ML20212F724

NRC Staff Response to Motion of Suffolk County,State of Ny & Town of Southampton for Rev of Hearing Schedule.* Opposes Intervenors 870227 Motion to Revise Hearing Schedule Due to FEMA Inability to File Testimony.W/Certificate of Svc

ML20212F724
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/02/1987
From:	Pirfo O NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2668 OL-5, NUDOCS 8703050145
Download: ML20212F724 (5)

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03/02/87 0 DC(KETED c 'MC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 WR -4 A11 :34 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD- -

'v CL In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

U dt 1) )

NRC STAFF RESPONSE TO MOTION OF SUFFOLK COUNTY, NEW YORK STATE, AND THE TOWN OF SOUTHAMPTON FOR REVISION OF THE HEARING SCHEDULE I. BACKGROUND In its Memorandum and nrder (Memorializing Prehearine Conference),

issued February 13, 1987, this Licensing Board ordered that all FEMA nritten testimony be filed on February 27, 1987. By letter dated February 26, 1987, FEMA counsel notifled the Board and parties that FEMA would be unable to file testimony on the ordered date due to the illness of one of its witnesses. Instead, FEMA stated that written testimony will be filed on March 20, 1987. On February 27, 1987, in response to FEMA's letter, the Intervenors herein moved for revision of the_ hearing schedule to postpone the start of the hearings, currently l scheduled for March 10, 1987, to March 24, 1987. The NRC Staff hereby l

l opposes the motion.

I II. DISCUSSION While the inability of FEMA to file its testimony on the originally

scheduled date may, in the words of the intervenors, be " unfortunate and 1 undeniably inconvenient," it certainly does not compel a postponment of the hearing. The due process rights of the intervenors are unaffected DESIGHATED ORIGIRAL

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Certined E \ 01 G

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by the delayed FEMA filing. FEMA's situation is merely being used by the intervenors as another device for attempted delay of these proceedings. i l

The FEMA testimony, although originally scheduled to be filed in the l first set of testimony on Contentions Group 2 and 3, was not to be  ;

offered at trial until after all other witnesses' testimony on all the Contentions. Prehearing Conference Order, at 7. Under those circumstances , the intervenors could not be prejudiced by the delay in FEMA's filing.

Intervenors have the FEMA Post Exercise Assessment. Indeed, their Contentions are based on this report. The direct testimony of the intervenors will presumably go to an analysis and critique of that Assessment. There is little likelihood of surprise as to what is to be presented by the FEMA witnesses' direct testimony once filed. Even if unexpected matters arise in the FEMA direct testimony, the intervenors' right to cross-examine and/or rebut those matters is unaltered whether FEMA filed on February 27 or does so on March 10. As noted above, FEMA testimony is scheduled to be presented last at the hearing.

Intervenors' arguments that the late filing of FEMA's testimony somehow affects their right to cross-examination and their ability to prepare for hearing are unfounded. Certainly, the intervenors' proof and their witnesses' testimony are not a function of what FEMA may say.

Intervenors are obligated to present the case on thelp contentions; surely that case has been prepared without the benefit of FEMA's formal testimony being in hand. There is simply no prejudice, and, consequently, no reason for the delay that intervenors suggest.

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Y - 1 Finally, intervenors have failed to address the likelihood of prejudice to applicants from delay. Absent compelling reasons for deferring the l start of the scheduled hearing, the conduct of the proceeding should not be delayed.

III. CONCLUSION The Intervenors motion for revision of the hearing schedule in light of FEMA's inability to file testimony should be denied.

Respectfully submitted, Oreste Russ Pir Counsel for NRC Staff Dated at Bethesda, Maryland this g d day of March,1987

s N EiR wc UNITTD 9TATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 MR -4 All :35 DEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD . . r! Y

' .; g WI.

In the Matter of )

)

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 "NRC STAFF RESPONSE TO MOTION OF SUFFOLK COUNTY, NEW YORK STATE, AND THE TOWN OF SOUTHAMPTON FOR REVISION OF THE HEARING SCHEDULE" 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 asterisk, by hand delivery, or double asterisk by telecopier, this 2nd day of March,1987.

John H. Fryc III, Chairman

• Joel Blau, Esq.

Adnsinistrative Judge Director, Utility Intervention Atomic Safety and I.icensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albeny, NY 12210 Oscar H. Paris

• Fabian G. Palomino, Esq.**

Administrative Judge Special Counsel to the Governor 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 Yorl: 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 W. Taylor Reveley III, Esq.**

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams l 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 l

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) )

Stephen B. Latham, Esq. Herbert H. Brown, Esq. l Triomey, Latham a Shea Lawrence Coe Lanpher, Esq.**

Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart ,

Riverhesd, NY 11901 South Lobby - 9th Floor l 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 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 j 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 F. Earley, Jr. William R. Cumming, Esq.**

General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman 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 P1ashington, 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 Box 944 New York, NY 10271 Huntington, New York 11743 i

t A Ofeste Ru&s Pirfo Counsel for NRC f

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