ML20154E234
| ML20154E234 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/05/1988 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6297 LBP-88-02, LBP-88-2, OL-5, NUDOCS 8805200137 | |
| Download: ML20154E234 (9) | |
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f 4 2.N DOCKETED May IslIES988 g gg.9 pg ;h4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Acceal BoardJ %=:V io JI 00CKL liNU ^
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In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' MOTION FOR LEAVE TO RESPOND TO NRC STAFF BRIEF IN RESPONSE TO LILCO APPEAL FROM LBP-88-2 On Monday, May 2,
- 1988, le Governments (Suffolk County, New York State, and the Town of Southampton) received the NRC Staff's briefl/ in response to LILCO's appeal from the OL-5 Licensing Board's February 1, 1988 Initial Decision 2/ on the February 13, 1986 exercise of the LILCO Plan for Shoreham (the "Exercise").
Fo.' the reasons set for".h below, the Governments seek leave to respond to certain matters raised in the Staff's Brief.
1 1/
NRC Staff Response to LILCO Appeal of the February 1, 1988 Initial Decision on the Emergency Plan Exercise, dated April 28, 1988 (hereafter, "Staff's Brief").
2/
Lono Island Lichtino Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-88-2, NRC slip cp. (February 1, 1988) (hereafter, "LBP-88-2").
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In supporting the LILCO appeal of LBP-88-2,l/ the Staff urges that the Appeal Board reverse the Licensing Board and find that there are no fundamental flaws in LILCO's Plan.
- Sag, e.g.,
Staff's Brief at 2.
The Staff thus takes a position on appeal that differs dramaticallyd/ from the position it took in its proposed findings filed September 11, 1987.
Egg NRC Staff's Proposed Findings of Fact and Conclusions of Law on the February 13, 1986 Emergency Planning Exercise, Sept. 11, 1987 (hereafter, "Staff Findings").
Indeed, in its Findings, the Staff concluded that, with respect to three of the five contentions to which the LILCO appeal is addressed -- Contentions EX 40, 41 and 50 -- the evidence of record demonstrated that i
fundamental flaws existed in LILCO's Plan.5/
The Staff concluded in September 1987 that deficiencies in LILCO's Plan revealed during the Shoreham Exercise "are significant to the overall ability of LERO to implement the LILCO Plan" and "preclude (d] a l
1/
Egg LILCO Brief on Appeal from the February 1, 1988 Partial Initial Decision on Emergency Planning Exercise, dated March 7, 1988 (hereafter, "LILCO Brief").
1/
The Staff is being less than straightforward when it states that its position has changed "in some respects."
Staff's Brief at 2, n.2.
S/
Egg Staff Findings at 49 (Contention EX 40:
"In regard to the timely manning of the TCPs for a controlled evacuation, LILCO did not demonstrate reasonable assurance that its Plan can and will be implemented in the event of an emergency"); id.
at 83-84 (Contention EX 41:
"'the exercise revealed
. deficiencies which preclude a finding of reasonable l
assurance that protective measures can and will be taken, 1222, fundamental flaws in the plan' in regard to the removal of T
roadway impediments"); id. at 185-86 (Contention EX 50:
"This 1
deficiency in the training program requires us to find that there is not at this time reasonable assurance that adequate protective i
measures can and will be t& ken in the event of an emergency at Shoreham.").
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finding of reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency, ligt, show(ed] a fundamental flaw in the (LILCO) Plan."
Staff Findings at 187.
i The Staff's abrupt aboat-face in April-1988 is "explained" by the. issuance of the Commission's new emergency planning rule.
52 Fed. Reg. 42078 (Nov.
3, 1987); gag Staff's Brief at 2, n.2.
Nothing more is offered by the Staff to explain its shift in position.
However, the Staff's new approach appears to be that, under the Commission's new rule, a deficiency revealed during the exercise of a utility plan can only rise to the level of a fundamental flaw if that. deficiency is so pervasive and onerous in nature that it affirmatively impudes an unplanned, or ad hqs, governmental response to a radiological emergency.
- Egg, e.a.,
Staff's Brief at 14 ("the deficiency must preclude the taking of a range of adequate protective measures (even where state and local best efforts are exercised.}").
The Governments seek leave to respond on two matters.
First, the Governments seek to demonstrate that since the Staff's new arguments were never presented to the Licensing Board, they should not be entertained by the Appeal Board.
If granted leave to respond, it will be shown that although the Staff asserts that the position it takes on appeal is based upon the Commission's new rule -- which was promulgated following the filing of the Staff's Findings -- the real nexus between the Staff's position i
i
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s and the fundamental flaw standard it argues for is the Commission's decision in CLI-86-13.
Lono Island Lichtino comoany i
(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).
CLI-86-13 was decided long before the Staff's Findings were filed, however.
Thus, there is no excuse for the Staff's failure to raise this issue before the Licensing Board.
Second, the Governments seek leave to respond to the substance of the Staff's argument that CLI-86-13 and the new rule somehow control the Exercise litigation and the Decision rendered by the Board below (LBP-88-2).
The Governments have never had an opportunity to address this issue.
LILCO did not argue this matter on appeal,5/ and thus the Governments did not addressiit in their April 18 brief.1/
And, since the Staff never even l
mentioned the issue in its Findings, the Governments had no way to anticipate that it might appear fo'r the first time in the Staff's Brief.8/
1/
While LILCO mentions the Commission's new rule in passing, it does not argue, as does the Staff, that the rule somehow changes the fundamental flaw standard.
- Egg, e.o.,
LILCO Brief at 2.
1/
Egg Governments' Brief in Opposition to LILCO Appeal from LBP-88-2, dated April 18, 1988.
l 8/
The Staff took no appeal from LBP-88-2, nor did it ever indicate the dramatic change in position regarding the Decision l
below, prior to the filing of its Brief before this Board.
- Thus, for example, the Staff never sought reconsideration of LBP-88-2; j
similarly, between the time the new rule was adopted (October 29, 1987) and the issuance of LBP-88-2 on February 1, 1988, the Staff 2
never indicated to the Licensing Board or parties that it believed the applicable standards had changed.
If the Staff is now permitted to argue the merits of the fundamental flaw standard advocated in its Brief, the Governments will have been blind-sided in a way never intended by the Commission's Rules of (footnote continued)
_4
Os In sho:t, eithbr the Staff's Brief should be rejected by j
this Board, or the Governments must be given the opportunity to i
respond to the new and heretofore unannounced approach taken by the Staff with respect to the fundamental flaw stanrfard governing litigation of exercise results.
For the foregoing reasons, the Governments respectfully request that they be granted leave to i
respond to the Staff's Brief.
i Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 5
Lawrence Coe Lanpher i
Michael S. Miller KIRKPATRICK & LOCKHART t
1800 M Street, N.W.
South Lobby - 9th Floor
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l Washington, D.C.
20036-5891 l
Attorneys for Suffolk County i
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(footnote continued from previous page) l Practice.
Pursuant to 10 CFR S 2.762, the Staff may file a responsive brief in support of or in opposition to an appeal to this Board.
Here, however, the Staff's Brief, while styled a j
responsive brief, is in reality much more.
The Staff has become i
an appellant, and should have filed its Brief pursuant to the
[
provisions of Section 2.762(b), so as to provide the Governments k
a fair opportunity to respond.
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- l. Y Wor o t'df) 7 Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York
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Rf Steprien B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton I
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May 5.
19 8 g pg$4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION hgg. gt RUtite '0cKEUNG Before the Atomic Safety and Licensino Acceal BoardBi,%KCH
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' MOTION FOR LEAVE TO RESPOND TO NRC STAFF BRIEF IN RESPONSE TO LILCO APPEAL FROM LBP-88-2 have been served on the following this 5th day of May, 1988 by U.S. mail, first claas.
?
Christine N. Kohl, Chairman
- Dr. W. Reed Johnson ***
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission 115 Falcon Drive, Colhurst Washington, D.C.
20555 Charlottesville, VA 22901 Alan S. Rosenthal
- John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board l
Appeal Board U.S. Nuclear Regulatory Commission l
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Oscar H.
Paris
- 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 Washingto'4, D.C.
20555 Atomic Safety and Licensing
- William L. Cumming, Esq.
t Board Panel George W. Watson, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel l
Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 r
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i e
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P 2
4 Fabian G. Palomino, Esq.
W.
Taylor Reveley, III, Esq.
Richard J. Zahnleuter, Esq.
Hunton & Williams Special Counsel to the Governor P.O.
Box 1535 Executive Chamber, Room 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Anthony F.
Earley, Jr.,
Esq.
Edwin J. Reis, Esq.
General Counsel George E. Johnson, Esq.
Long Island Lighting Company U.S. Nuclear Regulatory Comm.
175 East Old Country Road Office of General Counsel Hicksville, New York 11801 Washington, D.C.
20555 E.
Thomas Boyle, Esq.
Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Stephen B. Latham, Esq.
David A.
Brownlee, Esq.
Twomey, Latham & Shea Kirkpatrick & Lockhart 33 West Second Street 1500 Oliver Building Riverhead, New York 11901 Pittsburgh, Pennsylvania 15222 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 Hon. Patrick G.
Halpin MHB Technical Associates Suffolk County Executive 1723 Hamilton Avenue H. Lee Dennison Building Suite K Veterans Memorial Highway San Jose, California 95125 Hauppauge, New York 11788 Joel Blau, Esq.
Alfred L.
Nardelli, Esq.
Director, Utility Intervention New York State Department of Law N.Y. Consumer Protection Board 120 Broadway, 3rd Floor Suite 1020 Room 3-118 Albany, New York 12210 New York, New York 10271 -
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Mr. Jay Dunkleburger Mr. Stuart Diamond
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New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W.
43rd Street l
Albany, New York 12223 New York, New York 10036 hW/W Michael S. Miller i
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 P
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By Telecopy By Federal Express i
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