ML20196B326
| ML20196B326 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/23/1988 |
| From: | Lanpher L, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6616 OL-3, NUDOCS 8806300247 | |
| Download: ML20196B326 (8) | |
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00CKETED USNPC June 23, 1989 JE 27 P5:46 UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
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In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' MOTION FOR STAY OF JUNE 17 ORDER On June 20, 1988, the Governments filed a Motion for Licensing Board to Vacate June 17 Order ("June 20 Motion").
That Motion did not expressly request that the Licensing Board issue a stay of the June 17 Order pending the Licensing Board's ruling on the June 20 Motion or, in the event that the June 20 Motion were denied, pending an opportunity to obtain appellate review.
Upon subsequent review of NRC precedents, the Governments believe that the filing of such a stay motion in the alternative may have been appropriate.
Accordingly, the Governments hereby submit this mo tio:. as a supplement to the June 20 Motion.
The Licensing Board should :rt che requested stay because the 10 CFR S 2.788(e) stay criceriu ard satisfied.
First, the 8806300247 880623 PDR ADOCK 05000443 G
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Governments have demonstrated a substantial likelihood of success on the merits or, at a minimum, have raised substantial questions regarding the correctness of the Board's June 17 Order.
These reasons are set forth in the June 20 Motion and will not be repeated herein.
Second, absent the grant of a stay, the Governments will suffer irreparable injury.
If the stay is not granted and the ordered depositions were to take place, it would be impossible to grant the relief requested in the June 20 Motion.
Thus, absent a stay, the Governments' efforts to obtain a considered decision on the substantial legal issues raised in the June 20 Motion --
including this Board's lack of jurisdiction and basis for its June 17 Order and the impropriety of the ordered procedures --
would be rendered moot.
It is well established that the potential mooting of an appeal can constitute irreparable injury.
E.o.,
Scrious Howard Radio Inc. v.
PCC, 316 U.S.
4, 9-10 (1942).1/
In addition to the irreparable injury which would result from the mooting of the issues raised in the June 20 Motion, a failure to grant a stay of the June 17 Croer would also cause concrete harm to the Governments.
- Egg, e.o.,
Lono Island 1/
Egg also Zenith Radio Coro.
- v. United States, 710 F.2d 806 (Fed. Cir. 1983); Public Utilities Comm'n v. Caoital Transit Co.,
214 F.2d 242 (D.C. Cir. 1954); Lower Alloways Creek v. NRC, 481 F.
Supp. 443 (D.N.J. 1979); Jordan v. Wolke, 463 F.
Supp. 641 (E.D. Wis. 1978); City of Hartford v.
Hills, 408 F.
Supp 879, 884 (D. Conn. 1975); Powelton Civic Homeowners Ass'n.
- v. HUD, 284 F.
Supp. 809 (E.D. Pa. 1968).
Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985).
Absent a stay, the Governments' personnel would be required to submit to LILCO's prosecutorial questioning in the context of a proceeding over which, it is alleged, the Licensing Board has no jurisdiction.
Such questioning would occur despite the Board's failure to specify in detail the alleged bases for the investigation it seeks to authorize LILCO to conduct on the Board's behalf, and its failure to conduct such an investigation assuming it had jurisdiction in the first place, according to established and appropriate procedures.
The Governments' due process rights to a fair and impartial proceeding by a tribunal of competent jurisdiction would be irreparably compromised if the proceeding goes forward as presently structured.
Such due process violations constitute irreparable injury.
Amos Treat & Co. v.
Securities and Exchance Comm., 306 F.2d 260, 267 (D.C. Cir. 1962); Heublin, Inc. v.
Federal Trade Comm., 539 F. Supp. 123, 128 (D. Conn. 1982).
Third, no other party would be injured if a stay were issued pending this Board's decision on the June 20 Motion and, if necessary, the Appeal Board's review on the merits of the legal i
issues.
This Board has already made clear that it will proceed l
no further on the legal authority contentions.
The so-called "integrity of the proceeding" inquiry launched by the June 17 Order is, at best, a tangential or supplementary proceeding.
A delay in such a supplementary proceeding to permit review of the I !
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i substantial jurisdictional and due process issues raised by the Governments.' June 20 Motion would have no impact on the schedule of the licensing proceeding on still pending contentions and contested issues.
Thus, no party would be injured if the Board afforded due regard to the Governments' rights to have the legal issues resolved in advance of their being mooted by granting the requested stay.
Finally, the public interest favors the grant of a stay.
There has been considerable controversy over the matters raised by the "integrity of the proceeding" inquiry, including serious accusations by LILCO regarding the intent and motivations of the Governments and their officials.
Such accusations, directed at l
I sovereign. governments, must be taken seriously by those govern-ments.
The NRC has an obligation in these circumstances to l
ensure that the pending legal issues are given the most careful consideration before any actions are taken.
Accordingly, the public interest strongly favors issuance of a stay so that merits of the various issues can be considered.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 l
s W
erbert 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 R A s 3. 2 1 / 2 C yc f Fabian G. Palomino Richard J.
Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 i
Capitol Building Albany, New York 12224 l
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Attorneys for Mario M. Cuomo, l
Governor of the State of New York i
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DCLKETED U1NRC June 23, 198&
TU 40N z7 P5 :46 UNITED STATES OF AMERICA ON N ; E f L
NUCLEAR REGULATORY COMMISSION 00Chirimf5 St iivlCf BRANCH Before the Atomic Safety and Licensino Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' MOTION FOR STAY OF JUNE 17 ORDER have been served on the following this 23rd day of June 1988 by U.S. mail, first class, except as otherwise noted.
James P. Gleason, Chairman
- Mr. Frederick J.
Shon*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Ccmmission 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 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C.
20472
i 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 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 Mr.
L.
F.
Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street l
North Country Road Riverhead, New York 11901 l
Wading River, New York 11792 l
l 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 120 Broadway Veterans Memorial Highway Room 3-118 Hauppauge, New York 11788 New York, New York 10271 l
MHB Technical Associates Dr. Monroe Schneider l
1723 Hamilton Avenue North Shore Committee l
Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger New York State Energy Office Edwin J.
Reis, Esq.*
Agency Building 2 U.S. Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C.
20555
s.
I 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 Lawrence Coe LanpKer KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 By Telecopy l
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