ML20154S335

Suffolk County,State of Ny & Town of Southampton Comments Re Immediate Effectiveness Review.* Opportunity to Make 30- Minute Presentation at Commission Meeting to Assist in Effective Review Requested.Certificate of Svc Encl

ML20154S335
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/03/1988
From:	Brown H, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	NRC COMMISSION (OCM)
References
CON-#488-7200 OL-3, NUDOCS 8810050044
Download: ML20154S335 (10)

Text

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00LKETED October 3, l'9d8C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 (ET -3 P4 :42 ,

Before the Commission c;rn ,

uGN -

)  !

In the Matter of )

)  :

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

) (Emergency Planning) (

(Shoreham Nuclear Power Station, ) '

Unit 1) )

) 5

)

SUFFOLK COUNTY, NEW YORK STATE, Ah3 TOWN OF SOUTHAMPTON f COMMENTS CONCERNING IMMEDIATE EFFECTIVENESS REVIEW [

l Pursuant to 10 CFR S 2.764(f)(2)(li), Suffolk County, New York State, and the Town of Southampton (the "Governments")

submit the following comments and urge the Commission to stay the  !

effectiveness of the Licensing Board's September 23, 1988 Concluding Initial Decision on Emergency Planning, LBJ-88-24 (the "Decision"). In the Decision, a two-member majority of the Board threw the Governments out of all Shoreham proceedings and (

authorized the NRC Staff, after making necessary findings on remaining issues, to grant LILCO a full powe:r operating license I for Shoreham.1/

The Governments recognize that the Commission's immediate effectiveness review is not intended to supplant normal appellate  ;

1/ Judge Shon dissented, in a separate opinion, from the majority's decision to throw out the Governments.  ;

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4 review or to prejudice the appellate process.2/ It is intended to provide the Commission an opportunity of its own to determine

] whether the circumstances require a stay.

l' The decision of the Board-majority requires a stay, if for  !

i no other reason than to allow the NRC's appellate processes to l j address the implications of:

l (1) a split decision that punishes the Governments for -

conduct that in lawful, a fact the Board-majority itself acknowledges;  !

(2) an ad hominem decision that ascribes false motives to 3

l the Governments; '

(J) a conclusory decision that ignores the safety conse-I quences of the Board-majority's action; and i

1 (4) a Board-majority that followed an agenda of its own,  !

j rather than the safety agenda established by law.  ;

f If the enormity of these tactors does not provoke the Commission  !

i j to stay the Decision and permit full appellate review, then i i ,

Section 2.764(f) is without purpose.

l l i

2/

j On September 27, 1988, the Governments noticed their appeal [

of LBP-88-24. ,

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) ,

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0 The commicsion's criterion for determining whether to stay l immediate effectiveness is "the public interest." 10 CFR S 2.764(f)(2)(1). It is in the public interest to stay the Decision for the following reasons:

i The Board-majority authorized issuance of a r

license only because it threw the Governments out of all Shoreham proceedings -- even those before -

other boards -- and then found there to be no ,

party in the proceeding to contest issuance of the li ce n >:a . In fact, the Governments continue to l contest issuance of a license and are prepared to  :

litigate serious safety issues.3/ ,

1 i

The Board-majority threw out the Governments on

charges of their having engaged for years in a I

, pattern of bad faith and willful obstructionism.

The charges are false and contrary to the j evidence; they merit the Commission's scrutiny.1/

, 3/ Other Shoreham Boards also have issues pending before them:

the 50-322-OL-5 Licensing Board chaired by Judge Frye has  !

commenced the contention process on the 1988 Shoreham Exercise;  !

the 50-322-OL-3 Appeal Board chaired by Judge Kohl is considering  !

the Governments' appeal of LBP-88-13, the decision approving  !

LILCO's relocation centers; the 50-322-OL-5 Appeal Board chaired  !

by Judge Kohl is considering LILCO's appeal from LBP-88-2, the l decision finding LILCO's plan fundamentally flawed; and the  !

Commission is considering issues'related to LILCO's proposals for t protecting contaminated individuals. .

I/ The Board-majority threw the Town of Southampton out of all Shoreham proceedings, but did not even charge the Town with any  :

(footnote continued)  !

l

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4 .

The Governments have participated in the Shoreham proceedings for years. They have painstakingly contributed to protecting public safety, at times even confronting the hostility of the Commission

. itself. Indeed, in May 1984 the Commission's hostile conduct required the Governments to obtain from the U.S. District Court an injunction prohibiting the NRC from further depriving the Governments of their constitutional rights.

The Governments have also won significant victories for public safety before the appeal boards and licensing boards, including decisions that LILCO's 1986 exercise was unsatisfactory in scope and that its emergency plan and response capabilities were fundamentally flawed. The Governments would continde to litigate for public safety in the pending proceedings, if not for the Board-majority's decision.

The situation presented by this case will never be paralleled. It is (1) the first time all affected (footnote continued frem previous page) misconduct. Indeed, the Town was never even alleged to have withheld any discovery, the issue on which the OL-3 Board focused its sanctions ruling. Further, the Board-majority cited the State's failure to produce a particular document ao evidence of misconduct, even though the request for that document was not directed to the State.

_4

i State and local governments have found it not possible to evacuate the public safely in the event of a nuclear accident; (2) the first time a utility emergency plan is being promoted to push aside the lawful decisions of State and local governments; (3) the first time the NRC is applying its new emergency planning rule; and (4) the first time elected governments have been thrown out of NRC proceedings.

The results of LILCO's June 1988 exercise are pending before the OL-5 Licensing Board. But for the Board-majority's ouster of the Governments, the Governments would show that LILCO's performance was as inadequate in June 1988 as it was in 1986.

Surely, in these circumstances it is "in the public interest" for tt.e Commission to stay the immediate effectiveness of the Board-majority's decision and to allow the NRC's appellate process to proceed. To assist the Commission in its immediate

-S-

effectiveness review, the Governments hereby request the oppor-tunity to make a 30-minute presentation at a meeting of the Commission.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Euilding 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 herbert H. Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County FaTian~G.' Palomino

/\ ___

Richard J. Zahnleuter (g#)

Special Counsel to the Governor of the State of New York ,

Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York Stepnetn B. Latham Twomey, Latham & Shea

• R.

h >[

~

L P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton October 3, 1988 L

[ ^' M fie

' hrC October 3. 1988

'E8 Q:T -3 P4 :42 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION G r y t ,, ,, t , 2, DG C M.* h . ' r * , fl Before the Commission 3R AM H

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

) ,

QERIlffCATE OF SERVICE  ;

I hereby certify that copies of SUFFOLK COUNTY, NEW YORK STATE, AND TOWN OF SOUTHAMPTON COMMENTS CONCERNING IMMEDIATE EFFECTIVENSSS REVIEW have been served on the following this 3rd day of October 1988 by U.S. m111, first class, except as  :

otherwise noted.

t Lando W. Zech, Jr., Chairman

• Comm. Kenneth C. Rogers

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Comm. Kenneth M. Carr* Comm. Frederick M. Bernthal*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washingtcn, D.C. 20555 >

Comm. Thomas M. Roberts

• Christine N. Kohl, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 t

i ,

l l

e i

Howard A. Wilber Alan S. Rosenthal Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman William C. Parler, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555  ;

Washington, D.C. 20555 Dr. Jerry R. Kline William R. Cumming, Esq. "

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Pederal Emergency Management Agency 500 C Street, S.W., Rocm 840 >

Washington, D.C. 20472 -

Mr. Prederick J. Shon Anthony P. Earley, Jr., Esq.  ;

Atomic Safety and Licensing Board Genecal Counsel }

U.S. Nuclear Regulatory Commission Long Island Lighting Company '

Washington, D.C. 20555 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**

Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L. P. Britt John Shea, Esq.***

Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section F-ecutive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street Washington, D.C. 20555 Smithtown, New York 11787 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Poom 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788

l ,

MMB Technical Associates Dr. Vonroe Schneider 1723 Hamilton Avenue North Shore Committee

} Suite K P.O. Box 231

! San Jose, California 95125 Wading River, New York 11792 E. Thomas Boyle, Esq. Fabian G. Palomino, Esq.***

Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 David A. Brownlee, Esq.

Kirkpatrick & Lockhart 1500 Oliver Building Edwin J. Reis, Esq.* Pittsburgh, Pennsylvania 15222 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 30036 Joel Blau, Esq. Mr. Philip McIntire Director, Utility Intervention Federal Emergency Management N.Y. Consumer Protection Board Agency Suite 1020 26 Federal Plaza Albany, New York 12210 New York, New York 10278 Adjudicatory File Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C. 20555 9

vt/u ct . l7 .

Lawrence Coe Lanphef KIRKPATRICK & LOCKHART 1800 M Street, N.W.

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

• By Hand

• • By Telecopy

• • • By Federal Express

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