ML20206M969
| ML20206M969 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/23/1988 |
| From: | Lanpher L, Latham S, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20206M964 | List: |
| References | |
| OL-6, NUDOCS 8812020113 | |
| Download: ML20206M969 (15) | |
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DOCKETED USHRC November 23. 1988 25 P2:53 UNITED STATES GF AMERICA NUCLEAR REGULATORY COMMISSION i
Before the Atemic Safety and Licensing Aopeal Board
'I
)
In the Matte'r of
)
)
LONG ISLAND f.IGHTING COMPANY
) Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' MOTION FOR STAY OF MOVERDIER 21. 19RR LMEMAltid BOARD ORDER On November 21, 1988, two members of the OL-6 Licensing Board issued a "Memorandum and Order (Granting In Part And Denying In Part LILCO's Request For Immediate Authorization to Operate At 2'5% Powet)" (hereafter, "November 21 Order"). The Board majority held that LILCO's request for authorization to operate the Shoreham plant at 25% power "lies before us unopposed, and there are no matters remaining in controversy related to 254 power.
." Nov. 21 Order at 3.
The Board therefore authorized the Director of Nuclear Reactor Regulation "to make appropriate findings on matters specified in Section 50.57(a) as they relate to LILCO's motion and to issue a license for the requested operation." Id. at 9.
Judge Shon issued a dissenting opinion.V Pursuant to 10 CFR $ 2.788, the State of New York, Suffolk County, and the Town of Southampton (the "Governments") hereby seek a stay of the November 21 Order pending appellate review of the merits of (a) the November 21 Order V
Attached hereto is an Affidavit of counsel concerning receipt of the November 21 Order, as requitec by the Appeal Board's Memorandum and Order of October 12, 1988.
0812020113 601123 PDR ADOCK 05000322 0
8 i
t I
and (b) the Governments' appeal of the September 23, 1988 Concluding Initial Decision on Emergency Planning _("LBP-86-2P), portions of which are now pending i
before the Commission and the Appeal Board.M I.
There is a Strong Probability that the Governments l
Will Pegygil on the Merits of their Appealm i
The Governments' October 27 Brief In Support of Appeal of September 23, 1988 Concluding Initial Decision filed with the 'ppeal Board (hereafter.
"October 27 Brief"), and the Governments' October 31, 1988 Response to LILCO's Request for Immediate Authoritation to Operate at 25% Power which the Licensing Board refused even to consider (hereafter, "October 31 Response"), establish that the November 21 Order lacks basis, ignores the facts, and violates the Governments' due process rights. The Governments' briefs on the merits of their appeal of the November 21 Order will further demonstrate why that Order F
l must be reversed.
f A.
The Licensing Board Had Lost ilgdadiction Over LILCO's 251 Power Reauest i
In their October 31 Response, the Governments demonstrated that the L
1 issuance of LBP-88-24 dismissing the Governments from the proceeding and t
authorizing full power operation, and the Governments' aotices of appeal from
[
t LBP-88-24, had divested the Gleason Board of jurisdiction over LILCO's 25%
h f
i F
The Governments noticed their appeals of LBP-88-24 on September 27.
[
On October 7, the Appeal Board decided a bif'arcated portion of the l
Governments' appeal by reversing LBP-88-24 insofar as it purported to j
dismiss the Governments from thw OL-5 proceeding, and vacating the l
authoritation to issue a full power license. On October 27, the Governments I
filed their brief on the merits of the remainder of their appeal with the Appeal Board. On November 9, the Cott. mission announced its intention to have the Commission decide "whether Governments' (sic) conduct was such as to i
warrant their dismissal from the entire proceeding and whether, if dismissal j
from the entire proceeding is not warranted, what other sanction, if any, is j
appropriate," but held that "other natters decided in LBP-88-24
. remain t
before the Appeal Board." Nov. 9 Order at 1-2.
On November 23, the l
Governments filed a 14otion for Reversal of Commission Order of November 9, l
1988.
l t
e O
power request. Lather than repeat the arguments at length here, a copy of the October 31 Response is attached; 122 pages 2-4, and cases cited therein.
In the November 21 Order, the Boaro majority never addressed the impact upon its jurisdiction of tha issuance of lap-AR-24 and the filing of the Governmerts' appeals.
In their October 31 Response, however, which the Board refused to consider (Nov. 21 Order at 4), the Governments demonstrated their likelihood of success on the merits of this issues the November 21 Order must be reversed because once the Governments appealed LBP-88-24, only the Appeal Board had jurisdiction over LILCO's 254 power request.
B.
The Board Majority's Reliance on LDP-88-24 Requires Rgygraal of thg_RQyember 21 Oder In the November 21 Order, Judges Gleason and Kline decided that "the sanction oC dismissal of Intervenors as parties in LBP-88-24 reaches to disqualify their participation in the 25% power request proceeding." Nov. 21 Order at 4.
Their conclusion that "LILCO's application is uncontested before us and Intervenors are not entitled to participate in any proceeding before ur, whether or not any possibly relevant contentions might be admitted before another Board" (id. at 7), is thus based directly upon the Board majority's rulings in LDP-88-24, which are the subject of the Governments' pending appeal.
In light of that fact, the Governments have 41 ready demonstrated their likelihood of success on the merits of their appeal of the November 21 Order.
In their October 27 Brief, the Governments demonstrated that the LBP-88-24 decision to dismiss the Governments as parties to the OL-3 proceeding lacked basis, failed to satisfy legal requ'rements, and violated the Governments' due process rights.
Pather than repeat the arguments made at length in the Brief, the Governments refer the Appeal Board to pages 22-38, and to the factual background at pages 3-22.
_3 l
7 e
In the November 21 Order, the Board majority also relied upon the LBP-88-24 rulings for LILCO on the merits of several emergency planning contentions, noting that "we concluded in LBP-88-24 that there was no merit to any existing contentions," and holding that since we made manifest in LBP-88-24 that, except for the sanction, the Applicant was entitled to a decision on the merits authorizing an operating license at 100%
power, we certainly would conclude that it was entitled to a license at a 25% power level.
Nov. 21 Order at 7, 4.1/ In their October 27 Brief, the Governments demonstrated, howevet, that the LBP-88-24 rulings on the mer'ts of the legal authority contentions, LILCO's EBS proposal, and LIf.J's proposal for evacuating schooi children were clearly erroneous. Egg pages 38-70.
C.
The Board Majority Stated No Basis for Dismissing the Governments from the OL-6 Pgqggding, and There Was None In what appears to be an alternative holding intended to bolster the unfounded conclution that LILCO's 25% power request was "uncontested," Judges Gleason and Kline stated as follows:
(E]ven if it were to be concluded that the 25%
proceeding was considered a separate proceeding with the necessity of making additional findings involving Intervenors' participation, this Board would conclude that their conduct in the original proceeding would have been so "contumacious and prejudicial.
. as to warrant dismissal from (the 254 power) proceeding as well."
Nov. 21 Order at 4 (ellipses in original).
This ruling which purports to dismiss the Governments from the OL-6 proceeding must be reversed.
1/
ints ho11tng. while apparently indicating that Judge. Gleason and Kline believed the merits rulings in LBP-88-24 supported a merits ruling for LILCO on 25% power, is inconsistent with their subsequent statement that LILCO's 25% power motion "is denied insofar as it requests this Board to find in its favor on the merits of its request." Nov. 21 Order at 9.
i First, the Board majority stated no basis for the bald conclusion that the Governments' alleged OL-3 conduct "would have been so contumacious and prejudicial.
as to warrant dismissal from (the 25% power) proceeding."
This failure to provide any basis or explanation for a decision to impose the harsh sanction of dismissal is itself sufficient reason to reverse this slip op. at 13-14 and Oct. 27 Brief at 22, holding.
San ALAB-902, 28 URC and Cases Cited therein.
Second, as Judge Shon recogni:ed, the Governments' behavior in the OL-6 proceeding provides no basis for imposing any sanctions in that proceeding.1/
Indeed, in their October 31 Response, the Governments demonstrated that there is no basis for dismissing the Governments as parties from the OL-6 proceeding.
Sag Oct. 31 Response at pages 9-13 and cases cited therein.
Neither the Board, nor LILCO or the Staff in their filings seeking 25% power authorization, advanced a single legitimate basis for finding the Covernments' conduct in the OL-6 proceeding to be anything but exemplary.
Third, the Governments are entitled to adequate notice and a hearing prior to the imposition of the severe sanction of dismissal f rom the OL-6 proceeding. Sag Oct. 27 Brief at 27-28; Oct. 31 Response at 12-13t ALAB-902.
Here, there was neither prior notice nor hearing. The Governments were denied l
the opportunity to demonstrate that their behavior and other circumstances did not justify the imposition of any sanctions in OL-6, much less the ultimate l
sanction of dismiesal.
Moreover, the Board majority refused even to consider the Governments' written response to LILCO's October 21 request that the Board
[
l dismiss the Governments from the OL-6 proceeding, holding that it was "an
?
d/
Set shon 21ssent at 1 (sanctions beyond ambit of legal authority j
contentions are not justified, and "[t] hat reason applies with even greater force here, where the matters it issue have not even been precisely defined, let alone been the subject cf c:ntumacious behavior").
I 5-
6 unauthorized filing" and "dismiss (ing]" it "without further consideracion" beyond what was necessary to deny the Governments' Motion to Disqualify Judges Gleason and Kline.
Nov. 21 Order at 2, 4.
Clearly, the November 21 Order deprived the Governments of the most basic due process rights:
meaningful notice, and an opportunity to respond to charges agai.nst them and to a request that the dismissal sanction be imposed upon them.
'curth, as demonstrated in the Governments' October 31 Response, in light of their conclusions and statements in LBP-88-24, Judges Gleason and Kline were not qualifie/ to rule on the sanction issue, or on any other issue presented by LILCO's 25% power request.
Egg Oct. 31 Response at 4-8.
The invective and sweeping, undocumented, and f.ilse accusations about the motivations and purposes of the Governments, embodied in the statements of Judges Gleason and Kline in LBP-88-24, manifest their bias against the Governments.
In lig?4 of those statements, any reasonable person wov1d necessarily question the impartiality of Judges Cleason and Kline in rut.ing on any matters involving the Governments.
The statements of Judges Gleason and Kline in LBP-88-24 demonstrated their inability to be f air or impartial in ruling on LILCO's request. The November 21 Order, which was devoid of any basis or explanation for the assertion that the Governments' conduct was "contumacious r.nd prejudicial,"
merely confirms what LBP-88-24 foreshadowed.
Egg also Shon dissent, at 1.1/
1/
In moving to disqualify Judges Gleas'>n and Kline, the Governments cited federal cases wnich hold that a federal judge must disqualify himself in any proceeding in which his impartiality might be questioneJ.
28 U.S.C.
S 455(a). NRC case law holds that this disqualification standard is equally applicable to Licensing Board members. Moun ten Lightinud_P2wer ca.
(South Texas Project, Units 1 & 2), CLI-82-9, 15 NRC 1363, 1365-67 (1382);
Eab11g_ Service Elec. And das ca. (Hope Cree'4 Generating Station, Unit 1),
ALAB-759, 19 NRC 13, 20-22 (1984).
Indeed, in support of the motion to l
disqualify, the Governments relied on Fredenia BIcadgaadng_,C I Q ng a RCA.CcIp., 569 F.2d
.,1 (5th Cir. 1978) -- a case which both the Comcassion (f oottsote continued)
-,v
e.
The Governments have the "right to be judged independently and fairly by each board before wnich (they] appear " ALAB-902, slip op at 11.
That right was violated here, and requires the reversal of the November 21 Order.
D.
The Board Majority Acknowledged that There Are Matters in Controversy Which Are Relevant to LILCO's 25% Power Request, Making the License kithoL11Atlon_Cically_ Unlawful.
The November 21 Order is purportedly based on 10 CFR S 50.57(c).
That section mandates that action on a motion for authorization to operate short of full power "shall be taken with due regard to the rights of the parties to the proceedings, including the right of any party to be heard *o the extent that his contentions are relevant to the activity to be authorized." Moreover, in its January 7, 1988 Memorandum and Order (in re:
LILCO Request for Authorization to Operate at 25% of Full Power), the Board acknowledged (1) that LILCO's 25% power request could not be granted while the.*e existed any Government contentions which were relevant to 25% power operation, and (2) that "the Govegaments.
have the right to be heard to the extent that their contentions are relevant to such operation." January 7 Order et 14, 15.
(footnote continued from previous page) and the Appeal Board lave turned to for guidance.
Sam, e g.,
Mounten LLghting and Pawir Cc_ (South Texas Project, Units 1 & 2), CLI-82-9, 15 NRC 1363, 1366 (1982); Public Service Elec. and Cas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 13 NRC 13, 22, n.29 (1984). Thus, the assertion of Judges Gleasvn and Kline that the Governments' r.otion was "frivolous" and "unacceptable" because it did not cite f.RC authorities is without basis.
Sag Nov. 21 Order at 8.
Similarly, the assertica that the Governmen.s' motion was untimely, a "strategy of delay," and an "attespt to manipulate the adjudicatory process" (Ld. at 9) is absurd. The Governments believed the OL-6 Board had lost jurisdiction upon the filing of the Governments' notices of appeal of LBP-88-24.
Parties surely cannot te expected to move to disqualify judges who have no jurisdiction to act.
When some question as to the Board's jurisdiction was raised by tne filing of LILCO's October 21 Request, the Governments pecmptly filed their motion to disqualify, __
a In briefs filed April 1, April 21, and May 5, 1988, and in the October 31 Response, the Governments demonstrated that the extant OL-5 Board decisions that LILCO's plan and its ability to implement it are fundamentally flawed, and the pending contentions concerning the 1988 LILCO Exercise, are substantively relevant to 254 power operation and require denial of LILCO's request.
Egg Oct. 31 Response at 14-18.6/
In the November 21 Order, Judges Gleason and Kline acknowledged that the Governmerits "remain as parties to the OL-5 portion of the case Matte t intentiens en the 1999 emergency ergreise have been filed before the OL-5 acr td. " Nov. 21 Order at 5 (emphasis added). The Board majority's ruling that "the:e are no matters remaining in controversy related to 25% power" (id at 3) flies in the face of the majority's clear acknowledgment that in fact there are pending contentions arising out of the 1988 exercise, which are relevant to 25%
power operation and "in controversy," albeit before another Board.
In their October 31 Response, and in their April 1, 1988 Brief, the S
Governments demonstrated that the extant decisions concerning LILCO's 1986 exercise and LERO's performance therein, as well as the pending contentions 1
concerning the 1988 exercise, are not only relevant to LILCO's proposed 25%
power operation, but require the denial of LILCO's authorization request, under Se: tion 50.57(c) and the Board's own Orders. Egg Oct. 31 Response at 15-18:
April 1 Brief at 5-25.
Insofar as the November 21 Order pu.~,6rts to authori:e 1/
Set 1110 Governments' Brief in Response to February 26, 1988 Board i
Order (April 1, 1988): Governments' Response to LILCO's Brief on the Relevance of Pending Contentions to LILCO's 25% Power Motion (April 21, 1988); Governments' Brief in Response to the Staff's Brief of April 20, 1988 (May 5, 1988). Copies of these filings are attached hereto because they i
provide important lactual background to the 25% power proceeding.
In addition, by laying out tne substantial issues in controversy, they eake manifest the extent of the majority s 4 ror in autnori:ing issuance of a 254 power license in the face of tne signif. cant issues relevant to 254 power operation as to which there nad been no hearing or opportunity to submit evidence c: even contentions.
.g.
6 the issuance of a 25% power license under Section 50.57(c) -- in the face ef matters conceded by the Board to be,in controversy and relevant to 25% power cgeration -- it is clearl;> erroneous.
E.
The Gov +2rnments were Deprived of their Right to a licatir&.ta. Cont 11L_LILCO 's 25i Power _Requent The November 21 Order violates the Governments' due process right, under the Atomic Energy Act and Section 50.57tc), to contest LILCO's 25% power license request by submitting contentions and demonstrating taat LILGO's technical arguments advanced to support its request are flawed or unrul:able, and that the findings required under Section 50.57(c) cannot be mado.
In t'.s January 7 Order, the Licensing Board acknowledged the Governments' right to submit such contentions after having reviewed LILCO's technical analyses and the Staff's technical review of that analysis.
In their October 31 Response, the Governments reiterated their intention to submit such contentions if and when the Board established the procedures for doing so, since the Staff's review had been released on October 6, 1988.
Een Oct. 31 Respents at 18-23.1/
The conclusions of the Staff, following completion of its technical review of LILCO's 25% power proposal, confirm that there are in fact sericus technical issues raised by LILCO's proposal.E/
As Judge Shon noted, "the matter of 25% power is new surely one of the matters en which the Governments could make a cor.tribution.
." Sh;n 1/
The Governments had consistently stated their intention to contest the technical bases of LILCO's request.
See April 1 Brief at 30; April 21 Brief at 10: May 5 Brief at 5-10.
1/
Thus, for example, as noted in the Governments' October 31 Response, the Staff found, among other things, that centrary to LILCO's assertions, "the absolute distance at which najor reductions occur in the probability of exceeding a particular dose are dependent on modelling and input assumptions and are an area of remaining uncertainty," and that while the probability of exceeding the upper bound EPA PAG dose of five tem whole body is reduced at 25% power, 'significant reduction does not generally occur within the 10-mile EPZ."
Staff SER (Enclosure 2 at 46).
.g.
4 Dissent at 2.
Indeed, under Section 50.57(c), the Governments have the right to be heard "to the extent (their) contentions are relevant" to 25% power operation. Not only are the Governments' pending exercise contentions relevant to 25% power, but in direct violation of Section 50.57(c), the Novembe'r 21 Order preemptively bars the Governments from even submitting contentions concerning LILCO's 25% power license esquest.
II.
The Governments Will Suffer Irreparable InpryJf the Stay In_ Denied The irreparable injury standard is satisfied here.
First, a denial of due process or other deprivation of a constitutional right constitutes irreparable harm ger 1g.2/ The Board's failure (a) to identify any conduct in the OL-6 proceeding that merits any sanction and (b) to conduct a fair hearing on sanctions as required by ALAB-902, or on the merits of the Governments' contentions relevant to 25% power creration as required by Section 50.57(c),
constitutes a serious denial of due process.
Second, if the stay is not granted, the Governments' appeal of the November 21 Order and of LBp-88-24 may be rendered moot by the commencement of operations above 5 percent power prior to a decision on the merits of the appeals.lS/ Thus, absent a stay, further substantial contamination of Shoreham may occur.
In that event, there would be a substantial change in the status 2/
Cuemo v.
NRC, Civ. No. 84-1264 (D.D.C. April 25, 1984), CCH Nuc. Reg.
Rept. 1 20,304, at 17,907 ing Mitchell v.
Cae 2, 748 F.2d 804, 806 (2d Cir.
1984); Unligd_ Church of the Mg31 cal Center v. Mgdical center Crms., 689 F.2d 693, 701 (7th Cir. 1982); Lex 11_.'/. Mugler, 446 F.2d 1343, 1351-52 (3d Cir.
1971); Henry v. Creenville A1;;;rt Cc-N.,
284 F.2d 631, 633 (4th Cir. 1960);
I county of Enchawana, $13 F. Supp N2rthern Penna. Le2Al SefYiceSa ISO-678, 685 (M.D. Penn. 1981); c'Crnner v. Mewbray, 504 F. Supp. 13), 143 (D.
Nev. 1980).
12/
There is pre ently in place a settlement agreement between LILCO and New York State which precludes LILCO from operating Sr.'reham above 5 percent nower. That settlement agreetent eculd be terminated prior to a decision on the merits of the Governments' appeals, however. Therefore, it cannot be relied upon to take the place
't a stay.
t 6
quo (iga Affidavat of Gregory C. Minor, Vs 2-5, attached hereto), and LILCO will have been permitted to carry out'the very activity the Governments have sought to prevent. No subsequent decision would be able to restore the status quo. San Minor Aff., V 3.
The potential mooting of an appeal can constitute irreparable harm justifying a stay.ll/
i i
Third, at 25% power, there could be accidents with severe offsite I
consequences throughout the 10-mile EPZ.
Thus, it is necessary that there be
[
l an adequate and implementable offsite emergency plan in place.
San Minor Aff.,
ts 4-6.
The extant adjudicated exercise findings -- LBP-87-32, LBP-88-2, and i
ALAB-900ll/ -- establish that LILCO'a Plan and LILCO's ability to implement it are fundamentally flawed in several respects. The Governments have proffered
[
1988 exercise contentions which document that LILCO has not corrected these flaws and that the 1988 exercise revealed the existence of additional flaws.ll/
Further, a recent New York State Supreme Court decision barring use of one of LILCO's reception centers raises additional questions about the adequacy of 11/
Scripps-Heward Radio. Inc.
v.
Fcc, 316 U.S. 4, 9 10 (1942): United States v. State of_Ala.e 791 F.2d 1450 (llth Cir. 1986): 2enith Radio corp.
- v. United staten, 710 F.2d 806, 809 (Fed. Cir. 1983); Public Utilities ccmm.
- v. capital Transit ca., 214 F.2d 242, 245 (D.C. Cir. 1954): Townshin of Lower Alloways creek v. MRC, 481 F. Supp. 443, 448-49 (D.N.J. 1979).
111 gigo Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB Memorandum and Order (May 24, 1984) (slip op. at 7-8) (FEMA would be irreparably harmed if appeal were mooted by denial of stay).
12/
ggg teng Island Lighting co. (Shoreham Nuclear Power Station, Unit 1),
LBP-87-32, 26 KRC 479 (1987), aff'd, ALAB-900. 28 NRC (1988), agggAl gending; teng Island Lighting Co. (Shoreham Nuclear Power Station Unit 1),
LBP-88-2, 27 NRC 85 (1988), rev'd in part, ALAB-903, 28 NRC (Nov. 10, 1988).
11/
Emergency Planning Contentions Relating to the June 7-9, 1988 Shoreham Exercise, October 21, 1988.
It cannot be assumed that the LILCO Plan's far-reaching deficiencies demonstrated during the 1966 exercise have been remedied in the absence of a fair opportunity to contest the results of the 1988 Shoreham exercise.
Egg ALAB-902, slip. op at 12-13, n.13 (right to proffer contentions is equivalent :o right to litigate already admitted contentions). -
t LILCO's Planld/; the reception center Appeal Board is currently considering that decision as well as the remainder of the Governments' appeal.
In addition, the OL-3 Board's rulings on the merits of the EBS, school evacuation, and legal authority issues ignore substantial inadequacies in LILCO's Plan, each of which precludes a reasonable assurance finding. Sea Oct. 27 Brief at 38-70.
The cperation of Shoreham on the basis of an inadequate emergency plan constitutes irreparable injury.
122 Ohio v.
NRC, 812 F.2d 288, 290 (6th Cir.
1987).
Fourth, the regulations require findings on the adequacy and implementability of LILCO's Plan prior to license issuance.
10 CFR S 50.47(a)(2); 10 CFR Part 50, Appendix E, S IV.F.
The Governments are entitled to challenge the results of the 1988 exercise before Shoreham operates above 5% power.
L'nien of Cens11ned Scient ist s v.
NRC, 735 F.2d 1437 (D.C. Cir.
i 1984) cert. denied, 469 U.S.
1132 (1985). Many of the fundamental flaws in LILCO's Plan came to light only as a result of the Governments' challenge to the 1996 exercise results.
The public's right to have the 1988 exercise and its results scrutinized prior to operation above 5% power will be irreparably l
harmed if a stay is not granted.11/
III. Thc_GIA2L.af a Stay _ Mill _NoLIlarm LILc0 LILCO will suffer no injury if a stay is granted.
It is undisputed that there is no need for the operation of Shoreham at any power level in the near 11/
Town of He ;11 gad " trng Island Lighting C2., Index. 23779/87 (N.Y.
Sup. Ct.,
Aug. 22, 1988).
11/
The Board majority implied that perhaps the NRC Staff could protect the public's interest in scrutini:ing the 1988 exercise results.
Egg Nov. 21 Order at 7.
There is no basis for such a suggestion, particularly since the Staff has urged the OL-5 B:ard to reject 111 of the Governments' 1988 exercise contentions. 11 NRC Staff Respense to Intervenors' Proffered Contentions Relating to the Emergency Planning Exercise Held on June 7-9, 1988 (Nov. 8, 198a).
t future (this winter or spring) ct in the longer term (through next summer and beyond) to ensure a reliable supply of power to Long Island. Egg Affidavit of Eugene J. Gleason, the Director of Planning for the New York State Energy Office, 1 6, attached hereto.
Therefore, a stay to preserve the status quo until the Governments' appeals are decided will have no impact on LILCO's ability to supply an adequate amount of electric power to its Long Island customers.
IV.
The_.Eublic Intere1Lfavors. Iasuance_of a stmy The public interest mandates the issuance of a stay.
First, many of the facts discussed in the context of the other stay factors also demonstrate that a stay of the November 21 Order in in the public interest.
It is clearly in the public interest to correct due process violations, and to address serious emergency planning safety issues, before there is further contamination of the Shoreham plant, operation at a significantly greater risk to the public. or mooting of the Governments' appeals, particularly since Shoreham's electric power output is not needed.
Second, the denial of a stay would have a direct and dramatic impact upon the Governments and the public they represent.
If the November 21 Order is allowed to stand, the Governments will have been abruptly thrown out of the 254 power proceeding, without basis or an opportunity to respond, despite their painstaking participation in that proceeding since its inception.
The conse-quence of the OL-6 Board majority's action will likely be issuance of a 25n power license, because there will be no party left to represent the public in contesting issuance of such a license.
Egg Nov. 21 Order, Shon dissent.
Clearly, the situation presented by this care is unparalleled.
It is the first time elected govern.ents have been thrown cut of NRC preceedingst the first time a utility emergency plan has been the sole basis for licensi.sg and has been promoted to push aside the lawful decisions of all affected State and local governments: the first time the NRC has applied its new emergency planning rulet and the first time an unprecedented 25% power license will have been issued based on a fiction that the license is "unopposed," and in the face of substantial, concededly relevant, but unresolved issues pending before another Board.
Surely, in these circumst:ances, it is in the public interest to stay the November 21 Order pending resolution en the motits of the Governments' appeals.
V.
Canclualon For the foregoing reascns, this Board should maintain the status quo by granting the requested stay.
Respectfully submitted, b Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
- y lv Cxuyth (NN Lawrence Coe Lanpher Karla J. Letsche David T. Case Kirkpatrick & Lockhart 1800 M Street, N.W.
South Lobby-9th Floor Washington, D.C.
20036 Attorneys for Suffolk County e
/ /C
@' k <.
f f
Fabian G.
Palemino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York
. b a, Y} tm !
if Step' hen B.
Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorneys for the Town of Southampton