ML20209H516
| ML20209H516 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/30/1987 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2404 OL-3, NUDOCS 8702060068 | |
| Download: ML20209H516 (13) | |
Text
_
$3p!D$
1 January 30F 4987 UMI C 87 FEB -3 All :03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION LFP Before the Atomic Safety and Licensino B6ard l
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3 l
)
(Emergency Planning) l (Shoreham Nuclear Power
)
Station, Unit 1)
)
)
)
OPPOSITION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON TO LILCO'S MOTION FOR RECONSIDERATION OF THE BOARD'S JANUARY 14, 1987 ORDER t
On January 14, 1987, this Board issued an Order establishing a discovery and hearing schedule for litigation of the issues surrounding LILCO's latest-proposed reception center scheme.
Subsequently, on January 22, Suffolk County, the State of New York and the Town of Southampton (the " Governments") filed a Motion for Reconsideration of the Board's Order.1/
LILCO filed a separate Motion for Reconsideration the same day.2/
1/
Suffolk County, State of New York and Town of Southampton Motion for Reconsideration of Schedule (January 22, 1987).
2/
LILCO's Motion for Reconsideration of the Board's January 14, 1987 Order (January 22, 1987).
gie" 1883 B'ejig2 3
g m
m
~
s The Governments' Motion for Reconsideration expressed the concern that to proceed with the reception center issues at this time would result in a waste of the parties' resources and would not lead to a final adjudication of the issues.3/
This concern is well-founded, in light of the fact that: (i) LILCO's failure to provide an estimate of the number of evacuees who will arrive at LILCO's reception centers renders LILCO's Plan deficient as a matter of law and makes rational litigation of the issues impossible; and (ii) additional uncertainties make it likely that LILCO will revise its Plan--leading to additional litigation in the future.$/
Thus, the Governments' Motion for Reconsideration requested that this proceeding be held in abeyance until LILCO 3/
This proceeding is, of course, LILCO's fifth attempt to satisfy the NRC'c regulatory requirements governing reception centers, and the third time that the matter will be litigated with the filing of testimony and a hearing.
These multiple proceedings on the reception center issues have caused the parties and the Board to waste vast amounts of resources.
S/
The uncertainties which threaten final adjudication if the Governments are forced to go forward at this time, as set forth in the Governments' Motion for Reconsideration, include the following:
1.
The RAC's finding that LILCO's monitoring procedures and personnel are inadequate.
This finding is likely to lead to further revision of LILCO's procedures; 2.
LILCO's Petition to the full Commission for review of ALAB-855 on the issue of whether LILCO is required to provide monitoring of all EPZ evacuees who arrive at LILCO's reception centers for monitoring; 3.
Notices from local zoning boards with jurisdiction over LILCO's designated facilities that those facilities may not lawfully be used as reception centers. rt_.o
s I
provides an appropriate planning basis on which this litigation may proceed, and until the additional uncertainties cited by the Governments are resolved.1/
The goal of the Governments' Motion for Reconsideration is to structure the proceedings in a rational and carefully-considered way in order to achieve a final adjudication of the reception center issues and to avoid wasting the resources of the parties and the Board by repeated litigation of those issues.
In contrast, LILCO's Motion for Reconsideration ignores the fun-damental issues raised by the Governments.
Rather, LILCO quibbles with the timing and sequence of the Board's schedule and seeks to compress the extremely tight schedule established by the Board even further.
LILCO's proposed shortening of the established schedule, if granted, will serve only to exacerbate the prejudice which Governments now face in this litigation.
Indeed, LILCO's proposal is designed to increase LILCO's own advantage while denying the Governments their right to due process and a meaningful hearing.
This cannot be condoned by this Board.
Accordingly, LILCO's Motion for Reconsideration must be denied.
1/
The specific relief requested by the Governments is summarized in their Motion for Reconsideration at 6-7. __
_____n__n__-
4 h
I.
As Ordered By The Board, LILCO Should File Its Testimony First Unless The Fundamental Questions Raised By The Governments' Motion For Reconsideration are Resolved The Board's January 14 Order provides for testimony to be filed on a staggered basis--with LILCO filing on March 23, 1987, the Governments filing two week later, and the NRC Staff filing one week after the Governments.
LILCO now complains that all pre-filed testimony should be filed simultaneously because the requirement that LILCO file first is inconsistent with past practice in these proceedings.
LILCO's complaint is without merit and transparently self-serving.
The Governments first note the irony of LILCO's new position on staggered filing, which is exactly the ocoosite of the position taken by LILCO in earlier pleadings.
In those pleadings, LILCO advanced the position that the Governments should file first, followed by LILCO and the other parties.5/
Now that the Board has adopted a staggered schedule, with LILCO filing first, LILCO cries that staggered filing is inconsistent with past practice.
The Governments acknowledge, and have taken the position in the past, that staggered filing has not been the practice in past proceedings.
However, this proceeding is fundamentally unlike past proceedings.
In past proceedings, there has been a Plan of some definition on which litigation of the issues could be focused.
In contrast, LILCO's current Plan and procedures 5/
Egg LILCO's Proposed Discovery and Hearing Schedule (December 24, 1986); LILCO's Brief on Reopening the Record on the Reception Center Issue (December 1, 1986). ru o
e
\\
regarding the reception centers lack fundamental information which must be provided before this litigation can go forward.
Furthermore, LILCO is already faced with a RAC finding that its monitoring procedures are inadecuate, as well as notices from competent authorities that its facilities are not available under local zoning ordinances for use as reception centers.
Thus, the Governments are being kept in the dark about fundamental aspects of LILCO's Plan and are not yet privy to the revisions to LILCO's Plan which are necessary to address its current deficiencies.
As explained in the Governments' Motion for Reconsideration, there can be no rational litigation of the reception center issues under these circumstances.
That remains the Governments' position.
If, however, this Board denies the Governments' Motion for Reconsideration, the resulting prejudice to the Governments will be compounded even further unless the Governments are given an opportunity to discern how LILCO intends to address the several problems cited in the Governments Motion for Reconsideration.
The short discovery period established by the Board does not permit full exploration of those basic questions.
Thus, the Governments can only attempt to address LILCO's new Plan, procedures and facilities by receiving LILCO's testimony in advance of filing their own testimony.
Simultaneous filing would deny the Governments even this limited opportunity to learn LILCO's case.
For these reasons, LILCO's argument in favor of simultaneous filing should be rejected.
On-the other hand, if a a-
e i
the Board grants the Governments' Motion for Reconsideration and adopts the rational approach outlined in that Motion, the Governments concede that the unusual circumstances mandating staggered filing will no longer exist and that when testimony is filed in this case, the parties should be ordered to do so simultaneously.
In a related argument, LILCO also urges the Board to require that all testimony be filed by March 23 -- two weeks before the Governments' testimony would otherwise be due.
LILCO's request must be denied.
Under the schedule established by the Board's January 14 Order, discovery will conclude on March 6 and the Governments' testimony is due April 6.
However, as the Board knows, the Governments are already deeply involved in a hearing on the Shoreham Exercise, which has stretched the Governments' resources to the limit.
Depositions are being taken every day and testimony is due to be filed in the Exercise proceeding in late February.
The Exercise hearing itself is likely to take many weeks.
Given the numerous issues and substantial amount of discovery which must be teken in the reception center proceeding, the schedule established by the Board's January 14 Order would be difficult to meet even if the Governments did not have to engage in simultaneous proceedings.
The fact that the Governments must further stretch their limited resources to cover simultaneous proceedings raises serious questions about whether the Board's
, I r. _p
e 1
schedule can be met.
The difficulty in meeting the schedule will be further compounded, if the Governments are forced to go forward at this time, by the factors enumerated in the Governments' Motion for Reconsideration.
LILCO's failure to provide fundamental information, and the uncertainties inherent in this proceeding, make it impossible to conduct meaningful discovery and to analyze LILCO's reception center scheme, i
Nevertheless, the schedule is running, putting the Governments at l
an extreme disadvantage.
In short, this proceeding should be held in abeyance; but if the Governments are required to proceed, their due process rights should not be further curtailed by making an extremely difficult schedule even more difficult to meet.
Therefore, LILCO's request that all testimony be filed on March 23 should be denied.
II.
The Time From Filing Testimony To The Hearing Is Not Unreasonably Lono The Board's Order provides one week for motions to strike, one week for responses and one week for pretriaf preparation following the filing of testimony by the NRC Staff.
This portion of the Board's schedule is sensible and should be implemented once the proceeding begins.
Indeed LILCO does not quarrel with the length of time between these specific events.
Rather, LILCO argues that if the Board orders all parties to file their testimony simultaneously on March 23 -- three weeks earlier than R R-
b the final testimony filing date contemplated under the Boards' current schedule -- the hearing date should similarly be advanced by three weeks.2/
LILCO's argument is fundamentally flawed because it is premised on a simultaneous filing by all of the parties on March 23.
For the reasons stated above, this proposal is unworkable and, if implemented, would compound the prejudice to the Governments which will occur if they are forced to proceed under the current circumstances.
Accordingly, LILCO's request to advance the hearing date should be denied.
III. Service Modification for the Town of Southamoton The Governments do not object to LILCO's proposal that service for the Town of Southampton be on the basis of overnight express mail sent on the date a pleading is due.
IV.
Guidance on Motions for Summary Judoement LILCO's Motion for Reconsideration also seeks guidance regarding motions for summary disposition and the effect of such filings on the Board's schedule.
The Governments contend that if 1/
In support of its argument to advance the hearing date, LILCO argues once again that the Shoreham plant is ready for operation and costly to maintain.
LILCO should be reminded that the parties are engaged in this proceeding in part because of LILCO's rush to commence and terminate the earlier proceeding regarding the Nassau Coliseum.
In its haste, LILCO vehemently pushed for Board rulings which curtailed discovery and denied the Governments their right to present testimony on certain issues in that proceeding.
These rulings resulted in a reversal of the Licensing Board's prior decision and a remand for a new trial.
In urging more prejudicial haste, LILCO is simply asking the Daard to repost its prior errors.
. ___)
________-____n__n________________
t 4
such motions are filed by any party, there must be sufficient additional time built into the Board's schedule for the parties to brief, and for the Board to decide, the issues.
The current schedule does not provide the necessary time.
As proposed by the Governments' Motion for Reconsideration, the entire proceeding should be held in abeyance while LILCO addresses the issues raised in that Motion.
If LILCO fails to respond to those deficiencies, motions for summary disposition should be filed and decided before undertaking costly discovery and litigation.
The Governments' proposed procedure will not only effectively allocate resources, but will help to bring about a final adjudication.
In addition, the parties may seek to file summary disposi-tion motions after discovery is completed.
If so, the Govern-ments propose the following schedule.
All motions for summary disposition must be filed three weeks after the end of the discovery period.
Responses to the motions will be due 20 days thereafter, with replies, where permitted by 10 CFR $ 2.749, due one week later.
Only after the motions for summary disposition have been decided by the Board should the pre-filing of testimony be required.
To require the filing of testimony prior to resolu-tion of the motions for summary dispositions will necessitate a wasteful, ineffective allocation of resources by the parties and the Board. w
e-A.
V.
Conclusion For the reasons stated above, and with the exception of the proposal concerning service on the Town of Southampton, the Board should reject LILCO's Motion for Reconsideration.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Lawrence doe Lanpher Karla J. Letsche Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - Suite 900 Washington, D.C. 20036-5891
&Y*n!
l$g Fabian G. Palomi(o Richard J.
Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capital Building Albany, New York 12224 Attorneys for Governor Mario M. Cuomo and the State of New York k
Stephed B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton January 30, 1987 10,
_9_
R 2'
t 4
00L KE T E uw; January 30, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ce t..
Before the Atomic Safety andLicensinaBbId$6[,f
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(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 LILCO'S MOTION FOR RECONSIDERATION OF THE BOARD'S JANUARY 14, 1987 ORDER have been served on the following this 30th day of January, 1987 by U.S.
mail, first class, except as otherwise noted.
Morton B. Margulies, Esq., Chairman
- Joel Blau, Esq.
Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C.
20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline*
William R. Cumming, Esq.*
Atomic Safety and Licensing Board Spence W.
Perry, 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
. n
is 4
Mr. Frederick J. Shon*
Anthony F.
Earley, Jr., Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi W. Taylor Reveley, III, Esq.*
Clerk Hunton & Williams j
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 Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G.
Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Bernard M.
Bordenick, Esq.*
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Washington, D.C.
20555 Empire State Plaza Albany, New York 12223 1
n n-_------ _ _______----___._______ -- -_
i 4
David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 u
Via Telecopy Christopher Mr. McMurra'y -
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 i
e