ML20206M675

NRC Response to Lilco Motion to Reply & Motion for Leave to Reply to Intervenor Response to Lilco Renewed Motion for Summary Disposition of Legal Authority Issues.* Certificate of Svc Encl

ML20206M675
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/08/1987
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3130 OL-3, NUDOCS 8704200150
Download: ML20206M675 (6)

Text

. _.

'- hh ,

04/08/87 A

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

00CKETED EEFORE TIIE ATOMIC SAFETY AND LICENSING BOARIN In the Matter of )

)

LONO ISLAND LIGHTING COMPANY )

Docket No. 5@32.2iOIM)*.i A '[

(EmergencyHan@' Qg

)

(Shorcham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO LILCO MOTION TO REPLY AND MOTION FOR LEAVE TO REPLY TO INTERVENOR RESPONSE TO LILCO'S RENEWED MOTION FOR

SUMMARY

DISPOSITION OF " LEGAL AUTHORITY" ISSUES I. INTRODUCTION On March 20, 1987, Long Island Light Company (LILCO) served LILCO's Second Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP 1-10) (" Motion") . LILCO argues, based on the Commission's decision in CLI-86-13, 24 NRC 22 (1986), as well as facts argued to be established, that there are no genuine issues of material

fact on the legal authority issues, and that Contentions EP 1-10 should be decided in LILCO's favor as a matter of law. LILCO also requests leave to file a reply to Intervenors' response, based on lack of knowledge of how Intervenors would attempt to show that the governments would not be l~

able to adequately protect the public using best efforts.

LILCO's Motion raises important questions as to the scope of f

litigation of Contentions EP 1-10 contemplated by the Commission on remand, and particularly what factual matters are not subject to further hearings. The Staff wishes to provide the Licensing Board with its viuws of the proper scope of litigation under the so-called " realism" s704200150 87040s PDR G ADOCK 05000322 PDR .

9]

/ ~

presumptions accepted by the Commission, but believes it may better do so once the scope of the factual matters in dispute between LILCO and Intervenors has been further delineated. As LILCO in the subject motion has requested permission to file a reply to Intervenors' response to the motion, the Staff requests an opportunity to file a reply memorandum in the same time frame as LILcn has requested to file its reply (Motion, at 31), ten days after receiving the Intervenors' response to the Motion.

The Staff believes that granting LILCO and the Staff permission to reply to Intervenors' response will further assist joinder on the materiality of any factual issues which may be contested.

{

II. DISCUSSION In CLI-80-13, the Commission stated:

...in evaluating the LILCO plan we believe that we can reasonably assume some "best effort" State and County response in the event of an accident. We also believe that their "best effort" would utilize the LILCO plan as the best source for emergency planning information and options.

CLI-83-16, 24 NRC at 31. However, the Commission was not willing to conclude the such "best-effort government response would necessarily be adequate." ,Id . Rather, the Commission remanded the matter to obtain information on possible " shortcomings of the LILCO plan in terms of possible lesser dose savings and protective actions foreclosed, assuming a best-effort State and County response using the LILCO plan as the source for basic emergency planning information and options. "

CLI-83-16, 24 NRC at 31-32.

_ _ _ _ _ _ _ _ _ _ . - - I

d '

Important to the resolution of the factual issues which might be raised on the CLI-86-13 remand is learning what the State of New York and Suffolk County would do in the event of an accident and how State and County actions would impact on the viability and timing of protective actions. On the other hand, it is equally important for purposes of the remanded hearing to determine what factual matters are beyond the scope of Contentions EP 1-10, based on the legal presumptions that the State and County would respond on a best-effort basis, and would use the LILCO pihn. For example, the State and County may be precluded from arguing that they would not sound the early notification alert sirens, or that they would not accept recommendations for such alerting based on in-plant parameter readings and release projections.

A discussion of the appropriate scope of litigation of Contentions EP 1-10, as narrowed by the Commission's presumptions, would be more focused and more useful to the resolution of the issues remaining if it were based not only on the facts relied upon by LILCO, but also those relied upon by Intervenors. II On this basis, the Staff seeks permission to reply to both the pending Motion and Intervenors' response to LILCO's motion at the time LILCO has requested to file its reply, ten days after receipt of Intervenors' response.

l 1/ In addition, LILCO argues that certain contentions have been mooted in whole or in part (Contentions EP 3, 9 and 10), or raise issues for

~

which best-efforts response is presumptively adequate (Contentions l EP 7, 8). Intervenors' views on these contentions would likewise

! assist the Staff in formulating its views on the scope of litigation.

l i

i

4

~

III. CONCLUSION The Staff's request for permission to file a reply memorandum at the Same time as LILCO's requested reply should be granted.

Respectfully submitted,

.!I WjM' George E. Johnson Counsel for NRC Staff s

Dated at Bethesda, Maryland this 8th day of April,1987 m

l l

l

1 -

~

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00LKETED witwC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD W APR 16 P4 :18 In the Matter of )

F LONG ISLAND LIGHTING COMPANY ) [0C eE D-322-OL-3

) (EdM@6ncy Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LILCO MOTION TO REPLY AND MOTION FOR LEAVE TO REPLY TO INTERVENOR RESPONSE TO LILCO'S RENEWED MOTION FOR

SUMMARY

DISPOSITION OF

" LEGAL AUTHORITY" ISSUES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterish, through deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated by a double asterisk, by telecopy and first class mail, this 8th day of April,1987.

Morton D. Margulies, Chairman

• Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline* Fabian G. Palomino, Esq."

4 Administrative Judge Richard J. Zahnleuter, Esq.

Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire James N. Christman, Esq.

Federal Emergency Management Donald P. Irwin, Esq.**

Agency Hunton a Williams 26 Federal Plaza 707 East Main Street Room 1340 I .O. Box 1535 New York, NY 10278 Richmond, VA 23212 Douglas J. Hynes, Councilman t Town Board of Oyster Bay

! Town Hall Oyster Day, New York 11771

j( ~

Stephen B. Latham, Esq.

Twomey, Latham a Shea Christopher M. McMurray, Esq. **

Attorneys at Law David T. Case, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 '

i Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.

North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.

Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony P. Earley, Jr. William R. Cumming, Esq.

General Counsel Office of General Counsel Long Islana Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hichaville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman l_

Long Island Coalition for Safe Docketing and Service Section*

Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Dox 944 New York, NY 10271 Huntington, New York 11743 I

(u Edwin J. eis Counse for NRC Staff l

l 1- . . . _ - , _ _ _ _ _ . - - - . _ . . _ _ . . _ _ _ _ _ _ _ - _ _ _ . _ _ _ . _ - -