ML20196F707
| ML20196F707 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/05/1988 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7616 ALAB-905, LBP-88-24, OL-6, NUDOCS 8812140073 | |
| Download: ML20196F707 (8) | |
Text
sp'.
76/6 i
',i. ii f vt December 5.
1988 10 DEC -5 P2 :28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Accoal Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' RESPONSE TO LILCO'S MOTION Es3 CERTIFICATION OF NOVEMBER 21 ORDER TO THE COMMISSION LILCO's Motion for Certification of the Licensing Board's November 21 Memorandum and Order and Request for Expedited Disposition (Nov. 23, 1988) (the "Motion") in effect seeks reconsideration of the Appeal Board's November 22 Memorandum and Order.
For the following reasons, the Governments (Suffolk County, the State of New York, and the Town of Southampton) urge the Appeal Board to deny LILCO's Motion.
1.
LILCO states no basis for the Appeal Board to reconsider its November 22 Memorandum and Order, which held that "any appeals from the Licensing Board's November 21, 1908, Memorandum and 0. der on LILCO's 25 percent power request are to be filed with us and briefed in accordance with 10 C.F.R. 5 2.762."
Lonq Island Lichtinq JLit (Shoreham Nuclear Power Station, Unit 1),
8912140073 08120" PDR ADOCK 0500 G
h 503
g Memorandum and Order (Nov. 22, 1988), slip op. at 3.
Indeed, in its Motion LILCO simply reiterates the OL-6 Licensing Board's alleged basis for its attempted "referral" of the November 21 Order -- which the Appeal Board already rejected as improper.
The Governments will not repeat the bases given by the Appeal Board itself for its November 22 Order since they speak for themselves.
While LILCO acknowledges the existence of the Appeal Board's November 22 Order (113 Motion at 3), the full extent of its "response" to the Appeal Board's analysis is to assert, with no explanation or substantive discussion, that the Commission's November 9 Order addressing a portion of the Governments' appeal from LnP-88-24, has somehow "overridden" the 1
Appeal Board's November 22 Order concerning the OL-6 Board's November 21 Order.
Id2 at 4-5.
This conclusory assertion is precisely what the OL-6 Board itself based its purported i
"referral" upon.
The Appeal Board already rejected that argument, and LILCO offers no reason for the Appeal Board to i
reverse itself.
1 2.
The Appeal Board's ruling that appeals of the November 21 Order should be directed to the Appeal Board is correct for an additional reason not mentioned in the Board's November 22 Order.
The OL-6 Board majority's holding that it had dismissed the i
Governments from the OL-6 proceeding by virtue of its partially i
reversed decision in LBP-88-24, as well as its alternative holding that it would separately dismiss the Governments from the j
1
)
-2
e OL-6 proceeding, are both premised on the Board majority's interpretation and purported application of the Aeoeal Board's holdings in ALAB-902.
Egg November 21 Order at 2, 4.
Since the 4
meaning and application of an Appeal Board order is thus at L
issue, it is appropriate for the Appeal Board to review the November 21 Order in the first instance.
I 3.
LILCO's characterization of the November 21 Order as "merely a reprise, in terms of facts, logic, and results" of LBP-l 88-24 (Motion at 2) is only partially correct.
The OL-6 Board majority did rely in part on its erroneous LBP-88-24 dismissal ruling; for that reason alone it must be reversed, because no basis was stated or exists for applying that ruling in the OL-6 i
proceeding.
Egg Governments' November 23 Motion for Stay of r
i November 21 Licensing Board Order.
In addition, however, *.hc t
November 21 Order also embodies several other rulings whi:h are j
l unrelated to LBP-88-24, which the Governments intend to address i
on the merits of their appeal, and which the Appeal Board can and l
should review as provided in the NRC's procedures.
{
Several of these issues were identified in the Governments'
[
I i
November 23 Stay Motion and in the December 1, 1988, letter from f
l r
Karla J.
Letsche to the Appeal Board.
They involve, among otherst the Board's lack of jurisdiction to rule on LILCO's 25%
j power request; the Board majority's ruling that LILCO's 25% power request was "uncontested" in the face of pending, concededly i
I relevant, contentions relating to LILCO's 1988 exercise
[
I t
- l l
I l
t
\\
performance and controlling Licensing Board decisions that LILCo's emergency plan is fundamentally flawed; the Board majority's lack of basis for dismissing the Governments or otherwise sanctioning them in the OL-6 proceeding; denial of the Governmento' right to contest the merits of LILCO's 25% power application; and the recent ALAB-905 decision vacating an earlier d
holding that LILCo's reception center proposals were adequate, i
and remanding reception center issues for additional Licensing l
Board proceedings.
since the November 21 Order presents these substantial issues for review on appeal, in addition to its LBP-88-24-related i
dismissal ruling, there is no basis for certifying that order to the Commission.1/
I Accordingly, LILCC's Motion for Certification should be denied.
i Respectfully submitted, 1
E. Thomas Boyle i
i Suffolk County Attorney i
Building 158 North County Complex Veterans Memorial Highway l
Hauppauge, New York 11788 i
1/
LILCO is also wrong in asserting that the OL-6 Board was i
merely a "subdocket" of the OL-3 Board.
Motion at 1, 2, n.
1.
I In fact, while three of the four OL-6 Board members are also on 4
the OL-3 Board, they do constitute different Boards and the OL-6 i
and OL-3 proceedings are different proceedings.
Egg, gig., 52 Fed. Reg. 44502 (1987) (referring to separate "Boardg" and "proceedings") (emphasis added).
-4
e*
4 l
Lawrence Coe Lanphtf Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036 's891 Attorneys for Suffolk 'ounty
~ Odl /W Talian G. Palomino
/
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
/
~(
aR&L
~
6tephef B.
Latham twomey, Latham & Shea P.
O.
Box 398 33 West Second Street Riverhead, New York 11901 2
Attorney for the Town of Southampton l
1
)
1 I
rV t
Decembar 5,_1988 m utb -> P2 :28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~.
. /[qfff
'gr.
Before the Atomic Safety and Licensino Anneal Board
)
In the Matter of
)
)
i LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
r I
CERTIFICATE OP SERVICE i
I hereby certify that copies of Governments' Response to LILCO's l
Motion for Certification of No*/cmber 21 Order to the Commission have e
been served on the folleving this 5th day of December, 1988 by U.S.
t mail, first-class, unless onnerwise indicated.
}
Christine N. Kohl, Chairman
- Alan S. Rosenthal*
i 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 t
Dr. W. Reed Johnson **
James P. Gleason, Chairman l
Atomic Safety and Licensing Atomic Safety and Licensing Board l
Appeal Board 513 Gilmoure Drive 115 Palcon Drive, Colthurst Silver Spring, Maryland 20901 l
Charlottesville, VA 22901 John H. Prye, III, Chairman Dr. Oscar H. Paris Atomic Safety and LictTsing Board Atomic Safety and Licensing Board i
U.S. Nuclear Regulate y Come.ission U.S. Nuclear Regulatory Commission j
Washington, D.C.
1;3 5 Washington, D.C.
20555 i
I I
f i
[i.
Mr. Frederick J.
Shon Dr. Jerry Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section*
Edwin J. Reis, Esq.*
Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Washington, D.C.
20555 William R. Cumming, Esq.***
Anthony F.
Earley, Jr., Esq.
Spence W.
Perry, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W.,
Room 840 Hicksville, New York 11801 Washington, D.C.
20472 Elisabeth Talbbi, Clerk Fabian G. Palomino, Esq.
Suffolk County Legislature Richard J.
Zahnleuter, Esq.
Suffolk County Legislature Special Counsel to the Governor Office Building Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 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 W. Taylor Reveley, III, Esq.***
Executive Director Hunton & Williams Shoreham Opponents Coalition P.O. Box 1535 195 East Main Street 707 East Main Street Smithtown, New York 11787 Richmond, Virginia 23212 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 Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 KHB 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 E.
Thomas Boyle, Esq.
Adjadicatory File Suffolk County Attorney Atomic Safety and Licensing Board Bldg. 158 North County Complex Panel Docket Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11788 Washington, D.C.
20555
[a.
1l'1 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 10036 Mr. Philip McIntire David A. Brownlee, Esq.
Federal Emergency Management Agency Kirkpatrick & Lockhart 26 Federal Plaza 1500 Oliver Building New York, New York 10278 Pittsburgh, Pennsylvania 15222
<~
l k
[
Karla\\J. Letschy '
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
i South Lobby - 9th Floor i
Washington, D.C.
20036-5891 By Hand By Federal Express
- By Telecopier 5
i
.