ML20235F329
| ML20235F329 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/21/1987 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4461 OL-3, NUDOCS 8709290049 | |
| Download: ML20235F329 (13) | |
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s DOWi,n o m September 21, Ig87gp.g 47, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board I
)
In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
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h Unit 1)
)
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SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY REGARDING THE PRIORITY OF OL-3 ISSUES The parties on September 14 responded to the Licensing Board's August 31, 1987 " Notice to the Parties" and provided views on the issues identified by the Board.1 In accordance with the Board's Notice, the Governments now reply to certain matters raised by LILCO.
The Governments do not respond herein to the NRC Staff's Views, since the Staff basically agreed with the Governments' September 14 filing.
Thus, the Staff urged -- and the Governments agree -- that:
the Board should focus on the 1
San LILCO's Views on the Priority of the Remaining Issues Before the Board, Sept. 14, 1987 (hereafter, "LILCO's Views");
NRC Staff Views on Prioritizing Matters Before the Licensing Board, Sept. 14, 1987 (hereafter, " Staff Views"); Response of Suffolk County, the State of New York, and the Town of Southampton to August 31, 1987, Licensing Board Notice, Sept. 14, 1987 (hereafter, " Governments' Views").
8709290049 870921 2
PDR ADOCK 05000322
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'R reception center and legal authority issues before considering the 25% power. issue; no new Licensing Board should be appointed; and the procedures of 10 CFR S 2.722 should not be employed.
Staff. Views at 4.2 The Governments'do not repeat herein the statements set forth in the Governments' Views.
We do emphasize the following, however, in response to LILCO's Views:
1.
LILCO argues that there is an urgent need to adjudicate the 25% power motion because power shortages allegedly may occur in May or June 1988.
This Board should reject such LILCO speculation.
It is unfounded and reflects LILCO's willingness to say virtually anything to persuade this Board to depart from orderly adjudication.
When LILCO filed its initial 25% power motion in April 1987,
'it urged expedited consideration because absent 25% of Shoreham's power, there allegedly would be power shortages in summer 1987.3 2
The Staff did not address explicitly the priority to be given to the EBS, school bus driver, and Contention EP 92 issues.
It appears, however, that the Staff would have the Board consider these issues after the reception center and legal authority issues have been addressed, and prior to 25% power issues, since these matters relate to full power issues which the Staff urges be given priority.
This is consistent with the Governments' Views.
3 Egg LILCO Motion for Expedited Commission Consideration, April 14, 1987, at 2; LILCO Request for Authorization to Increase Power to 25%, April 14, 1987, at 9, 104 et Egg. __. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.
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r Despite several very hot spells this past summer, there was sufficient electricity for Long Island and LILCO's predicted i
power shortages did not occur.
-After the NRC initially rejected LILCO's 25% power motion on June 12, 1987 (CLI-87-04),'LILCO on July 14, 1987, renewed its 25% power motion.
This time it asserted that action on the motion was urgently needed to avoid alleged power shortages in winter 1987-88, as well as more distant alleged shortages in summer 1988.4 j
Now, in its most recent filing, LILCO does not even mention I
the alleged winter 1987-88 power shortages.
LILCO alleges only that power shortages "may occur as soon as the weather turns warm again, beginning next May or June."
LILCO's Views at 2.
LILCO thus appears to have dropped its alleged need for increased power due to winter 1987/88 power shortages.
This Board cannot accept LILCO's assertions.
They vary as time, circumstances, and LILCO self-interests dictate.
The Governments disagree strongly with LILCO's power shortage predic-tions, for reasons which already have been stated.5 At any rate, 4
Egg LILCO Motion for Authorization to Increase Power to 25%,
July 14, 1987, at 7.
5 E.o.,
Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO's Motion for Expedited Commission Consideration, April 27, 1987, at 6-8, 17-20, and Att.
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such alleged power shortages are an area of dispute; they certainly provide no basis for altering orderly procedures.
Indeed, to rely on LILCO's varying power shortage assertions as a basis for prioritizing issues would be to side with LILCO on material factual issues without affording a hearing.
That is not permitted.
2.
LILCO has failed to articulate any persuasive basis for assigning the 25% power issue to another Board.
Not only are LILCO's issues in the 25% motion interrelated to the issues which the OL-3 Board would retain (ggg Governments' Views at 7), but the Staff correctly notes that 10 CFR S 50.57(c) contemplates that the same Licensing Board which is considering a full power application should decide motions seeking permission to operate at less than 100% power.
Sgg Staff Views at 3, n.1.6 The Governments also agree with the Staff that there must be consideration of efficient use of resources.
Like the Staff, the Governments' resources are finite.
The central issue in this proceeding is whether LILCO satisfies requirements for a full power license.
Any diversion of resources to LILCO's 25% power 6
The foregoing assumes that it is proper for LILCO to file its 25% power motion under 10 CFR S 50.57(c).
For reast.4s already stated, the Governments believe that no consideration can be given to the 25% power motion until LILCO files for an exetaption.
E.o<,
Governments' Views at 7-8; Suffolk County, I
State of New York, and Town of Southamton Response in Opposition to LILCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request, July 27, 1987.
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motion will necessarily cause substantial delay in addressing that central issue' The Governments' proposed prioritization as
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set forth in the Governments' Views ensures that resources will be utilized first to address the central full power issues in an orderly fashion.
The Board should adopt the Governments' sugges-tions.7 3.
LILCO asserts that the remanded EBS issue (CLI-87-05) should be handled as part of LILCO's summary disposition motion on legal authority issues once LILCO files on or before October 1, 1987, its proposed arrangements "for a supplementary EBS."
LILCO's Views at 3.8 LILCO's suggestion must be rejected.
The Board is in no position to prioritize the EBS issue at this time.
LILCO has'provided no data on its alleged " supple-mentary EBS."
Thus, its assertion that the EBS issue is "all of one piece" (LILCO's Views at 2) with the legal authority issues 7
The Board should likewise reject LILCO's suggested use of special masters or " evidentiary depositions."
Egg LILCO's Views i
at 5-6.
As made abundantly clear by this filing, it is simply
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impossible to determine at this time whether such measures should
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be employed by the Board.
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8 LILCO's characterize ion ->f its proposed EBS filing as a l
" supplementary EBS" is a m.-c".aracterization.
LILCO has no EBS j
radio station; its forthcoming filing cannot therefore be I
I supplementary.
Similarly, it is a mischaracterization for LILCO to suggest that the EBS issue is " fairly narrow."
LILCO's Views at 5.
The Commission made clear in CLI-87-05 that the Governments have the right to submit contentions related to any l
LILCO EBS proposal.
There is therefore presently no basis for LILCO to characterize the EBS issue as narrow. j
4 is without basis.9 The Board must provide parties an opportunity to comment in the context of these prioritization considerations once LILCO has made its filing.
4.
On September 14, 1987, LILCO moved for summary disposi-tion of Contention EP 92 dealing with lack of a New York State plan.10 LILCO's motion is out of order.
The Board on August 31 asked the parties to submit their views on the priority of remaining issues so that the Board could rationally consider the matters in a scheduling context.
LILCO's motion is a not-so-subtle effort to force the Board tc give Contention EP 92 consideration in advance of or simultaneous with other issues.
Nevertheless, as things now stand, the Governments' response to LILCO's Contention EP 92 motion is due to be filed on October 5.
The Governments suggest that the Board rule promptly that no response is required until the Board has completed its prioritization of issues.
Otherwise, the Governments may be forced to expend valuable resources on essentially a meaningless endeavor.
9 For reasons already articulated at length in the May 11, 1987, Answer of Suffolk County, the State of New York, and the Town of Southampton to "LILCO's Second Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Contentions EP l-10)," this Board cannot find that LILCO has satisfied regulatory requirements pertaining to EBS matters.
10 LILCO's Motion for Summary Disposition of Contention EP 92 (No New York State Emergency plan), Sept. 14, 1987..
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The instant filing is no place to debate the merits of LILCO's Contention EP 92 motion.
The Governments believe LILCO's Contention EP 92 motion is deficient on multiple grounds which will be set forth when and if the Board decides a reply should be filed.
The Governments point out, however, that one aspect of
.LILCO's Contention EP 92 motion deals expressly with the
" realism" coordination issue.
Egg LILCO Motion at 8-9.
It makes no sense to brief that issue in the context of Contention EP 92 in advance of the Board's ruling on LILCO's pending legal authority summary dir asition motion.
Indeed, in the Governments' view, if the Board rejects (as it must) LILCO's Contention EP l-10 summary disposition motion, it will almost certainly have also compelled denial of LILCO's Contention EP 92 motion.
Thus, it makes sense at this juncture to hold off briefing on Contention EP 92 until LILCO's Contention EP 1-10 summary disposition motion is decided.
5.
LILCO's prioritization fosters confusion and ineffi-ciency.
LILCO's legal authority summary disposition motion is ready for decision.
The Governments believe that the Board must reject that motion and rule for the Governments on Contentions EP l-10.
Egg Governments Views at 3-6.
Yet, LILCO now wants to engraft onto its legal authority summary disposition motion yet-to-be-filed data related to the EBS and yet to be briefed issues on Contention EP 92.
This approach makes no sense.
The Board - _ _ _ _ _ _ _ - _ - - _ _ -.
m.
4 should hold the EBS and Contention EP 92-matters in abeyance l
until the two ripe issues -- reception centers and LILCO's legal authority summary disposition motion -- are decided.
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l 6.
LILCO asserts two things regarding the school bus driver issue.
First, it states that the issue "can be resolved l
quickly by simply taking.into account the evidence that the Appeal Board ordered to be heard."
LILCO Views at 3.
LILCO's suggestion that the school bus driver issue can be quickly disposed of is wrong, however.ll This is not simply a matter of considering the evidence which was erroneously excluded in the earlier trial.
Rather, as the Appeal Board made clear, the parties are " free to adduce additional evidence on the issue ALAB-832, 23 NRC 135, 154 (1986).
This will necessar-ily require a period for discovery and preparation since, if nothing else, the circumstances and facts between early 1984 and late 1987 may have changed.
Second, as with EBS matters, LILCO states that it expects to advise the Board of additional measures related to school bus drivers by October 1.
LILCO gives no hint of what these
" measures" might be.
In these circumstances, the Board cannot 11 LILCO suggests that there may not even,need to be a trial on the school bus driver issue.
Eeg LILCO's Views at 4 ("If any issues of school bus driver availability are deemed to deserve a hearing.
.").
LILCO's suggestion is without merit.
The Appeal Board directed that there be a hearing.
Egg ALAB-832, 23 NRC 135, 154 (1986) ("at minimum, the Licensing Board is to accept the testimony related to the survey of volunteer f i remen. ). -
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properly prioritize the issue.
When, and if, LILCO makes'a submission, the Governments must be afforded an opportunity to comment in the~ context of issue prioritization.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 l'
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Lawrence Coe Lanpher Karla J.
Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County FG f &&a. Utf)
Fabian G.
Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York l
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Mr.ArL Oty)
Ste' phen B..Latham
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Twomey, Latham & Shea P.O. Box 398 33-West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 1 >_ ____ ___ _ _ ____ _ ____
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I 00'J E IEi r Mi(C September 21, 1987 y
87 SEP 24 A7:38
' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CfE..
DOCE C.C Before'the Atomic Safety and Licensina Board
)
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 SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY REGARDING THE PRIORITY OF OL-3 ISSUES have been served on the following this 21st day of-September 1987 by U.S. mail,.first class, except as otherwise noted.
Morton S..Margulies, Esq., Chairman
- 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 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 1
500 C Street, S.W.,
Room 840 Washington, D.C.
20472 1
1
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Fabian G. Palomino, Esq.
W. Taylor Reveley, III, Esq.**
Richard J.
Zahleuter, Esq.
Hunton & Williams Special Counsel to the Governor P.O.
Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq.
Anthony F.
Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y.
Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 Martin Bradley Ashare, Esq.
Ms. Elisabeth Taibbi, Clerk Suffolk' County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Builiing Hauppauge, New York 11788 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 Mr. Jay Dunkleburger Richard G.
Bachmann, Esq.
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Office.of General Counsel Empire State Plaza Washington, D.C.
20555 Albany, New York 12223 1
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, lh i g
. David A. Brownlee, Esq.
Mr. Stuart Diamond
. Kirkpatrick & Lockhart
' Business / Financial
'1500 OlivertBuilding NEW YORK TIMES.
Pittsburgh, Pennsylvania 15222 229 W.
43rdLStreet New York, New York 10036 Douglas J. Hynes,. Councilman Town Board of Oyster Bay Town Hall' Oyster Bay, New York 11771
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Lawrence Coe Lanpher-KIRKPATRICK & LOCKHART 1800 M Street,.N.W.
. South Lobby - 9th Floor Washington, D.C.
20036-5891 By Hand-By Federal Express
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