ML20206J593

Summarizes Matters Discussed on 881110 Re Decision ALAB-903. Lilco Accusation Re Ex Parte Matter Out of Place

ML20206J593
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/21/1988
From:	Mark Miller KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel
References
CON-#488-7531 ALAB-903, OL-5, NUDOCS 8811290048
Download: ML20206J593 (3)

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KIRKPATRICK & LOCKHART Sot.fn1 LOBBY 9TH Floor

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e n5ao November 21, 1988 l

BY HAND I

t John H. Fryo, III, Esq.

I Mr. Frederick J. Shon I

Dr. Oscar H. Paris U.S. Nuclear Regulatory Commission Washington, D.C.

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Re: ' Docket No. 50-322-OL-5-R, Gentlemen:

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At 4:30 p.m. last Friday, counsel for Suffolk County I

received a copy of a letter addressed to the Board from LILCo's l

counsel.

In that letter, LILCO's counsel accused the undersigned j

of an impropor g parte communication with the Board.

LILCO's counsel further alleged that Contentions 4 through 20 irem the t

Governments' October 24 "Emergency Planning Contentions Relating

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to the June 7-9, 1988 Shoreham Emergency planning Exercise" fail

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to comply with ALAD-903 pleading requirements, and that the Governmcnts, by failing to address ALAB-903 in their November 15 i

submissio.1 (or thereafter), had waived "wnatever right they mignt

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have otherwise had in this expedited proceeding to recast their d

j contentions to take account of ALAB-903, l

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i Counsel for Suffolk County will address the ALAB-903 matters

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during tomorrow's conference of counsel.

That is consistent with j

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ovr understanding of the agenda contemplated by the Board.

i ordinarily, tomorrow's conference would also provide an opportunity for me to respond to the accusation made by LILCo's i

counsel concerning the ox parte matter.

I will be unable to l,

attend tomorrow's confere'nce, however.

Thus, I feel it is l

incumbent on me to respond in this letter to Mr. Irwin's baseless I

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accusation, and to set the record straight on this matter.

The facts are as follows:

I 1.

The County's counsel receive 6 ALAB-903 late in the I

4 morning on November 10.

After reading the decision, conferring

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among ourselves, and discussing ALAB-903 with.New York State's counsel, it was determined that ALAB-903 had the potential to j

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o KIRKPATRICK & LOCKHART John H. Frye, III, Esq.

Mr. Frederick J.

Lhon Dr. Oscar H.

Paris Novembar 21, 1983 Page 2 impact the matters pending before this Board.

The contentions and the LILCO and Staff responsive filings had all been made on the basis of prior guidance.

ALAB-903 potentially changed that guidence and, arguably, established new pleading requirements.

2.

Counsel decided that it mado sense to bring this matter to the Board's attention and to seek the Board's guidance.

We thus began drafting a letter describin'; the likely options that the Board might wish to consider, including:

(1) staying the Novemb9r 15 filing date in order to permit the Governments time to revise their contentions; or (2) holding to the November 15 dato for responses to the Staff and LILCO filings, and thereafter permit all the parties to brief ALAB-903's potential significance.

3.

It was counsel's intention to complete the letter and telecopy it to the Board and parties so that, if possible, a telephone conference call could have been convened by the Board on November 10 or 11.

Before the letter was completed, however, New 1%tk State counsel reminded up that Novemoer 11 was a Federal I

holiday; thus, if a conference call were to bo held, it probably had to be that day, November 10.

4.

I then telephonod the. Board's secretary (Call 1) to 6

inquire whether the Board was in Bethesda and thus potentially available for such a call.

\\fter neveral unsuccessful attempts f! began telephoning during the lunch hour), I managed to r9ach tne Board's secretary, who told me that the neard was in Bethesda.

In asking whether the Board was available for a conference call, it was of courso necessary for me to explain the j

reason for my inquiry.

During this initial tolophone convor-sation, I simply explained that the conference call, if scheduled, would be to discuss ALAB-903.

I also told the Board's secretary that wo were preparing a letter which would help set the agenda for any conference call.

1 5.

Shortly after Call 1, the Board's sacrotary called back l

(Call 2).

She stated that she had boon instructed by Judge Fryo i

2 to obtain further details about what wo wished to discuss on the conference call.

I provided the requested information, focusing on the fact that our contentions and the LILCO/ Staff responses i

had addressed one set of guidance, which had been potentially char.ged, at least to somo extent, by ALAD-903.

6.

Shortly thoroafter, the Board's socrotary called again (Call 3) seeking further details.

I basically reiterated the points already mentionod; in addition, I told her that our lottor to the Board was j ust about ready to be sent.

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KIRKTATRICK & LOCKHART John H. Frye, III, Esq.

Mr. Frederick J. Shon Dr. Oscar H.

Paris November 21, 1988 Page 3 7.

I was placed on hold during Call 3.

The Board's secre-tary then informed me that there would be no conference call and that ALAP-903 would be addressed at tle November 22 conference of counse).

In view of the information conveyed by the Board's secretary, no letter was sent on Noveaber 10.

To the best of my recoller. tion, the foregoing fully and fairly summarizes the matters aiscussed by me with the Board's sedretary on November 10.

LILCO's accusaticns are thua most out of place.

There was no improper ex parte contact but, rather, merely a good faith attempt by me, on behalf of the Governments, to inquire about the possibility of a conference call with the Board -- something counsel for all the parties have frequently done.

Had LILCO's counsel had the courtesy to inquire of me, I would have related these facts to him.

Sincerely yours, f b h f //h Michael S. Miller cc:

Donald P.

Irwin, Esq. (by telecopy)

Edwitt J. Reis, Esq. (by telecopy)

William R. Cumning, Esq. (by telecopy)

Richard J.

Zah!leutor, Eaq. (by telecopy)

Stephen B. Latham, Esq. (by telecopy)

Docketing and Service Section (by hand) l r

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