
LILCO's refusal to pay property taxes that LILCO owed I
the Suffolk County government in 1984 and 1985, thereby threatening a severe financial crisis for Suffolk County and its 1.3 million citizens, was not a good faith act and is indicative of the fact that LILC'O did not make a good faith effort to secure i
and retain the participation of Suffolk County and/or New York State in emergency planning for Shoreham.
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7 18.
LILCO's efforts, in connection with its refusal to pay the property taxes it owed Suffolk County, in order to pressure the County into reversing the lawful policy promulgated by the County in Resolution No. 111-1983, were not good faith acts and were indicative of the fact that LILCO did not make a good faith effort to secure and retain the County's participation in emer-gency planning for Shoreham, particularly because LILCO urged the County Executive to take actions which the Court in Erosoect v_t Cphalan, 65 N.Y 2d 867, 493 N.Y.S.2d 293 (1985), fcund to be unlawful.
19.
LILCO's participation in lawsuits against the Suffolk County government, including Citizens for an Orderly Energy Poliev, Inc.
v.
Suffolk County,,504 F.
Supp. 1084 (E.D.N.Y.
1985), aff'd, 813 F.2d 570 (2d Cir. 1987), and Prosoect v.
Cohalan, 65 N.Y.
2d 867, 493 N.Y.S.2d 293 (1985), did not consti-tute a good faith effort to secure and retain the participation of Suffolk County in emergency planning for Shoreham.
20.
LILCO's efforts to involve other federal agencies in Shoreham-related matters were efforts to circumvent the lawful authority of Suffolk County and New York State and were indica-tive of the fact that LILCO did not make a sustained, good faith effort to secure and retain the participation of the Suffolk J
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( County and/or New York State governments in emergency planning for Shoreham.
21.
The attempted attendance by one LILCO employee at a New York Power Pool meeting in May 1987 did not constitute a good faith effort by LILCO to secure and retain the participation of the New York State government in emergency planning for Shoreham.
22.
LILCO's conduct since February 1982, particularly LILCO's hostility, belligerency, misrepresentations, falsifica-4 tion of documents, refusal to pay property taxes, and other related actions, demonstrates a sustained lack of good faith by LILCO toward Suffolk County and New York State and at times manifests actual bad faith.
1 23.
LILCO's Motion does not demonstrate any steps toward New York State that constitute a sustained, good faith effort to secure and retain the participation of the State in emergency planning for Shoreham.
24.
LILCO alleges no acts by LILCO subsequent to 1983 which could be reasonably construed to be part of a good faith effort to secure the participation of Suffolk County and/or New York State in emergency planning for Shoreham.
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Even assuming arouendo, the existence of isolated LILCO acts not lacking good faith, any such acts were not part of a sustained, good faith effort of LILCO to secure and retain the participation of Suffolk County and/or New York State; and any such acts were greatly outweighed by LILCO's sustained conduct that lacked good faith and repeatedly manifested elements of actual bad faith, including LILCO's 1982 misrepresentatinr.s of the County, its secret recruitment of witnesses at the County Legislature's 1983 hearing in Pennsylvania, and its 1984-85 refusal to pay property taxes and efforts to pressure the County into surrendering its lawful position and convictions on emer-gency planning, despite the harmful consequences to the 1.3 million citizens of Suffolk County.
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