ML20151N634

Suffolk County,State of Ny & Town of Southampton Opposition to Lilco Unauthorized & Impermissible Response to Intervenors Response in Opposition to Lilco Second Motion for Summary Disposition Of....* W/Certificate of Svc

ML20151N634
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/02/1988
From:	Latham S, Missal M, 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-#388-6856 OL-3, NUDOCS 8808090054
Download: ML20151N634 (31)

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~88 ale -4 P5 :31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFrmt U . ...t'ir -

00CKE W ir.'.f % if Dia W Before the Atomic Safety and Licensino Board

)

In the Matter of )

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1)

)

)

SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF ,

SOUTHAMPTON OPPOSITION TO !ILCO'S UNAUTHORIZED f AND IMPERMISSIBLE "RESPONSF. TO INTERVENORS' i

' RESPONSE' IN OPPOSITION TO LILCO'S SECOND f MOTION FOR

SUMMARY

DISPOSITION OF TSR, EBS ISSUE" I. Intr _oduction On July 27, 1988, LILCO filed a pleading entitled "Response to Intervenors' ' Response' in Opposition to LILCO's Second Motion l

t for Summary Disposition of the EBS Issue" (hereafter, "LILCO's Response"). LILCO did not seek leave to file its Response.

Rather, it simply alleged in a cover letter addressed to the l Poard that, in LILCO's view, it is entitled to respond to the j Governments' response opposing LILCO's Second Motion for Summary i Disposition of the EBS Issue, dated June 20, 1988 (hereafter, "LILCO's Motion").1/ For the reasons set forth below, the Gove-1/ Sit Suffolk County, State of New York and Town of Southamp-ton Response in Opposition to LILCO's Second Motion for Summary (footnote continued) 6

$ ADO $c DE 30 l

rnments oppose any consideration by this Board of LILCO's Re-sponse, which should be disregarded and rejected n its entirety.

Moreover, even if this Board does consider LILCO's Response, the Governments submit that LILCO's Motion must nonetheless be denied and the Governments given the opportunity to submit contentions and pursue discovery.

II. Under the Circumstances, the Board Lacks Authority to Permit LILCO_to Pile a Responsq On its face, Section 2.749(a) of the Commission's Rules of Practice bars any response by LILCO to the Governments' Response.

It provides:

. Any party to a proceeding may move, with or without supporting affidavits, for a decision by the pre-j siding officer in that party's favor as to all or i any part of the matters involved in the pro-i ceeding . . . . Any other party may se ve an j answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion . . . . The opposing party i may within ten days after service respond in I writing to new facts and arguments presented in any

! statement filed in support of the motion. Eq

Lurther sucoorti1o statements or responses. thereto_

, ahA11 be en t e r ta :.ned.

i I

I (Emphasis added).

The use of the mandatory language "shall" seemingly permits

z. no discretion for this Board even to consider whether to enter-l (footnote continued from previous page) i Disposition of the EBS Issue, dated July 12, 1988 (hereafter,

"Governments' Response").

l r

j .

L tain LILCO's Response. Indeed, under the circumstances of this  ;

i case, no other conclusion is possible. Without citing any authority, or even seeking leave to file its Response, LILCO l

proposes that the Board should ignore Section 2.749(a)'s express f prohibition on the filing of a response or reply by a summary j disposition movant. This Board is not empowered to do so, how- -

ever.

Both the Board's April 22, 1987 Memorandum and Order (Ruling ,

l on Staff's Motion of April 8, 1987 to File Reply) (unpublished)

(hereafter, "April 22 Order"), and its September 17s 1987 Memorandum and Order (Ruling on Applicant's Motions of March 20, I i

1987, for Summary Disposition of the Legal Authority Issues and

] of May 22, 1987, for Leave to File a Reply and Interpreting l Rulings Made by the Commission in CLI-86-13 Involving the Remand  :

i t

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of the Realism Issue and Its Effect on the Legal Au:hority Ques- I I

tion),2/ support the Governments' claim that LILCO is prohibited i

from filing its Response. The April 22 Order dealt only with the f

! Staff's request to file its answer to a LILCO summary disposition  !

1

' i motion out of time. In holding that it could consider such a f request, the Board nonetheless concluded that even such a request (

must be supported by a showing of compelling need to justify a f j departure from the filing procedures expressly set forth in i t

i Section 2.749. In the Board's view, the Staff failed to demon-I l i

strate any compelling need. April 22 Order at 3-4.

2/ LQA9 . I61AnsL_Jdshting _ _ Comps (Shoreham Nuclear Power t

.1 Station, Unit 1), LBP-87-26, 26 NRC 201 (1987) (hereafter,

, "September 17 Order"). i l  ;

i Similarly, in its September 17 Order, the Board denied LILCO's request for leave to file a reply to the Governments' i answer to the same summary disposition motion which the Staff had sought to answer. Although the Board implied that it could i

authorize leave to file such a reply, it found it unnecessary to reach this jurisdictional question. Instead, the Board ruled that as a threshold requirement, before it would even consider ,

whether it could grant leave for filing a reply, the movant for r

summary disposition first has to establish that it has a com- '

pelling reason for lifting the prohibition in Section 2.749(a) '

against the filing of replies. In the Board's view, LILCO had not made the threshold showing; thus, a decision on the Board's l jurisdiction to permit LILCO to file its reply was not neces- ,

sary.2/ I Here, LILCO has not even sought leave to file its July 27 Response. Instead, it has simply filed the additional pleading in support of its June 20 motion for summary disposition, and in opposition to the Governments' Response, with no explanation 1/ The Board explained its reasoning as follows:

The procedure previously employed by this Board, of requiring a movant to establish a compelling reason to lift the prohibition in S 2.749(a) against the filing of replies, before the Board decides whether it has the authority to do so, is a reasonable approach and we will continue to follow it here. The Board does not find, after considering the authorized filings of the parties, that the Applicant has made the threshold showing, so that we need make the decision on our jurisdiction to do so.

26 NRC at 204-05.

other than unilaterally declaring in its July 27 cover letter to the Board that, in LILCO's view, it is entitled to respond.1/

Since LILCO has not provided the Board with a compelling reason for the need to file a reply, or even requested leave to do so by filing a motion with the Board, LILCO's Response must be sum-marily disregarded and rejected in its entirety. Section 2.749, and the prior rulings of this Board, require such a result.1/

A/ In its cover letter and on the first page of its Response, LILCO alleges that since the Governments' Response not only opposes LILCO's Motion, but also asks for affirmative relief --

that the Board grant summary disposition to the Governments or declare the existing WPLR contention moot and rule in the Governments favor as a matter of 1&w --

it is entitled to respond. LILCO's cover letter further attempts to justify LILCO's unauthorized and impermissible Response by alleging that it is impossible to determine which of the arguments in the Governments' Response are intended to support only their opposition to LILCO's Motion; thus, LILCO claims that it must address "the whole of (the Governments') paper."

These LILCO arguments are not only disingenuous in the extreme, but they also seriously mischaracterize the Governments' Response. It is only on a single page of that 42-page Response page 21 -- that the Governments seek affirmative relief, by asserting that they, not LILCO, are entitled to summary disposition or a declaration from this Board that the existing WPLR contention is moot, thereby requiring a ruling for the Governments as a matter of law. Thus, it is absurd for LILCO to assert, as it does on the first page of its Response, that it is only to the extent that the Governments' Response "goes beyond a proper response to LILCO's (M]otion" that LILCO responds. Quite obviously, LILCO's Response is far broader than this.

l/ The Governments are submitting this Response because they believe that LILCO's Response was submitted without appropriate authority. If this Board properly rejects LILCO's Response in its entirety, it is unnecessary for the Board to consider the balance of this Response.

III. Even If the Board Considers LILCO's Responce, LILCO's Motion Must Nonetheless Be Denied and the Governments Given the Opportunity to Submit Contentions and Pursue Discovery Assuming, arauendo, that the Board decides to consider LILCO's Response, it must nonetheless be concluded that LILCO's Motion must be denied, and the Governments given the opportunity to submit contentions and pursue discovery of LILCO's latest EBS scheme. Gimply put, LILCO's Response seriously misconstrues and

=isstates the facts underlying LILCO's Motion, and invites this Board to commit clear error.5/

A. Contrary to LILCG's Claims, the Governments C_an_and Should Be qumted__ Summary Disposition The only portion of LILCO's Response which can even arguably be considered by the Board is the first two pages. There, LILCO argues that the Governments cannot be granted summary disposition I

cn the existing contention, which addresses LILCO's WPLR EBS proposal. LILCO is wrong.

l l

i The Governments have previously argued why summary disposi-tion in their favor would be entirely proper. Egg Governments' l Response at 21. Little else need be said here. Clearly, how-

, ever, LIICO is wrong in asserting that the Governments have not 1/ We will not repeat here arguments already made in response

, to LILCO's Motion, but rely instead on our July 12 Response. It bears repeating, however, that, in the Governments' view, LILCO's Response simply should not be considered by the Board. Rather, the Board should decide LILCO's Motion based only on those pleadings filed by the parties which are authorized and permitted by the Commission's regulations. LILCO's Response is not such a j pleading.

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"won" the WPLR issue. The EBS contention admitted by the Board i

focuses on the adequacy of WPLR to act as the primary, or lead station, of LILCO's proposed EBS network. WPLR, however, has informed LILCO that it is terminating its agreement to partici-pate in LILCO's EBS network. Thus, summary disposition of the j admitted cont.ention in the Governments' favor is warranted and appropriate. Indeed, WPLR's refusal to participate in LILCO's j, proposed EBS makes out a prima facie case for the inadequacy of j

WPLR as LILCO's lead EBS station.

1 Based on LILCO's Response, however, .it may not be appropri-j ate to declare the existing contention moot, si1ce LILCO still appears to rely on WPLR in some capacity. For example, LILCO represents in its Response that "(a]ny involvement. by WPLR or the local Shoreham EBS would be in a last-resort, backup role."

LILCO's Response at 5. Although the Governments did state in their July 12 Response that it may be appropriate to declare the admitted contention moot because of the uncertainty surrounding LILCO's reliance on WPLR, it also stated that "(ilf it turns out in discovery or in later modifications of LILCO's Plan, that WPLR is again being relied upon as a participant in LILCO's EBS, then the admitted contention can be resurrected." Governments' Re-sponse at 21. As it now appears that LILCO is again relying on WPLR, its adequacy is still at issue. Therefore, it appears that this Board should not declare the contention moot, but rather either grant summary disposition in favor of the Gcvernments or establish a trial schedule so that the admitted contention can be

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litigated. As explained below, however, trial on the adequacy of LILCO's proposed EBS could not be limited to WPLR's adequacy, but would also likely have to include aspects of LILCO's reliance on WCBS and the State EBS network to provide notification to the public in the event of a Shoreham emergency.

More appropriately, however, under the circumstances sur-rounding LILCO's many EBS proposals and attempts to satisfy the Commission's regulatory requirements, this Board should rule for the Governments as a matter of law en the existing WPLR conten-tion, and thereafter close the evidentiary record in the Govern-ments' favor. With respect to LILCO's latest proposal, LILCO should be required to petition this Board to move to reopen the record pursuant to Section 2.734. Otherwise, this Board faces the prospect of never-ending LILCO maneuvering, with changes made to LILCO's Plan at every twist and turn as LILCO attempts to convince this Board that it has an adequate and workable EBS proposal.

A few other comments concerning LILCO's claim that the Governments should not be granted summary disposition are neces-sary. First, LILCO's complaint about the Governments' failure to comply with the pleading requirements of Section 2.749(a)

(LILCO's Response at 2) is absurd. LILCO clearly is in no posi-tion to complain about another party's failure to meet the re-quirements governing summary disposition. Further, LILCO's argument, in essence, elevates form over substance, and should thus be ignored.

t Second, LILCO's position regarding the Governments' failure to file for summary disposition within the deadline proposed in their June 20 Briefing Paper (LILCO's Response at 2 and n.2) is equally without merit. As LILCO acknowledges in its Response, the 10-day period suggested by the Governments was proposed to, but not adopted by, the Board. Instead, the Bo.ed merely agreed that the Governments could file for summary disposition. Sie Memorandum and Order (June 21, 1988). The Go'.?rnments chose not to do so when LILCO, rather than filing a briefing paper of its own, as requested by the Board, sought summary disposition. In the Governments' view, responding to LILCO's Motion then took precedence over separately moving for summary disposition, es-pecially since LILCO's Motion, on its own, demonstrated why summary disposition for the Governments on the existing WFLR contention was appropriate. In any event, it is nonsense to assert, as LILCO does (LILCO's Response at 3), tnat the Govern-t.ents have now forfeited any right they once had to seek summary 1

l disposition. Th*s may be indicative of LILeo's wishful thinking, but it is not supported by either the f acts of this case, the Board's previous rulings, or the Commission's Rules of Practice.

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B. LILCO's Response Is Inaccurate, Erroneous and Baseless Even if this Board decides to consider LILCO's Response, it should be disregarded and accorded no weight. As discussed M10w, LILCO's Response is erroneous, baseless and, for the most r, u .. , a rehash of arguments previously made by LILCO. Furthermore, LILCO's Response, like its June 20 motion for summary disposition, is designed to disguise the fact that LILCO has introduced a radically different EBS proposal that is unclear, unreviewed and untested. Tnis Board should deny this latest attempt by LILCO to foreclose any mear ingful scrutiny of its new EBS proposal. S.21 ab.q Governments' Response at 4-5, 14-19.

LILCO, in its Response, asks this Board for two things, in addition to its previously-discussed requect that the Board not grant summary disposition for the Governments on the existing EBS contention. First, LILCO alleges that this Board should grant LILCO's Motion because: (1) LILCO is not required to have agtee-ments with stations that are allegedly participat ing in its EBS proposal (LILCO's Response at 3): (2) it must be presumed that "WCBS, like other stations, would broadcast emergency information if asked to do no in the event of an actual Shoreham emergency" (14 at 4); (3) LILCO's EBS proposal is clear and unambiguous (id. P 5): (4) the Governments' claim that LILCO's latest EBS proposal is "new and significantly different" is "nonsense in its purest form" (id, at 5-6); (5) the coverage of LILCO's EBS pro-posal is adequate and has not been controverted (1d. at 6-8); and r

(6) the Governments' failure to produce certain witnesses creates an adverse inference of their testimony to the Governments (1d. at 8). Second, LILCO asks this Board to preclude the Governments from filing contentions and conducting discovery concerning LIuCO's latest EBS proposal, because LILCO claims that the Govern-ments have already conducted the necessary discovery and hase failed to file any contentions. 14. at 8-9.

Neither of these LILCO requests warrants serious considera-tion by the Board. LILCO's allegation that summary disposition should be granted in its f avor concerning its latest EBS proposal is specious. The Governments' Response to LILCO's Motion set forth numerous reasons as to why summary disposition for LILCO

, could '... at be granted. Rather than attempting to address the points and concerns raised by the Governments, LILCO's Response merely dismisses them with erroneous, unsupported and previously-made statements aid arguments, or, worse yet, fails to respond to them at all. Moreover, LILCO's claim that the Governments are precluded from filing contentions and conducting discovery con-cerning LILCO's latest EBS proposal is baseless. Because LILCO is in the practice of introducing its new EBS proposals through summary disposition motions,l/ and because there remains out-1 standing a contention concerning LILCO's previous EBS proposal, it has not been timely or appropriate for the Governments to submit contentions challenging the adequacy of LILCO's latest EBS schene.

2/ Sg_e LILCO's Motion for Summary Disposition of the WALK Radio Issue, dated November 6, 1987; LILCO's Second Motion for Summary Disposition of the EBS Issue, dated June 20, 1988.

., 5 l

i rurther, discovery must await Board rulings on the admissibility '

1  ;

of any such contentions filed.  !

i  :

i In sum, LILCO's Response does not deserve serious attention. [

t It is the product of an act of desperation, and it.should ac-cordingly be denied. Rather than proceed as LILCO suggests, the Board should grant summary disposition of the existing EBS conten-tion in favor of the Gover.mments (or, in the alternative, esta-blish a trial sch'dule for the admitted EBS contention), deny LILCO's pending motion for summary disposition, and give the Governments an opportunity to submit contentions and conduct f discovery concerning LILCO's latest EBS proposal.

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! C. LILCO's Motion for Summary Disposition Must Be Denied i

n 1

LILCO claims that its summary disposition motion 3hould be -

granted because the Governments' Response "does nothing to contro- >

(

j vert LILCO's (M)otion." LILCO's Response at 3. To the contrary, l

! however, it is LILCO's Response which "does nothing to controvert"  !

the Governments' Response. Indeed, in many respects, LILCO's Response f ails even to address it. sues raised by the Governments in  !

their opposition to LILCO's Motioc.

f

1. LILCO Is Required to hsve Agreements with the Stations It Claims Are Participatino in Its EBS Proposal LILCO first argues that its EBS p r opos a '. is not deficient simply because LILCO has failed to enter into agreements sh the stations it claims are participating. Although concedit1 -hat it does not have any written agreements to participate with WCBS, its new lead station, or other stations included in its proposed EBS network, LILCO alleges that "(nlo regulatory or guidance provision requires agreements," citing FEMA REP-10, "Guide for the Evalua-tion of Alert and Notification Systems for Nuclear Power Plants" (Nov. 1985), at E-2 (hereafter, "FEMA REP-10"). M o'.* e o v e r , ac-cording to LILCO, "[flederal guidance says only that the applicant should make available documentation showing the chosen radio station's ability to participate in the EBS." LILCO's Response at

3. Thus, in LILCO's view, written agreements with participating EBS stations are not required.

LILCO is wrong. FEMA REP-10 clearly requires an applicant to provide documentation concerning a radio station's participation in an emergency broadcast system. It is disingenuous and mis-leading for LILCs to argue that this does not mean that written agreements are required. As FEMA REP-10 calls for the production of documents concerning a radio station's participation, those j

documents necessarily include an agreement to participate. The

! plain meaning of FEMA REP-10 cannot be interpreted in any other way.

Moreover, LILCO has previously recognized this requirement by providing such documentation. LILCO has always obtained agree-ments in the past with radio stations that were participating in LILCO's various EBS proposals, and has made those agreements a part of the record. Now that LILCO cannot obtain agreements with

WCBS, WPLR and other stations, however, it argues that written agreements are not required. This Board should not tolerate the kind of transparent and self-serving apprcach advocated here by LILCO.

In addition, FEMA has recognized that written agreements of stations participating in emergency broadcast systems are re-quired. In its final Regional Assistance Committee ("RAC") review of Revision 9 to LILCO's Plan, dated April 28, 1988 (hereafter, "RAC Review"), which was issued prior to WPLR's withdrawal from i

LILCO's proposed EBS, FEMA rated as inadequate the fact that the agreement then in effect between LILCO and WPLR did not explicitly state that WPLR was to act as the lead station. FEMA stated that

"[t]his agreement must be reached to insure coordination of all radio stations designated as transmission sources of emergency broadcast messages." RAC Review at 26.$/

4 In sum, based on FEMA REP-10, LILCO's past practice and FEMA's RAC Review, it is clear that LILCO is required to provide documentation concerning the participation of the stations in its i proposed EBS network. Such documentation must include written agreements with participating stations. As LILCO has failed to provide such documentation, its latest EBS proposal is inadequate and LILCO's Motion must fail.

S/ In its Response, LILCO acknowledges that in the absence of a national-leval emergency, no participating EBS station is required to broadcast emergency information. LILCO's Response at i 4. This is precisely why written agreements with participating stations are required.

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2. It Cannot Be Presumed That WCBS or Any Other Station Will Participate  !

in LILCO's EBS Proposal ,

LILCO next alleges, apparently in response to the fact that  !

i it does not have any agreements with WCBS or other stations to l

participate in its EBS proposal, that "(1]t must be presumed that l

WCBS, like other stations, would broadcast emergency information  ;

3 if asked to do so in the event of an actual Shoreham emergency."  !.

LILCO's Response at 4. LILCO, however, gives no basis for this i presumption, arguing instead that Federal Communications Commis-j sion ("FCC") regulations do not require any EBS station to broad-cast emergency information.1/ As there is no indication that WCBS or other stations relied upon by LILCO would participate in  ;

a ,

j LILCO's EBS proposal, and as WPLR and WALK Radio have specifically stated thc.t they would not part nipate, there can be no presump- ,

J

! tion that these stations, or otuers, will participate. Instead, i

j the question of the participation of the stations that LILCO is

relying on in its EBS proposal, including WCBS, WALK and WPLR, k r

i must be resolved at trial.  !

1 i t

i I

i LILCO's reliance on FCC regulations and t )* e Suffolk County }

s Resource Manual to support its claim that a p;esumption can be -

i made that stations that LILCO has included }n its EBS proposal will in fact participate is inexplicable. The FCC regulations and l Suffolk County Resource Manual cited by LILCO do not discuss, nor  !

l 2/ LILCO also cites a Suffolk County Resource Manual in support i 1

, of the notion that EBS stations are not required to broadcast I j emergency information. LILCO's Response at 4.

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do they relate to, whether a presumption of participation can be drawn. Clearly, neither supports LILCO's erroneous presumption that WCBS and other stations would broadcast emergency information in the event of a radiological emergency at Shoreham.

In any event, if any presumption is to be drawn, it should be that WCBS will m participate in LILCO's EBS proposal. During a recent deposition, Douglas Crocker, LILCO's principal EBS witness, testified that LILCO has had discussions with WCBS and that he beliries that LILCO asked WCBS to enter into a participation agreement. SILq Deposition of Douglas M. Crocker (June 13, 1988),

at 20-21. As LILCO has no agreement with WCBS, the only presump-tion that logically can be drawn is that WCBS has refused to participate in LILCO's latest EBS scheme. Accordingly, questions remain concerning LILCO's EBS proposal and those questions require that LILCO's Motion must be denied.

3. LILCO's Latest EBS Proposal Remains Unc1 eat _aad_Ambigu. pas LILCO further claims that its latest EBS proposal is not unclear and ambiguous. In support of this claim, LILCO cites the Governments' description of that propoJal in its Response and the Governments' assertion in their June 20 Briefing Paper that no more discovery was needed. LILCO additionally alleges that its EBS proposal is clear because the Staff "seems to harbor no mis-understanding about LILCO's EBS plan." Moreover, LILCO alleges f

I

l that the Governments' concerns are not important because they only involve its backup EBS network. LILCO's Response at 5.

Rather than resolving one of the ambiguities of LILCO's EBS proposal, namely whether LILCO continues to rely on WPLR, LILCO's Response further muddles that quitstion. As discussed in the e Governments' Response, LILCO's Motion contains conflicting state-ments concerning whether LILCO is still relying on WPLR. Sag, e.g., Governments' Response at 16-19. LILCO's Response does not [

give a definitive answer to that question, stating only that

lalny involvement by WPLR or the local Shoreham EBS would be in a i

last-resort, backup role." Sag LILCO's Response at 5. LILCO does l

not explain what is meant by "any involvement".M/ '

t Further, it is misleading and disingenuous for LILCO to claim that the Governments were able to clearly describe LILCO's EBS 1

proposal in their July 12 Response and that the Governments l claimed in their June 20 Briefing Paper that no more discovery was necessary. That Briefing Paper was submitted pursuant to this Boat ~d's bench Order of May 26, 1988, which was issued as a result of LILCO's inability to adequately describe the structure and operations of its new EBS proposal. San Tr . 20424-29. The  !

Governments' Stiefing Paper did not state that LILCO's EBS pro-M/ The fact that the Staff did not question the clarity of LILCO's EBS proposal in no wa the notion that LILCO's EBS proposal is unambiguous. y The supports Governments have made clear  !

their here.

views on the Staff's Response and will not repeat them l Scr Response of the Governments to NRC Staf f Response in  !

Support of LILCO's Second Motion for Summary Disposition of the EBS Issue, dated July 27, 1988. ,

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posal was clear, but rather recognized that the Governments' were only provided with a limited discovery period to ascertain the general outline of LILCO's new EBS proposal, so that they could advise the Board as to how to best proceed on the admitted EBS conf;ent ion . In fact, the section that described the Governments' understanding as of June 20 of LILCO's EBS proposal began with "As best as it can be determined . . .

lea Governments ' Briefing Paper at 11. Thus, the statement in the Governments' Briefing Paper relied upon by LILCO has been taken out of context by LILCO; that statement related only to the discovery that was necessary to allow the Governments to give a summary description of LILCO's then existing EBS proposal. The discovery taken in that context

-- only one deposition -- was nowhere as comprehensive as would be necessary to prepare for a trial on the merits.

In addition, it is pure folly for LILCO to claim that the Governments' Response evidences the clarity of LILCO's latest EBS proposal. In fact, the Governments' Response contained an exten-sive discussion of the ambiguity of LILCO's EBS proposal. 1er Governments' Response at 16-19. It is therefore plainly absurd for LILCO to claim that the Governments must believe that LILCO's EBS proposal is clear and unambiguous. LILCO should be required to clarify its EBS proposal, so that it is final and clear in all significant respects.

4. LILCO's Latest EDS Proposal Is Significantly New and Different LILCO also alleges that its current EBS proposal is not significantly new and different. In support of this, LILCO claims that the WCBS-triggered EBS network is the same system that the State and Suffolk County rely upon to broadcast emergency informa-tion, and that therefore the Governments must be familiar with it.

Moreover, LILCO maintains that its current proposal includes WALK Radio and certain other stations that were in LILCO's original EBS network, and that the adequacy of its initial EBS network was previously litigated and found acceptable. LILCO's Response at 5-6.

LILCO's assertions that the State and County rely on the WCBS-triggered EBS network, and that the adequacy of LILCO's initial EBS network was previously litigated and found acceptable, are baseless and clearly incorrect. First, at least Suffolk County does not rely on the WCBS-triggered EBS network to provide emergency information. Sec , L O., Testimony of Richard Jones, a Suffolk County employee, in the so-called integrity of the pro-ceedings hearings. Tr. 21,423. Second, contrary to LILCO's claim, the adequacy of its initial EBS network has not been pre-vlously litigated. Rather, as discussed in the Governments' Response at 20, the only EBS contention that was litigated during the 1983-84 Plan litigation was whether WALK's failure to broad-cast on an AM frequency at night made WALK inadequate to serve as LILCO's lead EBS station. $1q EP Contention 20. Indeed, in the l

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PID, the Board specifically stated that "the range of the stations (WALK-AM and -FM) is not at issue in Contention 20." Lono Island kLghtino Co._ (Shoreham Nuclear Power Station, Unit 1), LDP-85-12, 21 NRC 644, 764 (1985). LILCO even concedes in its Response that Contention 20 involved simply whether WALK could broadcast at night. Sf3 LILCO's Response at n.6. Thus, LILCO's claims that Guffolk County relies on the WCBS-triggered EBS network and that the adequacy of LILCO's initial EBS network was previously liti-gated and found acceptable ere clearly wrong, and should be dis-regarded by the Board.

5. The Coverage of LILCO's Proposed EBS Network Is Not Adequate.and liaLs Been CILqLLoverted LILCO next argues that the Governments, in their Response, have not controverted the coverage of LILCO's current EBS network.

LILCO's Response at 6-8. LILCO gives several reasons why the adequacy of its EBS proposal has not been controverted. However, these reasons are confusing, misleading and incorrect.

In a very confusing and unclear manner, LILCO first states that the Governments' argument that the adequacy of WALK Radio's coverage was not resolved "seemingly contradicts" the Governments earlier efforts to include the coverage issue in the "earlier-admitted issues." LILCO's Response at 6. LILCO then states that, in any event, the Governments are precluded from litigating the coverage issue due to tra fg41 sata.

It is not clear to the Governments what LILCO is arguing here. If LILCO is arguing that the Governments are precluded from litigating the coverage issue because the coverage issue was not e l

litigated in the proceeding involving WALK Radio, LILCO is wrong. '

In fact, since the 1983-84 Plan litigation, the Governments have F

submitted, and this Board has admitted, contentions concerning the ,

adequacy of the coverage of LILCO's EbS network. As the coverage of LILCO's new EBS proposal has not been resolved, the Governments j must be given an opportunity to submit contentions concerning the adequacy of that coverage. Moreover, LILCO's use of the term Leg judicata is misplaced and suggests that LILCO does not understand what that term means. aga judicata bars subsequent actions where there has been a final judgment involving the same claim, demand (

or cause of action. 112 Black's Law Dictionary. However, as there has not been a final judgment on the adequacy of LILCO's ,

latest EB3 proposal, or for that matter on the adequacy of any of LILCO's EBS proposals, the doctrine of Leg judicata cannot pre-  !

elude the Governments from now litigating that issue. 8 LILCO also argues that alleged "ract" no. 17 from its realism I summary disposition motion applies in this proceeding, and esta-blishes that WCBS provides "sufficient coverage" of the 10-mile Shoreham EPZ. Stg LILCO's Response at 7. The Governments have previously presented their arguments as to why alleged "Fact" no. i I

17 does not apply in this proceeding and those arguments, with one j exception, will not be repeated here. Egg Governments' Response at 25-27. The one exception relates to LILCO's allegation that '

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the word "covers" in alleged "Fact" no. 17 really means "suffi-cient coverage." That claim is so ludicrous that the Govern-e ments feel compelled to respond.

Alleged "Fact" no. 17 states in full that "(t)he CPCS-1 l

( *n'CB S ) has a fifty kw AM staticn that covers the entire Shoreham i

EPZ."

l 10-mile (Emphasis added). Obviously, therefore, alleged  ;

"ract" no. 17 is completely silent as to the adequacy of that coverage. LILCO, however, gratuitously claims that the word "covers" really means "sufficient coverage." This expansive interpretation of the word "covers" is so absurd that LILCO does not even make it in the main body of its Response, but rather buries it in a footnote. S e__q LILCO's Response at 7, n.8. The word "covers" means simply that and does not relate to, refer to, or concern whether that coverage is adequate. This Board cannot take LILCO's argument to the contrary seriously.

i LILCO generally dismisses the Governments' other arguments I concerning the inadequacy of the coverage of LILCO's latest EBS proposal, stating that the Governments' "remaining arguments I questioning the coverage of the State EBS are similarly unper-suasive." LILCO's Response at 8. LILCO then gives examples as to why the Governments' other arguments are "unpersuasive." However, LILCO's examples are themselvec "unpersuasive."

For example, even though LILCO's own radio engineers, Cohen and Dippell, have issued a report stating that FCC regulations

e I i

require a signal level of 2 mV/m to communities of 2500 or more persons, several of which are in the 10-mile Shoreham EPZ, and that WCBS' signal does not reach 2 mV/m in the EPZ, LILCO claims that "(t]his is insufficient information to dispute the adequacy of WCBS' established coverage." LILCO's Response at 8. Although LILCO never discloses what is WCBS' "established coverage" -- or where it was established -- the fact that LILCO's own radio en-gineers have issued a report questioning the adequacy of WCBS' coverage is sufficient, without more, to dispute the adequacy of that coverage. Therefore, the issue of WCBS' coverage clearly needs to be litigated.

Moreover, LILCO attempts to retreat from Cohen and Dippell's report ty claiming that the report only addresses WCBS and "not the entire 30 plus station State EBS whose coverage has been previously established." LILCO's Response at 8. This claim is pure fantasy. Simply put, the coverage of the "entire 30-plus station State EBS" has never been litigated, nor even considered in any manner, by this Board.

Therefore, the issue of the adequacy of the coverage of LILCO's latest EBS proposal remains open. At a minimum, there-fore, LILCO's Motion must be denied and the Governments given an opportunity to submit contentions and conduct discovery concerning this issue.

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6. The Governments' rallure to Produce {

Certain Witnesses Does Not Croate an  !

Adverse _ Inference of Their Testimony i

, Finally, LILCO claims that the Governments' failure to pro- '

I duce certain witnesses for depositions creates an adverse in- '

ference of their testimony to the Governments. LILCO's Response

, at 8. This is simply a repeat of an argument previously made by I

LILCO. Sit LILCO's Motion at 8-9. Since LILCO does not here

' [

i offer any new arguments, the Governments incorporate by reference  !

r j their previous r esr>onse to LILCO's claim. Sit Governments' Re- l i

I sponse at 29-30.

D. The Governments Should Be Given an Opportunity i to rile contentions _and conduct Discoverv ,

LILCO concludes its Response by asking the Board not to allow i the Governments an opportunity to file contentions or conduct discovery. LILCO bases its requests on two reasons: first, that l

, the Governments have already had an opportunity to conduct dis-covery; and, second, that the Governments have already had an j opportunity to submit contentions, but have failed to do so. Both of these arguments are baseless; they ameunt to nothing more than one last attempt by LILCO to foreclose any meaningful scrutiny of a

its new EBS proposal.

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1. The Governments Have Had Only a Limited

{ Opportu nity_Lo_Conduc t _ Di s co ve r v '

i r

! t

As discussed above, on May 26, during hearings before this

] Board, Judge Gle.. son raised the EBS issue and expressed his con-I i ,

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fusion over LILCO's description of its latest EBS proposal. When counsel for LILCO was unable to explain adequately the proposal, the Board ordered that there be limited discovery with respect to LILCO's EBS proposal. According to Judge Gleason, the purpose of that discovery was "to provide an opportunity for parties to have discovery with respect to whatever it is you (LILCO) are pro-posing." Tr. 20,429. Based on that limited discovery, the par- -

ties were ordered to submit a briefing paper shortly thereafter concerning how best to proceed. In fact, the limited discovery involved the deposition of only one LILCO witness (Douglas  !

I Crocker), who generally described LILCO's EBS proposal at that  !

time. (

1 The limited discovery that was thereafter conducted was  !

focused solely on trying to determine the general structure and {

i operations of LILCO's new EBS proposal. Further discovery is now l required. however. For example, once the Governments are given an '

opportunity to submit contentions, discovery tailored to those contentions will be necessary. Accordingly, it is misleading for (

i LILCO to assert that discovery has already been conducted, and that no more discovery is necessary.

2. The Governments Should He Given MLOplsIlu ttLtL_t o_E u hnliLCon.Lention a l

[

LILCO concludes its Response by arguitg that the Governments

}

j should not be given an opportunity to file contentions because l

j "{ojver two months have elapsed since LILCO made clear its re- [

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r . _ _ . - - - - , - - . . - . _ . _ _ ,- . _ _ . _ _ - - . - - _ - _ _ - , - - _ . .

t liance on WCBS and the State EBS" and that the Governments have failed to file any new contentions. LILCO's Response at 9. Like LILCO's attempt to eliminate discovery, this argument is baseless.

In reality, it is an effort to bar the Governments from chal- 6 longing and contesting LILCO's most recent EBS proposal. Ac-cordingly, it must be denied.

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To begin with, the Governments have not had "over two months" t

to submit contentions. In fact, counsel for LILCO has not even  !

had sufficient detail concerning LILCO's EBS proposal for "over  ;

two months." As previously discussed, counsel for LILCO was unable even to explain the basic structure of LILCO's EBS proposal l on May 26; thus, this Board ordered the parties to submit briefing ,

papers on June 20 in an attempt to clarify LILCO's proposal.

LILCO did not follow the Board's Order, however, but instead [

submitted its motion for summary disposition. Rather than being I able to analyze LILCO's EBS proposal and formulating contentions, the Governments have therefore been required to spend time and i

resources responding to LILCO's Motion. Moreover, it must be kept ,

in mind that since June 20, when the Governments' Briefing Paper f

was filed, the Governments have been awaiting a response from the I Board with respect to their claim that contentions regarding

{

LILCO's latest EBS scheme would be necessary to Board resolution [

L of the dispute between LILCO and the Governments concerning the adequacy of LILCO's EBS. '

[

I

Moreover, it would not be proper or timely to submit new EBS contentions until the Board disposes of the contention presently at issue. As discussed above, it is the Governments' position that the Board should grant summary disposition of the admitted EDS contention in favor of the Governments; in the alternative, a trial schedule on the existing contention should be , established.

Thereafter, the Governments will be in a position to submit new contentions on LILCO's latest EBS proposal.

IV. C9Acit131on For the reasons stated above, L1LCO's Response should not be admitted for consideration by this Board. In the alternative, the Board should grant summary disposition of the admitted EBS conten-tion in favor of the Governn.ents (or, in the alternative, esta-blish a trial schedule), deny LILCO's motion for summary dispost-tion, and provide the Governments with an opportunity to submit contentions and pursue discovery.

Respectfully submitted, E. Thomas Boyle, Esquire Suffolk County Attorney Bldg. 158, North county Complex Veterans Memorial Highway Hauppauge, New York 11788 hbW

' Michael S.

h _s

. ler \s, Michael J. Missal l

KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - Ninth Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County a an G.

~

Palomino 8ll LO O Richard J. Zahnleuter 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

? LS s t epften B . Latham" D' k Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton i

L M E ip

&ggust '2f"1988_

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONl0 Au; -4 PS:31 Before _the Atomic _ Safety _ and Licensing &usi,. -

nu n m r. '. $ C

$3& M In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

.)

CIRTlfICATLQP SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S UNAUTHORIZED AND IMPERMISSIBLE "RESPONSE TO INTERVENORS' ' RESPONSE' IN i

OPPOSITION TO LILCO'S SECOND MOTION FOR

SUMMARY

DISPOSITION OF THE EBS ISSUE" have been served on the following this 2nd day of August, 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 20901 Office of General Counsel rederal 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 Fabian G. Palomino, 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 State Capitol Albany, New York 12224 i

~

J Joel Blau, Esq. Anthony P. 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 E. Thomas Boyle, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature D1dg. 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. P. 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 New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building

] Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 i MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee i 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 Office Richard G. Bachmann, Esq.

! Agency Building 2 Empire State Plaza Office of the General Counsel 1

U.S. Nuclear Regulatory Comm.

Albany, New York 12223 Washington, D.C. 20555 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 Douglas J. Hynes, Councilman Adjudicatory File Town Board of Oyster Bay Atomic Safety and Licensing Town Hall Board Panel Docket Oyster Bay, New York 11771 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 d

Michael S. Miller

! Kirkp& trick & Lockhart 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 1

By Hand Delivery

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