ML20206H244

Suffolk County,State of Ny & Town of Southampton Motion for Conference of Counsel & for Licensing Board Clarification of Procedures Or,In Alternative,For Addl Time to Respond to Lilco Summary Disposition Motion.* W/Certificate of Svc

ML20206H244
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/07/1987
From:	Latham S, Mcmurray C, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206H227	List: ML20206H223 ML20206H244
References
OL-3, NUDOCS 8704150303
Download: ML20206H244 (15)

Text

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SOCKETED UShRC April 7, 1sB7 gg -

UNITED STATES OF AMERICA (([Kf r g e: . 7;.; ,.

NUCLEAR REGULATORY COMMISSION ' ^ ^ d fj G '. '. - ,-

: ',:n 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) )

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR CONFERENCE OF COUNSEL AND FOR LICENSING BOARD CLARIFICATION OF PROCEDURES OR, IN THE ALTERNATIVE, FOR ,

ADDITIONAL TIME TO RESPOND TO LILCO"S

SUMMARY

DISPOSITION MOTION

Suffolk County, the State of New York, and the Town of 4 Southampton (" Governments") are in receipt of "LILCO's Second Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Contentions EP 1-10)," dated March 20, 1987 (the "LILCO Motion"). Under the NRC's rules, 10 CFR S 2.749(a), the Govern-ments' response to the LILCO Motion presently is due to be filed l

next Monday, April 13, 1987.

l l ~The Governments file the instant Motion for two reasons.

First, the LILCO Motion is inconsistent with standard NRC practice. The Motion comes as a surprise, at a time when all ffj4150303e7o4o7 g ADOCK 050003pg PDR

6 available resources are devoted to the exercise and relocation center proceedings. The Governments submit that LILCO's action is essentially a preemptive attack on standard NRC practice and on the rights of the Governments to deal substantively with the remand issues. Indeed, normal NRC practice and procedure would be for this Licensing Board first to decide whether the time is appropriate for the remand proceeding to begin and, if so, to convene a conference of counsel to address procedural issues.

This conference of counsel would be held before the Board were confronted with a major substantive motion by one party. LILCO's motion, however, seeks to leapfrog the rights of the Governments

-- it seeks to make this, proceeding LILCO's own forum, not a fair tribunal where all the parties' interests are considered by the Board at the outset.

Normal practice is particularly required here, because this Board has ruled that it does not favor summary disposition motions in the relocation center proceeding.1 There is no apparent reason why this policy should not be also applied by the Board to the CLI-86-13 remand proceeding. At a mimimum, the policy would seem to require that if the Board were to entertain l

L summary disposition motions, the Board should initially establish guidelines for the filing of such motions.

l 1 Sag Memorandum and Order (Ruling on LILCO's and Intervenors' Motion for Reconsideration of Schedule), February 9, 1987, at 7-8, confirming Order (Ruling on Motion for Reconsideration on Scheduling), February 4, 1987, at 2.

9 Second, and in the alternative, if the Board determines that the remand proceeding should begin and further determines that the LILCO Motion represents the best means to proceed initially with the remand, then the Governments need additional time to prepare a response. The LILCO Motion is certainly not " routine."

As LILCO itself notes, "the ' legal authority' issue is exception-ally important." LILCO Motion at 31. The Governments' response will require extensive efforts to survey and analyze the prior emergency planning record, a task which, in itself, will take far more than the 20 days usually permitted for summary disposition responses. The response will also require extended legal analysis, regarding (1) what the Commission meant in CLI-86-13 and how that " fits" with LILCO's attempted definition of "what realism contemplates . . . (LILCO Motion at 8) and (2) whether that definition satisfies the guiding legal principles that must be applied, i.e., CLI-86-13 and Cuomo v. LILCO, Consol. Index No. 84-4615 (N.Y. Sup. Ct. Feb. 20, 1985), aff'd, N.Y.S. 2d (N.Y. App. Div. Feb. 9, 1987). Finally, the response will require meetings with the Governments' officials and experts and the preparation of affidavits relating to the response. Given the press of work on other matters -- particularly the exercise 4

and relocation center proceedings -- the Governments must have substantial additional time to prepare their response.

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The Governments set forth the bases for this Motion in detail below. The Governments respectfully request the Board immediately rulenthat no responses to the LILCO Motion need be filed April 13. The Governments also request that the Board convene a conferen e of counsel at an early date to address these matters further.

I. The Remadd-Proceeding Should Commence With a Conference of 7 Counsel 7 .

It is up to this Board to determine when it is appropriate to commence the CLI-86-13 remand proceeding and whether, when that ti,me comes, it is proper to address the " realism" issue

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without also addressing the " immateriality" issue at the same time.2 The LILCO Motion brushes aside these prerogatives of the Board. Instead, LILCO arrogates to itself the right to proclaim how and when the remand proceeding will begin and what the nature  !

of the Governments' role will be in the proceeding. Indeed, with no legal basis, LILCO presumes: (1) that it alone can impose upon the Board and parties when the remand proceeding should begin; (2) that it alone can force the proceeding to begin via a summary disposition motion rather than a conference of counsel; t

-and (3) that it alone can limit the proceeding to only the 2 The Commission clearly viewed the " immateriality" issue as being part of the " realism" issue. "LILCO's materiality argument presents issues that are primarily factual rather than legal.

l The factual issues are subsumed within the scope of factual i

issues presented-by LILCO's realism argument and can be considered by the Board in the remanded proceeding on realism."

CLI-86-13, at 16.

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" realism" issue and nothing more.3 The Governments submit that i

- LILCO is not permitted to seize for itself the power to establish the structure, format, and timing of this proceeding. The Board itself has a role, whether LILCO likes it or not, and so do all of the other parties to the proceeding.

The CLI-86-13 remcnd proceeding was mandated by the Commis-sion's July 24, 1986, Order. The Governments.have reasonably proceeded on the assumption that when the OL-3 Board with juris-diction over this matter was ready to proceed, it would follow normal practice and convene a conference of counsel or otherwise solicit appropriate procedural views of the parties as a first step. Such a procedure would be consistent with the manner in which other proceedings have gone f- ,iard.4 This standard practice has salutory effects. It avoids surprise such as has occurred here with LILCO's unexpected Motion, where the Govern- -

ments, which have fully committed their resources to the ongoing exercise and relocation center proceedings, are suddenly confronted with a major motion in yet another proceeding. It also lets the Board have the views of all of the parties so as to prevent a prejudicial structuring of the proceeding.

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l 3 Egg LILCO Motion at 6, n.7 ("LILCO does not address the

' immateriality' argument here. . . . LILCO [does not] intend []

to waive the immateriality argument . . . . ")

' 4 For instance, on the relocation center proceeding, subsequent to the remand by the Appeal Board, this Board

. solicited the views of the parties before commencing the proceeding.

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The Governments submit that the standard practice is essential in'the instant matter. As noted above, LILCO, by filing its Motion without seeking any Board guidance, has indulged a host of assumptions concerning timing, the scope of the issues to be litigated, and the procedures to be applied. In addition, LILCO has construed portions of the Commission's Order in CLI-86-13 to its own strategic advantage and enunciated its own view of the substantive showings which the Governments must Egg LILCO Motion at 7.5

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make in order to oppose the Motion. The Governments have the right to disagree with LILCO's lopsided views and intend to do so. These legal issues, however, are not best addressed in an initial pleading which also is combined with extensive arguments about factual matters. Rather, these are the

. kinds of threshhold legal issues which must appropriately be addressed at a conference of counsel. Or, in the alternative, the Board could convene a conference of counsel and establish a schedule ~for submission of briefs and other legal pleadings on those issues.

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Further, it is doubtful that the LILCO summary disposition motion is procedurally correct in any event. In the Board's February 9 Order in the OL-3 proceeding, the Board ~ chose not to invite summary disposition motions in the reception center b "(TiheStateandCountycannotopposethisMotionwithout showing how they themselves, doing their best, would spoil an adequate plan and harm the public." These far-reaching words clearly do not represent a fair characterization of the Governments' right to determine how they will oppose LILCO's Motion. The Governments intend to speak for themselves.

e proceeding. The Board pointed out that such motions would inter-fere with the Board's ability to proceed with the reception center issues. By the same token, if a " realism" summary disposition motion were procedurally permitted to go forward at this time, then the Board, to address.that motion, would need to defer proceedings on the reception center issues, because the Board certainly could not both prepare for and conduct the recep-tion center hearing and consider so sweeping a motion as LILCO's.

In view of the foregoing, the Governments move this Board to decide whether it is now appropriate to go forward with the CLI-86-13 remand issues and, if so, to convene a conference of counsel to address the remand issues. In the interim, the Board should defer any responses to the LILCO Motion.

II. The Governments Need Additional Time to Respond to the LILCO Motion Assuming arcuendo that the Board decides that now is the time that the " realism" remand proceeding should go forward and assuming further arauendo that it decides that the appropriate way to commence the proceeding is the LILCO Motion, rather than by structuring the proceeding following a conference of counsel, the Governments move for additional time to respond to the Motion. There are several reasons why the additional time is necessary.

First, to address the merits of the LILCO Motion, the Governments need to comb literally thousands- of pages of the earlier emergency planning record. The Governments had not undertaken that effort prior to the LILCO Motion because they

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were awaiting the Board's guidance on how it would proceed in the remand proceeding. In order to undertake that review,-extensive attorney resources will necessarily have to be devoted, and far more time will be required than the 20 days normally allowed for response.

i l Second, the necessary resources to comb the record cannot be devoted to that effort at this time. From an attorney resource perspective, the Governments' review of the earlier record will have to be undertaken by and/or under the supervision of primarily~four attorneys -- Ms. Letsche and Messrs. Miller, McMurray, and Zahnleuter. These are the four individuals who devoted the greatest amount of effort to the earlier emergency planning proceeding and thus are the most familiar with it.

However, as the Board certainly knows, all of those attorneys are devoted on a daily basis to various proceedings that are under way. Ms. Letsche is at this time in trial on the OL-5 proceeding, and during any trial breaks must devote her efforts to trial preparation. Mr. Miller at this time is not in trial on that proceeding but is preparing to return to that trial for cross-examination on training issues. Mr. Zahnleuter is in trial on the OL-5 proceeding. And Mr. McMurray is working on testimony

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l in the OL-3 proceeding. As the Board knows, the OL-3 schedule after the filing of testimony calls for strike motions and other l activities leading up the' commencement of the hearing. In short, none of these individuals presently can devote substantial time to respond to the summary disposition Motion.

Third, even assuming these attorneys had time to comb the earlier record and work on the legal analyses that also will be required, they also would have to find time to meet and work with government officials and experts and to prepare appropriate affi-davits, etc., in response to the LILCO Motion. These government officials and experts in many instances have extremely limited time. For example, New York State officials of the Radiol'ogical Emergency Preparedness Group ("REPG") are essential to a response to the LILCO Motion, particularly related to the LILCO argument (advanced for.the first time in LILCO's Motion) that LILCO could rely on the State EBS system in an emergency. Egg LILCO Motion at 11-16 and portions of Attachments A & J and all of Attachment I. Aside from their regular duties, however, REPG. personnel have been working diligently the last two weeks to file testimony in j the OL-5 proceeding (filed April 6) and are preparing testimony for the OL-3 proceeding (to be filed April 13). Similarly, Suffolk County Police and New York State Department of Transpor-tation personnel will be key to responding to portions of LILCO's Motion on traffic issues. But County Police personnel were in trial or assisting in trial on OL-5 matters until last Wednesday 1

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and now must devote time to their regular work and State personnel are preparing testimony for submittal in the OL-3 proceeding next Monday. In short, therefore, the critical experts / government officials who must be involved have no time at present.

In sum, the Governments cannot respond to the LILCO Motion by April 13. During the two weeks since receipt of the Motion,

.the Governments have worked diligently to respond. But with the press of other proceedings, it now has become clear that an April 13 response is impossible. Given the extensive work to be

~done to respond, and given the constraints on attorney and consultant resources due to the ongoing OL-3 and OL-5 proceedings, a 6-week extension of time -- i.e., until May 26, 1987 -- is the minimum time necessary to respond.- Or, in the alternative, responses should be due a reasonable time after completion of the reception center hearing.

III. Conclusion LILCO claims that "the ' legal authority' issue is exception-ally important." LILCO Motion at 31. The Governments agree. It is because of this importance that the Governments object strenu-ously to LILCO's attempt to short cut normal procedures. The issue is far too important to surprise the parties (and presumably the Board as well) with a major motion before the Board has even started the remand proceeding, much less defined

1 the procedures by which the issues are to be addressed. For these reasons, the Board should defer any response to the LILCO Motion until the Board has had an opportunity to consider when and how to proceed. In the alternative, the Board should establish May 26 or thereafter as the date for responses to the Motion.6 Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 s- .

LdfrYnce E6e Lanpher~

Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County 6 Assuming the Board decides that the Governments should file a substantive reply to the LILCO Motion on or after May 26, the Governments have no objection to LILCO being granted an opportunity to reply. Egg LILCO Motion at 30-31.

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/ -M FaWlan 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 Stephen EI. Latham /

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

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DOLMETED USNRC Aoril 7, 1987 IR MW 10 N1 :29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF StJtits r Before the Atomic Safety and Licensino B r kNc l

)

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 SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR CONFERENCE OF COUNSEL AND FOR LICENSING BOARD CLARIFICATION OF PROCEDURES OR, IN THE ALTERNATIVE, FOR ADDITIONAL TIME TO RESPOND TO LILCO'S

SUMMARY

DISPOSITION MOTION have been served on the following this 7th day of April by U.S. mail, first class, except as otherwise noted.

Morton B. Margulies, Esq., Chairman

• Mr. Frederick J. Shon*

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 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 t

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 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**

Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 i Hauppauge, New York 11788 i 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 Mary M. Gundrum,.Esq. Hon. Michael A. LoGrande -

New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 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. Fabian G. Palomino, Esq.

Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*

New York State Energy Office Oreste Russ Pirfo, Esq.

Agency Building 2 George E. Johnson, Esq.

Empire State Plaza U.S. Nuclear Regulatory Comm.

Albany, New York 12223 Office of General Counsel Washington, D.C. 20555

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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 Town Board of Oyster Bay Town-Hall Oyster Bay, New York 11771 Chfistophdr M. McMurEay 4 KIRKPATRICK & LOCKHART 1800 M Street, N.W.-

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

• By Hand

• • By Telecopy 4

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