ML20149K956
| ML20149K956 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/18/1988 |
| From: | Brown H, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20149K959 | List: |
| References | |
| CON-#188-5642 OL-3, NUDOCS 8802240053 | |
| Download: ML20149K956 (7) | |
Text
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e DOCKETED USNP.C February 18, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.pg g Before the Atomic Safety and Licensino Board
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In the Matter ot
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3 (Emergency Planning)
(Shoreham Nuclear Power Station, J
Unit 1)
)
I GOVERNMENTS' RESPONSE TO "LILCO'S MOTION TO STRIKE INTERVENORS' UNAUTHORIZED REPLY TO NRC STAFF'S RESPONSE TO LILCO'S HOSPITAL
SUMMARY
DISPOSITION MOTION" On December 18, 1987, LILCO moved for summary disposition on tne remanded hospital evacuation issue.1/
On January 15, 1988, the NRC Staffl/ and the Governments (Suffolk County, the State of New York, and the Town of Southampton)l/ filed responses to LILCO's December 18 Motion.
The Staff supported LILCO's summary disposition Motion; its pleading was 17 pages, including an affidavit from the Staff's traffic consultant, Thomas Urbanik.
1/
LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue, Dec. 18, 1987.
1/
NRC Staff Response to LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue, Jan. 15, 1988.
l/
Suffolk County, State of New York, and Town of Southampton Response to LILCO's Motion for Summary Disposition of the 1
Hospital Evacuation Issue, Jan. 15, 1988.
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l In view of the Staff's support for LILCO and the facts and argu-ments contained in the Staff's pleading, the Governments on February 1 filed a Reply to the Staff, as permitted under 10 CFR
'S 2.749(a).1/
On February 8, 1988, LILCO filed a "Motion to Strike Inter-venors' Unauthorized Reply to NRC Staff's Response to LILCO's Hospital Summary Disposition Motion" (hereafter the "Strike Motion").
LILCO's Strike Motion is entirely without merit.
For reasons discussed below, the Board must reject the Strike Motion.
First, LILCO alleges that the Governments' Reply does not respond to new facts or arguments in the Staff's January 15 filing and thus is not an authorized Section 2.749(a) filing.
That is untrue.
The NRC Staff profrered new facts (for instance, the Staff submitted the new Urbanick affidavit which purported to constitute a review of LILCO's evacuation time estimates) as well as many new arguments (such as the Staff's interpretation of how a Section 50.47(c)(1) finding is made).
The Staff also provided new arguments regarding its view of the scope of the remand (sgg discussion by Staff on the issues of letters of agreement, trans-portation requirements, and time estimates) and the Staff's view A/
Reply of Suffolk County, the State of New York, and the Town of Southampton to the NRC Staff Response in Support of LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue, Feb.
1, 1988 ("Governments' Reply").
2
i e
regarding whether particular items are amenable to Staff dele-gation.
The fact that the Staff's new arguments and alleged facts pertain to watters asserted by LILCO in its December 18 Motion is irrelevant.
Indeed, the Staff's filing responded to LILCO's; therefore, they necessarily are related.
And, since the Govern-ments' response addressed the Staff's filing, elementary logic dictates that the Governments' response related to LILCO's Motion.
If the Governments' response had not, it would have been irrelevant to the issues at hand.
The point is not whether the Staff's or Governments' response relates to the issues addressed by LILCO, but whether it relates to the new arguments and alleged facts put forth by the Staff.
On this count, the Governments' response does so, and it is clearly what is contemplated by Section 2.749(a).
Unless given an opportunity now to respond to the Staff's new arguments, the Governments would be left with a LILCO ally -- the NRC Staff -- making wholly unrebutted arguments in support of LILCO's December 18 Motion.
Due process and Section 2.749(a) do not permit the proponents or supporters of a motion to make such factual and legal argume.ts without the s
opponents having an opportunity for rebuttal.
The Governments' Reply is not "a reclamoring of arguments previously made" (LILCO Motion at 1), but, instead, is focused on specific issues.
For example, the Governments submitted 3-
.~ -
ls Mr. Hartgen's affidavit, which responded to the new facts i
l contained in Mr. Urbanik's affidavit.
LILCO's Strike Motion does l
1 not even mention the Urbanik and Hartgen affidavits.
This is a deliberate and misleading exclusion.1/
Second, LILCO urges that the Governmsnts' Reply be disre-garded because it is an "attack" on the Staff.
LILCO's charac-terization is false.
The Governments' Reply contains no "attack"; it contains facts and fair argument based on those facts.
The facts, as documented in the Lanpher Affidavit, demon-strate that the NRC Staff has shed objectivity in this proceeding and has allied itself with LILCO as a matter of Staff policy and commitment.
Thus, even if there were confirmatory items related l
l to hospital evacuation which might normally be left to the Staff
-- and there are none here -- in the circumstances of this case, j
1/
LILCO's Strike Motion is premised primarily on the Governments' statement (Reply at 2) that the Staff's Jar.uary 15 filing did not offer much new in the way of facts or argument.
LILCO Strike Motion at 1, 3.
Two comments are in order.
- First, the Governments' statement does not mean that under Section 2.749(a), the Governments have no right to reply to that which is new.
To the contrary, the Governments clearly have a right to make such a reply to the new material proffered by the Staff, which is what the Governments did on February 1.
Second, the Board should not be misled by LILCO.
The Governments stated that
"[t]he Staff's Response offers little in the way of new fatta or argument."
Governments' Reply at 2 (emphasis added).
LILCO takes this statement and asserts "Intervenors admit that the Staff's Response.
. contains no new facts or arauments."
LILCO Strike Motion at 3 (emphasis added).
LILCO has simply twisted and misstated the Governments' words.
The Governments did not say that the Staff had made "n2" new arguments or factual assertions, but rather that there was little that was new.
It was for that reason that the Governments' February 1 Reply was only about one-half the length of the Governments' January 15 filing.
O no such delegation would be appropriate.
This does not consti-tute an "attack" on the Staff.
It constitutes the harsh reality of what has happened in the proceeding, and asks the Board to recognize the inevitable impact of this on the issues in contro-versy.
LILCO's self-serving letter to Mr. Lanpher that is attached to LILCO's Strike Motion does not alter the facts:
the Staff openly is committed to the success of LILCO's application for an operating license; it held a secret meeting with LILCO at which it confirmed its alleg'iance to LILCO; it allowed LILCO to lobby the Staff for that allegiance; and it consciously excluded the Governments from the meeting.
The Staff's relationship to LILCO, therefore, precludes the Staff from boing able to exercise objectively any decisionmaking function concerning LILCO or Shoreham.
The alliance of LILCO and the Staff is highlighted by LILCO's Strike Motion.
If the Governments' February 1 Reply had constituted an "attack" on the Staff, it would presumably have been the Staff, not LILCO, that would have objected.
But here, LILCO -- acting in loco carentis to the Staff -- makes the protest.
The collegiality between the Staff and LILCO is not that of the commonplace relationship among litigants who share the same side of an issue.
It is a unity of pledge and purpose that negates even the semblance of Staff objectivity in this Case.
s Third, LILCO gratuitously chooses to discuss the Govern-mento' letter of February 5 to the Board and to mischaracterize the letter.
This letter is irrelevant to whether the Govern-ments' February 1 Reply was authorized under 10 CFR S 2.749(a).
The letter pointed out that it is important, in view of the many filinge heing made by the parties, that the Board not overlook the parties' rights to file responsive pleadings under the schedules set forth in the NRC's rules.
The Board's February 1 Orderi/ appeared to the Governments to have been issued without consideration of that fact.
Surely, it is not inappropriate for a party to apprise the Board of concerns the party has for its rights under law.
It is of particular importance to the Govern-ments that the Board refrain from ruling on any matter prior to receiving from the Governments any pleadings which the Govern-ments have a right to submit and to be considered by the Board, Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 1/
Memorandum and Order (Ruling on Applicant's Motion of December 8 [ sic), 1987 for Summary Disposition of the Hospital Evacuation Issue), Feb.
1, 1988.
s e
Herbert H.
Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County Fabian G. Palomino r ~
f Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York
'l
/
' Stephen B.
Latham
[
Twomey, Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 1
l !
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