ML20207D882
| ML20207D882 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/22/1986 |
| From: | Casey S, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTH HAMPTON, NH, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-2047 OL-5, NUDOCS 8612310262 | |
| Download: ML20207D882 (7) | |
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g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION E DE 30 N M Before the Atomic Safety and Licensino Board GFFKi
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In the Matter of
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LONU ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
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(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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OPPOSITION OF SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON TO FEMA'S REOUEST FOR STAY On December 19, 1986, the Federal Emergency Management Agency (" FEMA") filed its " Request for Stay of Issuance of Subpoenas and Modification of Procedure with Respect to Depositions"
(" Request for Stay").
FEMA argues that "the Board should stay its Order of the 17th with respect to issuance of t
subpoenas, so that FEMA can determine whether or not appeal of the Board's approach to discovery against FEMA with respect to both witnesses and document production is appropriate."
Request for Stay at 2.
FEMA's Request for Stay is both procedurally defective and premature, and should therefore be denied.
The proper procedure for opposing issuance of a subpoena is by motion to quash or modify.
10 CFR S 2.720(f).
To the extent that FEMA's Request g2 3)So 5 hok k
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for Stay addresses matters in the Board's December 17 Orderl/
other than the issuance of subpoenas, it is defective for failing to address the criteria set forth in 10 CFR S 2.788(e).
That section provides as follows:
(e)
In determining whether to grant or deny an application for a stay, the Commission, Atomic Safety and Licensing Appeal Board, or presiding officer will consider.
(1)
Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2)
Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and (4)
Where the public interest lies.
Any party who seeks a stay of a Board order must, inter alia, give "[a] concise statement of the grounds for stay, with reference to the factors specified in paragraph (e) of this Section."
See, 10 CFR S 2.788(b)(2).
This FEMA has failed to do and, for that reason alone, the Request for Stay should be denied.
If the Board should decide to consider FEMA's Request for Stay on the merits, despite its prot: dural defects, the Request should be denied.
The only grounds FEMA gives for its Request are:
- 1) that FEMA " assumes" the Governments will wish to 1/
Memorandum and Order (Ruling in Part on Intervenors' Motions to Compel FEMA to Produce Witnesses for Deposition, to Permit Witnesses to answer Deposition Questions, and to Produce Documents), December 17, 1986.
e question the subpoenaed evaluators on Revisions 7 and 8 and, since the review of Revisions 7 and 8 will not be available until December 31, 1986, any testimony prior to that date will only lead to wrangling and delay; and 2) that the procedure for asserting the deliberative process privilege outlined in the Board's Order of Decmber 17, 1986 will be almost impossible for Counsel for PEMA to implement "[a]ssuming that the Intervenors
[ sic] questions are both numerous and lengthy.
Request for Stay at 2-3.
As to FEMA's first stated ground, given the present realities in this litigation, it is highly unlikely that any of the subpoenaed witnesses will be called to testify prior to December 31.
Sag letter to Board from Michael S. Miller dated December 22, 1986.
Furthermore, while the Governments may indeed inquire into Revisions 7 and 8, it is expected that the majority of the Governments' questioning of these witnesses will concern their roles at the February 13 Exercise.
FEMA's second ground for requesting a stay is premature.
l Again, FEMA is basing its Request on an " assumption" -- that the Governments will engage in lengthy inquiry into privileged areas.
FEMA's request that the Board further delay the testimony of four evaluators who were at the Exercise solely because FEMA's counsel may find it burdensome to object to questions he " assumes" will be asked is absurd on its face and makes a mockery of both due l
l process and the law of the deliberative process privilege.
l 1 - -
None of the grounds asserted by FEMA for its Request meets the requisite showing under 10 CFR S 2.788(e).
FEMA has made no showing that it is likely to prevail on the merits, nor has it shown that a failure to grant the stay will cause any, let alone irreparable, injury to FEMA.
For the foregoing reasons, the Governments respectfully ask that the Board deny FEMA's Request for Stay as both procedurally defective and premature.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 h
Michael S. Millerv Christopher M. McMurray Susan Casey l
KIRKPATRICK & LOCKHART I
South Lobby - 9th Floor 1800 M Street, N.W.
Washington, D.C.
20036-5891 Attorneys for Suffolk County de a fu /n Fabian G.
Palomino
/
Special Counsel to the Governor of the State of New 'lork Executive Chamber, Room 229 Capitol Building Albany, New York 12224 l
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Attorney for Mario M. Cuomo, Governor of the State of New York I
W s. in /n Stephen B. Latham
~
Twomey, Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton Dated:
December 22, 1986
. I
k' 1986h;(Yc December 22, UNITED STATES OF AMERICA
'26 DEC 30 R2:14 NUCLEAR REGULATORY COMMISSION j/pf Before the Atomic Safety and Licensina Board Ff BP MICH i
)
In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of OPPOSITION OF SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON TO FEMA'S REQUEST FOR STAY have been served this 19th day of December 1986 by U.S. mail, first class, except as otherwise noted.
John H. Frye, III, Chairman Spence W. Perry, Esq.
Atomic Safety and Licensing Board William R. Cumming, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 Dr. Oscar H. Paris Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 i
l
8 Bernard M. Bordenick, Esq.
Anthony F. Earley, Jr.,
Esq.
U.S. Nuclear Regulatory Comm.
General Counsel Washington, D.C.
20555 Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801 Mr. William Rogers W. Taylor Reveley, III, Esq.*
Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr.
L.
F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 MHB Technical Associates Hon. Peter Cohalan 1723 Hamilton Avenue Suffolk County Executive Suite K H. Lee Dennison Building San Jose, California 95125 Veterans Memorial Highway Hauppauge, New York 11788 Martin Bradley Ashare, Esq.
Richard J. Zahnleuter Suffolk County Attorney Deputy Special Counsel to Bldg, 158 North County Complex the Governor Veterans Memorial Highway Capitol, Room 229 Hauppauge, New York 11788 Albany, New York 12274 David A. Brownlee Mr. Phillip McIntire Kirkpatrick & Lockhart Federal Emergency Management 1500 Oliver Building Agency Pittsburgh, Pennsylvania 15222 26 Federal Plaza New York, New York 10278 By Federal Express rX/40AA N Susan M.
Casey g
l KIRKPATRICK & LOCKHART South Lobby - 9th Floor 1800 M Street, N.W.
Washington, D.C.
20036-5891 l
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