ML20235B354
| ML20235B354 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/19/1987 |
| From: | Christman J, Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4431 OL-3, NUDOCS 8709240075 | |
| Download: ML20235B354 (6) | |
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LILCO, September 19,1987.
40 mr:r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
'87 SEP 21. P3 :53 Before the Atomic Safety and Licensing Board
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3 i
) (Emergency Planning)
(Shoreham Nuclear Power Station,
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j Unit 1)
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LILCO'S REPLY VIEWS ON THE PRIORITY OF THE REMAINING ISSUES BEFORE THIS BOARD 1
As permitted by this Board's August i Order requesting the parties' views on the treatment of issues remaining before it, LILCO responds here briefly to the September 14 expressions of views by the NRC Staff and Interveners.M LILCO has al-ready submitted its basic views in a pleading dated September 11.2/
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Areas Where There Is No Controversy I
The parties appear in agreement on the general structure for resolving the mat-
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l ters remaining before this Board. First, the parties agree that there are three basic i
categories of issues: reception centers, remand / legal authority issues, and 25% power request issues. They also agree that the reception center issues should be carried to conclusion first,E and that the 25% power issues' development should not impede
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NRC Staff Views on Prioritizing Matters Before the Licensing Board, September 14, 1987; Response of Suffolk County, the State of New York, and the Town of Southampton to August 31,1987, Licensing Board Notice, September 14,1987.
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LILCO's Views on the Priority of the Remaining Issues Before the Board, l
September 11,1987.
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There appears to be no disagreement among the parties that the Board should i
complete its decisional process on reception center issues, which have just been tried,
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as its first order of priority. LILCO Views, 4; Staff Views, 4; Intervenor Views. 2.
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i completion of either the reception center issues or the remand / legal authority issues.M i
I The differences among the parties center on how the middle group of issues -
the legal authority / remand issues - should be treated, and on the extent of present re-
. sources to devote to 25% power issues. The remainder of this Response will focus on these two areas.
2.
Treatment of Legral Authority and Remand Issues LILCO's initial paper treated the relationships among the legal authority and factual remand issues in more detail than' either the Staff's or Interveners' papers.
Nothing in them leads LILCO to see a need to modify its views as to their treatment by I
this Board. However, the following matters need clarification.
A.
Interveners' paper at 4-5 implies that the legal authority and realism issues j
are separate and distinct from one another. This is simply incorrect: the entire basis l
l of the Commission's decision in CLI-86-13 was the acceptance of the realism argument as a valid theory of legal authority under federal law. The purpose of the remand to this Board was to determine the application of that theory and of the immateriality ar-gument to the facts of this case.
B.
Interveners contend that "this Board, the Appeal Board, the Commission, and the New York courts have already rejected LILCO's realism and legal authority ar-guments." Intervenor Views at 4 note 2. This assertion is incorrect in allimportant re-spects.
As noted above, the Commission has accepted the realism argument in f
CLI-86-13 as a federal legal authority theory, and that decision governs this Board and 4/
There also seems no disagreement that the issues involving the 25% power re-quest should not disrupt progress toward completion of the conventional emergency l
planning issues now before this Board, though the parties were not unanimous about the relationship of the 25% technicalissues to emergency planning issues or about most ap-propriate means to treat these issues. LILCO Views, 2; Staff Views, 4; Intervenor Views, 2.
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the Appeal Board. The Commission remanded certain factual issues in light of that the-ory and the related immateriality argument. New York courts have ruled, in litigation i
still under appeal, on purely state law legal authority arguments; but they have never ruled on federal law theories of legal authority.
C.
Interveners are thus incorrect in assuming and arguing from the premise that legal authority and remand matters are completely distinct from one another. See 1
Intervenor Views at 2. As noted in LILCO's initial paper, LILCO has already moved for i
summary disposition on the state plan issue, and intends to file summary disposition pa-pers on two other remand issues (EBS stations, school bus drivers) in the near future.
l To the extent that these issues are related to the disposition of various issues posed in.
LILCO's Second Renewed Motion for Summary Disposition of the " Legal Authority" Is-
. sues, the Board may wish to combine them in its consideration of that motion. In the.
event that factual issues raised by either the remand issues or by LILCO's Second Re-
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newed Motion end up being set for trial rather than being resolved summarily by this
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1 Board, LILCO urges the Board to have the parties develop facts on them in parallel, so i
that all such issues may be tried 'n one set of hearings.
3.
Treatment of 25% Powe' TechnicalIssues Concerning the factualissues to be developed in the 25% power request, LILCO does not wish to so exalt their priority as to delay or distort resolution of the remaining emergency planning issues essential to gaining a 100% power license. While LILCO has a right to have the 25% request evaluated, satisfaction of that right hinges on, among i
4 other things, the resolution of various technical issues involving assessment of the ef-fects of serious accidents at 25% of rated power - issues clearly distinct from the emergency planning issues before this Board. Both the Staff and Interveners contend that ultimate resolution of these technical issues will require significant commitments of time and resources. Both the Staff and Interveners plead resource limitations.
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LILCO believes that various steps can advance the state of understanding of j
these technical issues without overextending any party's resources, and that they should be set in motion by thiS Lard. Such steps would include completion of the Staff's re-view, conduct by Intervenom of their own technical review, and undertaking of disdby -
ery by all parties in order to attempt to clarify and potentially narrow issues for hear-ing, should such a hearing ever prove necessary. LILCO believes that these technical j
.,e issues are sufficiently distinct from the emergency planning issues now before this V';$
Board that the process of their development for litigation, at least, would involve dif-ferent technical experts than are now involved in emergency planning litigation before this Board; and that jurisdiction over development of this matter could be referred to either another Board, a special master, an assistant to this Board. (Actual responsibility for their trial could IS determined as the time fde it ' approaches, if it ever does.
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Special Masters and Other Procedural Devices
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Concerning the use of special masters or other expert personnel or devices to as-sist this Board, nothing submitted by the other parties alters LILCO's belief that one or another of these techniques might well be helpful in developing the 25% power techni-cal issues toward hearing. Whether they would prove useful in any'of the various re-
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mand is. ues will depend on the initial disposition of such issues by this Board, g
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i Respectfully submitted, l
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Do'!fald P. Irwin
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James N. Christman s
Hunton & Williams
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707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 19,1987 J
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LIljCO, S:ptember 19,1987
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CERTIFICATE OF SERVICE
'87 SEP 21 P. :52
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og In the Matter of 4
LONG ISLAND LIGHTING COMPANY s
(Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 i
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I hereby certify that copies of LILCO'S REPLY VIEWS ON THE PRIORIIDbf THE REMAINING ISSUES BEFORE THIS BOARD were served this date upon the follow-ing by Federal Express as indicated by an asterisk, or by first-class mail, postage.' pre-paid.
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i Morton B. Margulies, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission i
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Richard G. Bachmann, Esq. *
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Bethesda, MD 20814 George E. Johnson, Esq.
U.S. Nuclear Regulatory Comntssion
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Dr. Jerry R. Kline
- 7735 Old Georgetown Road 9"
Atomic Safety and Licensing (to mailroom)
Board Bethesda, MD 20814 I
U.S. Nuclear Regulatory Commission si East-West Towers, Rm. 427 Herbert H. Brown, Esq. *
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4350 East-West Hwy.
Lawrence Coe Lanpher, Esq.
1 Bethesda, MD 20814 Karla J. Letsche, Esq.
1 Kirkpatrick & Lockhart Mr. Frederick J. Shon
- South Lobby - 9th Floor y
Atomic Safety and Licensing 1800 M Street, N.W.
Board Washington, D.C. 20036-5831 y
U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq.
- 4350 East-West Hwy.
Richard J. Zahnleuter, Esq.
Bethesda, MD 20814 Special Counsel to the Governor
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Executive Chamber Secretary of the Commission Room 229 Attention Docketing and Service State Capitol i
I Section Albany, New York 12224 j
U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Mary Gundrum, Esq.
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Washington, D.C. 20555 Assistant Attorney General
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120 Broadway
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e Atomic Safety and Licensing Third Floor, Room 3-116
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j Appeal Board Panel New York, New York 10271 l
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4
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Gerdd C.' Crotty, Esq.
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. Mr. yay Dunki.erger -
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Mk),!n BraSy$5 hare, Esq.
Stephen B. Ltitham, Esq}:
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Eugen:vR. Kelly / Esq.
' Twomey, Latham &1Sboa -
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F4deral Emergency Managempp;t Nortp Shore Committee p bg ;.p
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34 Jonathan D. Feinberg, Esq.
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Three Rockefeller Plaza Alb'ajy, New' York 12223
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DATEth September 19,1987
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