ML20196F668
| ML20196F668 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/29/1988 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20196F673 | List: |
| References | |
| CON-#488-7608 ALAB-903, OL-5, NUDOCS 8812140058 | |
| Download: ML20196F668 (10) | |
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';g."=;;;.s..o_-a.2 2 -u-s NovembeE*dE'."1981
- ES 00: -2 P3 :54 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atonic Safety and Licensina Board
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In the Matter of
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14NG ISIAND LIGHTING COMPANY
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Docket No. 50-322-OL-5R
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(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
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MOTION FOR LEAVE TO FILE AMENDED EXERCISE CONTENTIQLi On October 24, 1988, Suffolk County, the State of New York and the Town of Southampton (the "Governments") submitted their contentions concerning LILCO's June 1988 Exercise.1/
Subsequently, on November 10, after LILCO and the Staff had submitted their objections and only days before the Governments' response to those objections was due, the Appeal Board issued ALAB-903, 28 NRC __, which provides new guidance on the meaning of the term "fundamental flav.*
Th,* purpose of this Motion is to 1/
Emergency Planning Contentions Relating to the June 7-9, 1988 Shoreham Exercise (Oct. 24, 1988) (the "original Contentions').
6812140050 081129 gDR ADOCK 05000322 PDR h
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obtain the Board's leave to file the enclosed Amended Emergency Planning Contentions Relating to the June 7-9, 1988 Shoreham Exercise which have been amended to address ALAB-903's new guidance.1/
Despite the extreme position taken by LILCO in its November 21 Motion to Dismiss,2/ it is readily apparent that good cause exists for the Board to accept the Governments' Amended l
Contentions.
At the time that the Covernments succitted their original Contentions, ALA;-903 had not yet been issued.
l Accordingly, the Gove,rnment s draf ted those Contentions on the basis of the guidance that was then available regarding the meaning of the term "fundamental flaw" and how such a flaw i
should be pled -- particularly LBP-88-2 and certain prior Board decisions.
LILCo's and the Staff's objections to the original contentionsi/ also addressed those Contentions in light of that guidance.1/
l ALAB-903 was issued on November 10, 1988 in response to a letter from LILco's counsel to the Appeal Board asking for such 1/
All asendments have been plainly marked:
additions to the original text are indicated by double underlining; deletions have been lined out.
1/
LILco's Motion to Dismiss Exercise Contentions 4-20 on the Basis of ALAB-903 (Nov. 21, 1988) ("LILCO's Motion to Dismiss").
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LILCO's Response to 1988 Exercise Contentions (Nov. 11, 1988) (*LILCO Objections *); NRC Staf f Response to Intervenors' Proffered Contentions Relating to the Emergency Planning Exercise Held on June 7-9, 1988 (Nov.
8, 1988) ("Staff Objections").
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ESA LILCO's Motion to Dismiss at 3 ("In LILCO's Response to Intervenor's exercise contentions, LILCO applied the definition of "fundamental flaw" adopted by this Board in LBP-88-2). )
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guidance.5/
That letter was sent to the Appeal Board on October 26, two days a11tr the Governnents had submitted their~ original r
Contentions.
It is evide,it from that letter that LILCo's 1
counsel realized that any :nodifications to the meaning of "fundamental flaw' would raquire the parties to address those modifications in further submissio1.;.2/
3 Ancr.g other things, ALAB-903 arguably establishes modified i
pleading standards for exercise contentionc.
Thus, after receiving ALAB-903 and recognizing this ' set, the Governments attempted to contact the Board on the same day (November 10) to i
arrange a conference call with the purpose of discussing the I
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effects of ALAB-903 and obtaining Board guidance as to how the parties should proceed.
In a series of conversations with the Board's secretary, counsel for Suffolk County conveyed the
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Governments' reasons for seeking such a conference of counsel.
The Board's secretary stated, however, that the Board had decided that the matter could be addressed at the conference of l
counsel, which was then scheduled for November 22.I/
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Letter from Donald P. Irwin to the OL-5 Appeal Board (Cet, j
26, 1988) ("October 26 Letter").
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october 26 Letter at 2, n.1.
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LILCO has r< rsisted in its Motion to Dismiss of accusing the Governments of improper ex rarte contacts with the Board.
Mr.
i Miller's letter of November 21 should have laid tiat matter to rest, but LILCO, in the November 21 cover letter by its counsel, t
appears to persist in its arguments.
The Board should reject LILCO's accusations summarily.
Counsel for the Governments merely responded to the Board's legitimate questions and LILCo's repeated accusations have no place in this proceeding.
The Governments will address this matter further in their response to i
LILCO's Motion to Dismiss.
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L In the moantime, the Governments completed their Response to LILCO's and the Staf f's objectionsE/ and filed it on November 15.
That Response, however, did not and could not address ALAB-903 for three reasons.
First, t.se Governments' Response was not the appropriate vehicle to address ALAB-903.
I The Response was a rebuttal to LILCo's and the Staff's objections, which in turn i
wera based on the Governments' original contentions.
Thus, all of the relevant pleadings were focured on pre-ALAD-903 ctandards, i
For the G0vernments to have addressed ALAB-903 in the.7esponse would have required them first to amend their Contentions, f
then 1
speculate as to what LILCO and the Staff would have objected to under those standards, and then respond to that speculation.
For obvious reasons, such an approach made no sense.
St:end, there was insufficient time to address ALAB-903 in
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3 the November 15 Response.
At the time the Governments received
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ALAB-903, they were still working on their responses to LILCO's I
and the Staff's Objections.
It required all of their resources
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and energies through the weekend of November 11-13 to complete l
j that task by November 14 so that the Response would be in the i
hands of the Board and the parties by noon on November 15, 1
as this Board had ( 3ered.
ALAB-903 came without warning on i
5 November 10 and there was no way that the Governments could have 1
addressed ALAB-903 in their Response in the short time remaining before the Response was to be completed.
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Governments' Response to the LILCo and NRC Staf f Objections
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to the 1988 Exercise Contentions (Nov. 15, 1988).
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l Third, the Governments promptly brought the issue of the l
possible impact of ALAB-903 on the Governments' Contentions to the Board's attention on November 10.
At that time, the Governments were told that the issue would be addressed at the November 22 conference of counsel.
The Governments thus reasonably assumed that procedural guidance vould be forthcoming shortly and ref rained f rom taking any further action on the r.atter until that time.
On November 21, however, the Board postponed the conference of counsel until December 6.
At that tir.o. the Governments 4
decided that the best course of action would be to amend their Contentions and submit them prior to the December 6 conference of counsel.
Given the intervening Thanksgiving holiday and the need last week to address the OL-6 Board's November 21st order authorizing a 25% power license, today's filing is prompt.
In light of these facts, it is plain that there is good
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cause for the Board to accept these Amended contentions.
The Governments do not concede that their original contentions could 1
not have been read to meet ALAB-903's requiresents.
However, it appears evident from LILco's recent correspondence and filings, that LILCo is urging this Board to reject Contentions 4-20 for i
allegedly f ailing to comply with ALAB-903.
If that is LILCo's
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approach, then it is only fair that the Governments be allowed to submit these Amended Contentions.
i Indeed, the current Seabrook exercise proceeding was, on November 10, at almost the precise stage of this proceeding --
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contentions had been submitted and objections had been filed.
Four days af ter ALAB-903 was issued, the Seabtsph Board ordered further briefing from the parties on the impact of ALAB-903.12/
Likewise, the fair approach for this Board to take is to permit the Governments to arc;;1 their original Contentions to comply with ALAB-903.
The covernments have done so and submitted their Anonded Contentions in a timely manner.
Accordingly, this Board should a : opt the cevernments' Amended Cententi:nc.
The Amended Contentions are being served today to give the Board and parties as nuch tire as possible prior to next week's i
l conference in which to review them.
The covernnents vill respond later this week to LILCO's Motion to Dismiss (a response is due to be filed December 1).
Respectfully submitted, J
E. Thomas Boyle suffolk County Attorney Building 158 Nor.'.h County Complex Veterans Memorial Highway Hauppauge, New York 11788 s Shea Shoreham Nuclcar Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Executive Director Docketing and Service Section Shoreham opponents Coalition Office of the Secretary 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 Assistant Attorney General for the State of New York Suffolk County Executive H. Lee Dennison Building 120 Broadway Room 3-118 Veterans Memorial Highway Hauppauge, Now York 11788 New York, New York 10271 MHB Technical Associates 1723 Hamilton Avenue Dr. Monroe Schneider Suite K North Shore Committee P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 E. Thomas Boyle, Esq.
Fabian G. Palomino, Esq.**
Suffolk County Attorney Richard J. Zahnleuter, Esq.
Bldg. 158 North County Complex Veterans Memorial Highway Special Counsel to the Governor Executive Chamber, Room 229 Hauppauge, New York 11788 State Capitol Albany, New York 12224 Mr. Jay Dunkleburger Edwin J. Reis, Esq.*
New York State Energy Office U.G. Nuclear Regulatory Comm.
7.gency Building 2 office of General Counsel 1591re State Plaza cna White Flint North e.cany, New York 12223 115 E 'a Rockville Pike bcukville, Maryland 20852 -
g David A. Brownlee, Esq.
Kirkpatrick & Lockhart Mr. Stuart Diamond 1500 oliver Building Business / Financial NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Gtreet New York, New York 10036 Adjudicatory File
- Atomic Safety and Licensing Board Mr. Philip H. McIntire Panel Docket Federal Emergency U.S. Nuclear Regulatory Commission Management Agency 26 Federal Plaza Washington, D.C.
20555 New York, New York 10278 X;6! M:? n:
~' christopher M.
McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
- Hand Delivered on November 30, 1988
- Via Federal Express
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