ML20151U515
| ML20151U515 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/07/1986 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#186-027, CON-#186-27 OL-3, NUDOCS 8602110036 | |
| Download: ML20151U515 (16) | |
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,( Etcuma BEIME 'lHE CDNISSICN s
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IING ISIAO LIGIrlm CGPANY
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Docket No. 50-372-OL-3
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(Bnergency Planning)
(Shoreham Nuclear Power Station.
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Unit 1)'
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NRC STAFF'S ANSWER '10 INITRVDMS'
" NOTICE NO M7fIm CDKIRNIE PPOFOSED HUGNCY PIAMilm EXERCISES"
- p Sherwin E. Turk Deputy Assistant Chief Hearing Counsel I
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In the Matter of
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IOfi ISIMO LIGfrIm CDPANY
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Docket No. 50-322-OL-3
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(Bnergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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lmC STAFF'S ANSWER 'IO INIBWE2GS' "NDrlCE AND BUTIm (INCERNim PPDFOSED HERGENCY PIANItG EXERCISES" Sherwin E. Turk Deputy Assistant Chief Hearing Counsc1 February 7, 1986
INITED STATES OF #tERICA NUCLEAR RICULATIRY GM!!SSim t
BERRE TIIE CD*11SSim In the Matter of
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IITU ISLAND LIGfrING CmPANY
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Docket No. 50-322-OL-3
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(Dnergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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ERC STAFF'S ANSWER 70 INITEVENfRS'
. lUTICE AND M7FIm CWCERNIFC PH3PMIT) H471GHKT PLANNI?C EXERCISE" On January 22, 1986, Intervenors Suffolk County, State of New York, and Town of Southampton ("Intervenors") filed their " Notice and Motion Concerning Emergency Planning Exercise"
(" Motion").
- Therein, the Intervenors requested, " pursuant to 10 C.F.R. S 2.740(f)," that the Commission order the NRC Staff, FEMA, and LILCO, to produce certain documents, provide certain information, and permit the Interveners to attend meetings ccncerning the proposed Shoreham exercises. 1 In addition, the 'Intervenors advised that if the scheduled exercises should take place, they " intend to have representatives in the field and at buildings, action-centers, and other important locations," in order to monitor elements of the exercise (Motion, at 1-2).
For the reasons set 1/
A drill of LILCO's offsite emergency plan was held on January 30 1986, and a FEMA-graded exerciso of that plan is scheduled to be held on February 13, 1986.
forth below, the NRC Staff (" Staff"), opposes the Intervenors' Motion and recommen s that it be denied.
DISCUSSION On. January 30, 1986, the Commission issued a Memorandum and Order denying the Intervenors' " Motion for Cancellation of Emergency Planning Exercise."
While the Commission denied that motion on the grounds that the exercise is expected to provide important and material information and would test an important aspect of LILCO's offsite emergency plan, the Commission noted it was not clear under NRC practice that it was required to respond to the motion in any formal way, and it could have denied the motion on procedural grounds alone.
Like the motion to cancel the exercise, the Intervenors' instant Motion fails to present an issue which is appropriate for Commission action.
As the Staff noted in response to the Intervenors' motion to 3_/ the only emergency planning issues currently -
cancel the exercise, pending before the Commission are the legal authority issues decided in ALAB-818; I all other emergency planning issues are pending before the Appeal Board on review of the Licensing Board's Partial Initial 5
2_/
Counsel for FEMA has reviewed and concurred in this ' Answer.
-3/
"NRC Staff's Answer to Intervenors' ' Motion for Cancellation of Emergency Planning Exercise," dated January 8,1986, at 2.
-4/
See
" Order" dated December 19,
- 1985, granting review of Long Island Lighting Co.
(Shoreham Nuclear Power Station,
Unit 1), ALAB-818, 22 NRC 651 (1985).
_ ~ _ _ _ _ _ _ _
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Decisions. SI Contentions have not yet been filed or admitted concerning g
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the condu,ct of an emergency planning exercise, end-any concerns the Intervenors may have concerning the exercise are not properly before the Ccmmission ct this time.
Moreover, in the absence of admitted contentions concerning the energency planning exercise, the Intervenors presently have no right to conduct discovery relating to that exercise.
Thus, as set forth in 10 C.F.R.
S 2.740(b), discovery in an operating license proceeding "shall relate only to those matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusien of [the 2.751a] prehearing conference."
- Further,
. hile the Intervenors' Motion relies upon 10 C.F.R.
S 2.740(f), that w
provision is applicable only where "a
party upon whom a request for production of documents... is served fails to respond or objects to the request, or any part tb reof, or fails to permit inspection as requested. "
Here, while the Intervenors have made various informal requests for documents to LILCO, FEMA and the Staff, they have never filed -- nor, prior to the admission of an exercise contention, could they have filed -- any " request for production of documents" as con-templated-by the Commission's regulations. $
In these circumstances,
-S/
See Long Island Lighting Co.
(Shoreham Nuclear Power Station, ITiiIt 1), LBP-85-12, 21 NRC 644 (1985);
Id.,
6/
The Commission's regulations governing discovery are modeled after the discovery rules utilized in judicial proceedings.
Those rules (FOOTNOTE CONTINUED ON NEXT PAGE)
O,
to the extent that the Intervenors s.eek to compel LILCO, the Staff I
and FEM 4 to produce documents, their Motion shonld.be denied. -7/
Moreover, the Intervenors have failed to demonstrate that they require the' documents to be produced at this time.
First, as set.forth -
in LILCO's response to the Motion, 8_/ the Intervenors already have copies of the. emergency plan, a description of the exercise, the exercise objectives, and certain other documents providing information about the exercise.
In addition, LILCO has indicated that representatives of the Intervenore will be permitted to attend the exercise 9/ and, presumably, t
further information will become available to them at that time.
- Second, to whatever extent the Intervenors may require additional documents in (FOOTNOTE CONTINUED FROM PREVIGUS PAGE)
' contemplate that motions to compel discovery -- such as the instant f
Motion filed by the Intervenors -- will be filed only after the movant has filed a formal discovery request and has been unable to obtain a proper response to that request.
7/ -
In addition, particularly in the absence of formal adjudicatory proceedings addressing the exercise, it is questionable whether the Commission has the authority to compel FEMA, an executive agency independent of the NRC, (a) to produce documents, (b) to disclose information, or (c) to invite other persons to attend 1
FEMA-sponsored meetings.
Further, such an. order could interfere with FEMA's duty to determine whether good cause exists for it not to. comply with the Intervenors' requests, for example, where compliance might compromise its need to protect confidential.
information or information concerning FEMA's deliberative process.
8/
"LILCO's Reply to Suffolk County, 'et al. ' Notice and Motion Con-cerning Proposed Emergency Planning Exercise,'" dated February 3, 1986 ("LILCO's Reply"), at 2, 7-9.
9_/.
See Letter from Donald P.
Irwin to Lawrence Coe Lanpher, dated January 31, 1986 (Attachment 6 to LILCO's Reply); and letter from Donald P. Irwin to Karla J. Letsche, dated February 6, 1986 (copy attached hereto).
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order to pursue the litigation of exercise issues, they will have ample i
e opportunity to request such documents in discovery, following the admission of any exercise contentions in this proceeding.
The. Intervenors' Motion also requests that the Commission " order the NRC Staff, FEMA, and LILCO to permit the Governments to attend meetings concerning the proposed Shoreham exercises" (Motion at 3).
This request is akin to a request for inspection under 10 C.F.R.
S 2.741(a)(2) which, under the discovery rules, should not be granted prior to the admission of exercise contentions. Moreover, LILCO has indicated that representatives of the Intervenors will be permitted ' to attend the February 13, 1986 FEMA-graded exercise, and the Intervenors have failed to demonstrate sufficient reason as to why they need to be present at any meetings to be held in advance of the exercise.
In light of the fact that the Intervenors have not signed FEMA's non-disclosure agreements as to confidential matters, the Commission should decline to compel LILCO and FEMA to permit the Intervenors to attend the subject meetings.
Finally, we wish to address the Intervenors' assertion (Motion that FEMA and the Staff have refused to provide information or at 2),
produce documents concerning the exercises.
This assertion is simply not true.
As is reflected in at least one attachment to the Motion, FEMA and the Staff have been concerned that the disclosure of certain categories of documents could compromise the' exercise, b Because the
-10/ See, e.g., letter from Samuel W. Speck to Martin Bradley Ashare, dated December 17, 1985.
upcoming, exercise is a FEMA exercisc.of LILCO's offsite plan and most I
of the documents are FEMA or LILCO documents, the' Staff informed the Intervenors that they should request the materials from LILCO and FEMA,
'since those parties more properly may determine whether the documents can be released without compromising the exercise.
For its part, FEMA has indicated its willingness to comply with the Intervenors' requests, to the extent that the disclosure of information and production of docu-ments will not compromise the exercise. b Accordingly, the Intervenors' assertions in this regard should be rejected.
CONCLUSION For the reasons set forth above, the Staff opposes the Intervenors' Motion and recommends that it be denied.
Respectfully subnitted,
/
kkJudvb(tthe Sherwin E. Turk Deputy Assistant 011ef Hearing Counsel Dated at Bethesda, Maryland this 7th day of February, 1986
-11/ See, e.g.. letter from letter from Stewart M.
Glass to Karla J.
Letsche, dated December 20, 1985, and letter from Samuel W. Speck to Martin Bradley Ashare, dated December 17, 1985 with attachments (also attached to Intervenors' Motion).
In addition, FEMA has telefaxed various documents to the Intervenors, such as the final exercise objectives, transmitted on January 29, 1986.
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...8357 Karla J.
Letsche, Esquire Kirkpatrick and Lockhart 1900 M S'treet, N.W.
BY TELECOPIER Washington, DC.20036
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Dear Tip's Pursuant to our discussion.and my : letter tto you.last : week, LILCO.is preparedito permit representatives.of theIintervenors onto its. property to observe the FEMA graded exercise on February 13 in accordance with the terms.of this lether..
These terms are the same; as those.! applicable to.all visitors -- i.e., all. persons at the exercise other than -(1) LERO personnel, (2) controllers, evaluators, simulators,:and observers,.and (3) members of p e working press (who will be restricted to the ENC).
LILCO must take all reasonable precautions against the risk that visitors',, presence will affect LERO workers' performance in, or federal. officials' conduct.and evaluation of the exercise.
Similarly, LILCO's. agreement with FEMA requires that visitors not 1". tera,ct yith, players,.; Thp, prov,isions of, tp,is 1,etter. pre the. min-imum ones believed.by LILCO to be.necessary to assure.these basic goals.
More specifically, visitors must not talk or gesture to, physically. obstruct, impede, intimidate, distract, or psychologi-cally affect LERO, workers' performance of their duties; nor physi-cally sor psychologically affactpthea controllers *., evaluators', and simulators' perfermance of their. duties; nor interact.in any other way with exercise players, observers, evaluators.or controllers.
02/07 11:39 7402186 802
l H v a T o w &. W r 1.r. A x a k
Karla 4. Letsche,;Esq.
T.'acuary.6,'1986 Page 2 Since there are. significant space. limitations,.,in the various LILCO ' facilities avai.lable.<~for observatlon,.the number of. visitors
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~~ ~ r-that can be present at any one of them must.also be limited.
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is also essential.that visitora h identities :ta provided iin advance..
By copies of:this lettertto counsed fog all intervenors, I am requesting you to goordinate the provision of visitors by 411 3
intervenors for each LILCD-owned or LILCO-contro11e'd facility or location which Intervenora desire to visit..
1.
LILCO-ownediand LILCO-contro11edifacilities to'be observed, number of Intervenor visitors, and the: point of observation at each location:
A.
BOC/ENDF'(totaltof 2 visitors:fromaintervenors) visitors.will be in the area behind the staffing sboard and/or the b
short hallway behinU the briefin's room.
B.
staging areas (Intervenors':choiceiot one fred among
'3 Patchogue, Port Jefferson and Riverhead) (total of 2 visitors from intervenors):
space limitations. that exist :st each facility, plus the similar nature of operations at each staging. area, command limitation of observation to only one of the three areas, at intervenors' choice.
Vis'itors may, in general, tra. vel freely through the staging area chosen as long as the area of observation does not tinterfere with.activi' ties being conducted.: LILCO. will' define acceptable spaces within each room sin the : staging area intervenors wish to visit.
C.
ENC f(total ofi2 visitors from intervenors):
visi-tors may.be present in the two press rooms.# Notes visitors shall not conduct their own press conferences within the BNC.
If inter-venors wish to speak to the. press, they can,iof course,.do so out-side the buildingh N
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February.6,.1986 Page 3 D.
Recepteion Center (Nassau Coliseum) (total of 2:visir tors from incervenors):
visitocs will,. in general, be per.mitted free access throughout the concourse. area at the coliseum,. as long as they do not interfere :with'a'ctivities being. conducted,.and will also be permitted.to travel around outside the. coliseum building.
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LILCO will define any"[estYic't D s on'~visEtor 'n'cc'e's's'~throughout this space between now.and next Thursday.
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E.. Congregate CareICentert(LILCO's Mineolasoffice)
(total of 2 visitors.from intervenors):
LILCo.will define any limitations on visitor access schroughout this space prior.to next Thursday.'
F.
LERO worker tracking and Supervising Service Opera-tor.(Micksville) (total of 2 visitors from intervenors):
LILCO will define any. limitations on ydsitor access throughout this space prior to next Thursday.,
G.
LERO Family Relocation Cente,r:(Bicksville)/(total of 1
2 visitors from intervenors):. LILc0 'will. define :any li.mitations,
j on visitor access.throughout this space prior to next T4gygegy.
H.
Transfer pointst(total.of 2 visitors from interve-nors at each location):
visitors will be' permitted generally free access subject to noninterference with petformance of LERO. person-nel or exercise.. controller / observer personnel.
2.
. Facilities / spaces off LILCO broperty which may be subiect to visitation l
A.
DOB Brookhaven area offices
$his area is.outside of j
LILCO's control and subject to the.controf of DOE.
If intervenors wish to observe activities at this location, they will need to make the.necessary arrangements with DOS..
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02a07 11840 s r 7402186i 004
He'urow & iWILLIAus
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February 6, 1986 Page 4
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B.
DOE RAP fie'id teams' works the activities of these personnel are beyond LILCO's control.and visitors will need to,
make anyinecessary arrangements with. DOE.1 C.
LILCO traffic guides, bus drivers, fuel trucks and road crews: <LH.co, cannot>.prgyent.interrenorm feqps. observing. the activities of these persons off LILCO property..Bowever, the con-ditions of observation. stated in paragraph.three;below must.be.
observeds 3.
Conditions on : visitor behavior at each location:
4.
The number of visitors.will: tun limited at.each.loca-tion in accordance with the : limitations set out in sections one and'two.
p,.
B.
Physical : freedom of movement of visitors within each -
location.will be as specified sin sections.'one and two.
C.
Visitors will.not address. verbally;or by gesture,.
any exercise participant, controller, observer, aimulator or. exer-cise evaluator.
D.
Visitors willitut allowed to.take ; hand written notes.
Visitors. vill not take photographs, video. tapes,. recordings, or any other form of audio / video records.
5.
Visitors on LILCO-owned.or LILCO-controlled property will be Ldentified in advance and will be.e~soorted by < personnel.
designated by :LILCO at all times ion those properties.
F.
.The failure of any visitor to comply with these con-ditions will result in the offending visitor being asked to leave the f acil-ity in question.i 02v02 118 41 7402186i
- 05
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i HUwrow & WrLLxiwa
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c Februarys6, 1986 l
Page 5 G.
Visitors will; wear identifying arm. bands to be pro--
vided by rLILCO prior.to the : exercise at all. times when they grei observing exercise activities.s 4.
Timeivisitors should;merive et facilities:
..........w.w.
Since suffd2k.Oounty.has been.unwilitng to sign a FBKA confi-dentiality WgreeMpnrT'LILCO : proposed to notify:the visitors or a predesignated <epnfectforthematappdopriatetimes,sufficiently 9
in advance, on the date of the. exercise,so 1a to enable.the visi-tors' to be present at each location at a time or. times when activ-ity is expected,i pursuant to the i scenario,: to be.taking place there..
5.
Identification of visitors:
The : names of visitors from intervenor. groups shall be. pro-j'-
i vided for each facility to be observed, talong with theit. esployer, job title, and social security number, to LILCO no later than $ste p.m.,
Monday,! February 10.
t-Please call me on Friday, Februaryi7 in Richmond.if you wishi i
to discuss any of the matters set forth ein this letter..
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Sincerely.yours,e Donald P.IIrwin cca Fabian Palomino, Esq.
Stevan Lathem, Esq.
i Bernard M. Bordenick, Esq.
i Stewart G.1.ats, Esq.
P.s_.
This letter was in an. advanced form at the.timeiyour letter.
of today was rece We believe that !this letter addresses many of the concerns an(ved.
.i that letter.
.If after reviewing it, you still i
believe you need additional information, please give me a call.
7402186
- 06iOF 06 02/07 11:42
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UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION "g
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BEFME TIIE COMMISSION y
gd*T In the Matter of
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I LONG ISLAND LIGilTING COMPANY
)
~ Docket No. 50-322-0
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
. Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO INTERVENORS'
' NOTICE AND MOTION CONCERNING PROPOSED EMERGENCY PLANNING EXERCISES'" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal. mail system, this 7th day of February,1986.
Alan S. Rosenthal, Esq., Chairman
- Gary J. Edles, Esq.*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
. Washington, D.C.
20555 Iloward A. Filber*
Gerald C. Crotty, Esq.
Atomic Safety and Licensing Appeal Den Wiles, Esq.
Board Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber Washington, D.C.
70555 State Capitol Albany, NY 12224 Morton B. Margulies, Chairman
- Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C.
20555 Albany, NY 12224 Dr. Jerry R. Kline*
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, D.C.
20555 Albany, NY 12223 3
-r
W. Taylor Reveley III, Esq.
Mr. FredjMck J. Shon*
Hunton & Williams e.
Administrative Judge 707 East Main Street Atomic Safety and Licensing Board P.O. Box 1535 U.S.. Nuclear Regulatory Commission Richmond, VA 23212 Washington, D.C.
20555 IIerbert H. Brown, Esq. -
Stephen B. Latham, Esq.
Lawrence Coe Lanpher, Esq John F. Shea,. III, Esq.
Karla J. Letsche, Esq.
Twomey, Lathar: & Shea Kirkpatrick & Lockhart Attorneys at Law 1900 M Street, N.W.
P.O.-Box 398 8th Floor 33 West Second Street Washington, D. C.
20036 Riverhead, NY 11901 Donna Duer, Esq.
Atomic Safety and Licensing Attorney Board Panel
- Atomic Safety and Licensing. Board U.S. Nuclear Regulatory Commission Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Appeal Board Panel
- Dr. Monroe Schneider U.S. Nuclear Regulatory Commission North Shore Committee Washington, DC
.20555 P.O. Box 231 Wading River, NY 11792 Docketing.and Service Section*
Stewart M. Glass, Esq.
Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management i
Washington, D.C.
20555 Agency 26 Federal Plaza Spence Perry, Esq.
Room 1349 Associate General Counsel New York, NY 10278 Federal Energency Management Agency Room 840 Robert Abrems, Esq.
500 C Street, S.W.
Attorney Gesneral of the State Washington, D.C.
20472 of New York Attn : Peter Bienstock, Esq.
4
. Edward M. Barrett, Esq.
Department of Law General Counsel State of New York
' Long Island Lighting Company Two World Trade Center 250 Old County Road Room 46-14 Mineola, NY 11501 New York, NY ~ 1004" MHB Technical Associates Ms. Nora Bredes 1723 Hamilton Avenue Shoreham Opponents Coalition Suite K 195 East Main Street San Jose, CA 95125 Smithtown, NY 11787 f
Hon. Peter Cohalan Brookhaven Town Attorney Suffolk @unty Executive 475 E. Main Street i
County Egecutive/ Legislative Bldg.
Patchogue,-NY 11772 Veteran's Memorial Highway Hauppauge, NY 11788 Martin Bradley Ashare, Esq.
Suffolk County Attorney Mr. Jay Dunkleberger H. Lee Dennison Building New York State Energy Office Veteran's Memorial Highway Agency Building 2 Hauppauge, NY 11788 Empire State Plaza Albany, New York 12223 Chris Nolin Mr. Robert Hoffman New York State Assembly Ms. Susan Rosenfeld Energy Committee Ms. Sharlene Sherwin 626 Legislative Office Building P.O. Box 1355 Albany, NY 12248 Massapequa, NY 11758 Samuel J. Chilk*
Herzel H. E. Plaine*
Office of the Secretary Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 r
sYJ d A s-Sherwin E. Turk Deputy Assistant Chief Hearing Counsel
.