ML20148K274
| ML20148K274 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/25/1988 |
| From: | Latham S, Letsche K, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5949 LBP-87-3, OL-5, NUDOCS 8803310061 | |
| Download: ML20148K274 (10) | |
Text
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00CKETE0 March 25, 1988 USNRC 18 HER 28 P4 57 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION G m cE ti stcrti; ;v 00Cht !4NG f. Semi, Before the Atomic Safety and Licensina Acceal Board UI D'?i i
)
In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
)
(EP Exercise)
(Sho. ehar. Nuclear Power Station,
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Unit 1)
)
)
GOVERNMENTS' RESPONSE TO LILCO'S MOTION FOR EXPEDITED DECISION AND POSSIBLE ADVANCEMENT OF ARGUMENT ON LILCO'S APPEAL OF LBP-87-3 In response to the Board's telephonic request of March 23, 1988, the Governments (Suffolk County, the State of New York, and the Town of Southampton) hereby respond to LILCO's "Motion for Expedited Decision and Possible Advar. cement of Argument on Appeal Concerning the Scope of Initial Offsite Emergency Preparedness Exercise Issues," dated March 22, 1988 (hereafter, the "Motion").
In its Motion LILCO asks the Board:
(1) to "attempt to render at least a summary decision on the merits of this appeal by about mid-May," and (2)'to advance the presently scheduled argument date of April 28 to the extent necessary to accomplish this goal, suggesting that a date during the week of April 11-15 might be practical.
The Governments oppose the troposed advancement of the scheduled 8803310061 880325 PDR ADOCK 05000322 G
PDR Y
oral argument date.
While it is up to the Board to decide when it will issue a decision and what form the decision will take, the Governments note their disagreement with the premise
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underlying LILCO's request for an expedited decision.
Furthermore, the Governments urge the Board to-issue a complete decision containing a full statement and explanation of the bases and rationale for the Board's eventual ruling on LILCO's appeal, rather than some sort of "summary decision."
- 1. Advancing the April 28 Oral Argument Date Would Severely Prejudice the Governments LILCO's suggestion that the presently scheduled oral argument date of April 28 be advanced, perhaps even to the week of April 11-15, should be rejected.
Any such advance would severely prejudice the Governments for the following reasons.
First, the Governments' brief on LILCO's appeal of LBP-88-2 1
must be filed on Monday, April 18.
Counsel for Suffolk County and for the State of New York who will be participating in the oral argument on LILCO's appeal of LBP-87-32 will be working on that brief until it is filed.
Accordingly, they will be unable to begin preparation for the oral argument on the appeal of LBP-87-32 until after April 18. 1/
1/
Such preparation will take more time than in some instances because the NRC Staff filed a brief in support of LILCO's appeal.
While the Governments anticipated that the Staff would support LILCO, the Staff's brief raised some arguments not I
explicitly addressed in the Governments' brief.
These arguments must be assessed and evaluated against the record on Contentions l
Ex 15/16.
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(
Second, counsel for the County and the State who are involved in both of LILCO's exercise appeals also have major responsibilities in the pending proceedings in the OL-3 and OL-6 dockets.
Filing and related obligations in those proceedings would make it impossible for them to begin preparation for the i
oral argument on the LBP-87-32 appeal until after April 20, at the earliest.
Specifically, testimony is due to be filed on April 13 on three separate remand issdes (LILCO'c new EBS system, its new proposal for evacuation of school children, and the evacuation of I
hospital patients), with motions to strike due April 20, and responses due April 27.
In addition, discovery is scheduled to end on April 15 in the separate remand proceeding on the legal authority contentions, with testimony due in that proceeding on April 29.
In the OL-6 proceeding on LILCO's request for a 25%
power license, a reply brief (responding to briefs due April 1) is due to be filed on April 20.
In light of counsel's obligations in the OL-3 and OL-6 proceedings, which are highly concentrated during the weeks of April 11 and April 18, and the time required to complete the brief due April 18 on the appeal of LBP-88-2, advancing the LBP-87-32 oral argument from the presently scheduled date of April 28 would severely prejudice the Governments. 2/
2/
In addition, on or about April 13, counsel involved in the exercise appeals must also file a reply brief in the U.S.
Court of Appeals for First Circuit, in the case challenging the NRC's new emergency planning rule.
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- 2. Comunents on LILCO's Request for an Expedited Decision It is up to this Board to determine how quickly it can issue a decision on LILCO's appeal. The Governments merely note the following with respect to LILCO's argument about the need for a decision on its appeal of LBP-87-32 by mid-May.
First, after the issua.ce of LBP-87-32 and the filing of its Notice of Appeal, LILCO requested that FEMA schedule an exercise "as soon as possible."
LILCO never suggested that an exercise should await the resolution of LILCO's appeal of the Licensing Board's decision, even after the Appeal Board declined to grant LILCO's initial request for expedition.
Thus, LILCO sought an exercise with full knowledge that it could well take place long before the issuance of a decision on its appeal of LBP-87-32.
Second, to the Governments' knowledge, FEMA has not yet finally determined that it will conduct another exercise of the LILCO Plan, much less actually scheduled an exercise for the week of June 13. 1/
In fact, FEMA has barely begun a plan review of the latest version of the LILCO Plan -- Revision 9.
According to FEMA, the completion of that review, and a conclusion that the review revealed no major impediments to the conduct of an exercise, are both prerequisites to an exercise. See Attachment to LILCO's Motion.
Thus, the promise of LILCO's request for an 3/
Indeed, by letter dated March 15, 1988, the Governments advised FEMA that to conduct an exercise of the LILCO Plan, as LILCO and the NRC have requested, would be unlawful and inappropriate for several reasons.
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expedited decision -- that a decision is necessary by mid-May because an exercise will occur in mid-June -- is speculative.
Third, except for vague generalities, LILCO never explains
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why an Appeal Board dect.sion is necessary before a new exercise is completely planned or even held.
LILCO admits that it is possible to proceed with an exercise "in accordance with the guidelines prescribed by the Licensing Board's decision.
LILCO Motion at 2.
LILCO never explains how it is prejudiced by doing precisely that -- that is, assuming that LBP-87-32 is good law and proceeding accordingly.
3.
The Board Should Not Issue a "Summary
- Decision Again, it is up to this Board to determine the nature and contents of its decision, whenever issued.
In the Governments' view, however, the practice of issuing "summary" decisions is both problematic and potentially prejudicial; it should be avoided.
In recent weeks, the OL-3 Board has on several occasions announced "bottom line" rulings, without providing any discussion, explanation, bases, or rationale for such rulings; instead, the Board has stated its intention to provide in the 1
future opinions presumably containing such bases and explanations. I/
It has proven to be very difficult for the 1/
For example, the parties are still awaiting opinions providing the bases for that 7oard's rulings on five of LILCO's realism summary disposition motions (the "bottom line" denial of the motions was announced on February 25), even though the discovery period in the realism remand proceeding is scheduled to (continued...)
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parties to proceed with litigation, or even to decide how they should proceed, without a full understanding of the rulings which are supposed to guide them in such proceedings.
LILT'O's appeal of LBP-87-32 is not an instance, like that presented by a motion for a stay or other extraordinary relief, in which a quick "summary ruling" is all that would be required to guide the parties in their actions.
The appeal and the parties' briefs present several legal and factual issues which require and deserve in depth analysis and discussion.
Accordingly, the Governments urge that when this Board decides LILCO's appeal of LBP-87-32, it follow its standard practice and issue a complete decision which sets forth a discussion of the parties' arguments, and a basis and rationale for the Board's decision.
Respectfully submitted, o
E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 A----
Lawrpnce Coe Lanpfsf
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Karla J. Letsche Susan M. Casey KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor 1/(.s. continued) end on April 15, 6
Washington, D.C.
20036-5891 Attorneys for Suffolk_ County
,/
Fafilan G. Paloming
/j
{7 //ffg)
Richard J.
Zahniduter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York W
'Ste@fn B. Latham
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TwoMy, Latham & Shea i
P. O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of March 2S, 1988 Southampton 7
00LnETE0 USNRC lN8 8 P4 :37 2
March 2 OckiSc h y ['
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3 RANCH Atomic Safety and Licensino Acceal Board
)
In the Matter of
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l LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
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(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
)
)
t l
CERTIFICATE OF SERVICE i
l l
I hereby certify that copies of GOVERNMENTS' RESPONSE TO LILCO'S l
MOTION FOR EXPEDITED DECISION AND POSSIBLE ADVANCEMENT OF ARGUMENT ON LILCO'S APPEAL OF LBP-87-3 have been served on the following this l
25th day of March, 1988 by U.S. mail, first class, except as otherwise noted.
Christine N. Kohl, Chairman
- Dr.
W. Reed Johnson Atomic Safety and Licensing 115 Falcon Drive, Colthurst Appeal Board Charlottesville, VA 22901 l
U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 l
Alan S. Rosenthal*
Dr.
W.
Reed Johnson
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 John H. Frye, III, Chairman Dr. Oscar H.
Paris Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Frederick J. Shon Lando W.
Zech, Jr., Chairman Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 J
i
)
t Commissioner Kenneth C. Rogers Commissioner Kenneth M. Carr U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
1717 H Street, N.W.
l Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Frederick M.
Bernthal Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 James P. Gleason, Chairman Dr. Jerry Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S.
Nuclear Regulatory Comm..ssion Silver Spring, Maryland 20901 Washington, D.C.
20555 William C. Parler, Esq.
Richard G.
- Bachmann, Esq.**
U.S. Nuclear Regulatory Commission Edwin J.
Reis, Esq.
10th Floor U.S. Nuclear Regulatory Co".tmission 1717 H Street, N.W.
Office of General Counsel Washington, D.C.
20555 Washington, D.C.
20555 William R. Cumming, Esq.**
Anthony F.
Earley, Jr.,
Esq.
Spence W. Perry, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W.,
Room 840 Hicksville, New York 11801 Washington, D.C.
20472 Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O.
Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr.
L.
F. Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S.
Nuclear Regulatory Commission 195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
2(355 Alfred L. Nardelli, Esq.
Hon. Patrick G.
Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H.
Lee Dennison Building Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 l
t.
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 E. Thomas BoyTe, Esq.
Fabian G. Palomino, L'sq.
Suffolk County Attorney Richard J.
Zahnleuter, Esq.
Bldg. 158 North County Complex Special Counsel to the Governor Veterans Memorial Highway Executive Chamber, Rm. 229 Hauppauge, New York 11788 State Capitol Albany, New York 12224 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 10036 Mr. Philip McIntire David A.
Brownlee, Esq.
Federal Emergency Management Agency Kirkpatrick & Lockhart 26 Federal Plaza 1500 Oliver Building New York, New York 10278 Pittsburgh, Pennsylvania 15222 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Y
e D. W By Hand Ka fla /J. Letsche
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By Telecopy KIRKPATRICK & LOC $ ART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
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