ML20236N815

Suffolk County,State of Ny & Town of Southampton Motion for Summary Rejection of Summary Disposition Motion & for Expedited Consideration.* ASLB Should Take Control of Remand Portion of Proceeding.Certificate of Svc Encl

ML20236N815
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/12/1987
From:	Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4821 OL-3, NUDOCS 8711170019
Download: ML20236N815 (16)

Text

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SN C November 12, 1987 El tGV13 Im as UNITED STATES OF AMERICA ^-

' NUCLEAR REGULATORY COMMISSION QTrICr u0CKfi $gY$h[jy*

BRANCH

'Before the Atomic Safety and Licensina Board

)

In the Matter of )

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

) (Emergency Planning) 4

-(Shoreham Nuclear Power )

Station, Unit 1) ) j

)

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF'SOUTHAMPTON MOTION FOR

SUMMARY

REJECTION OF

SUMMARY

DISPOSITION MOTION AND FOR EXPEDITED CONSIDERATION Introduction ,

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The purpose of this Motion is to request immediate Board q

action to take control of t'he remand portions of this proceeding. j Recent filings by LILCO indicate that such Board action is neces-sary to put a stop to LILCO's improper use of summary disposition motions in an attempt to short-circuit normal NRC procedures, and i

to violate the Governments' hearing rights, in direct violation l of Commission and' Appeal Board orders relating to remanded issues in this proceeding. Thus, on matters where there have been clear instructions that the Licensing Board should conduct evidentiary l hearings (ALAB-832, on school bus driver availability) and should I l

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L l consider contentions after new LILCO plan proposals have been subnitted-and reviewed (CLI-87-05, on EDS issues), LILCO has ignored those instructions by submitting completely new plan proposals, labeling them " undisputed facts," and then asserting that summary disposition should be granted on these new plans.

This latest LILCO attempt to have its own unilaterally-imposed rules govern this proceeding must be dealt with now in order to protect the Governments' due process rights and to maintain the integrity of the proceeding. Prompt Board action will prevent the expenditure of substantial resources by the Governments, the Staff, and the Board in dealing with pro-cedurally improper, premature, and substantively frivolous summary disposition motions, which violate clear Commission and Appeal Board instructions to this Licensing Board.

Specifically, LILCO has twice recently confronted the Board and the parties with new plans -- one for an EBS system and the other for implementing protective actions for school children. <

In both instances, LILCO attached a motion for summary disposition 1/ to its new plans despite the fact that: (1) the Governments have had no prior opportunity t review the plans or the back-up technical documents on which the plans are based; (2) the Governments have had no prior opportunity to submit the 1/ LILCO's Motion for Summary Disposition of,the WALK Radio Issue (November 6, 1987); LILCO's Motion for Summary Disposition j of Contention 25.C (" Role Conflict" of School Bus Drivers (October 22, 1987).

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i plans to experts; (3) the Governments have not been afforded the i v L

i opportunity to submit contentions on the new issues raised by the new LILCO proposals; and (4) the Governments have had no opportunity'for discovery to determine whether LILCO's plans'are sound.- It took.LILCO several months to devise and prepare its new plans (the Board will' remember that'LILCO missed its initial deadline'for providing the Board and parties with the plans and extended the deadline on more than one occasion),.yet LILCO now seeks to dispose of the issues presented by the new plans in.20 days by declaring that the plans contain no genuine issues.of' material fact and are therefore ripe for summary disposition. In doing so, LILCO seeks to circumvent proper, established procedures.

It is rudimentary that when new plans are submitted, there must be an opportunity for review, for focusing issues through  !

contentions, and for discovery, if necessary, prior to disposing of issues through summary disposition. Summary disposition on LILCO's new EBS proposal and on its new proposals for implementing protective actions for school children may be '

appropriate some time later in this proceeding. At a minimum, i however, there must first be contentions which address these new proposals, followed by discovery, before there can properly be  ;

rulings on their merits. By coupling the issuance of its new plans with motions for summary disposition, LILCO is abusing an otherwise legitimate litigation tool.

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1 In' light.of.LILCO's. disregard'for the NRC's regulations and'

'the' rulings of the Commission and the Appeal Board, the Govern-- l a ments moveEthat LILCO's. motion for summary disposition on'its'new- l:

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EBSLplan'be summarily: rejected and-that reasonable procedures be J

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established-for considering.that issue in accordance with NRC L I

i. regulations and.the Commission's rulings.2/, Similar relief._is.

inot requested in'this Motion regarding the school bus driver summaryd 'isposition-motion because the Governments response to L

that~ matter is due. tomorrow, Novemberl13. .The~same relief will:

be requested atLthat time. Nevertheless, the bus driver summary I

disposition motion' is'being brought:to the Board's attention here. l

. as evidencet of an emerging pattern on LILCO's part to disregard proper procedure.

Discussion

- I. EBS System The withdrawal of WALK radio from LILCO's EBS system prompted the Governments to file a motion to reopen the proceed-ing in order to demonstrate that WALK's withdrawal made LILCO's Plan' deficient. The Governments' motion contained proposed 2/ .The Board should also bear in mind that in its August 31, 1987 Notice to the Parties, it sought the parties' views on "prioritizing" all matters currently before the Board. It was- l

. plain to everyone that this was a first step in establishing an orderly process for hearing and deciding those matters. LILCO 3 _

should-not be allowed to short_ circuit the Board's intentions with premature filings.

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r contentions. 'The Commission, on June 12, 1986, granted the motion. In. remanding the matter to the Licensing' Board the Commission' stated:

We grant the request to reopen on this matters zintervenors' request was timely, addresses a significant safety issue, demonstrates that a materially different result would have been likely, and was supported by an appropriate affi- i davit. However, we believe that it's or+enture to '

admit contentions on the EBS situation until LILCO orovides undated information on oubl:.c notifica-tion crocedures which may elicit add..tional con-tentions. We see no cain to aoj.no throuah the contention admission crocess tw:.ce rather than once. i Memorandum and Order, CLI-87-05, slip op. at 4 (June 12, 1987)

, (emphasis added). The Commission went on to state in its conclusion that:

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The motion to reopen is granted as to WALK radio.

. . . We remand to the Sicensing Board on the  !

i reopened issue, with-the Board to admit "new" contentions only to the extent they assist in focusing further the litigation on earlier-admitted issues, and only after LILCO provides updated information on public notification procedures.

Id., slip op. at 10. This language plainly demonstrates that the Commission contemplated that after LILCO made its new EBS plan s available, the Governments would be permitted to file contentions on the matter. While the Licensing Board would then rule on the admissibility of the contentions on the basis of how and whether I

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they assist in focusing further the litigation of earlier-admitted issues, the fact remains that the Commission contem-plated affording the Governments a reasonable opportunity to l review the new plan and then file contentions. LILCO's actions

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directly contradict the Commission's ruling and, if permitted by i the Board, would violate the Governments' rights.

Following the Commission's ruling, LILCO commenced devising a new plan. Evidently that was a substantial effort. On September 11, LILCO informed the Board and the parties that the EBS~ plan would be ready by October 1. LILCO's Views on the Priority of the Remaining Issues Before the Board (September 11, 1987), at 3. LILCO did not meet that deadline and on at least two occasions thereafter informed the Board and the parties that the plan was still not ready, but would be, forthcoming.

Finally, five months after the Commission's ruling and over a month after its initial deadline, LILCO provided the Board and the parties with its EBS plan. That plan calls for, among other things, a new EBS system centered around a radio station in Connecticut. Despite LILCO's attempt to play down the degree to which its EBS system has changed, the scope and content of the documents provided (which the Governments do not believe are all the documents that bear on this issue) belle this LILCO asser-I tion. The documents provided include substantial engineering reports (including analyses of signal strength, scope of

coverage, etc.) which plainly require expert review. Also included are a telephone survey, three letters of agreement, and equipment lists and affidavits. Notably, no amendment to the LILCO Plan was provided in LILCO's papers.

In light of the Commission's clear ruling on the need for filing contentions, the plain need for a meaningful review of the documents provided, and discovery on the facts and data contained therein, LILCO's attempt to short circuit due process. and estab-lished procedure is improper and cannot be condoned by this Board. Therefore, LILCO's motion for summary disposition on its new EBS plan should be summarily rejected.

II. School Bus Drivers l

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In ALAB-832, the Appeal Board ruled that this Board erred in excluding evidence regarding a survey of volunteer firemen and in 1 failing to consider the impact of that evidence on issues (

concerning the availability of school bus drivers to perform early dismissals and evacuation of school children. ALAB-832, 23 NRC 135, 154 (1986). Accordingly, the Appeal Board remanded the i matter to this Board, stating: l On the record now before us, we similarly cannot make a finding that a sufficient number of l j

school bus drivers can be relied upon to perform '

their duties if an accident occurred at Shoreham.

Therefore, we are remanding this matter to the Licensing Board for further exploration. All parties will be free to adduce additional evidence I

n on the issue; at; minimum, the Licensing Board is to accept the testimony related to the survey of

' volunteer firemen. Upon review of the evidence presented at the reopened hearing, the Licensing Board should reconsider its prior findings and conclusions.regarding the potential forfrole conflict among school bus drivers.

14 Prior to any Board action on the rewand,-LILCO, on October 22, 1987, _ submitted a summary disposition motion, pur- _

portedly in response to ALAB-832. In the motion, LILCO told this Board that contrary to the Appeal Board's direct instructions, it should not hold an evidentiary hearing, and it should not accept-any additional evidence from.any new parties. Instead, LILCO

-urged the Board to reach the same conclusion on the availability .

of-school bus. drivers which the Appeal Board rejected by:

i (1) summarily rejecting the survey evidence the Appeal Board )

1 ordered this Board to admit, without hearing testimony, other evidence, or argument as part of the reconsideration ordered by I the Appeal Board; (2) adopting as " undisputed fact" a completely new LILCO proposal for evacuation and early dismissal of school children,- even though this new proposal has never before been seen or reviewed by any other-parties, the Board,.or FEMA; (3) _ adopting as " undisputed fact" conclusory assertions of LILCO I

" intentions," " commitments," and " opinions," as well as data, supposedly relating to this previously unheard-of proposal, even though no parties have had an opportunity to conduct discovery or T

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'to prepare to challenge these unsupported LILCO assertions; and, >

-(4) . finding as.a matter of fact and law that LILCO should prevail on a contention which related to an earlier version of the LILCO 1

Plan. Thus, LILCO proposes that there be no opportunity for the filing of contentions, discovery,-or hearing.on the new version of-its plan for school children, contrary to the Atomic Energy Act, the NRC regulations, and ALAB-832.

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The Governments did not seek summary rejection of LILCO's motion for summary disposition on the school bus driver issue immediately upon receiving the motion because the Governments 4 originally intended to discuss the matter in their response to that motion. The recent filing of LILCO's motion for summary disposition on the new EBS proposal, however, now makes it

-i imperative to get this matter before the Board as quickly as possible so that the Board can take immediate action and prevent LILCO's attempts to abuse proper procedure. Because the Governments' response to the LILCO's summary disposition motion ,

on the school bus driver issue is due Friday, the Governments do )

not ask here for summary rejection of that motion. The Governments' response will seek that relief for the reasons .

stated here. The purpose of raicing the school bus driver issue I s

in this Motion is to demonstrate to the Board an emerging pattern of disregard for proper procedure on the part of .ILCO, and to i

bring to the Board's attention the need to put a stop to this j practice as quickly as possible.

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III. Need for Board Supervision 1

The~ Governments emphasize that it is critically important '

that this proceeding be~ brought under control-at the outset. l L There are'many remanded' issues to be dealt with, in addition to' .!

the legal authority' issues, the'CLI-86-13 remand, and LILCO's 25% ~

' Power Motion. The Board appeared to recognize the need to. inject some order into this already complex proceeding when it sought i the parties' views.on "prioritizing" all matters before it. Egg

. Notice to'the Parties (August 31, 1987). Unfortunately, before the Board ~had'an opportunity.to hold a conference of counsel or issue an' order' setting out its own'prioritization and how it i

intended to deal with the myriad emergency planning-related- )

issues before it, LILCO began to file its summary disposition motions.

l While parties are entitled to file motions as provided by l the regulations, in this instance some direction by.the Board'is  !

essential to put a stop to LILCO's abuse of those regulations.

If allowed to continue in this manner, LILCO's actions will. turn this proceeding into chaos. All parties and the Board will i

expend substantial resources addressing inappropriate filings, '

which, ultimately, will only delay the eventual disposition of the issues. The lack of logic and order to the proceeding will result'in inefficient and'duplicative efforts.

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i x n Accordingly,L the7 Board should, first, summarily reject

.LILCO's summary disposition' motions as improperly filed. Then, i

the Board should announce which of-the remands it wishes to take-

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. up', and in .what order. Then, it should1reqtiire LILCO to submit any plan revisions, or new proposals, which it wishes to have-considered'with' respect to'the matters the Board indicates it intends,to pursue. Then, according to established NRC

=pretedures, the-Governments should be permitted to submit new, or Lrevised, contentions as necessary or appropriate.in light of any-

.new LILCO plan proposals. Finally,'after necessary~ discovery j pursuant tosthe'NRC's Rules of Practice, there can be provision,-

ifLappropriate, for~the filing of summary disposition' motions,.

fol' lowed by a hearing.

IV. Expedited Consideration The Governments respectfully. request the Board's expedited J

consideration of their Motion for . Summary Rejection of LILCO's EBS system summary disposition motion. Such relief is warranted to avoid wasting the parties' and the Board's time in addressing LILCO's motion.

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The Board should then turn its attention to l guiding the remand proceedings as outlined above.

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In' light of this situation, and in light of the fact that LILCO's summary disposition motion'on the.new EBS plan is so clearly improper, thefrunning of the time within which the Governments' response'to the motion must be filed should be i tolled pending'a Board decision.2/

i If the Bo.avd deems it necessary, the Governments stand ready to participate in a telephone conference call at the Doard's  !

convenience.

Conclusion j

For the foregoing reasons,-the Board should consider this natter on an expedited . basis and grant the Governments' Motion.  ;

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Respectfully submitted, L

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E5w~r'e~ce'C.

n Lanpher / .

Karla J. Letsche Michael S. Miller [ j I

-Christopher M. McMurray KIRKPATRICK & LOCKHART ]

1 1800 "M" Street, N. W. l South Lobby - Ninth Floor Washington, D. C. 20036-5891  !

i Attorneys for Suffolk County l l

2/ If the Board denies the Governments' Motion, the Governments I l

also reserve the right to' seek an extension of time within which to respond, which is justified in light of the extensive scope of ,

the revisions to_LILCO's EBS plan and the technical nature of the '

review which must be conducted.

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,l Fabian G. .Palodino/ _ /

' Richard J. Zahnledter.

1,. Special Counsel to the Governor  :

of the State of New York l Executive Chamber, Room 229; Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York.

1 Yo Stephen B'. Latham .

Twomey, Latham & Shea l Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

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i November 12, 1987 f

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DOCK'IED C

USNRC November 12, 1987 N 613 ' 41 :46

' UNITED STATES OF AMERICA FFICE gp NUCLEAR REGULATORY. COMMISSION OCKETINr; fy '

BRANCH- '

'gefore the Atomic Safety and Licensina Board

)

In-the Matter of ):

)

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

) (Emergency Planning)

(Shoreham NuclearLPower Station, )_

Unit 1) ) '

)

CERTIFICATE OF SERVICE 'I f

'I hereby certify that copies:of the SUFFOLK COUNTY, STATE OF NEW YORK,~AND TOWN OF SOUTHAMPTON MOTION FOR

SUMMARY

REJECTION OF J

SUMMARY

. DISPOSITION MOTION AND FOR EXPEDITED CONSIDERATION have been1 served on the following-this 12th' day of: November 1987 by

. United States mail', first' class, except as otherwise noted.

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'l Mr. Frederick'J. Shon* Dr.' Jerry R. Kline* l Atomic' Safety and Licensing Board Atomic Safety and Licensing Board-LU.S. Nuclear. Regulatory Commission 'U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 Washington, D.C. 20555 i

- Fabian G. Palomino, Esq. William R. Cumming, Esq.  !

Richard J. Zahnleuter, Esq.** Spence W. Perry, Esq.

Special Counsel to the Governor Office of General Counsel of the State of New York Federal Emergency Management Agenc5 l

Executive Chamber, Room '229 500 C Street, S.W., Room 840 l State Capi' col Building t

Washington, D.C. 20472 Albany, New York 12224

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,l 1, l L w L

I JJoel'Blau,1Esq. W.fTaylor Reveley, III,LEsq.**'

L Director '

Hunton & Williams-Y UtilityDIntervention P.O.' Box 1535.

b .

, .N.Y.; Consumer. Protection Board. .707' East Main' Street: i Suite 11020- Richmond, Virginia 23212 '

E Albany, New-York.12210

, ' Martin'Bradley Ashare,'Esq.

. Anthony.F. Earley, Jr., Esq.- 1 Suffolk CountycAttorney . ' General Counsel l

-Bldg.'158' North County: Complex' Long Island Lighting. Company Veterans Meinorial- Highway 175 East Old Country' Road- jl Hauppauge,'New York 11788 Hicksville,.New York 11801'  !

Mr.--L. F..Britt Ms. Elisabeth'Taibbi, Clerk'

< ~LongiIsland Lighting Company. Suffolk County Legislature

-Shoreham Nuclear Power Station Suffolk. County Legislature. i North Country Road _ Office Building Wading. River, New York' 11792 Veterans. Memorial Highway Hauppauge, New York. 11788

-l Ms. Nora'Bredes Stephen B. Latham,.Esq.

Executive Director- Twomey, Latham & Shea

Shoreham Opponents' Coalition' 33 West Second Street 1

+ 195 East. Main Street -Riverhead, New-York. 11901 Smithtown,;New' York' 11787 y Mary M. Gundrum, Esq.. Docketing and Service Section ,

New : York State . Department of Law Office ofc the Secretary 120 Broadway, Third Floor .U.S. Nuclear Regulatory.Comm.  :!

Room. Number 3-116 1717 H Street, N.W. l

New York,1New. York 10271 , Washington, D.C. 20555 MHB Technical Associates ' Hon.-Michael A..LoGrande 1723 Hamilton Avenue' 'Suffolk County Executive.

Suite "K"' -H. Lee Dennison~ Building San' Jose,. California 95125 Veterans Memorial Highway Hauppauge, New York 11788 Mr. Jay Dunkleburger Dr. Monroe Schneider New York State Energy Office North Shore Committee ,

Agency Building 2 P.O. Box 231 i

, _ Empire State Plaza Wading River, New York 11792 1 Albany, New York 12223 David A. Brownlee, Esq. George E.' Johnson,-Esq.**

'Kirkpatrick & Lockhart Richard G. Bachmann, Esq.

1500 Oliver Building U.S. Nuclear' Regulatory Comm.

Pittsburgh, Pennsylvania 15222 Office of General Counsel-Washington, D.C. 20555 l

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Douglas J. Hynes, Councilman Mr. Stuart Diamond Town Board of' Oyster Bay Business / Financial Town Hall NEW YORK TIMES Oyster, Bay, New York 11771 229 W. 43rd Street New York, New York 10036 Christopher M. McMurray KIRKPATRICK & LOCKHART  !

1800 M Street, N.W.

South Lobby - 9th Floor 1 Washington, D.C. 20036-5891

• Via Hand Delivery

• • Via Telecopy .

November 12, 1987 i

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