ML20154Q485
| ML20154Q485 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/29/1988 |
| From: | Latham S, Letsche K, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | |
| References | |
| CON-#488-7185 OL-3, NUDOCS 8810030414 | |
| Download: ML20154Q485 (13) | |
Text
"/ / 8 JI 00LKETE0 UWC September 29, 1988 UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION,g,,
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Rifore the Atomic Safety and Licensina_Acceal Boggd In the Matter of
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)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
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(Emergency Planning)
(shoreham Huclear Power Station,
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Unit 1)
)
)
GOVERNMENTS' OPPOSITION TO LILCO'S SEPTEMBER 28 HOTION FOR ENLARGEMENT OF BRIEFING TIME The Governments (Suffolk County, the State of New York, and the Town of Southampton), hereby state their objection to LILCO's Motion for Enlargement of Briefing Time, dated September 28, 1988 (hereafter, "LILCO's Motion").
In the Motion, LILCO requests 10 days to respond to the Governments' six-page Brief on Bifurcated Appeal from the September 23, 1988 Concluding Initial Decision in LBP-88-24 (hereafter "Bifurcated Brief*) rather than the three days ordered by the Appeal Board on September 27.
LILCO's Motion is an attack on this Board's ruling that there is good cause to grant the Governments' request for expedited treatment of the bifurcated appeal.
113 Appeal Board Order of September 27, 1988 at 1.1/
1/
Although the Governments asked that replies to the (continued...)
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LILCo's attack on the Board's ruling is without basis.
Moreover, aside from conclusory assertions that the bifurcated appeal "deserves more than three days' briefing time," LILCo fails to demonstrate why it is unable to submit a responsive brief within the time set by the Board.
This failure alone provides sufficient basis for denying LILCo's Motion.
The Governments respond below to the reasons LILCo asserts for its request, and demonstrate that the schedule already set for resolving the narrow issue presented by the Governments' bifurcated appeal is both necessary and appropriate.
1.
LILCO ignores undisputed facts which demonstrate the need for expeditious resolution of the issue raised in the bifurcated anneal.
a.
LILCo's Motion fails even to address the need for expedition crected by the actions of the OL-5 Licensing Board.
The OL-5 Licensing Board has issued an order which obligates the Governments to take certain actions as parties in the OL-5 proceeding.
That order has not been vacated by the OL-5 Board.
Therefore, the Governments remain bound to cosply with it, by preparing contentions on the results of the 1988 exercise to be filed by October 17.
The OL-3 Board's order in LBP-88-24, however, directly conflicts with the outstanding OL-5 Board's order because the 1/ (... cont i nued)
Bifurcated Brief be required by September 29, the Appeal Board gave the parties until 3:00 p.m. on September 30.
OL-3 Board purported to dismiss the Governments as parties to the OL-5 proceeding.
The Governments are entitled to an expeditious resolution of this conflict and a clarification of their rights and obligations before they are substantially prejudiced by the conflicting orders which are extant.
b.
LILCo's allegation that "there is no basis for Intervenors' allegation of urgency" (Motion at 2), in response to the Governments' statement that NRR is likely to make license j
findings concerning the 1988 exercise within two to four weeks, must be rejected.
i j
First, contrary to LILCo's accusation (Motion at 2), the Governments' representation is not "unattributed."
As stated in the Governmonts' Motion, it is based on information obtained from the of fice of General Counsel, and can be verified by contacting l
that office.
Egg Governments' Motion at 6.2/
1 Second, LILCO does not and cannot dispute the following f acts, stated by the Governments and found by this Board to r
constitute good cause for granting expedition on the bifurcated l
appeal:
1 (a) LBP-88-24 authorizes NRR to issue LILCO an 3
operating license upon making the requisite findings; 4
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2/
Counsel for Suffolk County has been informed that as of 4 : 00 p.m. on September 28, the NRC Staff had not notified the Appeal Board that the Governments' representation concerning NRR action is wrong or has changed, in response to the Appeal Board's September 27 order requiring the Staf f to provide the Appeal Board with prompt notification of such a fact.
(b) such findings would include findings relating to the 1988 exercize; (c) there is no basis for believing the staff would,
delay longer than two to four weeks in making such findings; and (d) absent a ruling on the Covernments' bifurcated appeal, the lovernments would have no opportunity to challenge any such Staf f findings.
2.
LILCO's argument is based on a mischaracterization of the issue raised by the bifurcated aceeal.
The Governments' bifurcated appeal raises one very narrow issue:
Did the OL-3 Licensing Board have jurisdiction to dismiss the Governments as parties to the OL-5 proceeding?
Egg Governments' Motion at 1, 3; Bifurcated Brief at 4-6.
Contrary to LILCO's assertions, resolution of the bifurcated appeal does not require examination of the merits of the OL-3 Board's sanction ruling or of any alleged acts by the Governments in the OL-3 proceeding or pursuant to their legislative authority.
Egg LILCO Motion at 3.
Rather, the question presented is a i
straightforward onk of jurisdiction:
Can the OL-3 Board which has found certain of the Governments' alleged actions to be sanctionable (a finding the Governments will challenge in their main appeal on the merits), rule that the Governments are dismissed from the separate OL-5 proceeding, which is pending before a separate OL-5 Board, on a subject -- the results of the
4 1988 exercise -- which the Appeal Board has found to be outside the jurisdiction of the OL-3 Board?
a.
Certainly, the issue raised by the bifurcated appeal.is important, as LILco says.
It is not complicated or difficult to address, however.
LILco states no reason for its assertion that it reauires 10 days rather than three to creoare a brief in resonnse to th.e six nace brief filed by the Governments, b.
Similarly, LILco states no basis, and provides no e xplanation, for its bald assertion that the issue raised by the bifurcated appeal is "so potentially prejudicial" to LILc0 that it needs additional time to prepare a responsive brief.
Eta LILCO Motion at 4.
LILc0 has provided this Board no basis for finding that any potential prejudice to LILco arising out of the i
i expedited briefing schedule set by the Appeal Board would outweigh the good cause for such expedition which the Board already found the Governments had shown.
i c.
LILco's assartion that the Govurnments' bifurcated appeal *is based on (a) fundamental misconceptions that emergency planning exarcise litigation takes on a life of its own independent of the fundamental legal issue being addressed, which is whether the im' rgency olan is adequate' (LILCo Motion at 3, emphhsis in original) fails to support the need for additional l
briefing time.
First, it is not clear what this LILCO statement is intended to mean.
LILCO fails to provide any logical nexus, I
_ _ _. _ _ _ - - =.
discussion, or explanation to connect the Governments' brief, the so-called "misconception," and briefing time.
Second, if the intention behind LILCo's cryptic comment is to suggest that there should be no litigation of the 1988 exercise results, that suggestion is wrong.
It is beyond dispute that:
-- the regulations require, as a prerequisite to license issuance, findings relating to the results of exercises (10 CFR Part 50 App. E);
-- the regulations require, as a prerequisite to license issuance, findings concerning the implementability of an e=ergency plan as well as its adequacy (10 CFR $ 50.47(a)(2);
10 CFR Part 50, App. El NUREG 0654);
-- intervenors are entitled to challenge the results of an exercise. (Egg Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C.Cir. 1984), cert. denied, 469 U.S.
1132 (1985));
-- the 1986 Shoreham exercise did not fulfill the regulatory requirements of Appendix E (Eng ALAB-900) ;
-- the 200G Shoreham exercise revealed that the LILCO emergency plan was fundamentally flawed and that LERO vas not f
capable of implementing that plan to provide adequate protection to the public (ERA LBP-88-2).
In light of these facts, the decisions which remain in effect finding LILCO's plan and its ability to implement it fundamentally flawed, and the rulings in ALAB-901, it is e,
disingenuous for LILCO to suggest that there need ce no challenge to, or litigation of, the results of the 1988 exercise.2/
3.
LILCO's accusations that the Governments' bifurcated appeal shows "disrespect for the NRC process," "is a claim that the Commission's immediate ef fectiveness revic.s cannot be trusted,"
and is "an end-run around the Commission's process for immediate effectiveness review," are unfounded.
l a.
The Governments' bifurcated appeal is completely separate from the Commission's immediate effectiveness review process, as the regulation governing that process makes clear.
10 CFR 5 2.764(g).
Indeed, the commission's explanation of the immediate effectiveness rule emphasizes this fact: "The ef fectiveness review was intended to be conducted entirely separately from review of any stay requests filed under 10 CFR 2.788 and formal appellate review under 10 CFR 2.762 and 2.786."
47 Fed. Reg. 40536 (Sept. 15, 1982).
b.
The Commission's immediate effectiveness review is expressly limited to public interest considerations.
Egg 10 CFR 5 2.764 (f) (2) (i).
As noted, it is not intended to supplant, or to duplicate, decisions on appeals on the merits under Section l
I 2/
It is niso disingenuous for LILCO to suggest (LILCO Motion at 2) that the NRC Staff, or FEMA, could take the Governments' place in representing the public in any exercise litigation, in light of the positions taken by those parties in previous litigation.
Neither of those parties has the commitment to the interests of the citizens of Long Island that the elected State and local governments have demonstrated.
i 1 l l
2.762, or decisions involving issues going beyond the public interest considerations listed in Section 2.764 (f)(2).
The Governments are entitled to appeal the Licensing Board's decision in LBP-88-24.
They have exercised that right.
The Governments are also entitled to seek expeditious resolution of all or part of that appeal, as they have in this case.
Notwithstanding their appeal on the merits, however, the Governments will also participate in the Commission's immediate effectiveness review process, as provided by the NRC's regulations.
The two are expressly n21 mutually exclusive.
4.
LILCO suffered no harm from the Appeal Board's order Grantina the Governments' Motion.
LILCO asserts that it will seek reyiew of the Board's September 27 Order due to the fact that it was issued gx parte.
LILCO Motion at 4.
That threat is without substance.
In its Motion, which in essence seeks reconsideration of the order, LILCO presumably makes all the arguments LILCO has regarding the Governments' Motion.
And, the Board agreed to consider those LILCO arguments.
LILCO does not challenge the bifurcation ruling, and it has now set forth its arguments on the need for expedition.
Thus, LILCO has suf fered no harm from the Board's original ax parte ruling.
5.
Conclusion For the foregoing reasons and those stated in the Governments' September 27 Motion, the Appeal Board should affirm its Order of September 27 and deny LILCO's Motion for Enlargement of Briefing Time.
Respectfully submitted, E. Thomas Boyle Suf folk Coun+.y Attorney Building 158 North County Complex Veterans Meriorial Highway Hauppauge, New York 11788 L
2J EhrehceCoeLanppr-Karla J.
Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036 Attorneys for Guffolk County e
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'2sh Fabian G.
P a l o m yi ' V / T
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Capitol Building klbany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York
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StephWn B.
Latham l
Twomey, Latham & shea P. O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton r
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UWC September 29, 1988 UNITED STATES OF AMERICA 'N SEP 29 N0:27 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino N a5ENaard [.
enup
)
In the Matter of
)
)
LONG ISLAND LIGilTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning) l (Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the Governments' Opposition to LILCO's September 28 Motion for Enlargement of Briefing Time have been served on the following this 29th day of September 1988, by U.S. mail, first class, except as otherwise noted.
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 Appeal Board U.S. Nuclear Regulatory Commisslor U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20535 Howard A. Wilbur**
Mr. Frederick J.
Shon*
Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Roard U.S. Nuclear Regulatory Commissior U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 James P. Gleason, Chairman
- Dr. Jerry R. Kline*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissior Washington, D.C.
20555 Washington, D.C.
2055.5
O O
Oscar H. Paris
- Adjudicatory File Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Docket Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing
- Willian R. Cumming, Esq.**
Board Panel George W. Watson, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agenc 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 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 Opponentt Coalition U.S. Nuclear Regulatory Comn.
195 East Main Street One White Flint North Smithtown, New York 11787 11555 Rockville Pike Rockville, Maryland 20852 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. Hardelli. 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 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMEC Enpire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 100}6,
,-*\\
MdK)urau Karla J. LetgdWe KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 i
By Hand By Telecopy l
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- By FtJeral Express I
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