ML20149M780

Government Views on Whether Licensing Board Should Retain Jurisdiction of Exercise Litigation.* Suffolk County,State of Ny & Town of Southampton Request That Board Retain Jurisdiction of Exercise Litigation.W/Certificate of Svc

ML20149M780
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/23/1988
From:	Casey S, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SOUTHOLD, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5683 CLI-86-11, OL-5, SBP-88-2, NUDOCS 8802290073
Download: ML20149M780 (8)

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dd DOCKETED USNRC February 23, 1988 UNITED STATES OF. AMERICA '88 FEB 25 Pl2 05 NUCLEAR REGULATORY COMMISSION OFFJCi Of Eiv C-. '

Before the Atomic Safety and Licensina Board DON gj f M

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY, ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham . Nuclear Power Station, )

Unit 1) )

GOVERNMENTS' VIEWS ON WBETHER TBE LICENSING BOARD SHOULD RETAIN JURISDICTION OF THE EXERCISE LITIGATION In its recent decision ruling on the performance issues aris-ing out of the February 13, 1986 Exercise'of the LILCO Emergency Plan, the Licensing Board directed the parties to submit their views on "whether the Commission's mandate (in CLI-86-ll] requires that we pass on LILCO's efforts to correct the flaws we have found . . .

." Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-2, NRC , (Feb. 1, 1988) (slip op. at 252) (hereafter, "Initial Decision"). Suffolk County, the State 1

1 of New York, and the Town of Southampton (hereafter, the "Govern- l ments") hereby respond to that directive.

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Since the Staff first suggested that the Board should retain (

jurisdiction until "corrective measures are completed," the pos-ture of this case has changed significantly. The Board in its 8802290073 000223 2 ,

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Initial Decision held that the LILCO Plan is fundamentally flawed in a number of areas. The Initial Decision also indicates that these flaws -- at least in the area of communications -- may re-quire structural changes in the LILCO Plan as written before there even can be an attempt to remedy the fundamental flaws revealed by the Exercise. Moreover, the Licensing Board's earlier December 7, 1987 Partial Initial Decision ruled that LILCO has not as yet held a full participation exercise as that term is defined in the NRC's regulations.1/ Finally, the two-year period prior to licensing during which a full participation exercise must be held has expired, so that the February 13, 1986 Exercise cannot be con-sidered as a basis for licensing in any event.

Based on the foregoing, it does not appear that there are any "corrective measures" concerning the 1986 Exercise over which the Board would or could preside. Rather, the Governments view the question posed to be whether this Board, which conducted the liti-gation over the February 13, 1986 Exercise, should also preside over proceedings to assess the results of some future exercise of some revised version of the LILCO Plan, assuming arouendo that such an exercise can be and is held.1/

1/ Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-32, NRC (Dec. 7, 1987).

1/ LILCO has requested FEMA to schedule another exercise of the LILCO Plan. For a number of reasons, including LILCO's failure  !

even to attempt to correct the flaws identified in the Initial Decision, the Governments believe that such an exercise cannot be held. The Governments similacly believe that there are no adequate means to correct the fundamental flaws in LILCO's Plan.

For the purpose of responding to the Board's directive, however, the iovernments assume that there will be another attempted exercise of some LILCO Plan at some future date.

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l I. CLI-86-11 Does Not Require that the Licensino Board Retain Jurisdiction In CLI-86-ll, the Commission responded _to - motions. by LCLCO and the Governments seeking guidance about the litigation of the February 13 Exercise. The Commission responded by directing "immediate initiation of the exercise . hearing to consider the evidence which Intervenors might wish to offer to show that there is a fundamental flaw in the LILCO emergency plan." CLI-86-ll, 23 NRC at 579. Later in the opinion, in denying as moot the Govern-ments' request to find that FEMA had violated its own regulations by f ailing to hold a public hearing af ter the Exercise, the Com-  ;

missior. expressed its view that "the issues raised by the exercise will be aired in the adjudication we initiate today." Id. at 583.

Arguably, the Licensing Board's finding that LILCO has not held a full participation exercise of its Plan as yet, and that the LILCO Plan is fundamentally flawed, thus requiring a totally new exercise of a revised Plan, can be characterized as "issues raised by" the February 13 Exercise. The Governments believe, however, that only a strained reading of CLI-86-ll could loca'e c a "randate" in the opinion that the present Licensing Board is re-quired to retain jurisdiction over the next exercise, if and when i- occurs. ,

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II. For reasons of judicial economy, the present Licensing Board should retain jurisdiction over any litigation arisino from a future exercise of the LILCO Plan The stronger argument for retention of jurisdiction by the present Licensing Board is judicial economy. As a result of the litigation over the February 13 Exercise, this Licensing Board has become familiar with the LILCO Plan and the structure of the LILCO emergency response organization; it has pinpointed where it be-lieves the weaknesses in both lie. If another exercise is held, it is logical that this Licensing Board, with the extensive back-ground it has already acquired, be directed to preside over any litigation concerning the results of the future exercise.

CLI-86-ll does provide some limited precedent for such a course. In CLI-86-ll, the Commission attempted to re-appoint the Licensing Board which had heard the earlier Emergency Plan litiga-tion, presumably for reasons of judicial economy. Such reasons would similarly dictate that the Licensing Board which heard the February 13 Exercise litigation hear litigation arising out of any future exercise of the LILCO Plan.1/

2/ The Governments note, of course, that if past is prologue, there is no guarantee that the present Licensing Board will be available if and when another stage of exercise litigation is ready to commence.

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In short, while CLI-86-11 does not require this Licensing Board to retain jurisdiction, comnon sense says it should.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Sw + CW Lawrence Coe Lanpter Karla J. Letsche Susan M. Casey KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County M b. 418 Fabian G. Palomino

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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 Se e 3.k h />c Steph&n B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

00(,KE T ED V5NFC February 23, 1988 18 RB 25 M2 05 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE M ;-ti i r.: ri <

00CFEithG A SEitVICf.

Before the Atomic Safety and Licensina Board BRANCH i

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In the Matter of ) 1

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

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CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' VIEWS ON WHETHER THE LICENSING BOARD SHOULD RETAIN JURISDICTION OF THE EXERCISE LITIGA-TION have been served on the following this 23rd day of February, l 1988 by U.S. mail, first class.

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 Commissiol.'

Washington, D.C. 20555 Washington, D.C. 20555 i Mr. Frederick J. Shon William R. Cumming, Esq.

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agent ,

500 C Street, S.W., Room 840 Washington, D.C. 20472 i Anthony F. Earley, Jr., Esq. l General Counsel Joel Blau, Esq. l Long Island Lighting Company Director, Utility Intervention i 175 East Old Country Road N.Y. Consumer Protection Board l Eicksville, New York 11801 Suite 1020 Albany, New York 12210 l

Ms. 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 Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin Assistant Attorney General Suffolk County Executive for the State of New York H. Lee Dennison Building 120 Broadway Veterans Memorial Highway Room 3-118 Hauppauge, New York 11788 hew York, New York 10271 MHB Technical Associrtes Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K  ?.O. Box 231 San Jose, California 95125 Wading River, New York 11792 E. Thomas Boyle, Esq. Fabian G. Palomino, Esq.

Suffolk County Attorney Richard J. Zahnleuter, Esq.

Bldg. 158 North County Complex Special' Counsel to the Governor Veterans Memorial Highway Executive Chamber, Room 229 i Hauppauge, New York 11788 State Capitol Albany, New York 12224 Mr. Jay Dunkleburger Edwin J. Reis, Esq.

New York State Energy Office U.S. Nuclear Regulatory Comm.

Agency Building 2 Office of General Counsel E.mpire State Plaza Washington, D.C. 20555 Albany, New York 12223 h

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David A. Brownlee, Esq. Mr. Stuart Diamond ,

Kirkpatrick & Lockhart Business / Financial ,

1500 Oliver Building. NEW YORK TIMES Pittsburgh, Pennsylvania 15222- 229 W. 43rd Street New York, New York 10036 EW 5 f Susan M. Casey6 KIRKPATRICK & LOCKHART 1800 M Street, N.W. .

South Lobby - 9th Floor Washington, D.C. 20036-5891  ;

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