ML20151N608
| ML20151N608 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/27/1988 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6832 OL-3, NUDOCS 8808090047 | |
| Download: ML20151N608 (10) | |
Text
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} 9' 00LKETED JulvV p;C 1988 2
UNITED STATES OF AMERICA NN NUCLEAR REGULATORY COMMISSION
. rs m. i : -
Before the Atomic Safety and LicensinbH20&rd' a.! ?
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Plannir.g)
(shoreham Nuclear Power Station,
)
Unit 1)
)
)
RESPONSE OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON TO NRC STAFF RESPONSE IN SUPPORT OF LILCO'S SECOND MOTION FOR SU3 MARY DISPOSITION OF THE_XI!S.ISSQE Suffolk County, the State of New York, and the Town of Southampton (hereafter, the "Governments") hereby respond, pur-suant to 10 CFR S 2.749(a),
to the NRC Staff's Response to LILCO's Second Motion for Summary Disposition on EBS Issues, dated July 12, 1988 (hereafter, "Staff's Response").
The Governments believe, for the reasons set forth in their July 12 Response to LILCO's summary disposition motion,1/ that LILCO's motion for summary disposition of the EBS issues present-Board.,/ is wholly without merit and must be sum-2 ly before tne 1/
Response of Suffolk County, State of New York, and Town of Southampton in Opposition to LILCO's Second Motion for Summary Disposition of the EBS
- Issue, dated July 12, 1988 (hereafter, "Governments' Response").
2/
LILCO's Second Motion for Summary Disposition of the EBS Issue, dated June 20, 1988 (hereafter, "LILCO's Motion").
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marily denied by the Beard.
The Staff, however, would have this Board reach a dif ferent result.
The Staf f's position is based l
upon a misunderstanding of LILCO's Motion, however.
Further, the Sta'f misconutrues and misstates the issues raised by LILCO's Motion.
Thus. like LILCO's Motion, the Staff's Response deserves I
scant consideration and -should be summarily rejected by the 1
Board.
To the axtent necessary, we explain our reasonin?
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below.2/
l i
i 1.
In
& R'aspcase, the Staf
- takes the Board on a tedious f
i
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ucursion to nowhere.
For the most pa-t, the Staf# is co: cent to alibiv quote or cite regula'.ory standards, FCC regulations, LILCO Plan pec visions, previously-litigated or admitted cuitentions and
[
l Commission guidance and rulingc, without analysis, reasoning or f
i 1/
We will not repeat here arguments already made in response to I
LILCO's Moeion, but rely instead on our July 12 Responso.
It must t
4
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be noted
- however, that, in our
- view, many of the positions l
advecat ed by the Staff are so wholly lacking in merit that little, if anything, need " be said i'n this Response.
For example, to L
1 suggest, as the Staf f does, tha* the filing of any contentions on the EBS proposal put forth by LITCO in Revision 10 to its rian would t
be untimely is absurd.
Egg Staff's Response at 1, n.1, and 10, n.5.
Whlie it is true that Revision 10 was issued on May 24, within two days thereafter the Board ordered the parties to submit briefing
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prpers concerning how best to proceed on the EBS issues.
Tr. 20,429
[
8 Judge Gleamon).
Rather than following the Board's inst'
- ticas, t
i LILCO filed a Motion for Leave to Pile Summary Dispositivn.., lon en the EDS Issue (hereafter, "Motion for Leave"), as well as the Motion I
for Summary tisposition at issue here.
Since then, the parties have focused on prepar ing and filing responses to LILCO's Motion.
Until such time as the 'eard receives and considers these responses and f
issues a ruling 1.r3'a Motion, the filing of contentions on j
LILCO's new EBC
...u nvuld % premature.
Indeed, this was the position previous),
e en b; a
Staff in its June 20 briefing
)
paper.
The
.ctaf.'
v ".
e lacks away from that position, t
without explanati:
other than to say that it has "recedeld)" from
- r 1
on.
Staff's Response at 1, n.l.
in flip-flopping on a
o
'<ost as if on cue from LILCO, the Staff provides no why its viewe should be taken l
seriously, i
i.
i l
,.n-
even explanation.
Such an approach is pointless.
It provides little, if any, assistance to this Board.
Simply put, in most respects the Staff's Response amounts to nothing more than a meaningless hodgepodge of generalized comments and conclusions.
As such, it deserves only brief comment and should be disregarded by this Board.
2.
The Staff's reliance on NUREG-0054/ FEMA-REP-1, Rev.
1, i
Supp. 1 (Staff's Response at 2,
10-11) is misplaced.
This sup-plement to NUREG-0654 has yet to be adopted or finalized by FEMA; moreover, its legality has been contested by the Governments and others.
Un6n these circumstances, no basis exists for con-i cluding, as the Staff does, that LILCO's new EBS scheme meets the guidance for an EBS network provided by NUREG-0654.
3.
The Staff baldly asserts that
"[t]he (clonttations relevant to the EBS are 5,
and 20 and 57."
Sta!f's Response at 5,.
This statement, however, even if true, is wholly irreic-vant to the issues raised by LILCO's Motion.
As this Board noted in rejecting L.LCC's previous attempt to dispose summarily of the EBS issues,i/ "summary disposition motions assume other parties in a proceeding have had an opportunity to determine and respond to mat ters potent ially in cortraversy."
December 21 Order at 4.
While LILCO ha,.. low introduced a completely new and different EBS proposal, the Governments nave had nc opportunity to "determine 4/
Memorandum and Order (Ruling on Applicant's Motion of "ovember 6, 1987 for Summary Disposition of the WALK Radio Is.Je)
(Dec. 21, 1987) (hereafter, "December 21 3rder"). s
I and respond to matters potentially in controversy."
- Thus, LILCO's Motion must be denied.
Mostover, the contentions cited by the Staff have no bearing on LILCO's current EBS proposal.
Those contentions Conten-tions 5, 20 and 57 -- were proffered and admitted for litigation at a time when LILCO's EBS scheme was entirely different from the scheme now set forth by LILCO.
Clearly, there is no admitted contention challenging the adequacy of LILCO's new scheme, but that is LILCO's fault, not the fault of the Governments.
Until the Governments have had an opportunity to review and analyze LILCO's new EBS proposal, contentions challenging its adequacy i
cannot be submitted.
Even before then, however, LILCO must define more precinely its new proposal which, at this time is so r
ambiguous and unclear as to compel summary rejection of LILCO's Motion.
- Sig, e.g.,
Governments' Response at 5, 16-19.
4.
The Staff glibly asserts that under a "best efforts" response, the Governments would grant LILCO permission to use the State EBS in the event of a radiological emergency at Shoreham, f
Staff a Response at 6,
7-8.
The Staff is wrong.
The recent i
a:tendment to 10 CFR S 50.47(c)(1) can arguably be read to establish a presumption that the Governments would participate in planning for and responding
'o a Shoreham energency.
- However, contrary to the Staff's assertion, it does not establish that WCBS and all the other radio stations that LILCO unilaterally claims will participate in its EBS proposal will do so.
These f
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stations are private entities;
- thus, even if the Governments requcated them to broadcast emergency information in accordance with LILCO's latest EBS scheme, they are under no obligation to l
do so.
Not even the Commission's new rule can compel a different conclusion.
Sig Governments' Response at 7-8, 41-42.5/
5.
The Staff errs in asserting that the Governments do not t
contest the adequacy of WCBS' coverage of the Shoreham 10-mile EPZ.
Staff's Response at 10.
Indeed, questions concerning the adequacy of WCBS' coverage, as well as whuther WCBS will even i
participate in the implementation of LILCO's Plan, are an in-i tegral part of the Governments' opposition to LILCO's Motion, and are. based partly on the findings of LILCO's own engineers.
Sig Governments' Response at 3,
22-30; Engineering Report Re Field Strength Measurement Survey of Radic Station WCBS, New York, New
'.* o r k,
for Long Island Lighting Company, dated Jur.e 1987 (31g 5_/
Perhaps because it recognizes the weakness of its arguments, the Staff also asserts that even if the Governments refuse to grant permission for the use of the State EBS, LILCO's Plan provides that LERO can directly contact WCBS to broadcast the public notification i
required.
Staff's Response at 8.
In the Staff's view, this Plan provision is supported by PCC regulations authorizing stations to j
broadcast emergency messages, and eliminates any "legal authority" or "best efforts" issue raised with respect to EBS issues (in t
particular, Contention 5).
Thus, the Staff concludes that LILCO should be granted surmaty disposition.
Id.
l The Staff's reasoning is illogical and provides no basis for 7
granting summary disposition in LILCO's favor.
First, the Staff j
ignores interface issues raised by LILCO's la'est EBS scheme -- for example, issues involving how LILCO would cceact NCBS, how WCDS would be cctivated, etc.
Second, simply becuase FCC regulations authorize a station to broadcast er.iergency messages, that does not l
mean that the station (s) in question will do so.
Particularly under the circumstances of this case, where LILCO has failed to obtain a
1 WCBS' agreement to participate in the EBS scheme revealed by i
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Revision 10 of the LILCO Plan, r. ore is required than is offered by
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the Staff and LILCO.
t I
, to LILCO's Motion); and the Statement of Material Facts as to Which There Exists a Genuine Issue to Be Heard on Matters Raised by LILCO's Second Motion for Summary Disposition of the EBS Issue, attached to the Governments' Response.
[
L For all the foregoing reasons, the Staff's Response, sup-l pvrting LILCO's Second Motion for Summary Disposition of the EBS Issue, should be disregarded by the Board.
Respectfully submitted, l
4 E. Thoman Boyle Suffolk County Attorney i
Building 158 North County Complex Veterans Memorial Highway j
Hauppauge, New York 11788 b*
h$$d j
Michael S. Miller M!chael J. Missal KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor i
Washington, D.C.
20036-5891 Attorneys for Suffolk County R
./A h 6 f G //E }
Pabian G.
Palomino i
Richard J. Zahnleuter l
Special Counsel to the Governor of the State of New York l
Executive Chamber, Room 229 Capitol Building Alb&ny, New York 12224 Attorneys for Mario M. Cuomo, Governor of ;he State of New York t
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Of (Of
_f teph6n B.
Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton L OC Klill-Julv_27, 1988%NM UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 18 J129 N0:22 Before the Atomic Safety and Licensino BoAgdinaa. H..t w -
00Chlb'G & 9 MI BF ant 4
)
In the Matter of
)
)
LONJ ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
C&RTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF SUPPOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON TO NRC STAPP RESPONSE IN SUPPORT OF LILCO'S SECOND MOTION FOR
SUMMARY
DISPOSITION OF THE EBS ISSUE have been served on the following this 27th day of July, 1988 by U.S. mail, first class, except as otherwise noted.
James P. Gleason, Chairman
- Mr. Frederick J. Shon
- 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 James P. Gleason, Chairman William R. Cumming, Esq.
513 Gilmoure Drive George W. Watson,~Esq.
Silver Spring, Maryland 20301 Office of General Counsel Federal Emergency Management Agenc Dr. Jerry R. Kline
- 500 C Street, S.W.,
Room 840 Atomic Safety and Licensing Board Washington, D.C.
20472 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 W, Taylor Reveley, III, Esq.
Hunton & Williams j
Pabian G. Palorino, Esq.
P.O.
Box 1535 Richard J. Zahnleuter, Esq.
707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212
[
Executive Chamber, Rm. 229 L
State Capitol A~4bany, New York 12224 i
- - - ~ ~ - -
O I
Joel Blau, Esq.
Anthony F.
Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 i,
t E. Thomas Boyle, Esq.
Ms. Elisabeth Talbbi, Clerk i
Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F.
Britt Stephen B. Latham, Esq.
[
Long Island Lighting Companv Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street
[
North Country Road Riverhead, New York 11901 i
Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary I
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 I
New York State Department of Law Suffolk County Executive i
120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway
{
l New York, New York 10271 Hauppauge, New York 11788 i
t KH3 Technical Associates Dr. Mont'oe Schneider I
1723 Hamilton Avenue North Shore Committee t
Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J.
Reis, Esq.
New York State Energy Offiaa Richard G. Bachmann, Esq.
[
Agency Building 2 office of the General Counsel Empire State Plaza U.S. Nuclear Regulatory Comm.
i Albany, New York 12223 Waahington, D.C.
20555
)
David A. Brownlee, Esq.
Mr. Stuart Diamond f
1 Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street i
i i
I i
t i l l
Douglas J. Hynes, Councilman Adjudicatory File Tcwn Board of Oyster Bay Atomic Safety and Licensing Tcwn Hall Board Panel Docket Oyster Bay, New York 11771 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Michael S. Miller Kirkpatrick & Lockhart 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 By Hand 1._
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