ML20235X663

Lilco Answer in Opposition to Intervenors Motion for Leave to Respond to Lilco Reply Findings (Zoning Issue).* Board Should Deny Intervenors Motion for Leave to Respond to Lilco 870921 Reply Findings.Certificate of Svc Encl

ML20235X663
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/13/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4607 OL-3, NUDOCS 8710200072
Download: ML20235X663 (9)

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'tWe" iUNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI'ON g- g g:gj k

'gFFICE OF SECP idiV Before the Atomic Safety and Licensing Board GCKEijtg MVICE

'In the Matter of _ . )

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LONG ISLAND LIGHTING COMPANY -) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) ) ,

LILCO'S ANSWER IN OPPOSITION TO INTERVENERS' MOTION FOR LEAVE TO RESPOND TO LILCO REPLY FINDINGS (ZONING ISSUE)

On October 1,1987,' Suffolk County, the State of New York, and the Town of l Southampton.("the Interveners") moved for leave to respond to LILCO's discussion of zoning issue::in its reply of September 21,1987, to their findings. See Suffolk County, i State of New York and Town of Southampton Motion for Leave to Respond to LILCO.

Reply Findings (Oct.1,1987) (hereinaf ter " Interveners' Motion to Respond"). ' Pursuant -

to 10 CFR S 2.730(c), LILCO hereby answers that_ motion and urges that it be denied.

I. Background On September 2,1987, LILCO filed its proposed findings on the suitability of re-ception centers, entitled "LILCO's Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers." These included a short discussion of Suffolk County's apparent claim that the use of the three proposed sites. as reception centers in a radiological emergency would violate local zoning ordinances or construction codes.

Id. at 118-19.

On September 14, 1987, the Interveners filed their proposed findings, including a 15 page discussion in which they argued that the Licensing Board should give conclusive

' legal effect to resolutions adopted by the Town Boards of the Towns of Hempstead, 8710200072 871013 O ADOCK 0500 2- 5

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. Oyster Bay, and North Hempstead asserting that LILCO's proposed reception centers would violate local land use laws. Suffolk County, State of 'New York, and Town of .

Southampton Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers, at 171-86_(Sept.14,1987).

On September 21, 1987, LILCO filed its reply to the Interveners' findings in which it addressed and refuted the Interveners' argument that the Town Boards' resolu-tions should be given conclusive legal effect. LILCO's Reply to Interveners' Proposed Findings on Reception Centers, at 67-76 (Sept. 21,1987). The Interveners now seek to reply to LILCO's September 21 reply.

II. Discussion A. The Regulation Does Not Permit a Reply

. The Interveners' motion for leave to file a response to LILCO's reply should be denied because it is contrary to the regulation,10 CFR S 2.754(a). To justify departing from this regulation would require a showing that Interveners have not made and indeed cannot make. As LILCO said recently in response to a similar Intervenor request to reply to LILCO's reply findings, this time in the -05 exercise proceeding:

[T]he justification necessary for reply findings by a party not having the burden of proof may be higher than that for other unauthorized pleadings. . The Commission's regulations, like most other judicial and administrative structures, allow all .

parties to file one round of proposed findings, but permit the party with the burden of proof (here, the licensee, LILCO) - 1 and only that party - to have the last word, with an opportu- )

nity for reply findings.10 CFR S 2.754(a). Unlike numerous other Commission regulations, this one makes no provision for the exercise of licensing board discretion. I_d. Further, the Commission intended that the post-hearing structure have a definite time framework. Time frames are set forth for the filing of findings, id. The Commission also expects that "ordi- J narily" a licensing board will issue its opinion within about 35 days af ter receipt of the parties' post-hearing submissions in a contested case. 10 CFR Part 2 Appendix A 1 VI(d). Thus a request to file reply findings by any party other than the one with the burden of proof amounts to an indirect attack on the prohibition of one of the Commission's regulations,10 CFR S 2.754(a), and c.ny such request cannot appeal merely to

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exercise of Board discretion; it must satisfy the requirements ~

for an exception to the Commission's regulations ~ set out in 10 ,

CFR S .2.758, which is_ the exclusive means for challenging ~

regulations. ' Interveners have not even attempted such.a-

' ~ demonstration here.:

!LILCO's Opposition to Interveners' Motion for Leave to File Further Proposed Findings, at 2-3 n.3 (Oct. 8,1987). It is hard to see how the Interveners could make the showing

, required by 5 2.758(b) that the application of the regulation "would not serve the pur-1 poses" for which it was adopted.~

If the Interveners had raised their zoning arguments in the form of a motion for summary disposition, as they once suggested they might (Tr. 19,241, 19,242), they would not have been afforded a reply. See CFR S 2.749(a). Indeed, LILCO's request to file a reply on the " realism" issue was recently denied. Memorandum and Order, at 5-9 (Sept.

17,1987), o The clear import of the NRC'.s rules is thus that Interveners should not be-

- given a second chance.

B. The Interveners Hcve Not Shown Sufficient Reason to Depart from the Regulation The Interveners have failed to establish sufficient cause for the Board to depart from the regulation, even assuming the Board could grant leave to file without follow-

- ing the procedure of 10 CFR S 2.758(d). ' The Interveners have already had adequate op-

- portunity to address the. question of whether LILCO's proposed use of its property as re-ception centers is prohibited by local land use laws.

I Contrary to the Interveners' claims, LILCO did not raise arguments in its reply that the Interveners could not have foreseen. The Interveners' principal complaint seems to be that LILCO "mischaracterized" the Town resolutions, first as possible zon-ing ordinances and then as possible enforcement actions. Interveners' Motion to Re-  !

spond at 3. It is true that, in analyzing the Interveners' novel claim that the resolutions have conclusive legal effect, LILCO had to postulate circumstances under which the

- Town Boards' resolutions might conceivably have such effect. LILCO first hypothesized L

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,, that the resolutions had the force and effect of formal zoning ordinances and concluded that the Town B.ards' f ailure to comply with notice and comment procedures prevented

' the resolutions from being regarded as formal, binding ordinances. LILCO next asked whether the resolutions could be regarded as enforcement actions under existing ordi-nances. LiLCO concluded that, because it was' not provided with an opportunity to present evidence on the alleged violations of local laws, the resolutions are ineffective as enforcement actions.' Through this reasoning, LILCO concluded that the Town Boards' resolutions were not binding upon LILCO and therefore could not be given con-clusive legal effect by the Board. LILCO's September 21 reply findings thus were pure-I ly responsive to the Interveners' original assertion and did not raise new issues to which the Interveners had not already had an opportunity to respond.

Interveners now say they are not claiming that the resolutions are either ordi-nances or enforcement actions, but something else entirely. If that is the case, then they need no reply to LILCO's arguments, which are moot. Whatever the Interveners do think the resolutions are should have been set out clearly in their findings. Never-theless, apparently the Interveners now want leave to reply in order to argue that the resolutions are binding, just like a judicial decision but without the necessity for due process of law. This is what they should have argued, and did ar Je, in their findings.

It is no justification for a reply.

The Interveners complain that LILCO made certain arguments for the first time in its reply and fault LILCO for the brevity of LILCO's original findings. But it was the Interveners who chose to make their arguments for the first time af ter LILCO's find-ings were filed.M There is no contention on the zoning ordinances, and the Interveners l

l< 1/ The Interveners first raised the zoning issue in their "Suffolk County, State of New York, and Town of Southampton Motion for Reconsideration of Schedule," at 13-15 (Jan. 22,1987). At that time they were relying on a letter of January 6,1987, from Su-(footnote continued) !

addressed the zoning lasue neither in direct evidence nor in. cross-examination. Their discussion of their plans on the last day of the hearing was uninformative. See Tr.

19,238-42. Thus LILCO could not know at the time it filed its findings precisely what documents the Interveners would rely on or what arguments they would make. LILCO's original proposed findings argued (1) that there was nothing in the record to support a finding that zoning laws would prohibit reception centers and (2) even if there were, i

zoning laws could not possibly prove a barrier in a real emergency. Either argument is dispositive, and, given the state of the record at the time, little more could reasonably have been said.

The Interveners suggest (Interveners' Motion to Respond at 4) that a reply by them is warranted by LILCO's argument, in its reply, that no opportunity for hearing has been afforded, coupled with LILCO's proposed finding that it is not the Board's '

function to interpret or enforce local laws. The Interveners imply there is some incon-1 sistency in these two arguments. But there is no inconsistency. LILCO's finding that the Board does not sit to interpret local law is simply an attempt to be consistent with the Board's treatment of the " legal authority" issues and with its treatment of the zon-ing issues in its Order (Ruling on Motions for Reconsideration on Scheduling), ASLBP No. 86-529-02-OL, at 2 (Feb. 4,1987), addressed in LILCO's findings at 118. If it were l I

the case that a claim that local law is violated, without a court's ruling on the issue, j i

were a barrier to an operating license, then the Board would have to interpret local l law, and LILCO would ask the Board to rule that local law does not prevent the 1

1 (footnote continued) pervisors and Councilmen of the Town of Hempstead and a letter of December 11,1986, from the Supervisor and Councilmen of the Town of North Hempstead. I_d., App. B and 1 C. The Interveners then announced in the last few minutes of the hearing on July 30, )

1987, that they intended to file af ter the hearing a " pleading" on the zoning issue. See l Tr.19,238-43. l l

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operation of reception centers.M But the Board has ruled twice that it will not interpret local and state laws. It should therefore rule that no violation of such laws has been shown, because the resolutions relied on by the Interveners are not conclusive.

One reason is that giving conclusive effect to such documents, without any opportunity for hearing, would be a denial of due process. This is not a claim that the Board should hold a hearing on the zoning ordinances; it is a claim that until LILCO cannot be denied an operating license based on a document as to which no opportunity at all for a hear-ing has been provided.

If the Interveners succeed in proving to a court that LILCO's reception centers would violate local law, then they can petition the NRC to consider the effect of the court's ruling. But at present, as LILCO argued in its findings, there is nothing on the record to support the denial of an operating license.

The Interveners claim (Interveners' Motion to Respond at 4) that LILCO's argu-ment that the Town Boards may not prohibit prospective zoning violations is " contrary to the laws of New York." Surely this is one argument they should have foreseen. It is obvious that the operations centers become reception centers for evacuees only in the event of a radiological emergency, an event that is extremely unlikely and, in any event,in the future.

l Finally, the Interveners' proposal to file a reply would further delay this already much-delayed proceeding. They would file their reply, they say, within seven days of notice from the Board. Interveners' Motion to Respond at 3. LILCO believes it would have a right to respond to whatever the Interveners said and that this right to respond, if exercised, would add more days to the schedule. This potential delay is additional reason to deny the Interveners' motion.

2/ The Interveners' claim, on page 8 of their " Opposition to LILCO's Motion for Certification to the Commission" (Oct.1,1987), that LILCO does not dispute that re-ception centers are not permitted uses, is incorrect. But that is an issue of state law that, under the Board's earlier decisions, the Board will not decide.

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HI.The Int'ervenors' Opposition

' to LILCOM Request for Certification Simultaneously with their Motion to Respond the Interveners also filed their "Suffolk County, State of New York and Town of Southampton Opposition to LILCO's Motion for Certification to the Commission"(Oct.1,1987). This pleading repeats some of the arguments in the Motion to Respond about the resolutions' being neither ordi-nances nor enforcement actions and opposes the Commission's including the zoning issue with the other preemption issue already before it.

As the Interveners admit, "the preemption issue before the Board is not materi-ally different from the preemption issucs it has already decided." Interveners' Opposi-tion at 6. And those issues that the Board has already decided have been accepted by the Commission for review. It is hard to see what purpose would be served by the Board's ruling again on an issue that is already before the Commission.

IV. Conclusion For the foregoing reasons, the Board should deny the Interveners' motion for leave to respond to LILCO's September 21 reply findings.

Respectfully submitted, M D- U Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 13,1987

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_. uLCO, October 13,1987 8pgp [I CERTIFICATE OF SERVICE W 15 Ali12 L

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In the Matter of :

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL I hereby certify that copies of LILCO'S ANSWER IN OPPOSITION TO INTERVE-NORS' MOTION FOR LEAVE TO RESPOND TO LILCO REPLY FINDINGS (ZONING-ISSUE) were served this date upon the following by telecopter as indicated by one aster-isk, by Federal Express as indicated by two asterisks, or by first-class mail, postage pre-paid.

Morton B. Margulies, Chairman ** Atomic Safety and Licensing

' Atomic Safety and Licensing Appeal Board Panel Board- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy. Atomic Safety and Licensing i Bethesda, MD 20814 ' Board Panel U.S. Nuclear Regulatory Commission

. Dr. Jerry R. Kline ** Washington, D.C. ' 20555 Atomic Safety and Licensing Board Richard G. Bachmann, Esq. **

U.S. Nuclear Regulatory Commission George E. Johnson, Esq.

East-West Towers, Rm. 427 U.S. Nuclear Regulatory Commission 4550 East-West Hwy. 7735 Old Georgetown Road Bethesda, MD 20814 (to mailroom)

Bethesda, MD 20814 Mr. Frederick J. Shon **

Atomic Safety and Licensing Herbert H. Brown, Esq. **

Board- Lawrence Coe Lanpher, Esq.

U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.

East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy. South Lobby - 9th Floor Bethesda, MD 20814 1800 M Street, N.W.

Washington, D.C. 20036-5891 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq. **

Section Richard J. Zahnleuter, Esq.

U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W. Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224

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Mary Gundrum, Esq. _ Jonathan D. Feinberg, Esq.

Assistant Attorney General New York State Department of 120 Broadway .

Public Service, Staff Counsel

- Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223

' 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 l

- 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 smuh.GW ames N. Christman ,

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 13,1987

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