ML20234C166
| ML20234C166 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/24/1987 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5265 OL-3, NUDOCS 8801060128 | |
| Download: ML20234C166 (13) | |
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g g LILCO, December 24, 1987-DOCKETED UNITED STATES OF AMERICA
.USHRC NUCLEAR REGULATORY COMMISSION
- s a -4 m so Before the Atomic St.fety and Licensine Board Orr!CE Os !HUW>
00'.'n ! %. E cini,
!!hM O:
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
1' LILCO'S RESPONSE TO INTERVENERS' REQUEST FOR A QUARTER OF A YEAR TO ANSWER LILCO'S DECEMBER 18 FILINGS Pursuant to the Board's telephone order, LILCO replies to Interveners' December 23 motion for a 75-day extension of the 20-day period provided by Commis-sion regulations,10 CFR S.2.749(a), for response to LILCO's summary disposition mo-tions, filed December 18, 1987, concerning legal authority-related issues remaining in this case.1/ Interveners' motion, L' granted, would forgive them from responding to LILCO's motions until March 28,1988.
l; LILCO agrees with Interveners that the issues raised by LILCO's motion are seri-l ous and that enoet h time ought to be provided to enable Interveners to respond fully 1
and forthrightly to them, so that summary disposition can serve its intended purpose of eliminating, narrowing and clarifying issues. However, Interveners have not justified an extension of anything like the length that they have requested, and that a three-l-
week extension - until February 1 -- is the most that can be justified. Interveners' arguments are dealt with briefly below.
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. LILCO obviously disagrees with, but does not reply to. Interveners' characterize-tion of the background legal framework of this proceeding (Interveners' Motion at 2),
and their reclamoring of issues already decided by this Board (i_d. at 2-4).
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l 8801060128 871224 hh PDR ADOCK 05000322 C
PDR.
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1.
Length of LILCO's Filing: LILCO does not disagree that its December 18 filing is substantial; it was intended to be a complete enough treatment of issues to pro-l vide a basis for decision. However, Interveners' characterization of LILCO's papers as l
495 pages of undifferentiated new material is inaccurate in fact and highly misleading for purposes of assessing the time needed to come to grips with it. As is more fully l
shown on the attached Table 1, nearly two-thirds of the filing -- 303 pages -- consists of attachments that, with one six page exception, are either already in the record of this case or are official documents for other New York State nuclear plants. The motions filed by LILCO total 124 pages in length; the af fidavits total 39 pages; and statements of material f acts total 29. The remaining 303 pages are all f amiliar attachments.
Even that tally overstates the amount of material related to legal authori-ty/ realism issues. Fully one quarter of LILCO's pleading has been necessitated by Inter-venors' indication of intent. however frivolous, to challenge LILCO's showings under 10 CFR S 50.47(c)(1) and (ii) of good-f aith efforts to obtain governmental cooperation.
In assessing the effect of filing length on response time, the 126 pages of materials ded-icated to this issue should be laid at Interveners' door, not LILCO's.
In short, the amount of material directly entailed by the legal authority / realism issues consists of an 18-page introductory memorandum; six motions for summary dispo-sition totaling 91 pages; six affidavits totaling 39 pages; six statements of material f acts totaling 28 pages; and attachments, almost all of them long since f amiliar, total-ing 186 pages.
2/
See pleadings cited in LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR 5 50.47(c)(i) and (11), December 18,1987, at 2.
_3 2.
' Familiarity of Issues: Interveners are correct in stating that they have never spoken in substantive detail in this docket to the issue raised in LILCO's papers:
how the State of New York and Suffolk County would respond in the event of an emer-gency at Shoreham. But that does not mean that the issue is not or should not be f amil-
-lar to Interveners. The functions at issue, according to Interveners' repeated argu-ments in this and other forums, lie at the heart of their governmental purposes.
Further, as the documentation attached to LILCO's December 18 papers illustrates, public officials of New York State and Suffolk County have repeatedly taken positions, at Shoreham and elsewhere, concerning their response to exactly the types of accident circumstances posited in LILCO's filings. The New York State personnel who have functioned as witnesses and consultants repeatedly in this case over the years -
Messrs. Baransky, Czech, Papile, et al. -- are and have long been principal figures it.
the State's Radiological Emergency Preparedness Group, which oversees the emergency response capability of every nuclear plant in the state.
The same is true for the familiarity of counsel. The same counsel have teen in-volved for both the County and State throughout the course of this litigation. Counsel for Suffolk County have represented the County's interests and been pivotal in shaping the County's positions on Shoreham-related issues, including emergency preparedness, ever since the spring of 1982, when the County first began to ronege on its previous commitment to cooperate with LILCO on emergency preparedness.
Finally, it is indisputable that Interveners are long since on explicit notice. The Board informed Interveners in September that it expected them to be forthcoming with regard to New York State and Suffolk County responses in an actual emergency. Mem-orandum and Order (September 17.,1987) at 29. And LILCO put Interveners on notice a 2
month ago, in its November 17 Supplemental Brief on the New Emergency Planning I
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I Rule, not only of the general types of arguments it intended to make but also, fre-quently,its specific arguments and documentation for them.
3.
Adequacy of Resources: Papers and appearances of record demonstrate that five partners in the firm which represents Suffolk County (Messrs. Brown, Lanpher, Miller, McMurray, Ms. Letsche) have been continuously involved in the Com-mission's emergency planning proceeding from its start in 1982. Another (Mr. Brown-l lee) has been similarly involved in the related court litigation. At least a half dozen as-sociates from the same firm are currently or have been recently involved in the emergency planning proceeding. The State has had continous representation since the State's entrance in late 1983 from Messrs. Zahnleuter and Palomino, with additional as-sistance as needed, and has in any event consolidated most of its efforts with Suffolk County.
Officials from both State and County governments have been routinely available throughout this proceeding, principally from the Suffolk County Police Department and the State Radiological Emergency Preparedness Group. It is hard to understand why, as Interveners argue, the materials filed by LILCO should require the retention of experts since they involve the anticipated responses of government officials themselves.W 4.
Previous Commitments and Conflicts: The number of attorneys available to Interveners in the past (para. 3 above) suggests the availability of adequate resources to handle matters arising here. Interveners' allegations of previous commitments and conflicts are not particularized by date and obligation. However, overall f amiliarity 3/
Indeed, Interveners' apparent preoccupation with the record (Interveners' Motion at 4)'is puzzling since the point of the present exercise is leg;s to engage the hagiology l
of this proceeding than the hitherto undisclosed specifics of Interveners' actual inten-tions.
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F with this case suggests that numerous of the matters cited by Interveners as previous commitments (including appeals in the federal First and Second Circuits, and in the l
New York Court of Appeals) involve Shoreham-related litigation occasioned entirely by Interveners' refusal to undertake the same participation at Shoreham as they accord to every other nuclear plant in New York. Interveners cannot expect to create the major issues that exist in this case because of their policies and then have too many other I
pre-existing priorities elsewhere to permit their timely resolution here.
In any event, parties are expected to staff their cases adequately to permit li-censing proceedings to move with expedition. Claims of paucity of resources, particu-larly from litigants as experienced and well-heeled as major governments, ring hollow.
As the Commission stated in its 1981 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-6,13 NRC 452, 454 (1981):
Fairness to all involved in NRC's adjudicatory proce-dures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Com-mission regulations. While a Board should endeavor to con-duct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have pursued other obligations or possess fewer resources than others to the proceeding does not relieve that party of its hearing obligations.
The Statement of Policy has been consistently applied. See, e.g., Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1048 (1983); Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2),
LBP-82-18,15 NRC 598 (1982). There is absolutely no reason not to apply it here, where there can be no serious argument from Interveners about lack of resources and many of the conflicts they cite are one of their own making associated with this litiga-tion.
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As to personal commitments over the holidays, LILCO is sensitive to Interveners'
- argumen'ts[ However, the extension LILCO is willing to' agree to - to February 1 -
- would put Interveners' filing date well past any holiday conflicts.
5.
Integrity of Proceeding: Amply endowed Interveners ask this Board to give them over a quarter.of a year to answer motions dea!ing with intimately familiar sub-ject matter, ' supported by attachments consisting almost entirely of documents authored by them or their coordinate governments, or already available to them in this litigation. The request is plainly _ excessive.
Indeed, the length.of time requested by Interveners -- or anything of its order of magnitude - threatens serious disruption of this proceeding. It would definitionally delay discovery, testimony and trial of any issues that may not be summarily resolved, so that hearings might not even begin on them untillate in the coming calendar year.
A primary reason why the issues now being addressed still exist is the resolute and repeated refusal of Interveners to specify their intentions for years now. Fairness l
to the other parties and to the integrity of this proceeding dictates that the processes of disclosure of information or governmental response, and of clarification, refinement l
and elimination of issues, be delayed no longer.
Further, in this the sixth year of this proceeding, time is no longer a neutral f ac-
. tor. Interveners, who control New York State processes, have invoked them in two fashions calculated to manipulate mere delay in this proceeding into a means of ulti-mate victory for them. First, the Long Island Power Authority, created in the summer of 1986'by special New York state legislation, is empowered to take over LILCO by any i
4/
Interveners felt no such humanitarian delicacy in 1985, however, when on Christmas Eve they launched a surprise campaign to attempt to stop the February 13, 1986 graded exercise. S_ ele Suffolk County, State of New York and Town of Southampton Motion for Cancellation of Emergency Planning Exercise, December 24,1985.
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of a variety of means if it concludes (making use of tax-exempt financing) that it can produce less expensive power for Long IsJand than can LILCO. If LIPA acquires control of LILCO it is committed to prevent Shoreham from ever operating.
The longer Shoreham is held in thrallin NRC proceedings, the more likely such a takeover attempt inevitably becomes. Second, the New York Public Service Commission has recently -
on December 3 -- issued an order threatening to begin to use its rate processes in ways likely to compel LILCO to abandon Shoreham unless LILCO can provide it, by April 1988, with "high assurance" that no substantial obstacles remain in the way of the plant's entering commercial service in time for the summer 1989 peak load season.
Again, obviously, the longer these proceedings are in their preliminary stages, the more immediate becomes the PSC's threat. In short, delay in this proceeding enhances the likelihood that Interveners will be able to harness state-law processes within their con-trol to kill Shoreham, LILCO or both. Interveners thus have a stake in delay in this pro-ceeding, and, sad to say, any request for delay by them must be viewed by now with a jaundiced eye.
Finally, the issues raised by the current motions are important. They deserve the serious commitment of the parties' resources befitting their gravity. This implies devotion of priority as well as quantity of attention.
CONCLUSION Interveners' request that this Board nearly quintuple the amount of time given them by the rules to respond to LILCO's summary disposition motion is not justified.
Equally important, at this phase of this proceeding, all efforts should be bent to resolving remaining issues in the quickest possible fashion consistent with fairness to the parties. Because of the size of LILCO's December 18 filing and the importance for l
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the serious issues raised by it of obtaining answers of the most illuminating quality, l
LILCO would not object to a three-week extension of the response deadline, to l
l February 1,1988, though LILCO believes, on the basis of experience in this case, that Interveners have the resources to deal with the issues raised by LILCO's December 18 filing far more promptly. This doubling of the normal response period is more than ade-quate to account for the various f actors cited by Interveners.
Respectfully submitted.
i
. d <%
_ aylor Reveley, III.
W.
Donald P. Irwin James N. Christman Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 24,1987 I
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i TABLE 1 Sununary of LILCO's December 18 Pleadings 1
Pages in:
Document Motion Material Facts Attachments Memorandum of Law 18 N/A 0
Contention (s) 5 and 6 25 10 6
Contention (s) 1 and 2 10 2
1 Contention (s) 10 9
1 12 Contention (s) 4 and 9 6
1 77 Contention (s) 7 and 8 27 13 90 Immateriality 14 1
0 5 50.47(c)(1) and (ii) 15 1
110 Sub-total 124 29 296 Affidavits Crocker 7
N/A 0
Daverio 9
N/A 0
Devlin 3
N/A 0
Kessler 10 N/A 5
Leonard i,
N/A 2
Lieberman 5
N/A 0
Sub-total 39 N/A 7
TOTAL 163 29 303 i
.__x_____m_.____.
._.____________.__._____M
J 4 "New" v. "Old" Material in Attachments Pages of Pages of Document "New" Material Old" Materia 1
. Explanation Contention (s) 5'and 6 6
0 Rev. 9 Interface Procedure Contention (s) 1 and 2.
1 0
Record material (Intervenor testimony and Plan changes in new chart form)
Contention (s) 10 0
12 Police witness testimony.
Contention (s) 4 and 9 0
77 OPIP 3.6.3 (Rev.'8)
Contention (s) 7 and 8 0
90 OPIP 3.6.6 (Rev.-8)
OPIP 3.10'1 (Rev. 8)-
i Excerpts from l
NY State Rad.
i Emerg. Prep. Plan l
Excerpts from j
Westchester Co.
j Plan
)
Excerpts from Monroe Co. Plan Excerpts from Oswego Co. Plan j
Excerpts from Wayne Co. Plan
-j S 50.47(c)(i) and (ii)-
0 110 LILCO's Presentation to SC Legislature (1/14/83) i Letter: Cordaro to i
Gallagher l
l l
Cordaro Summary (9/30/83)
I L
I Letter:
Pierce to Cuomo Letter: Reveley to Ashare Letter: Cohalan to-Reveley Memo: McQueen (REPG) to Dretkorn Letter: Renz to Roberts Kessler Affidavit 5
0 LILCO gas leak procedures Leonard Affidavit 0
2 NYPA/DPC passes for Rockland County Exercise Sub-total 12 291 i
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L i s LILCO, December 24,1987 DMKEIED U5HRC l
'88 JAN -4 All 30 CERTIFICATE OF SERVICE OFVICE le n c.h w.,
00CKElinG s ':Cim;cg-BRANCH I
In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S RESPONSE TO INTERVENERS' REQUEST FOR A QUARTER OF A YEAR TO ANSWER LILCO'S DECEMBER 18 FILINGS were
. served this date upon the following by telecopier as indicated by one asterisk, by Feder-al Express as indicated by two asterisks, or by first-class mail, postage prepaid.
James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel 513 G11moure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline
- George E. Johnson, Esq.
- Atomic Safety and Licensing Richard G. Bachmann, Esq.
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road East-West To'wers, Rm. 427 (to mallroom) 4350 East-West Hwy.
Bethesda, MD 20814 Bethescla, MD 20814 Herbert H. Brown, Esq.
- Mr. Frederick J. Shon
- Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Rm. 430 1800 M Street, N.W.
4350 East-West Hwy.
Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino, Esq.
- Secretary of the Commission Richard J. Zahnleuter, Esq.
Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W.
State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Mary Gundrum, Esq.
Appeal Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway Washington, D.C. 20555 Third Floor, Room 3-116 New York, New York 10271 l
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Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840
. Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley.Ashare, Esq.
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787
-Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York.10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 i
Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 24,1987 l
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