ML20151T589
| ML20151T589 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/22/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20151T559 | List: |
| References | |
| OL-3, NUDOCS 8804290077 | |
| Download: ML20151T589 (28) | |
Text
i-LILCO, April 22,1988 00 METED UhHi, C UM(ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 APR 25 PS :34 Before the Atomic Safety and Licensinst Board f0Cki Ihv$
BRANCH In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) (Realism Issue)
Unit 1) )
LILCO'S RESPONSE TO GOVERNMENTS' OBJECTION TO PORTIONS OF FEBRUARY 20 AND APRIL 8 ORDERS IN THE REALISM REMAND AND OFFER OF PROOF, This is LILCO's response to the "Governments' Objection to Portions of February 29 and April 8 Orders in the Realism Remand and Offer of Proof"(hereinaf ter "Objec-tion"), dated April 13, 1988. That April 13 Objection demonstrates that the Board should now dismiss Contentions EP 1-2,4-8, and 10 in accordance with its Confirmatory Memorandum and Order (Ruling on LILCO's Motion for Summary Disposition of Conten-tions 1, 2, 4, 5, 6, 7, 8 and 10, and Board Guidance on Issues for Litigation) (Feb. 29, 1988).
In the February 29 Confirmatory Memorandum and Order the Board ruled on the burden of proof in this proceeding and held that the Intervenors may avoid the op-eration of the "follow-the-utility plan" presumption of 10 C.F.R. S 50.47(c)(1), 52 Fed.
Reg. 42,078,42,086 col.1 (Nov. 3,1987), only by coming forward with evidence of what they would do in an emergency:
However, a lack of legal authority cannot be raised under the regulation as a response against LILCO's Plan, nor can simple protestations that the State and County will not use LILCO's Plan. Acceptable rebuttals to the Plan must in-clude positive statements of the projected behavior of the Governments. A determination to respond ad hoc would be acceptable only if accompanied by specification of the re-sources available for such a response, and the actions such a 8804290077 880422 PDR ADOCK 05000322 G PDR
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response could entall including the time factors involved. A failure on the part of the Governments to present a positive case for our analysis and evaluation could result in a finding of default and hence in an adverse ruling on the contention to which it applies.
Confirmatory Memorandum and Order (Ruling on LILCO's Motions for Summary Dispo-sition of Contentions 1, 2, 4,5,6, 7,8 and 10, and Board Guidance on Issues for Litiga-tion) at 4,1 12 (Feb. 29,1988).
The Intervenors, Suffolk County and the State of New York, have made clear in their Objection that, while they continue to insist they would respond to an emergency ad hoc, they refuse to specify the "resources available for such a response" or "the ac-tions such a response could entall including the time f actors involved."
Accordingly, the Intervenors have deliberately failed "to present a positive case for [the Board's] analysis and evaluation" and have triggered the portion of the Board's Confirmatory Memorandum and Order calling for an adverse ruling on the contentions.
The Intervenors have, in short, failed to take issue with LILCO's prima facie case ex-cept on grounds that impermissibly challenge the NRC's regulations, contrary to 10 CFR S 2.758(a). Therefore, a ruling in LILCO's favor on Contentions 1-2,4-8, and 10 is now called for. That is, the contentions should be dismissed.
At the most, the only issue lef t for hearing is whether LILCO's "interf ace proce-dure," Attachment 10 to OPIP 3.1.1, satisfies the guidance of NUREG-0654 Supp.1 or is otherwise in compliance with NRC regulations. But this issue, too, does not warrant a hearing. The intervenors' refusal to cooperate with the Board's factfinding process, analogous to their earlier default on the "Phase 1" issues, justifies dismissal of even this last narrow issue.
i
s I. The Intervenors' April 13, 1988 Objection Makes Clear That They Refuse to Reveal What They Would Do in a Shoreham Emergency The Intervenors' April 13 Objection makes clear that they refuse to comply with the Board's orders on the burden of proof and the effect of the NRC's revised emergen-cy planning rule,10 C.F.R. S 50.47(c)(1). The Objection is accompanied by the direct testimony the Intervenors wish to present. It is said to be the "full" representation of the Intervenors' position. Objection at 3.
The Intervenors' direct case consist of two pieces of testimony. The first, eight ar.d a half pages long, is the Direct Testimony of Patrick G. Halpin on Behalf of Suffolk County Concerning Contentions 1-2, 4-8, and 10 (Apr.13,1988). The second, three and a half pages long, is the Direct Testimony of David Axelrod on Behalf of the State of New York (Apr. 13, 1988). The attachments to this new testimony are affidavits and other documents that have previously been submitted to the Board.
This testimony by the Intervenors' witnesses repeats what the Intervenors have said before: that they have no plan for responding to an accident at Shoreham and that they refuse to develop one. The testimony also goes to some pains to explain why the Intervenors take this position.
What the testimony pointedly does not do is say what the Intervenors would do in a real emergency. This question is raised, but not answered, in the County Executive's testimony as follows:
Q. You have stated that Suffolk County will have no plan for an accident at Shoreham and that you would not follow LILCO's Plan. What if the NRC were to license Shoreham anyway?
A. I do not believe that the NRC would license Shoreham to operate in the face of the lawful and rational deter-minations of Suffolk County. If the NRC nevertheless were to take such action, Suffolk County would main-tain its position and put the matter before the courts.
The County has acted in good f aith and solely in the in-terest of its citizens. We will not back-down from our convictions and our duty as elected government officials.
i Q%
4
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Moreover, it is unproductive to engage in make-believe by pretending how the County would act under the hypothetical circumstances of an accident at Shoreham af ter that plant were somehow licensed by the NRC. For reasons stated above and the attached affidavit, we would never follow LILCO's Plan or coor-dinate in any way with LILCO. Nor do I know what re-sources would be available. It is my judgment that if there were a serious emergency, many of our employ-ees would necessarily look af ter their f amilies as a first and perhaps only priority. Also, County personnel have had no training or preparation to carry out any kind of purported "response" to a Shoreham emergency. The County's position is that it would not be possible to safely evacuate or otherwise protect the public in the event of a nuclear accident at Shoreham. It is thus baseless fantasy to try to speculate about what migh; hypothetically be done.
Direct Testimony of Patrick G. Halpin on Behalf of Suffolk County Concerning Conten-tions 1-2,4-8, and 10 at 7-8 (Apr.13,1988).
Like the County's, the State's testimony says it does not know what it would do:
Q: Please explain what the State's actions would be in the event of the hypothetical Shoreham accident.
A: I do not believe that Shoreham can be lawfully licensed. The State of New York will hold to this position. If the NRC still licenses Shoreham, the State of New York will pursue legal remedies to prevent the plant from operating. I stress this because the question posed assumes the operation of Shoreham under circumstances I believe to be unlawful.
I cannot speculate what specific actions the State would take, when they would be taken, or what resources might be available in the hypothetical situation that the NRC were to license Shoreham to operate at levels above 5%
power, the courts were to uphold that licensing decision, and there were a serious accident at the plant that required an offsite emergency response.
Direct Testimony of David Axelrod on Behalf of the State of New York at 3-4 (Apr.13, 1988).
In addition, the Intervenors' responses to discovery requests have evidenced their determination not to be forthcoming about what they would do in an emergency. Spe-cifics are summarized in Section II.B below.
s II. The Intervenors Are Not Permitted to Obstruct the Board's Inquiry or to Violate its Orders or the NRC Regulations The Intervenors are obstructing the Board's factfinding process in two ways:
first, by refusing to present evidence in accordance with the NRC's emergency plan-ning rule; second, by refusing to cooperate in the discovery process. In the process they are defying several Board orders and violating NRC discovery rules. They are also running afoul of several NRC and fede.' al court decisions.
A. The Intervences' Refusal o
Lo_Present Evidence The Intervenors' refusal to present evidence on what they would do in a real emergency violates NRC case law and a consistent series of Board orders.
As a general proposition, NRC case law recognizes "that when a party has role-vant evidence within his control that he fails to produce, that failure gives rise to an i
inference that the evidence is unfavorable to him." Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498, rev'd on other l
grounds, CLI-78-14, 7 NRC 952 (1978), aucting International Union (U AW) v. NLRB, 459 F.2d 1329,1336 (D.C. Cir.1972).
In this case itself, this Board has issued a series of orders requiring the Interve-nors to come forth with information about what they would do in a real Shorcham emergency. Even before the NRC's promulgation of the revised emergency planning rule, the Board characterized the issue as what the Intervenors would do in an emer-gency and said that it expected the Intervenors to be "fully forthcoming so that the f acts wul be developed." LBP-87-26,26 NRC 201,216 (1987).
More recently, the Board has said several times that it intends to hold a hearing to find out what the State and County would do in a real emergency. In the passage quoted above from the February 29 Confirmatory Memorandum and Order, the Board made clear that, under the revised emergency planning rule, the Intervenors would be l
1
s required to specify what they would do to respond in the event of a radiological emer-gency at Shoreham.
Even more recently, on April 8,1988, the Board amplified its February 29 Con-firmatory Memorandum and Order as follows:
We conclude therefore that the new rule reinforces our previously considered judgment that the Board's responsibility is to assure that the LILCO plan supported by a best efforts response meets the test of adequa;, under the Commission's rules and regulations. In carrying out that responsibility, however, it would deprive any proceeding of a meaningful purpose if the rule was interpreted to permit any state or local government to successfully demonstrate a continuing non-participatory role. We are confident that the Commis-sion did not intend to dictate to any state and/or local govern-ment what particular response it should devise to cover public emergency situations, but neither did it contemplate that no emergency response would materialize. The effect of the new rule then is to place a responsibility on state and local governments to produce, in good faith, some adequate and feasible response plan that they will rely on in the event of an emergency or it will be assumed in the circumstances of this case that the LILCO plan will be utilized by Intervenors here.
In that event, the LILCO plan will be evaluated for adequacy alone.
Memorandum (Extension of Board's Ruling and Opinion on LILCO Summary Disposition Motions of Legal Authority (Realism) Contentions and Guidance to Parties on New Rule 10 C.F.R. S 50.47(c)(1)), LBP-88-9, 27 NRC , slip op. at 20-21 (Apr. 8,1988). Else-where in the same Memorandum the Board added:
Intervenors, however, can no longer raise the specter of r lack of legal authority as a response nor can simple protesta-tions that they will not use LILCO's plan suffice. The Inter-venors are required to come forward with positive statements of their plans and must specify the resources that are avall-able for a projected response and the time f actors that are in-volved in any emergency activities proposed. Lacking the presentation of a positive case for analysis and evaluation. a finding of default and an adverse ruling could result in con-nection with the contention to which such omissions applied. ,
1 Id. at 24-25. I
a The Intervenors' April 13 Objection and the tes:Imony attached to it show clear-ly that the Intervenors have no intention of complying with thO Board's orders. The In-tervenors state that they would not follow the LILCO plan or coordinate with LILCO, but they refuse to "speculate" about what their response to an emergency might be or what resources might be available. In these circumstances, their proposed testimony should be rejected and their contentions dismissed.
The Intervenors' refusal to reveal the facts is longstanding. Indeed, in retrospect it can be seen that the Intervenors never had any intention of answering the question the Board has asked. In 1984 the Board asked the parties to address the question "(iln connection with LILCO's ' realism' argument, what effect would an unplanned response by the State or County have and would such a response result in chaos, confusion and disorganization so as to compel a finding that there is no ' reasonable assurance that ad-equate protective measures can and will be taken in the event of a radiological emer-gency' at Shoreham." Memorandum and Order Deferring Ruling on LILCO Motion for Summary Disposition and Scheduling Submission of Briefs on the Merits at 3-4 (Oct. 22, 1984). Instead of answering the Board's question, the Intervenors told the Board that its invitation for further briefing "should be withdrawn." Suffolk County and State of New York Response to ASLB Memorandum and Order Dated October 22,1984 at.88 (Nov.19, 1984). The Intervenors added that "no possible benefit could result from such specula-tion . . . ." [d. at 89. The Intervenors now repeat this argument in the testimony of Mr.
Halpin and Dr. Axelrod, quoted above.
Since 1984, despite repeated opportunities, the Intervenors have consistently re-fused to say what they themselves would do in an emergency; they have said only what they would not do. The most recent example is on page 42 of their April 13 Objection:
The question is: what would the Governments do? The an-swer is: they would not authorize or permit LILCO or LERO personnel to perform the functions assigned to them under the LILCO Plan, for several reasons, including the Govern-ments' belief, shared by five New York State judges, that New York law precludes them f rom doing so.
Objection at 42.
Storeover, the gist of the Intervenors' position, and testimony, is that they themselves - the State and County - have decided the LILCO emergency plan is inade-quate and therefore the NRC cannot go further. This position is contrary to several NRC decisions. For example, in CLI-83-13 the Commission noted its "ultimate authori-ty" to determine whether NRC requirements are met:
(T]he agency is obligated to consider a utility plan submitted in the absence of State and local government-approved plans and has the ultimate authority to determine whether such a submission is sufficient to meet the prerequisites for the issu-ance of an operating license.
CLI-83-13,17 NRC 741, 743 (1983). Likewise, in CLI-85-12 the Commission rejected the suggestion that a state or county would defy NRC findings on health and safety:
We note that our Licensing Board in its decision of April 17,1985 (LBP-85-12,21 NRC 644), has found that an ad-equate emergency plan is in fact achievable if the State and County participate in emergency planning, as all other local and State jurisdictions have done when so called upon. Like any litigants before us, these Intervenors may challenge the adequacy of this Board's determination, but they may not sim-ply substitute their own judgment for the Commission's re-garding what the public health and safety requires for licens-ing the operation of a nuclear power plant. Congress has entrusted the protection of public health and safety in mat-ters concerning nuclear power to the Commission, not to Suffolk County or New York State. See Pacific Gas &
Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S.190, 205 (1983). Accord-ingly, we believe that the County and the State must recog-nize that when a health and safety issue has been fully litigated before the Commission, the Commission's final judg-ment, subject to judicial review, must be the controlling de-termination, even if some continue to disagree with it.
Thus, while we express no opinion concerning the Board's decision while it remains under administrative review, we are confident that if the Commission upholds the Licens-ing Board's finding that an adequate emergency plan is feasi-ble with State and local participation, the State and County will accede to that judgment and will provide the participa-tion needed to make the plan successful. In short, we shall not take as an element of uncertainty in the eventual full-power operation of Shoreham the possibility that either t_he State or the County will refuse to cooperate with LILCO on l
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the basis of their own conception of what radiological public I health and safety reautres, rather than on the findings of the Commission.
CLI-85-12,21 NRC 1587,1589-90 (1985) (emphasis added).
To the same effect, the Commission in a Memorandum and Order of January 30, j 1986, warned that the Intervenors are not permitted to obstruct its inquiry:
For the past several years the State, County, and Town have l been claiming that no adequate plan can be developed for Shoreham, and that the LILCO plan is inadequate. They are entitled, as litigants before us, to advocate that position, they are not, however, entitled to obstruct our inquiry into the f acts necessary to enable us to resolve that assertion.
CLI-86-14,24 NRC 36,41 (1986)(footnote omitted, emphasis added).II The Intervenors' refusal to present evidence on the ground that they have al-ready made a decision also runs counter to the only court decision to deal substantively with the issue of which level of government --federal or state - has the final word on matters relating to offsite emergency preparedness. In Citizens for an Orderly Energy 1/ The Intervenors' position is also contrary to Judge Brenner's decision in 1983:
Accordingly, we hold that we are not bound by the County's findings on the acequacy of the LILCO offsite plan or the feasibility of developing adequate emergency planning for Shoreham. Our determination that the County has made such findings in contradiction to federal law does not have the effect of requiring the County to adopt or implement an emergency plan for Shoreham. We do not possess the jurls-diction necessary to bring about such a result. However, if the County seeks to have its findings adopted, it must liti-gate before us the facts which it believes support its view that it is not feasible to implement emergency preparedness actions which would meet NRC regulatory requirements in the event of a radiological emergency at the Shoreham nu-clear power plant. The right of the County to litigete whether necessary emergency actions can be taken may be distinguishable from the circumstance of a governmentallit-Igant before us which simply refuses to take otherwise feasi-ble actions.
LBP-83-22,17 NRC 608, 643 (1983), aff'd on other grounds, CLI-83-13,17 NRC 741 (1983).
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,, , , . , - - - - __ -. _ - . - - _ _ - . , - _ _, y
.c Policy v. County of Suffolk, Judge Altimari reaffirmed the exclusive authority of the NRC to rule on the adequacy of an emergency plan:
The County has not and cannot supersede the judgment of the <
NRC on whether or not a license should issue for Shoreham.
Once the NRC makes that decision the County's or, inion on LILCO's RERP (Radiological Emergency Response flan] will become academic.
604 F. Supp.1084,1095 (E.D.N.Y.1985) (emphasis added), g('d, 813 F.2d 570 (2d Cir.
1987) (pe_r curiam).
Also, in Long Island Lighting Co. v. County of Suffolk,628 F. Supp. 65t, (E.D.N.Y.
1986), Judge Wexler said as follows:
It is manifestly clear from an examination of the legislative history, however, that Congress by no means intended to allow local governments to frustrate or impede the NRC's ability to evaluate a utility's RERP, either passively, through non-acquiesence (sic], or actively, through a prohibition such as Local Law 2-86. . . .
The County's attempt to stop the February 13 exercise on the grounds that LILCO will be usurping the County's police pow-ers is of a piece with the County's 1983 determination that Shoreham should be abandoned as unsafe. Because the County passed Local Law 2-86 in an attempt to continue its oppost-tion to the Shoreham facility on the basis of a perceived ra-diological hazard, this Court concludes that Suffolk County has impermissibly intruded into a sphere of authority reserved exclusively to the federal government by Congress.
628 F. Supp, at 664-66.
The short of the matter is that the state and local governments have a right to participate in the NRC's decisionmaking process; they do not have a right to obstruct or veto it. By concealing from the Board what they would do in an emergency -- a matter that the Board has said is at the heart of what it must decide - the Intervenors are impermissibly obstructing the factfinding process and, in effect, falling to prosecute their claims.
l- .
B. The Intervenors' Obstruction of Discovery It appears that the !cimenors are also attempting to thwart the NRC process by refusing to cooperate with the discovery process. Although this subject cannot be fully discessed here and will most likely have to be briefed next week, a summary of rs' cent events here will help to show why dismissal of the "realism" issues is warranted.
Until yesterday, the Intervenors' misconduct could arguably be said to have been limited to unfair tactics and footdragging. For example, af ter being ordered twice by the Board to make certain people available for depositions by the end of the discovery period, only yesterday af ternoon did the Intervenors make known to LILCO the avall-ability of these deponents; also, the Intervenors say, without explanation, that two of the deponents are not available at all before the end of the discovery period.
Yesterday also LILCO received the Intervenors' objections to its interrogatories, and those objections too suggest that the Intervenors will not be forthcoming with the facts. Of LILCO's 116 outstanding interrogatories, the Intervenors objected to over half. See Governments' Objections to LILCO's Second Set of Interrogatories Regarding Contentions 1-2, 4-8, and 10 (Apr. 20,1988). One of their objections, in particular, is a challenge to the NRC regulations:
SPECIFIC OBJECTIONS LILCO Interrogatory No. 8
- 8. With respect to each of the following functions, (list of the functions addressed by Contentions 1-2, 4-8, and 10] .
1 please list each and every factor that Intervenors claim would I prevent a "best efforts" response by New York State and Suffolk County, generally following the LILCO Plan, from sat-isfying the applicable NRC requirements.
Answer to Interrogatory 8.
The Governments object on the ground that the
premise of the Interrogatory - that the Governments would generally follow the LILCO Plan - is f alse and lacking in any l factual basis. For the reasons set forth in the Governments' I April 13 Objection to Portions of February 29 and April 8 Or-ders in the Realism Remand and Offer of Proof and Attach-ments thereto (hereaf ter, "April 13 Objections and Offer of Proof"), the Governments will not adopt or follow LILCO's Plan.
I_d. at 5-6.
LILCO has not yet received the answers, due today, to its interrogatories. If those answers provide further evidence of the Intervenors' unwillingness to provide facts, LILCO will supplement this pleading early next week.
Likewise, the depositions of Intervenor witnesses have already provided, and may provide further, evidence of the Intervenors' unwillingness to address the facts. The deposition on April 19 of the Suffolk County Executive, the County's only witness on the "best efforts" issue, was ended by the County af ter only two hours. The County Ex- ,
ecutive testified that he was the most knowledgeable person in the County on the sub-ject but was unable to answer a number of questions about the County resources avall-able for a best efforts response and how various County agencies would respond to a Shoreham emergency. Dr. Axelrod's deposition this af ternoon may provide further in-stances of the Intervenors' refusal to provide information.
Again, this refusal to cooperate with discovery is longstanding. In 1983 LILCO asked in discovery what Suffolk County would do in an emergency. The County refused to say:
LILCO Reauest 103:
If emergency planning is deemed by the NRC to be possible
- for Long Island and a plan is approved by the NRC, will Suffolk County or any of Suffolk County's officials take action to prohibit county employees from responding in an emergen-cy other than by appealing the NRC's decision to the courts?
Response
This question is objectionable because it calls for speculation rather than for data relevant to whether the LILCO offsite
Q plan meets NRC regulatory requirements. Indeed, the ques- ,
tion talks only in general terms about whether "planning is j
, deemed . . . to be possible" and if "a plan is approved by the NRC . . . ." The County cannot describe what action (s) might be taken by a government when and if speculative future events take place, if events take place in the future, the County government will evaluate the events and take the ac-tion (s) which are agreed to be appropriate in light of the I events which in fact occur. We, of course, do not know what actions might be taken until those events occur. This ques-tion is objectionable for the further reason that it does not pertain to the adequacy of the LILCO offsite plan which is the focus of the instant proceeding. S_e_e also Resolutions 262-l 1982, 456-1982, 457-1982, and 111-1983 which prohibit County i
involvement in implementing or adopting any plan other than one approved by the Legislature.
LILCO Request 104.
If emergency planning is deemed by the NRC to be possible and a plan is approved by the NRC, will the County adopt reg-ulations, ordinances, or provide LILCO with a permit to con-duct any of the activities necessary to execute the emergency plan which the County, in its contentions, has classified as 11-legal?
Jesponse:
Objectionable. Se_e response to LILCO Request 103. Further, the County cannot speculate whether it will or will not adopt any "regulations, ordinances or provide LILCO with a permit to conduct any of the activities necessary to execute the emergency plan which the County, in its contentions, has classified as illegal." The County, as a party in this proceed-ing, cannot possibly predict what action (s) .ts Legislature or executive agencies might take if LILCO asked for permits, etc.
Suffolk County's Responses to LILCO's Informal Discovery Requests of June 29, 1983 and July 6,1983 at 17-19 (Aug. J,1983).
This stance is impermissible under NRC regulations. Discovery is as much an ob-ligation of intervenors as it is of applicants:
A litigant may not make serious allegations against another party and then refuse to reveal whether those allegations have any basis. . . . The Coalition's understanding of an inter-venor's role is simply wrong. To be sure, the license applicant carries the ultimate burden of proof. But intervenors also bear evidentiary responsibilities. In a ruling that has received explicit Supreme Court approval, the Commission has
r stressed that an intervenor must come forward with evidence "sufficient to require reasonable minds to inquire further",to ,
insure that its contentions are explored at the hearing. Obvi-ously, interrogatories designed to discover what (if any) evi-dence underlies an intervenor's own contentions are not out of order.
Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-613,12 NRC 317, 339-40 (1980) (footnote omitted). Compliance with discovery requests may be enforced by dismissal, if necessary, or other strong remedies. S_ee '
Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37,5 NRC 1298 (1977)
(intervenors dismissed for failure to comply with discovery requests), and cases there cited. See also Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),
ALAB-856, 24 NRC 802 (1986) (summary disposition of joint contentions granted be-cause intervenors failed to comply with discovery request); Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), LBP-86-4,23 NRC 75 (1986)(conten-tions dismissed for failure to meet hearing ohllgat!ons); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) LBP-83-20A,17 NRC 586 (1983) (Board '
granted motion to dismiss party and contentions for party's failure to meet discovery obligations); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-83-29A 17 NRC 11'11 (1983)(contention dismissed because intervenors failed to meet discovery ob- r ligation). :
C. The Remedy Thus the Intervenors have made their choice: they decline to tell the NRC what they would do in an emergency and therefore choose to be bound by the follow-the-utility plan presumption of the new NRC rule. LILCO's prima facie case is unrebutted.
There is no issue to decide, and the Board should dismiss Contentions 1-2, 4-8, and 10.
D. An Alternate Remedy if the Board believes, contrary to the argument above, that there is still an issue suitable for hearing on the "realism"issue, then that issue must necessarily be a narrow 2
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one. As the Board has observed. LILCO's prima facie case is based on matters adjudi-cated or uncontested in the record, material facts previously accepted by the Board, other prior Board rulings, and relevant parts of Revision 9 to its emergency plan. Con-firmatory Memorandum and Order at 3 (Feb. 29,1988).
The only such element of the case that is arguably still subject to hearing is Re-vision 9 of the emergency plant the primary part of Revision 9 at issue is Attachment 10 to OPIP 3.1.1., entitled "Suffolk County Interface Procedure." The only issue even arguably lef t for hearingE is whether this procedure complies with NUREG-0654 Supp.
1 (or otherwise meets NRC regulations) and, if not, how it should be revised to comply.
If this last issue were litigated, the Intervenors would be entitled to cross-examine LILCO's witnesses about the procedure. Intervenors would n_ot, however, be permitted to cross-examine on (1) the adequacy of the rest of the LILCO plan, because that has already been litigated, or (2) what the Intervenors would do in an emergency, which is resolved by the "follow-the-utility plan" presumption. The Intervenors would also not be allowed to pose hypotheticals, as they did in their deposition of LILCO's wit-nesses on April 20, asking what LILCO would do if Suffolk County behaved irrationally and refused sound advice in accordance with the plan.
Moreover, even the narrow "interface" issue described above should not be liti-gated. The Board should dismiss it and leave its review for the NRC Staff and FEMA because, analogous with the "Phase !" default, the Intervenors have in essence refused to prosecute their claims, as explained below.
l r
2/ The "immateriality" issue, otherwise a litigable matter, would seem to be mooted
, by the application of the "follow-the-utility plan" presumption. Under that presump- ,
tion, there will be traffic guides in accordance with the LILCO plan, and an evacuation i would normally be a "controlled" one,
III. The atervenors' Behavior Is the Same .3 Their Phase ! Def ault The Intervenors' behavior deflei the Board's orders and requires *.he dismissal of the contentions in accordance with the Commbslon's "Statement of Policy on Conduct of Licensing Proceedings," CLI-81-8,13 NRC 452 (1981). In that Statement, the Com-mission observed:
When a participant falls to meet its obligations, a board should consider the imposition of sanctions against the of-fending party. A spectrum of sanctions from minor to severe is available to the boards to assist in the management of pro-ceedings. For example, the boards could warn the offending pa' ty that such conduct will not be tolerated in the future, reluse to consider a filing by the offending party, deny the rigat to cross-examine or present evidence, dismiss one or more of the party's contentions, impose appropriate sanctions on counce! for a party, or, in severe cases, dismiss the party from the proceeding. In selecting a sanction, boards should consider the relative importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safe-ty or environmental concerns raised by the party, and all of the circumstances.
Id. at 454. It was this passage that the Brenner Board cited in 1982 when it dismissed Suffolk County's "Phase 1" contentions. See LBP-82-115,16 NRC 1923,1928 (1982).
The Intervenors' behavior now is similar to their behavior in 1983. A brief re-view of why dismissal was ordered in 1983 will show why dismissal should be ordered now.
In 1983 the Licensing Board ordered evidence on onsite emergency preparedness to be taken in the first instance by depositions. See Memorandum and Order Ruling on Licensing Board Authority to Direct that Initial Examination of the Pre-Filed Testimo-ny be Conducted by Means of Prehearing Examinations, LBP-82-107,16 NRC 1667 (1982). Full cross-examination was to take place, just as in a public hearing, and the public was free to attend, just as in a public hearing. The only difference was that the Board was to read the transcripts of the depositions rather than be present at them.
3
O The Board then planned to hold a conventional public hearing to explore parts of the deposition record that still seemed to need more elaboration. At this hearing the par-ties were again to cross-examine witnesses, to the extent they had not been able to do so during the depositions, and the Board would have been present to ask questions itself and observe witnesses' demeanor.
The judges' remarks about the proposed procedure show the extent of Suffolk County's intransigence:
JUDGE CARPENTER: I would just like to make a cou-ple of remarks to provide some perspective on what the Board's hopes are. If we look at the administrative proceed-ings like this, one would like to see the record which will un-doubtedly be reviewed by (sic) both comprehensive and inci-sive.
And the reason the Board feels this initial examination to develop a comprehensive record is very useful and is (sic) there is unavoidably much detail that must be presented.
Then the Board needs to look at that detail, look at the com-prehensive record, and then try to bring to focus all parties on the critical elements that have come from that detailed examination. So then we can proceed to examine with per-spective that has been developed from the detail. !
So all we were suggesting is a recognition of the need to do two different kinds of things - to get a comprehensive record with all of the technical f acts put out on the table, and then to examine those facts in an incisive way. And I am trying at be responsive, Mr. Brown, to your request to under-stand the Board's thinking, and I am trying to express it just as simply as I can. ,
l Tr.14,721-22.
JUDGE MORRIS: I would just like to add one comment.
I The Board recognizes that the subject of emergency i planning is of great interest up here in Suffolk County on Long Island, and we want to be sure that we have time to re-flect on the details that are developed in the proceeding, and that means hearing the parties, having time to examine the evidence, at least, prior to our conducting the final hearing
! process in public to ask our questions, and to allow for further
- questioning by the parties.
- i i
7
Tr.14,722.
The County and private intervenors categorically refused to participate in this procedure, calling ;t "unlawful." Tr. 14,725, 14,726. The Board offered to facilitate ap-pellate review of its proposed procedure:
JUDGE BRENNER: Did you see our remarks on the transcript of Friday as to the appellate pmcedures that might be invoked if we advocate that position, that that is a normal course of appellate procedure when a trial court rules one way and a party rules another, you sometimes have to wait until the end of the proceeding for review.
However, in this instance, we would be willing to assist the County in facilitating a rapid review, so long as it wasn't otherw!se in def ault of its obligations before us while seeking that review. However, we have never gotten any indication from the County as fo any proper appellate procedures that it wished to follow.
Tr.14,726-27.
We believo we have the authority to implement this quite clearly. Itowever, trial boards have been wrong before and we would invite that kind of accelerated procedure to as-sure that the proceeding isn't diverted on the side trail that detracts from the substance, the very antithesis of the com-prehensiveness and incisiveness that we are seeking, as Judge Carpenter just said.
Tr. 14,728-29. Nevertheless, the County and private intervenors refused to obey the Board's order.
The County's behavior was unreasonable. The County never explained why it thought the Board-ordered procedure was unlawful. (It did file a paper on the issue, but it contained "no supporting analysis and almost no explication." See LBP-82-107,16 NRC at 1671; LBP-82-115,16 NRC 1923,1927 n.1 (1982). The County never explained why it thought it was prejudiced by the Board's procedure. Finally, the County did not accept the Board's invitation to seek expedited review.
The County, along with the other intervenors, was therefore prohibited from contesting Phase ! issues, since it had refused to do so except on its own terms. The
- dismissal of the contentions was ordered because of the County's breach of a fundamen-l tal principle - that litigants must obey judges' orders even if they d!sagree with them.
See Memorandum and Order Confirming Ruling on Sanctions for intervenors' Refusal to 4
Comply with Order to Participate in Prehearing Examinations LBP-82-115,16 NRC 1923, 1930 (1982), aff'd, ALAB-788, 20 NRC 1102,1176-79 (1984). The Intervenors ap-pealed the Bocrd's dismissal of the Phase I contentions, but the Appeal Board found the Board's default ruling "unassailable." ALAB-788,20 NRC 1102,1178 (1984).
The same policy that justified the dismissal of issues in 1982 just as surely l
- justifies dismissal now:
To allow intervenors to decline to follow our order, solely because thry disagree with it, would be a particularly egregious abdication of our duty under 10 CFR S 2.718 to reg-ulate the course of this proceeding. Not only would permit- ;
ting such actions be contrary to Commission precedent, but it ;
would also likely be repeated were sanctions not imposed for this breach so as to induce future compliance with Board or-em.
Memorandum and Order Confirming Ruling on Sanctions for Intervenors' Refusal to Compiy with Order to Participate in Prehearing Examinations,16 NRC at 1931.
In accordance with the Commission's Statement of Policy, quoted above, then, !
~
the Board should dismiss the "interface" issue and leave it to the ordinary NRC Staff / FEMA review process. The Intervenors' refusal to present the facts is important to resolving the remainird issue, as the Board has defined it. The potential for harm to LILCO is very great, since the Intervenors' purpose is to prevent LILCO from satisfying
+
NRC requirements. The harm to the orderly conduct of the proceeding is great, as it l was in Phase I, because the Board cannot get at the f acts in the f ace of the Intervenors' refusal to come forward. Finally, the Intervenors' conduct is part of a pattern of be-4 havior that began at least as early as 1983, as explained above.
j 4
O IV. Realism is Not Unlawful What has been said above addresses the application of the Board's past rulings to the Intervenors' April 13 Objection. But most of the Intervenors' April 13 Objection amounts to a motion for the Board to reconsider those past rulings. LILCO responds below to certain of the arguments the Intervenors raise.
The Board, in providing its guidance for the future direction of the "bast efforts" remand proceeding, properly recognized that under the new rulo "Intervenors ... . can no longer raise the specter of a lack of legal authority as a response . . . ." Memoran-dum, LBP-88-9, 27 NRC , slip op, at 24 (Apr. 8,1988). Accordingly, the Board re-worded the remaining eight contentions to reflect the fact that "legal authority is no longer the focus of (the Board's] deliberations." Id. at 26. The Intervenors, while dis-agreeing with the Board's recasting of the legal authority contentions, argue that "it is nonetheless clear that even as ' reformulated,' LILCO's lack of legal authority to imple-ment the Plan remains relevant and material to a decision on Contentions 1-10." Ob-jection at 33. "There is absolutely no basis," the Intervenors protest, "for this Board's ruling that 'a lack of legal authority cannot be raised under the regulation as a response against LILCO's Plan."' Ld. at 37 (footnote omitted).
What the Intervenors wish to argue, in effect, is that "realism" is unlawful. It must be recognized that this legal argument is a sham, based on a misinterpretation of the now-reversed Cuomo v. LILCO.U The Intervenors now interpret Cuomo v. LILCO as holding it illegal for the County to permit LILCO to do things. But Cuomo v. LILCO.
even when it was still the law, assumed no County action at all. Cuomo v. LILCO 3/ The Intervenors, predictably, argue that "the fact that the New York Court of Appeals vacated Cuomo v. LILCO for non-justiciability . . . has no impact on the merits of the decision." Objection at 38. The plain f act is, however, that the New York Court of Appeals reversed the Cuomo decision and that, therefore, there is n_o New York court decision on which the Intervenors may rely,
0 I O addressed a utility-only response; the NRC's new rule addresses a joint ut!!!!y-local-federal "best efforts" response. Even if Cuomo v. LILCC were still the law, it would have no bearing on the present case.
While the Intervenors have refused to reccgnize this, the Board has not:
The Intervenors argue that the fact that state and local goverments are prohibited from delegating legal authority to LILCO has l>een recognized in prior decisions by the Board and has not been changed by CLI-86-13 or the new rule. This was the principal !!nding of the Cuomo v. LILCO decision recognized by the Board in its September 17 and October 29 Orders . . . . We did not intend then, or now however, to convey the belief that State and County officials could not, under emergency conditions, call upon private entitles to as-sist in performing emergency functions on a temporary basis.
Memorandum, LBP-88-9,27 NRC , slip op at 25 (Apr. 8,1988). Attempting to bol-ster their discredited position, the Intervenors claim that the "relevance of the lack of legal authority issue is res judicata" for this proceeding anc that "(t]his Board has pro-Vided no basis at all for its abrupt turn-about on this issue." Objection at 37,42. The assertion is without meritt the Board, of course, has not reversed itself but rather has attempted to correct the Intervenors' own erroneous perception of the Board's earlier 4
rulings on this matter. While the Intervenors may disagree, it is for the Board to state 1 what it meant in its prior decisions.
The short of the matter is that it is nonsense to claim that under New York law the State or County could not authorize LILCO personnel to take specific actions nec-essary to protect the public and could not themselves use LERO personnel and re-sources to respond to a Shoreham emergency. The Intervenors' of t-repeated assertion that such a course of action would constitute an illegal "delegation of police powers" defies common sense and cannot be squared with New York State Executive Law Arti-cle 2-B, which expressly provides for the use of private volunteer organizations in re-sponding to civil emergencies. The Board has recognized this. See Memorandum, LDP-88-9,27 NRC , slip op, at 25 (Apr. 8,1988).
Moreover, LILCO has already demonstrated that its employees, as part of their regular jobs, routinely do such things as direct traffic and sometimes ask people to 4
evacuate their homes. See Affidavit of Jay Richard Kessler on Directing Traffic, Training Public Workers for Emergency Response, and Ordering Evacuations (Dec.14, 1987); Affidavit of Charles A. Daverio on LILCO Responses to Requests by Local Law Enforcement Officials for Public Safety Assistance (Dec. 16, 1987). In addition, at the direction of the New York State Disaster Preparedness Commission in 1983, utility per-
- sonnel were recruited to perform emergency functions in Rockland County, including directing traffic, in the event of a radiological accident at the Indian Point nuclear power plant. See Affidavit of John D. Leonard, Jr. in Support of LILCO's Motions for Summary Disposition of Contentions 1-10 (Dec.10,1987).
The Intervenors have not contested the accuracy of LILCO's affidavits. Instead, they have attempted to dismiss the uncontroverted facts by suggesting that there is a legal distinction between recommending the evacuation of a few houses because of a gas leak and recomtnending the evacuation of many houses because of a radiation leak.
See Overview Memorandum in Support of Governments' Opposition to LILCO's Motions for Summary Disposition of Contentions 1-2 and 4-10 (Feb.10,1987) at 49 n.26. The difference, cf course, is only one of degree, not kind.
The Intervenors cannot possibly believe that LILCO would be prohibited by New York law from attempting to mitigate the co . sequences of a radiological accident at Shoreham, particularly if the State and County authorized LILCO's actions and partici-pated themselves in the emergency response. Yet, the intervenors continue to so argue. Taken to its logical end, the Intervenors' argument implies that the owner of a factory cannot inform the public when it spills a toxic chemical. That the Intervenors continue to hold to such a position is further evidence that they are not serious about engaging the facts in the present proceeding.
a
The Board is correct in its ruling that, under the revised emergency planning rule, there is no longer any need to consider whether LILCO has the legal authority to perform various emergency response functions. Rather, the pertinent inquiry is wheth-er LILCO's plan and the best efforts response of the State and County governments will ,
satisfy the NRC's regulatory requirements. Should the Intervenors continue to press their legal authority claims, however, it should be noted that there is no jurisdictional bar to the Board's deciding the point. Sele Public Service Co. of Indiana (Marble Hill Nu-clear Generating Station, Units 1 and 2), ALAB-459,7 NRC 179,195 n.39 and accompa-nying text, on remand, LBP-78-12, 7 NRC 573, af firmed, ALAB-493,8 NRC 253 (1978),
, affirmed, Commonwealth of Kentucky v. NRC,626 F.2d 995 (1980)(application of law defining boundary between Indiana and Kentucky to facts to determine the need for a discharge permit from the Commonwealth of Kentucky under the Clean Water Act).
Moreover, the Board's assessment of New York law in its April 8,1988 Memorandum is ,
correct. See LBP-88-9, supra,27 NRC at , slip op, at 25.
It should also be noted that Intervenors' claims of tes judicata regarding their in-tended "response" are based, not only on the now-reversed holding in Cuomo v. LILCO, supra, but also on Licensing Board decisions which preceded the revised emergency planning rule. LBP-87-26, 26 NRC 201 (1987); LBP-87-29, 26 NRC 302 (1987). Thus, j they can have no res judicata effect with regard to interpretation of the requirements of that rule and the evidentiary showing that Intervenors are required to make under that rule to rebut the presumption that they will follow the LILCO plan.
l V. The Intervenors Are Not Being Precluded From Presentire Their Case The Intervenors claim the Board has ordered them to violate State and Iccal law. ;
They say this presents them with a "Hobson's Choice." Objection at 2. They complain about the following language: j t
l
-. .-_ ~ _. . _ _ _ - . . - __
l t
The effect of the new rule then is to place a responsibility on state and local governments to produce, in good faith, some t adequate and feasible response plan that they will rely on in j the event of an emergency or it will be assumed in the cir-cumstances of this case that the LILCO plan will be utilized ,
by Intervenors here. In that event, the LILCO plan will be i evaluated for adequacy alone, j Memorandum (Extension of Board's Ruling and Opinion on LILCO Summary Deposition ,
l Motions of Legal Authority (Realism) Contentions and Guidance to Parties on New Rule 10 C.F.R. S 50.47(cX1)) LBP-88-9,27 NRC , slip op. at 21 (Apr. 8,1988).
Their argument seems to be that Suffolk County has required itself by law not to do emergency planning and that the Board's order that the Intervenors present evidence i requires the County to do emergency planning. In f act, the Board has not ordered them J
.to do emergency planning; it has ordered them to present evidence of what they would r
do in an emergency - evidence that is squarely within their ability to provide -if they ;
seek to avoid the presumption of the new NRC rule. [
Contrary to Intervenors' assertion, the revised emergency planning rule does not require them to participate in emergency planning. Rather,it establishes a framework for evaluating the adequacy of LILCO's emergency plan and for considering that issue 4
in an adjudicatory licensing proceeding. The NRC rule simply structures Intervenors' i
participation in the licensing proceeding. If Intervenors wish to contest the adequacy I' of LILCO's plan in that proceeding, they must follow and comply with the NRC's rules governing the litigation of emergency planning issues. The choice is theirs: rebut the presumption properly, or suf fer its consequences.
The Suffolk County resolutions relled on by the Intervenors do not forbid the County to present evidence. To the contrary, Resolution No. 111-1983 orders the Coun- ,
l ty Executive to pursue the County's position in all possible forums, including the N RC.SI And, New York State, of course, has no law forbidding it to plan, or to present
< v i
3/ (T]he County Executive is hereby directed to take all actions necessary to as-
! sure that actions taken by any other governmental agency, be it State or Federal, are }
consistent with the decisions mandated by this Resolution." Suffolk County Resolution j
) No.111-1983. ;
i l l ,-
0 l
l evidence. Indeed, at one point the State said that it would present its own emergency I plan as evidence ("testimony") in this very proceeding. Letter from Matthew J. Kelly,
- Staff Counsel, New York State Public Service Commission, to Lawrance Brenner, Apr. I 9,1982. The real problem for the Intervenors is that presenting evidence hurts their ,
case: the facts are contrary to their legal position. The Board has found repeatedly i
that adequate emergency planning can be done on Long Island. The Intervenors have said nothing to suggest why they cannot do it. .
The Intervenors, as parties to this proceeding, have obligations to participate in I
- the process and to obey the Board's orders. In this instance they have an obligation to go forward with evidence, if they wish to be heard. The cannot simultaneously ask the Board to make a finding that LILCO's plan is inadequate and at the same time refuse to ,
] !
present evidence that the Board needs to decide that issue, t
VI. Intervenots Have No Absolute Right to Cmss-Examine I.ILCO's Witnesses i
The Intervenors, anticipating that the Board will will decline their "offer of ,
proof," argue that they are nevertheless entitled to a hearing so that they may cross-
) examine LILCO's witnesses. See Objection at 4. They refer to the conventional law (
that intervenors are entitled to make their case by cross-examination.
That law, however, does not apply to intervenors who have defied Board orders.
3 l It does not apply to a case in which the intervenors have failed to meet their own bur- !
den of going forward. In such a case the dismissal of the intervenors' contentions is ap-propriate. Intervenors have an obligation during dhcovery to reveal what evidence, if any, underlies their contentions. See Susauehannah, spr3, ALAB-613,12 NRC at 340.
] ;
i Moreover, that "requirement is not obviated by an intervenor's strategic choice to make its case through cross-examination." Seabrook, supra, LBP-83-20A,17 NRC at 589. As [
the Appeal Board said in this case, addressing the Intervenors' "Phase 1" argument th7t l they were entitled to an oral hearing: i I
O The right to submit rebuttal evidence and conduct cross-examination, moreover, is not unlimited; it is bounded by a need for a full and true disclosure of the f acts.
ALAB-788,20 NRC 1102,1178 (1984) bootnote omitted).
The situation is now as it was in Phase I. The Intervenors have refused to go for-ward with their contentions. Those contentions should be dismissed. With the conten-tions dismissed, the Board l'as 70 thing further to decide, and the resolution of any re-maining safety issues lies with the FEM A and the NRC Ste Cf. LBP-82-115,16 NRC 1923,1933 (NRC Staff is aware of matters raised in Inte preflied testimony and will be presumed to address these issues in their review).
Conclusion For the above reasons, the Board should dismiss Contentions 1-2,4-8, and 10.
the alternative, the Board should rule that the subject of the "reallsm" hearing is only the adequacy of LILCO's procedure for dealing with the State and County, and should dismiss that issue also because of the Intervenors' refusal to reveal the f acts within their control.
Respectfully submitted, O
Jonald P. Itwin i James N. Christman K. Dennis Sisk Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: A pril 22,1588
-o LILCO, April 22, 1988 s i CCUC (LC' UWC le PR 25 P5:34 CERTIFICATE OF SERVICE s
b'Fictu5tutinCKETmG A MHvif.i BRANC" ;
in the Matter of ;
LONG ISLAND LIGHTING COMPANY ~
(Shoreham Nuclear Power Station Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S RESPONSE TO GOVERNMENTS' OBJEC-TION TO PORTIONS OF FEBRUARY 29 AND APRIL 8 ORDERS IN THE REALISM RE- i MAND AND OFFER OF PROOF were served this date upon the following by hand or -
telecopier, as indicated by one asterisk, or by first-class mall, postage prepaid. ;
James P. Gleason, Chairman
- Adjudicatory File Atomic Safety and Licensing Board Atomic Safety and Licensing i 513 Gilmoure Drive Board Panel Docket .
Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission t
Washington, D.C. 20555 Dr. Jerry R. Kline * ,
Atomic Safety and Licensing Richard G. Bachmann, Esq. * !
Board U.S. Nuclear Regulatory Commission -
U.S. Nuclear Regulatory Commission One White Filnt North East-West Towers, Rm. 427 11555 Rockville Pike 4350 East-West Hwy. Rockville, MD 20852 ,
Bethesda, MD 20814 Herbert H. Brown, Esq.
- i Mr. Frederick J. Shon
- Lawrence Coe Lanpher, Esq. l Atomic Safety and Licensing Karla J. Letsche Esq. l Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor ,
1800 M Street, N.W.
East-West Towers, Rm. 430 4350 East-West Hwy. Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino Esq.
- Secretary of the Commission Richard J. Zahnleuter, Esq.
Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W. State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alf red L. Nardelli, Esq.
A ppeal Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway Washington, D.C. 20555 Room 3-118 New York, Now York 10271
6 George W. Watson, Esq.
- Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Evan A. Davis, Esq.
Mr. Jay Dua%Ieberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.
Stephen B. Latham, Esq. Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 g ,
b^J ames N. Christnian Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: April 22,1988 l