ML20148K238

Lilco Answer to Intervenor Motion for Reconsideration of Good Faith Issue.* Intervenor Arguments Go to Facts Having Nothing to Do W/Meeting three-part Test or Commission Rule & Should Be Denied.Certificate of Svc Encl

ML20148K238
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/23/1988
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5958 OL-3, NUDOCS 8803310052
Download: ML20148K238 (7)

Text

. . . . . . . . . . . . - _ _ _ _ _ _ _ _ _ _ _ _

LILCO, March 23,1988 M5 f 00tKETED USPIRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

.gg ggg 79 g));$3 0FFICE OF HU,r iAE <

Before the Atomic Safety and Licensing Board DOCKEimr, A SEnvlCf.

BRANCH In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

) (Legal Authority)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S ANSWER TO INTERVENORS' MOTION FOR RECONSIDERATION OF THE "GOOD FAITH"ISSUE The Intervenors have asked the Board to reconsidor its ruling that LILCO has complied with 10 C.F.R. S 50.47(c)(1)(ii). Governments' Motion for Reconsideration of Board Ruling on S 50.47(c)(1)(1)-(li) Compliance (Mar. 15,1988) (hereinaf ter "Motion").

This is the provision that requires the applicant to demonstrate that it has made a "sus-tained, good-faith effort to secure and retain the participation of the pertinent State and/or local governmental authorities, including the furnishing of copies of its emer-gency plan." 52 Fed. Reg. 42,086 col.1 (Nov. 3,1987).

LILCO opposes the Intervenors' motion for two reasons. First, there is no reason to reconsider the Board's ruling at all. Second, the Board's ruling was correct.

I. The Intervenors Offer Nothinst New The Board should not reconsider its ruling at all, because the Intervenors have offered no arguments that the Board has not already considered. The only thing r.ew in the Motion is that the Intervenors have the text of the Board's ruling to pick apart. i They have raised no issues beyond those asserted in their initial pleading, nor have they l

l SnA88sBl8?gp G r

_ /[O

cited new information. See, el, Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23,19 NRC 1412,1414 (1984). Accordingly, there is no basis for reconsideration. Ld.

If the Intervenors feel that the Board has erred, they will have a remedy on ap-peal. Neither the Commission's regulations nor due process requires the Board to con-sider the same arguments, and decide the same issues, twice.

II. The Board's Ruling Is Correct Even if the Board were to reconsider its ruling, it should decide the issue the same way as before.

The issue is whether LILCO made a "sustained, good-faith effort" within the meaning of the regulation. In deciding the issue, the Board stated clearly the test it was applying:

Applying these principles to the motion before us we conclude that the good faith test specified in section (c)(1)(ii) can be met with a showing that the need of the utility to in-voke the alternate procedures provided by regulation is genu-ine and that in the case before us there is no realistic oppor-

, tunity remaining to pursue a cooperative planning effort between the utility and the government. The factual bases required for such a finding are that the governments know and understand the provisions of section (b); that there has l been a reasonable opportunity for the governments to pursue l that course; that the utility remains open to the possiblity of government cooperation and would accept and participate in a joint emergency planning effort if the governments agreed to do so.

Memorandum and Order (Granting LILCO's Motion for Summary Disposition with Re-spect to Compliance with Section 50.47(c)(1)(1) and (11)), ASLBP No. 86-535-04-OLR, slip l op at 15 (Mar. 3,1988). Thus the Board used a three part test:

1 1

1. The governments understand 550.47(b),

2. There has been a reasonable opportunity for them to pursue planning in accordance with S 50.47(b), and

3. The utility would participate in joint planning with the governments if they agreed to do so.

This test is fully consistent with the purpose of the new rule. The "principles" referred to in the passage above are simply the Board's correct understanding of that purpose:

The revised regulation in part (c) is therefore constructed so as not to create an incentive or an unwarranted opportunity for a utility to invoke section (c) before all reasonable efforts to pursue plan development under section (b) have been ex-hausted. When an applicant invokes Section (c)(1) to attempt to gain approval of its plan the provisions of section (cX1)(1) and (11) operate as threshold test which, if met, assure that there has been no unwarranteed or premature abandonment of the preferred procedures for planning specified in section (b).

Id. at 14-15. The importance of this understanding of the rule's purpose cannot be overeciphasized. The purpose of the "good f aith" test is to prevent a utility from easily "preempting" state and local planning; it has little or nothing to do with the tort law type of "good f aith" that the Intervenors wish to litigate, apparently at great length.

l Given the Board's (correct) test for meeting the regulation, it is clear that there l are no litigable f acts. The Intervenors have failed to assert any dispute at all as wheth-er LILCO has met the elements of the test, an issue resolved by the Board as follows:

l According to the principles discussed earlier we find i that the governments fully understand the provisions of part (b) of 50.47; know of their opportunity to participate in plan-ning if they wish and are aware that LILCO would accept i government participation in planning if it were offered. The l resolution of the County Legislature stands as the formal bar-rier to joint planning and all that is required for joint plan-i ning to resume is for the governments to consent to it. Thus the intent of the threshold test in section (11) has been met.

The opportunity for LILCO to gain approval of its emergency plan under the preferred method specified in part (b) has been exhausted and LILCO has met the test for invoking the

s provisions of S 50.47(c)(1). The Board concludes that there is no material fact in dispute . . . .

Id. at 19.

Thus, the Intervenors' desire to litigate their commonlaw conception of good faith misses the point, because it lacks any consideration of the Board's rationale or of the purpose of the rule (which are essentially the same). The Intervenors do not, for example, assert that more "good faith" on LILCO's part would have changed the fact of their noncooperation; indeed, they support the contrary conclusion. See id. at 18 (Suffolk County asserts that the action of its legislature was taken for substantive rea-sons and not specifically because of anything LILCO did).

In light of this unconcern for the meaning of the new rule, none of the Interve-nors' three arguments has any merit. First, the Intervenors argue (Motion at 1-2) that the Board's finding that LILCO has made a "sustained, good faith" effort is inconsistent with its observation that af ter the County Legislature came out against emergency planning "both parties attempted coercive acts on one another which could hardly meet a test of good-faith by any definition." Id. Given the Board's three part test, which is founded squarely on the purpose of the regulation, the various actions taken af ter the County became opposed to the Shoreham Emergency Plan are, as the Board said, "not l material." Id. They do not, for example, have anything to do with the Intervenors' op-portunity to pursue planning in accordance with S 50.47(b).

The Intervenors'second argument (Motion at 3) is that they are not required to l

l show LILCO's "bad faith." Again, it does not matter whether they are or are not; they have utterly failed to dispute any of the elements of the Board's three-part test.

l l

l l

l

Finally, the Intervenors claim (Motion at 3-5) that the Board has not given them the benefit of the doubt by interpreting the record in the light most favorable to them.

They are incorrect. Their problem is rather that they have failed to assert any facts that, viewed most favorably to them, would put any element of the three part test in issue.

The short of the matter is that the Intervenors are really quarreling with the Board's three part test, but they offer no new arguments why they think it is wrong, and they do not counter the reason why it is right - that it is consistent with the pur-pose of the new regulation. The Intervenors' arguments go to facts that have nothing to do with meeting the three-part test, and nothing to do with the Commission's new rule.

For these reasons, the Board should deny the Intervenors' motion for reconsid-eration of the "good-f aith" issue.

Respectfully submitted,

[/ames CounselN.forChristalan Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 23,1988 l

v .

fe LILCO, March 23,1988 ccutico UWC

'88 MAR 29 All:53 CERTIFICATE OF SERVICE O Ei rNkYEl BRANCH 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 LILCO'S ANSWER TO INTERVENORS' MOTION FOR RECONSIDERATION OF THE "GOOD FAITH"ISSUE were served this date upon the following by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.

James P. Gleason, Chairman ** Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel 515 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline ** Richard G. Bachmann, Esq. **

Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board One White Flint North U.S. Nuclear Regulatory Commission 11555 Rockville Pike East-West Towers, Rm. 427 Rockville, MD 20852 4350 East-West Hwy.

Bethesda, MD 20814 Herbert H. Brown, Esq. **

Lawrence Coe Lanpher, Esq.

Mr. Frederick J. Shon ** Karla J. Letsche, Esq.

Atomic Safety and Licensing Kirkpatrick & Lockhart Board South Lobby - 9th Floor U.S. Nuclear Regulatory Commission 1800 M Street, N.W.

East-West Towers, Rm. 430 Washington, D.C. 20036-5891 4350 East-West Hwy.

Bethesda, MD 20814 Fabian G. Palomino, Esq. **

Richard J. Zahnleuter, Esq.

Secretary of the Commission Special Counsel to the Governor Attention Docketing and Service Executive Chamber Section Room 229 U.S. Nuclear Regulatory Commission State Capitol 1717 H Street, N.W. Albany, New York 12224 Washington, D.C. 20555 Alfred L. Nardelli, Esq.

Atomic Safety and Licersing Assistant Attorney General Appeal Board Panel 120 Broadway U.S. Nuclear Regulatory Commission Room 3-118 Washington, D.C. 20555 New York, New York 10271

1

~

1 1

l Spence W. Perry, Esq. ** Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street l 500 C Street, S.W., Room 840 Smithtown, New York 11787 j Washington, D.C. 20472  :

Evan A. Davis, Esq. I Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber i Agency Building 2 State Capitol l Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.

Stephen B. Latham, Esq. ** Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 Jonathan D. Feinberg, Esq.

New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223

/ James N. Chriftman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 23,1988

.