ML20206T053

Suffolk County & State of Ny Motion for Rescheduling of Relocation Ctr Hearing to Commence Upon Completion of Exercise Litigation.* Board Should Postpone Commencement of Reception Ctr Hearings Until Exercise Litigation Complete

ML20206T053
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/13/1987
From:	Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206T059	List: ML20206T053 ML20206T156
References
CON-#287-3189 OL-3, NUDOCS 8704230107
Download: ML20206T053 (10)

Text

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3/81 DOCKETED USNRC April 13, 1987 UNITED STATES OF AMERICA '87 APR 21 P4 :59 NUCLEAR REGULATORY COMMISSION CFFICE = . rc . .

Before the Atomic Safety and Licensino Board h$dci

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY AND STATE OF NEW YORK MOTION i FOR RESCHEDULING OF RELOCATION CENTER HEARING TO COMMENCE UPON COMPLETION OF EXERCISE LITIGATION Pursuant to this Board's Orders establishing the schedule for this proceeding, the hearing on the adequacy of LILCO's reception centers is scheduled to commence on May 4. For the

, reasons set forth below, Suffolk County and the State of New York (the " Governments") move this Board to reschedule the hearing to commence upon the completion of the current Shoreham Exercise (OL-5) litigation.

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I. BACKGROUND This Motion is based on circumstances which have crystal-lized recently and which were the subject of much discussion in the Shoreham Exercise proceeding currently being heard before the OL-5 Board. The circumstances which prompt this Motion arise largely from the fact that if the hearing on the reception center issues before this Board begins on May 4 as scheduled, it will run concurrently with the OL-5 proceeding.

Such a concurrent hearing would result in serious difficulties, particularly related to the availability of Judge Shon, who sits on both Boards; the availability of witnesses for LILCO, the County, the State, and FEMA, many of whom are scheduled to appear in both proceedings; and the availability of certain counsel, who must appear in both proceedings. Pursuant to the suggestion of the Licensing Board hearing the OL-5 l proceeding, the instant motion is being filed.1/

1/ The following colloquy took place on Tuesday, April 7, 1987, during the OL-5 proceedings:

MR. ZAHNLEUTER: Well, I would like to state then for the record that there may be a problem with conflicting appearances by witnesses and lawyers unless we move the OL-3 proceeding to coincide with this proceeding.

JUDGE FRYE: I think you should make that motion to the OL-3 Board, and if you don't get relief from them then we will have to face whatever problems come up.

MR. ZAHNLEUTER: Okay.

(footnote continued)

In addition to the foregoing scheduling difficulties, there are two other matters which also support the need to reschedule the hearings. First, it is apparent that LILCO, the County, and the State have all expressed an intention to seek leave to file rebuttal testimony. The schedule currently does not have time built in for the preparation and filing of rebuttal testimony, much less time allotted for motions to strike and such rebuttal testimony and response to such motions. A rescheduling of the hearing will allow time for rebuttal testimony to be filed prior to the hearing.

Second, this Board has set May 11, 1987, as the deadline for Suffolk County and the State of New York to respond to LILCO's Motion for Summary Disposition of the " Legal Authority" Issues.

This response will require considerable work, which will be facilitated if the Governments are not also preparing for and participating in the relocation center hearing.

(footnote continued from previous page)

JUDGE SHON: I might also say that up until, say, last night or so -- up until yesterday when we first talked about this particular schedule of Mr. Irwin's, most of us I think were hoping that OL-5 and OL-3 were not, so to speak, on a collision course. We were rather hoping against hope, but I think we thought this proceeding might well finish before the OL-3 proceeding began.

And, as of last night it looks as if that's impossible; is that not correct?

Transcript of OL-S Proceedings at 2868.

For all of these reasons, as discussed in greater detail below, the Governments hereby request this Board to postpone the commencement of the reception center hearing until the ongoing Exercise hearing has been completed.

II. DISCUSSION From discussions last week in the Exercise proceeding, it is apparent that the OL-5 hearing will not be completed by May 4.

The OL-5 Board and LILCO have expressed a preference to continue that hearing without a hiatus for the relocation center trial.

The Governments would be willing to be in either proceeding on May 4 and thereafter but not both at the same time. In these l} circumstances, the OL-3 trial should be postponed.

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[$ A. dydae Shon Judge Shon sits both on the OL-5 Board which is currently hearing the Shoreham Exercise issues, as well as the OL-3 Board which is scheduled to hear the reception center issues. If the two hearings were to run concurrently, Judge Shon would not be able to be present at both proceedings. If either of the Boards are forced to proceed with only two members, the Governments will be denied their right to a three-judge panel.

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While the Governments are aware that 10 C.F.R. $ 2.721(d) states that a quorum of the Board consists of two members, that

regulation cannot fairly be applied to facts such as exist here, where the circumstances which might lead to the absence of a Board member are known to the Board well in advance of the com-mencement of the hearing. Egg In the Matter of Commonwealth Edison Co., CLI-74-35, 8 AEC 374, 376 (1974) (" Boards should so arrange hearing schedules as to achieve maximum utilization of

,i all three members."). Indeed, the Commission has stated that "it would be inconsistent with a Licensing board's stature and j responsibility if all its members did not actively participate in j the hearings to the fullest extent possible." 14 The NRC regulations call for a three-judge panel, 10 C.F.R.

l S 2.721(a), and the Governments insist on that right in the absence of the unusual and unforeseen circumstances justifying resort to the quorum provision of 10 C.F.R. S 2.721(d). Egg 8 P

AEC at 377 (" attendance of the full Licensing Board membership is the expected norm"). Therefore, the proceeding should be i

j postponed until Judge Shon, the common member of the OL-3 and the

OL-5 Boards, can sit to hear the reception center issues.

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B. Witnesses As LILCO's counsel pointed out in his letter to the Board of March 30, 1987, scheduling problems are certain to arise if the proceedings are held concurrently because many witnesses are scheduled to appear in both proceedings. For example, there are several LILCO witnesses who are scheduled to appear in both proceedings. These include Mr. Daverio, Dr. Mileti, Mr. Watts, Dr. Lindell, and Mr. Lieberman. In addition, most of the other parties have overlapping witnesses as well. For instance, the County's witnesses scheduled to appear in both proceedings include Dr. Harris, Dr. Mayer, Dr. Cole, Dr. Saegert, and Mr.

Minor. For the State, Mr. Baranski, Mr. Czech and Mr. Papile are scheduled to appear in both proceedings. For FEMA, Mr. Keller, Mr. Baldwin, and Mr. Husar are also scheduled to appear in both proceedings.

It is plain from the number of witnesses scheduled to appear in both proceedings (16) that concurrent proceedings would present scheduling difficulties for the Board and the parties.

In many instances, one Board or the other would have to adjourn so that a witness testifying before one Board could make an appearance before the other. This would lead to fragmented hearings which would be to no one's benefit. Indeed, both proceedings would be unnecessarily delayed if the parties are forced to participate in both proceedings concurrently.

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As the Board is also aware, Mr. Zahnleuter is actively rep-resenting the State of New York in both the OL-S and the OL-3 proceedings. If both proceedings run concurrently, he will be unable to represent the State at one of those hearings and the State will therefore be unfairly prejudiced. It is simply impos-sible for Mr. Zahnleuter to be in both places at one time.

D. Rebuttal Testimony l LILCO's counsel stated in his March 30, 1987, letter that it 4

was likely LILCO would seek to file rebuttal testimony on the reception center issues. In addition, the State of New York intends to move this Board for leave to file rebuttal testimony on a specific portion of the testimony offered by LILCO's expert l witness, Mr. Lieberman. Finally, as the Board will remember from 3 a recent conference call regarding LILCO's motion to strike two l 1

i County witnesses, it is likely that the County will seek leave to I

i file rebuttal testimony to respond to the NRC Staff's testimony on consequence analyses as they relate to LILCO's monitoring planning basis.

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The Board's current schedule does not build in time for the i preparation or filing of rebuttal testimony. Nor does it include time for motions to strike and responses to such motions related i

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to rebuttal testimony. Because it appears that there is going to l be rebuttal testimony filed by the parties, the Board needs to provide time for the parties to prepare such testimony, file it, and hear motions to strike. Such time will be available to the parties if the Board postpones the hearing until the termination of the OL-5 procee ding.1/ The parties can work on rebuttal testimony and motions to strike such testimony while awaiting the termination of the OL-5 trial.

E. LILCO's Motion For Summary Disposition The Board has established May 11, 1987, as the date by which the Governments must respond to LILCO's Motion for Summary Disposition of the " Legal Authority" Issues. Memorandum and Order (Ruling on Intervenors' Motion to Convene Conference of Counsel, and Other Relief), April 10, 1987. As this Board has acknowledged, "a proper response will require a significant effort." Memorandum and Order, at 7. The attorneys who must now prepare that response include those involved in the reception center hearing. Those attorneys will have difficulty preparing for a May 4 trial and preparing a response to LILCO's Motion at the same time.

1/ The Governments suggest the following schedule for filing rebuttal testimony Testimonyt May 4 Motions to Strike: May 11 Responses to Motions to Strike May 18

III. CONCLUSION For all of the above reasons, it is apparent that it is inappropriate for this Board to move ahead with the hearing of the reception center issues on May 4, as currently scheduled.

Such concurrent proceedings would lead to overwhelming scheduling problems, which in turn will lead to fragmented and unfocused hearings. In addition, the Governments insist on the three-judge panel contemplated by the regulations; however, Judge Shon cannot preside over both trials at the same time. Finally, the parties will not be idle while awaiting the commencement of trial, since much work apparently needs to be done on rebuttal testimony, as well as the Governments' response to LILCO's Motion for Summary Disposition. Therefore, for the foregoing reasons, the Governments submit that this Board should postpone the commencement of the reception center hearings until the exercise litigation is completed.3/

The Governments do not believe this Board should establish a new trial commencement date at this time, since it is not possible now to predict with any accuracy when the OL-5 trial will be over. The Governments suggest instead that the Board call for a status report on the OL-5 trial in early May, after which it may be possible to establish a firm trial date.

3/ The Governments are not asking for rescheduling of the current schedule regarding motions to strike and responses to such motions.

G-Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788

- f Lawrence C. Lanpher /

Christopher M. McMurray David T. Case KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.

South Lobby - Ninth Floor

. Washington, D. C. 20036-5891 Attorneys for Suffolk County Fabian G. Palomino 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 Governor Mario M.

Cuomo and the State of New York April 13, 1987 l

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