ML20206J532

Urges Commission to Confirm Certification of Issues from LBP-88-24 to Include Realism/Legal Authority Issues as Well as Sanctions Issues,Per Intervenors .W/Certificate of Svc

ML20206J532
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/16/1988
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Carr K, Curtiss J, Roberts T, Rogers K, Zech L NRC COMMISSION (OCM)
References
CON-#488-7524 LBP-88-24, OL-3, OL-5, NUDOCS 8811290022
Download: ML20206J532 (7)

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24566.300001 o =o. ... i .e . 8 3 5 'l H TELECOPIER Lando W. Zech, Jr., Chairman Commissioner Thomas M. Roberts Commissioner Kenneth M. Carr Commissioner Kenneth C. Rogers Commissioner James R. Curtiss t,'ited States Nuclear Regulatory Commission Kashington, D.C. 20555 Long Island Lighting Company (Shoreham Nuclear Power Station)

NRC Dockets 50-322-OL-3. -OL-5 Geutlemen:

This is LILCO's response to the letter of November 10 filed by Intervenors in the Shoreham proceeding, in which they inquired whether the Commission intended to include issues relating to the marits of the legal authority / realism contentions within the scope of matters certified by its pra SI!QDj;.g order of November 9.

The Commission's November 9 order indicates that the Commission will revinw all aspects of the sanctions issue, which necessarily includes the realism issues from which the sanctions issue arose. That choice is the only rational one for the Commission to have taken. LILCO outlines its views on this matter briefly below.  ;

Intervenors state that the basis for their inquiry is the following paragraph in the November 9 order:

The Commission will decide, on appeal, t whether Governments' conduct was such as to warrant their dismissal from the i

entire proceeding and whether, it dismis-sal from the entire proceeding is not ,

warranted, what other sanction, if any, is appropriate. Other matters decided in 8

a

y HUNTON & WILLI AMs November 16, 1988 Page 2 LBP-88-24 (role conflict of bus drivers, emergency broadcast system) remain before the Appeal Board.

The Commission's order expressly itemizes the "other" issues remaining before the Appeal Board -- role conflict of school bus drivers and EBS.

It would not have been sensible for the Commission, on appellate review, to have separated sanctions issues from "morits" issues relating to legal authority. The entire current sanctions issue arose in the context of Intervonors' deliberato frustration of discovery during the spring and summer of 1988 on realism issues. The Licensing Be'ird's parallel resolution of realism issues on merits and sanctions theories in LBP-88-24, 28 NRC gSeptember 23, 1988) is a direct result of this fact.

Tho significanco of the information first revealed by Intervenors in 1988, beginning with the disclosure of the Suffolk County Emergency Operations Plan, added substantially to the depth and detail of previous understandings of the emergency response capabilities of the state and local gov-ornments on Long Island, and amplified the basis for the Licensing Board's conclusion that the realism theory provided a sound basis for emergency response there. Thus the Licens-ing Board's sanctione decision finds support not only in the need to maintain the integrity of Commission proceedings, but also in the significance of the information now known to have boon withheld by Intervenors despite its undeniable relevance under the realism principle, first adopted by the Commission in the context of the Shoreham aaso in 1986. CLI-86-13, 24 NRC 22 (1986).

Intervonors themselves have intertwined the realism and sanctions issues, since the primary legal basis for their refusal to obey the Licensing Board's 1988 discovery orders

^as boon their argument that the Licensing Board had misin-torpreted the substantivo requirements and effect of the Commission's realism rule, 10 CFR S 50.47(c).1/ In their 1/ Intervenors justified their refusal to comply with the Licensing Board's discovery orders concerning realism issues on the promino that the Board's construction of the realism rule, 10 CFR 5 50.47(c), was incorrect. It is Intervonors' own promino, however, that is incorrect: oven if the Licens-ing Board's construction of the realism rule had been incor-rect (which it was not), Intervonors' remedy lay in appeal 1

Husrow & WILLuss November 16, 1988 Page 3 appeal brief from L1P-08-24, in fact, Intervonors concede that the sanctions issues are "interrelated."3/ Yet now they would apparently have tPe Commission draw a line between their dismissal as parties (or tha lessor san: tion of dis-missal of the realism contentions) for obst ructing discovery, on the one hand, and finding against them or the merits, for failing to present a positive realism case, on thn other.

Intervenors' own observation of the interrelationships of these issues, however, argues against their sqparation.

Rational administration of the Commission's business also argues against severing the "sanctions" issues from the "legal authority / realism" issues at this point. Leaving the "substance" of "legal authority / realism" issues before the Appeal Board when kindred "sanctions" issues are before the Commissica invites fragmented, and potentially inconsistent, decision-making at a time when the Shoreham case deeply needs Commission guidance and control.

At this point the Shoreham proceeding has three distinct (though overlapping) Licensing Boards operating in three subdockets (OL-3, OL-5, OL-6). It has, as well, three dis-tinct (though overlapping) Appeal Board panels, one in each of these dockets. The Commission has an opportunity now to focus remaining issues in this proceeding and to point them toward definitive resolution once and for all.

The Shoreham emergency planning case as it is presently known began almost ERZAD years ago, in the early spring of 1982, when Suffolk County suddenly reversed course and with-drew from offsite emergency plenning at Shoreham. Since then, that issue alone has engendered over 13,700 pages of direct testimony (with exhibits) prefiled with Licensing Boards by the parties. Over 190 depositions have been taken, and innumerable thousands of pages of documents turned over and interrogatories answered on discovery of these issues.

through the Commission's pre- and post-hearinq procedures, not in defiance of Board discovery orders.

2/ Governments' Brief in Support of Appeal of September 23, 1988 Concluding Initial Decision (October 27, 1988), at 2.

That brief disproves Intervenors' suggestion (November 10 letter at 1 footnote 1) that they have not "already been provided the opportunity to brief the issues which the NRC certified to itself": it treats sanctions and realism / legal authority issues extens vely in Parts III and IV (pages 22-i 46).

HUNTow & WILLI Aus November 16, 1988 Page 4 offsite emergency planning issues have consumed 155 days of live heatings or conferences requiring participation by NRC adjudicatory tribunals since 1982, all of them duly recorded in over 29,700 pages of transcript. Over 4300 pages of post-hearing proposed findings of fact and conclusions of law have been filed by the parties on emergency planning issues alone.

The Commission, its Licensing Boards and Appeal Board have issued over 6000 pages of decisione and orders in all phases this case. In addition, two Commission rulemakings and at least three separate federal and three New York law suits have resulted directly from the Shoreham emergency planning situation. t The Commission need not permit this apparently perpetual process to continue in this manner.

LILCO is preparing its December 1 brief to the Commis-sion, as ordered on November 9, so as to address the entire sanctions issue, including the underlying realism issues

which resulted in the Intervenors' simultaneous defiance of Board orders and failure to present a case on the merits.

LILCO urges the Commission to confirm that its certification of issues from LBP-88-24 will include the "realism / legal i authority" issues as well r.s "sanctions" issues. I Respectfully submit ed, l' .

W. Taylor Reveloy, III Donald p. Irwin James N. Christman Counsel for Long Island i Lighting Company P

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LILCO, NcvImber 16,1988 I

COC KEiD CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) M' O ? 4 '

Docket No 50-322-OL-3. -OL-5 00CKEig g j +i;-

I hereby certify that copies of a letter from W. Taylor Reveley, III, et al. to the  !

Commissioners were served this date upon the following by telecopy as indicated by an  :

asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, post-age prepaid.

Lando W. Zech, Jr., Chairman

• Christine N. Kohl, Chairman

• U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Ore White Flint North Appeal Board 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852 East-West Towers, Fif th Floor 4350 East-West Highway Commissioner Thomas M. Roberts

• Bethesda, MD 20814 U.S. Nuclear Regulatory Commission I

One White Flint North Alan S. Rosenthal

• 11555 Rockville Pike Atomic Safety and Licensing i Rockville, MD 20852 Appeal Board U.S. Nuclear Regulatory Commission

, Commissioner Kenneth M. Carr

• East-West Towers, Fif th Floor U.S. Nuclear Regulatory Commission 4350 East-West Highway One White Flint North Bethesda, MD 20814 11555 Rockville Pike i Rockville, MD 20852 Dr. W. Reed Johnson

• Atomic Safety and Licensing Commissioner Kenneth C. Rogers

• Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North 115 Falcon Drive, Colthurst 11555 Rockville Pike Charlottesville, VA 22901 Rockville, MD 20852 Thomas S. Moore, Chairman

• Commissioner James R. Curtiss

• Atomic Safety and Licensing U.S. Nuclear ltegulatory Commission Appeal Board One White Flint North U.S. Nuclear Regulatory Commission 11555 Rockville Pike East-West Towers, Fif th Floor Rockville, MD 20852 4350 East-West Highway Bethesda, MD 20814 William C. Parler, Esq.

• General Counsel Howard A. Wilber

• j d

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing '

One White Flint North Appeal Board ,

11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852 East-West Towers Fif th Floor  ;

4350 East-West Highway i

Bethesda, MD 20814

. - - _ - _ _ _ - ~ . , - _ ,- - . . . - - - - - - - _ . - - - - . _ - - , . - - - .. - -. -

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James P. Gleason, Chairman *,** Etiwin J. Reis. Esq.

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North 513 Gilmoure Drive 11555 Rockville Pike Silver Spring, MD 20901 Rockville, MD 20852 Dr. Jerry R. Kline

• Lawrence Coe 'Lanpher, Esq.

• Atomic Safety and Licensing Board Karla J. Letsc'ae, Esq.

U.S. Nuclear Regulatory Commission Kirkpatrick 6. Lockhart East-West Towers, Fourth Floor South Lobby - 9th Floor 4350 East-West Hwy. 1800 M Strr.et, N.W.

Bethesda, MD 20814 Washingtra, DC 20036-5891 Mr. Frederick J. Shon

• Fabian G. Palomino, Esq.

• Atomic Safety and Licensing Board Richard J. Zahnleuter, Esq.

U.S. Nuclear Regulatory Commission Special Counsel to the Governor East-West Towers, Fourth Floor Executive Chamber, Room 229 4350 East-West Hwy. State Capitol Bethesda, MD 20814 Albany, NY 12224 John H. Frye, III, Chairman

• Alfred L. Nardelli, Esq.

Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway East-West Towers, Fourth Floor Room 3-118 4350 East-West Hwy. New York, NY 10271 Bethesda, MD 20814 George W. Watson, Esq.

• Dr. Oscar H. Paris

• William R. Cumming, Esq. '

Atomic Safety and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency East-West Towers, Fourth Floor 500 C Street, S.W., Room 840 4350 East-West Hwy. Washington, DC 20472 Bethesda, MD 20814 Mr. Philip McIntire Secretary of the Commission Federal Emergency Management Attention Docketing and Service Agency Section ?6 Federal Plaza U.S. Nuclear Regulatory Commission New York, NY 10278 Washington, DC 20555 Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Appeal Board Panel Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, DC 20555 Albany, NY 12223 Adjudicatory File Stephen B. Latham, Esq. "

Atomic Safety and Licensing Twomey, Latham & Shea Board Panel Docket 33 West Second Street ,

U.S. Nuclear Regulatory Commission P.O. Box 298 Washington, DC 20555 Riverhead, NY 11901 1

Jonathan D. Feinberg, Esq. E. Thomas Boyle, Esq.

New York State Department of Suffolk County Attorney Public Service, Staff Counsel Building 158 North County Complex Three Rockefeller Plaza Veteran' Memorial Highway Albany, NY 12223 Hauppu,,e, NY 11788 Ms. Nora Bredes Dr. Monroe Schneider Executive Coordinator North Shore Committee Shoreham Opponents' Coal.ition P.O. Box 231 195 East Main Street Wading River, NY 11792 Smithtown, NY 11787 Evan A. Davis, Esq.

Counsel to the Governor Executive Chamber State Capitol Albany, NY 12224 e-Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 16,1988