ML20195D269

Govts Response to 880610 Board Order Re CLI-86-13 Remand.* Basis for Board to Retain Jurisdiction Over Discovery Issues Re County Operations Plan Not Necessary Should Board Impopse Contemplated Sanctions.W/Certificate of Svc

ML20195D269
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/15/1988
From:	Latham S, Letsche K, 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-#288-6553 CLI-86-13, OL-3, NUDOCS 8806230083
Download: ML20195D269 (9)

Text

F T f f f3-June 15, 1988, A M,

l UNITED STATES OF AMERICA n.'c u o NUCLEAR REGULATORY COMMISSION 6

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W~Uth17 388 '

Before the Atomic Safety and Licensino Bo ar W stNa db 525ibt SECT NRc b 7 i )

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

GOVERNMENTS' RESPONSE TO BOARD ORDER OF JUNE 10, 1988., CONCERNING THE CLI-86-13 REMAND During the telephone conference call held June 10, 1988, the Board stated that it intended either to "dismiss () the realism contentions from the proceeding with or without prejudice or find the Intervenors in default and rule on the contentions in LILCO's favor." Tr. 20862. As the Board directed (id.), the Governments (the State of New York, Suffolk County, and the Town of Southampton) hereby respond to the Board's proposals.

The Governments have stated their position on the structure of the CLI-86-13 remand proceeding clearly and repeatedly.1/ As t 1/ Rather than repeat the bases and reasons for the Governments' position here, the Governmente refer to their r previous filings of April 13, 1988 (Governments' Objection to (footnote continued) 8806230083 880615 PDR ADOCK 05000322 O PDR N

m g:

the Board acknowledged during the conference call (Tr. 20850),

the bottom line of the Governments' position -- and the reason that the proceeding cannot go forward as presently structured --

is that the Board has~ erroneously interpreted-the new emergency planning rule. The Board's rulings, which are set forth in the February 29'and April 8 Orders, have made it impossible for this proceeding to go forward for the reasons stated in the Governments' previous filings.2/

(footnote continued from previous page)

Portions of February 29 and April 8 Orders in the Realism Remand and Offer of Proof), May 2, 1988 (Governments' Response to LILCO's April 22 Request for Dismissal of the Legal Authority Contentions), May 6, 1988 (Governments' Reply to NRC Staff's April 28 Request that the Governments be Held in Default), and June 9, 1988 (Governments' Notice that the Board has Precluded Continuation of the CLI-86-13 Remand).

2/ As the Gcvernments' previous filings (agg n.1) make clear, the Governments have described for the Board what their "best

i. efforts" response to a Shoreham emergency would be and why. In responding to a Shoreham emergency, the Governments would not follow the LILCO Plan or any other plan. The Governments would respond ad hoc according to what the Governments deemed best at the time of the emergency. The Governments have explained in

( detail why they would not and could not follow the LILCO Plan, including its so-called "interface" procedure.

The Board has refused to acknowledge that the Governments have rebutted the presumption contained in the new rule, however.

Instead, the Board has held that the new rule imposes an obligation upon the Governments to present a plan for the Board's review or it will be presumed that the Governments would follow the LILCO Plan. The Board has exceeded its authority in I

attempting to impose such an obligation upon the Governments, in refusing to acknowledge and accept the determinations and statements of the Governments concerning their intended actions, and in attempting to premise this CLI-86-13 remand proceeding on the falsehood that the Governments would do that which they have lawfully determined that they cannot and will not do.

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9 There is-no basis for the Board to impose any sanctions, to dismiss Contentions 1-10, to find the Governments in default, or to rule for LILCO on Contentions 1-10. The only appropriate course of action is for the Board to correct its rulings inter-preting the new rule, and then to proceed in accordance with CLI-86-13 3 / and the plain terms of the new rule itself.1/

During the June 10 conference call, the Board also stated that it "intends to retain jurisdiction over the discovery issues concerning the recent availability of the so-called Suffolk County Emergency Plan" (Tr. 20862). The Governments offer the following comments on that subject.

First, if the Board were to impose one of the sanctions it discussed on June 10, all discovery issues on Contentions 1-10, including any related to the County Operations Plan, would become moot.

Second, the County is aware of no facts concerning the production of the Operations Plan that could justify I retention 3/ Lona Island Lichtina Co., (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986). Egg also Lona Island Lichtina Co., (Shoreham Nuclear Power Station, Unit 1), LBP 26, 26 NRC 201 (1987) and Lona Island Lichtina Co., (Shoreham l Nuclear Power Station, Unit 1), LBP-87-29, 26 NRC 302 (1987),

which interpreted and applied CLI-86-13 to the evidence before the Board.

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1/ The Governments cannot comment on which of the Board's l proposed sanctions is appropriate since it is the Governments'

! view that there is no basis for imposition of any sanction.

v .

4 of jurisdiction. All known information on the subject was provided to the Board on June 3 (agg Tr. 20815-18). The facts regarding production of the Operations Plan are as follows:

The plan was produced most recently in this proceeding following the Board's May 10 Order.

Concerning the production of that plan in 1982:

(a) John Bilello of the County's Emergency Preparedness Division believes the Operations Plan was among the documents gathered and sent to counsel pursuant to then Deputy County Executive Frank Jones' 1982 directive; (b) Frank Jones believes the Operations Plan was among the documents to be produced to LILCO; (c) Counsel does not have records which indicate whether the Operations Plan was produced in 1982-83, and the attorneys who were involved in the production process have no specific recollection l

whether that plan was or was not among the docu-ments turned over to LILCO. If counsel received j

the plan from the County, it would have been counsel's intention to have produced it (with l

i

s personal data redacted). The County cannot prove that it was produced, however, just'as LILCO cannot prove that'it was not. If there was any non production in 1982, it would have been unintentional.

In light of these facts, there is no need or basis for the Board to retain jurisdiction over discovery issues relating to the County Operations Plan should the Board impose any of its contem-plated sanctions.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 l Hetb$rt H. Brown /

Lawrence Coe Lah her l Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.

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

l Attorneys for Suffolk County ,

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i

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Pabian G. lomino Richard J. Zahnleuter 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 s ca L a d L C4 t)

,81 rep' n B. Latham~

Twom y, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

4 June 15, 1988

,L il y ; ~

i ys(g; UNITED STATES OF AMERICA ' "' '~

NUCLEAR REGULATORY COMMISSION 2

! [ DUN!l 719BB 1 Before the Atomic Safety and Licensino Board, _

' , twr.::nNG E. O

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\/,\ stnv:CS sccyBRANCH Nac Vihrm W

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In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

y CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' RESPONSE TO BOARD ORDER OF JUNE 10, 1988 CONCERNING THE CLI-86-13 REMAND have been served on the following this 15th day of June, 1988 by U.S. mail, first class, except as otherwise noted.

i l

James P. Gleason, Chairman

• Mr. Frederick J. Shon*

Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 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 Federal Emergency Management Agency 500 C Street, S.W., Roem'840 Washington, D.C. 20472 1

W e.

t Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq.**

Richard J. Zahleuter, Esq. Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq. Anthony F. .Earley, Jr., Esq.

Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq. Ms. Elisabeth Talbbi, 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 Mr. L. F. Britt Stephen B. Latham, 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 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 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin Assistant Attorney General Suffolk County Executive New York State Department of Law H. Lee Dennison Building l 120 Broadway Veterans Memorial Highway Room 3-118 Hauppauge, New York 11788 t

New York, New York 10271 1

MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J. Reis, Esq.*

New York State Energy Office George E. Johnson, Esq.

Agency Building 2 U.S. Nuclear Regulatory Comm.

Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 i

e David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency Management Town Hall Agency Oyster Bay, New York 11771 26 Federal Plaza New York, New York 10278 Adjudicatory File Atomic Safety and Licensing Board ,

Panel Docket '

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 / /

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Kd a J. Letsc/te KIRKPATRICK V LOCKHART 1800 M Street, N.W.

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

• By hand

• • By Federal Express l

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