ML20205K556
| ML20205K556 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/24/1986 |
| From: | Lanpher H, Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#186-205 OL-3, NUDOCS 8602270529 | |
| Download: ML20205K556 (9) | |
Text
I UNITED STATES OF AMERICA SkiC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal BoaM FEB 26 Pl?:47
{CN #
)
0 Ndf In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
)
MOTION OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON FOR RULING CONCERNING PROCEEDINGS RELATED TO THE SHOREHAM EXERCISE Suffolk County, the State of New York and the Town of Southampton (" Governments") set forth herein their views and seek a ruling concerning possible NRC proceedings related to the results of the FEMA-graded Shoreham exercise conducted on February 13, 1986.
We are filing this Motion with the Appeal Board since there is no longer an ASLB for the Shoreham case.
I.
The Governments' Views As this Board is aware, LILCO has been denied an operating license for Shoreham based, among other reasons, on the ASLB ruling that because the proposed LILCO emergency plan cannot be implemented, there can be no finding of reasonable assurance that adequate protective actions can and will be taken in the 8602270529 860224 PDR ADOCK 05000322 O
PDR h5D)
I event of a Shoreham accident.
Long Island Lighting Co. (Shoreham I
Nuclear Power Station, Unit 1), LBP-85-12, 22 NRC 644 (1985).
See also, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410 (1985); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818, 22 NRC 651 (1985).
In addition, in its preliminary statement following the February 13 exercise, FEMA stated:
Since this plan cannot be implemented without state and local government participation, we i
cannot give reasonable assurance under NUREG-0654 that the public health and safety can be protected.1 It thus appears that the FEMA report on the results of the exercise 2 will support the ASLB's finding and the position of the Governments --
i.e., that the proposed LILCO Plan cannot be I
implemented by LILCO and no reasonablo assurance finding 1
}
justifying issuance of an operating license can be made.
Since the result sought by the Governments in the Shoreham proceeding -- the denial of the operating license -- has already been achieved, the Governments are not in the situation of being confronted with the need to initiate further litigation 1
Frank Petrone, FEMA Region 2 Director, FEMA press conference, February 15, 1986.
2 FEMA expects to issue this report within 6 - 8 weeks after February 13.
i,
before the NRC.
Indeed, particularly in light of the discussion during the oral argument before this Board on February 12, it is not clear procedurally how or whether the Governments could go about requesting additional litigation in the licensing proceeding.
See South Carolina Elec. & Gas Co. (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-694, 16 NRC 958 (1982) and cases cited therein., Rather, it appears to the Governments that if any other party believes the results of the exercise or the FEMA report thereon could or would provide a basis for changing the ASLB decision which denied a license to LILCO, that party has the burden of identifyingothe bases for that belief, specifying the precise issues which that party would seek to litigate, and satisfying the appropriate procedural requirements.
However, the Governments submit that as a practical matter, no party could be in a position to attempt to carry such a burden until after the FEMA report on the exercise results has been issued.
Accordingly, the Governments submit that other than the possible desirability of appointing an ASLB to deal with the views of other parties on this or related preliminary matters, no further action or proceedings should be considered concerning the results of the February 13 exercice until after the issuance of the FEMA report.
The Governments also believe that at that
8
, i e
i f
t t
future date and before any further action is.taken, it would be.)
helpful to schedule a conference of counsel to obtain the parties' views.
II.
The Governments' Motion The Shoreham litigation has often involved uncertain procedural circumstances.
In some instances, a party's good faith reliance.on a particular interpretation of procedural rules has later been ruled to have been incorrect.
For example, the ASLB ruled in Summer 1984 that the Governments' strike-related emergency planning contention was untimely.
On the other hand, LILCO was permitted to reopen the diesel litigation record and the relocation center litigation under circumstances where its delay was found to have been justified.
The Governments want to ensure that their procedural rights to litigate the results of the Shoreham exercise, should such a need arise, are not impaired due to their good faith reliance on what they perceive to be the present procedural t
po:sture of this case and the ' espective obligations of the r
parties in light of that posture.
Thus, the Governments move the Appeal Board to rule that:
. o 1.
There is no basis for any party to seek to proceed with litigation of the results of the Shoreham exercise until after the FEMA report has been issued.
2.
In view of the ASLB's denial of an operating license and FEMA's preliminary statement that the plan cannot be implemented and the exercise does not permit a reasonable assurance finding, the initial burden will be on LILCO to articulate whether and how it wishes to rely on the results of the exercise in the Shoreham proceeding; should LILCO do so, the other parties would have the right to respond to LILCO's showing before the Board determines whether a hearing shall be held.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Haup uge, New York 1788 Rerbert H.
Brown
/~
Lawrence Coe Lanpher Karla J.
Letsche Michael S.
Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036
Attorneys for Suffolk County rat,a c PJo.,z(fry)
'~
Fabian G.
Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York 5%4 8. Larn (fra)
Stephen B.
Latham
~
Twomey, Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton February 24, 1986 4
DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION zg ppg gg g7:47 Before the Atomic Safety and Licensing Appeal Board 0FFICL W 10.
00CMETthd ). n i-a ll.
BRANCH
)
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 MOTION OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON FOR RULING CONCERNING PROCEEDINGS RELATED TO THE SHOREHAM EXERCISE have been served on the following this 24th day of February, 1986 by U.S.
mail, first class, except as otherwise noted.
- Alan S. Rosenthal, Chairman Stuart Diamond Atomic Safety and Licensing Business / Financial Appeal Board NEW YORK TIMES U.S.
Nuclear Regulatory Commission 229 W.
43rd Street Washington, D.C.
20555 New York, New York 10036
- Mr. Howard A. Wilber Joel Blau, Esq.
Atomic Safety and Licensing New York Public Service Comm.
Appeal Board The Governor Nelson A.
U.S.
Nuclear Regulatory Commission Rockefeller Building Washington, D.C.
20555 Empire State Plaza Albany, New York 12223
- Mr. Gary J.
Edles Stewart M.
Glass, Esq.
Atomic Safety and Licensing Regional Counsel Appeal Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, D.C.
20555 26 Federal Plaza New York, New York 10278
s,
i Morton B. Margulies, Chairman Anthony F.
Earley, Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 250 Old Country Road Mineola, New York 11501 Dr. Jerry R.
Kline
- W.
Taylor Reveley, III, Esq.
Atomic Safety and Licensing Board Hunton & Williams U.S.
Nuclear Regulatory Commission P.O.
Box 1535 Washington, D.C.
20555 707 East Main Street Richmond, Virginia 23212 Mr. Frederick J. Shon Mr. Jay Dunkleberger Atomic Safety and Licensing Board New York State Energy Office U.S.
Nuclear Regulatory Commission Agency Building 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223 Mr.
L.
F.
Britt Stephen B. L'a tham, 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 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 Ms. Donna D.
Duer Hon. Peter Cohalan Atomic Safety and Licensing Suffolk County Executive Board Panel H.
Lee Dennison Building U.S. Nuclear Regulatory Commission Veterans Memorial Highway Washington, D.C.
20555 Hauppauge, New York 11788 j
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
- Martin Bradley Ashare, Esq.
Jonathan D.
Feinberg, Esq.
Suffolk County Attorney Staff Counsel, New York State Bldg. 158 North County Complex Public Service Commission Veterans Memorial Highway 3 Rockefeller Plaza Hauppauge, New York 11788 Albany, New York 12223
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555
- Edwin J. Reis, Esq.
- Fabian G.
Palomino, Esq.
Bernard M.
Bordenick, Esq.
Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber, Room 229 Washington, D.C.
20555 State Capitol Albany, New York 12224 Spence Perry, Esq.
Mary Gundrum, Esq.
Associate General Counsel New York State Department Federal Emergency Management Agency of Law Washington, D.C.
20471 2 World Trade Center, Rm. 4614 New York, New York 10047 Mr. William Rogers David A.
Brownlee, Esq.
Clerk Kirkpatrick & Lockhart Suffolk County Legislature 1500 Oliver Building Suffolk County Legislature Pittsburgh, PA 15222 Office Building Veterans Memorial Highway Hauppauge, New York 11788 M
fawrence Coe LanphdE KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Date:
February 24, 1986 By Hand By Federal Express
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