ML20238D047

Suffolk County,State of Ny & Town of Southampton Motion for Addl Time to Respond to Lilco Seven Realism Summary Disposition Motions.* Extension of 75 Days Fully Justified for Stated Reasons & Should Be Granted.W/Certificate of Svc

ML20238D047
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/23/1987
From:	Latham S, Letsche K, 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-#188-5228 OL-3, NUDOCS 8801040068
Download: ML20238D047 (14)

Text

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[ $2]l hF' COLKETEP USNRC December 23, 1987

'87 DEC Z8 All:25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g gg g7 OCKETING A $UIVICL Before the Atomic Safety and Licensina Boar BRANCH

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTRAMPTON MOTION FOR ADDITIONAL TIME TO RESPOND TO LILCO'S SEVEN " REALISM"

SUMMARY

DISPOSITION MOTIONS On December 18, 1987, LILCO filed seven separate motions for summary disposition of the " realism"/ legal authority issues raised by LILCO in the context of its affirmative defense to Contentions 1-10. Together with the introductory memorandum of law, six supporting affidavits, and attachments, LILCO's latest attempt to have Contentions 1-10 resolved summarily totals 495 pages.

Under the NRC's rules, 10 CFR S2.749(a), the Governments'l/

response to LILCO's seven motions would ordinarily be due on Monday, January 11, 1988. The purpose of this motion is to request a Board ruling that the Governments' time for responding be extended 75 days, or until March 28, 1988. The grounds and reasons supporting this request are set forth below.

1/ Suffolk County, the State of New York, and the Town of Southampton are referred to, collectively, as the " Governments."

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There is an overriding point-that must be made at the outset. The issues involved in these " realism"/ legal authority matters are serious and of consequence to millions of citizens of New York and to their State and local governments.

Significantly, these issues have been ruled upon by Federal and State courts. The actions of Suffolk County in resolving not to adopt or implement an emergency plan have been upheld as lawful exercises of that Government's police powers, and implementation of LILCO's Plan by LILCO has been ruled illegal. The Governments are now faced with a new LILCO attempt to nullify the effect of Federal'and State court rulings by naked words and artificial devices. The Governments are confident that LILCO's attempt will be no more successful here than in court. However, to respond to LILCO's voluminous motions, affidavits, and allegations will take time.

The Governments have been presented, on the eve of the l l

holiday season, with a compendium of new LILCO motions which seek summary decisions -- without hearing, customary fact-finding procedure, or trial -- on these serious issues. The motions cite a new rule, never before interpreted or applied, and ask for hasty resolutions without even the benefit of any prior guidance from this Board as to what the rule is supposed to mean in this unique proceeding. The Governments are entitled to the opportunity to review these motions carefully and to prepare a thorough response. Needless to say, LILCO spent months preparing i

the subject motions; the Governments are entitled to a '

, commensurate period to respond.

The Governments do not take lightly LILCO's repeated efforts to usurp their police powers by distortions of the law and the NRC's regulations. It is ar. insult to the NRC, and ill befits the seriousness of the issues presented by the LILCO motions, to suggest that such complex and important matters could possibly be analyzed, and complete responses prepared, within 20 days.

The Governments also note their strenuous objection to the Board's decision, announced during yesterday's telephone conference call, that a response to LILCO's seven summary disposition motions must be filed without any ruling or guidance by the Board whatsoever concerning the divergent views of the parties on (a) the meaning of prior Board orders, (b) how the realism remand should proceed, (c) the scope of the issues to be decided, and (d) how the new rule impacts this proceeding. We repeat our view, which was supported yesterday by the NRC Staff, that it makes no sense to engage in further argument, briefings or motions pertaining to the " realism"/ legal authority issues which are the bases of LILCO's seven motions, until this Board has: (1) dealt with the extensive briefs (235 pages) which already have been filed; and (2) provided the parties with its views and rulings on how it intends to conduct this proceeding, the scope of the issues, how it intends to apply its September 17 Order, how it interprets the new rule, and how it intends to apply it in this adjudication. We disagree with the Board's announced rationale that no postponement is necessary because the

I I

parties are aware of each other's positions on these matters.3/

l What is missing here is the crucial ingredient to rationally I i

conducted litigation: a statement by the adjudicator of its position on these threshold, procedure- and standard-defining issues.2/

Thus, in our view, the Board's ruling that it will issue no l l

rulings and provide no guidance on the important threshold 1 matters raised by the CLI-86-13 remand and the Commission's new rule until after responses to LILCO's seven motions for summary l

)

1 disposition on the realism contentions have been filed and the '

Board has rendered a decision on them, puts the cart before the horse. It also places the Governments in the difficult position of having to file responses to LILCO's motions in a vacuum, since i

the views of the Board on the scope of the issues, the meaning of f the new rule, and its application in this proceeding remain a secret.

1/ The Governments' understanding of the Board's logic for denying the " Governments' Motion for Postponement of Briefing and Consideration of LILCO's Latest ' Realism' Summary Disposition Motions Pending Issuance of Board Guidance" is based on statements by the Board in yesterday's conference call. We have not yet received the order which the Board said would 3 subsequently be issued. j 1/ We are constrained to add that another crucial ingredient also is missing -- sensitivity to the waste of resources which has been and will be occasioned by the Board's decision. The Governments, like the other parties, expended considerable '

resources in filing their briefs of October 30, November 17, and November 30. These resourcen were expended pursuant to Board j orders of October 8, November 9, and November 23, which requested I the briefs and indicated that the Board would review these filings and then issue necessary guidance. Now to require responses to LILCO's seven " realism" motions, without the benefit i of any Board ruling, in essence renders the previous extensive filings a nullity, and the resources expended thereon wasted.

Given the Board's ruling of yesterday, as well as the timing, size and nature of LILCO's filing, the Governments are now compelled to seek additional time within which to respond to LILCO's seven motions. Additional time is necessary for the following reasons:

1. LILCO's motions are premised upon LILCO's interpretation of CLI-86-13, this Board's September 17 Order, and the new rule. They are also premised upon LILCO's " definitions" of the issues raised by Contentions 1-10, by CLI-86-13, and by the new rule. As the Board must be aware, the Governments, and to a lesser degree the Staff, have views on these matters which differ in many respects from those of LILCO; indeed, as the Governments demonstrated in their filings of November 17 and November 30, this Board's own previously announced views, and those of the Commission stated in CLI-86-13 and the new rule, also differ in many significant respects from those of LILCO.

Nonetheless, in the absence of any guidance or rulings by the Board on the already-filed divergent views of the parties on these fundamental premises of LILCO's motions, the Governments will, of necessity, have to respond to those motions by addressing to some extent the differing positions of each party.

This will make the preparation of productive and meaningful responses a substantially more complex, difficult, and time-consuming task, and also, of necessity, will make the responses all the more lengthy.

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I We note also that in covering this diversity of issues, the ,

Governments are not faced merely with the task of revising i

matters covered in their filings of October 30, November 17, and November 30. Rather, while many of those matters will now have to be discussed once again, this will have to be done both generally and in the wide-ranging fact-and issue-specific context of responding to LILCO's seven new motions. This will be, we repeat, a complex and time-consuming task.

2. To address the merits of LILCO's motions, and, indeed, just to locate, verify the accuracy, and identify the context of the innumerable assertions, citations, and arguments contained in LILCO's motions and attachments, the Governments will need to comb literally thousands of pages (perhaps tens of thousands of pages) of the emergency planning record from as far back as early 1982.1/ In addition, it will be necessary to identify, locate, review and analyze other data and information not part of the evidentiary record, but relied upon by LILCO (such as, for example, plans from various counties unrelated to Shoreham).

Extensive attorney resources will necessarily have to be devoted to these tasks, and far more time than the 20 days normally allowed for a response will be required.1/

A/ Indeed, in certain instances, LILCO raises matters which occurred even prior to 1982. See LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR 550.47(c)(1)(i) and (ii), Dec. 18, 1987, at 6.

1/ It may be argued in response to this motion that the Governments could have begun these tasks even before LILCO filed its motions. There would be no basis for any such assertion.

First, it would have been a speculative and wasteful expenditure of limited resources (that have in any event been fully occupied (footnote continued)

3. -The' resources necessary to comb the evidentiary record and to review the other-data and information relied upon by LILCO (once such data can be identified and located) are not available to perform this enormous task between now and January 11. The Governments' review of the earlier record and other data will have to be undertaken by and/or under the supervision of a limited number of attorneys, who have'been involved in the earlier emergency planning proceeding and are familiar with it, who are experienced in shoreham matters and, who are collectively capable of responding to the wide-variety of matters raised by LILCO's compendium of motions. Without exception, however, these attorneys have pre-existing commitments which render them unable to devote full or even substantial portions of the normal 20-day response period to this matter.

The attorneys' commitments, many of which pre-date LILCO's November 17 announcement of its intended filing, range from having to prepare for and participate in oral argument in the New York Court of Appeals as well as a likely oral argument in the U.S. Court of Appeals for the Second Circuit; holiday commitments to families, involving pre-arranged travel and other obligations; and responsibilities in other proceedings including catters (footnote continued from previous page) since November 17 when LILCO first " promised" a new summary disposition motion) to have tried to guess how LILCO would structure its motion (which turned out to be seven separate ones) and on what it would rely. Further, as noted above, it had been (until yesterday) the Governments' reasonable expectation that there would be Board guidance on these matters before any response would be required, thus enabling any responses including searches of the record, to be focused in the context of such guidance.

pending in the Virginia courts, and the U.S. Courts of Appeals for the First and Second Circuits. In addition, time must be devoted by these same knowledgeable attorneys to: addressing LILCO's recently-noticed appeal of the Frye Board's partial initial decision of December 7, 1987; addressing LILCO's December 18 request for a new e::ercise; responding to LILCO's motion for summary disposition of the hospital evacuation remand issues; preparing the two additional briefs on the new rule which this Board requested during yesterday's conference call; and to other Shoreham-related matters aside from LILCO's seven realism motions. In addition, the Board has indicated that within the next few days, it will announce its " approach" to LILCO's 25%

power motion and that decisions on LILCO's pending summary disposition motions on the school evacuation and EBS proposals will be issued. The decisions to be announced by the Board will undoubtedly lead to further work by all attorneys on this case.

In short, given the holiday timing of LILCO's motions, as well as the pre-existing commitments of the knowledgeable attorneys, a substantial amount of the normal response time -- i.e., between December 23 and January 11 -- is simply not available to be devoted to responding to LILCO's seven motions.

4. The Governments' attorneys will also need substantial time to engage in the extensive legal and factual analyses, drafting, and coordination among the Governments that will be required to respond to LILCO's motions. Time is also required to meet and work with State and County officials and experts as necessary, and to prepare affidavits, as appropriate, in response

1 to LILCO's motions. These government officials and experts in many instances have extremely limited time. In the best of circumstances, a substantial time extension would likely be necessary. With the imminent holidays and related office closings and family commitments, an even more substantial extension is necessary.

In sum, the Governments cannot and should not be expected to respond to LILCO's seven summary disposition motions by January

11. Given the extensive work to be done, and the constraints on attorney resources due to prior commitments, the breadth and complexity of the issues, data and record citations raised and relied upon in the motions, the size and complexity of the Shoreham case, and the holiday season, a 75-day extension of time i.e., until March 28, 1988 -- is the minimum time necessary to respond.

It is significant that when requested to grant the Governments additional time to respond to LILCO's "Second Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Contentions EP 1-10)," this Board granted the Governments a 30-day extension. See Memorandum and Order (Ruling on Interveners' Motion to Convene Conference of Counsel, and Other Relief), dated April 10, 1987. This Board noted then that a " proper response" I

to LILCO's Second Renewed Summary Disposition Motion would require "a significant effort." See Memorandum and Order, at 7 (emphasis added). LILCO's Second Renewed Motion totalled only 118 pages, including attachments and supporting affidavits.

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LILCO's latest seven motions for summary disposition total D95 )

i pages, including attachments and supporting affidavits. Response / I to these motions will require a far more "significant effort" than the last time. .

In light of the intervening holidays, sche sheer. number and.

size of LILCO's most recent motions, the absence of any Board guidance on the standards to be applied'in'this proceeding, and the potential new issues presented'oy the new rule (depending upon which party's views are ultimately accepted bh tne Board),

an extension off75 days to respond to LILCO's sseven motions is ,

i fully justified, and should be granted. ,

i Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway

Hauppauge, New York 11788 (

s ,

1. C LaVrenpe Coe Lanphat 18~"

Karla J. Letsche Michael S. Miller Kirkpatrick & Lockhart 1800 M Street, N.W.

South Lobby.- 9th Floor Washington,' O.C. 20036-5891 e Attorneys for Suffolk County x

\

[

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Fabian G. Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building ,

Albany, New York 12224.

Richard J..Zahnleuter Deputy Special Counsel to the Governor of the State of New York Executive Chamber Room Number 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York

^

Stephe s

B. Latham /

Y' Twom , Latham & Shea P.O. Box 390 33 West Second Street Riverhead, New York 11901 Attorney.for the Town of Southampton l

1

l DOLKETED December 23, 198@NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *B7 EC 28 N1:25 Before the Atomic Safety and Licensino Board U NCE W M G d/sp 00CKEiJNG A SLf(VICE BR4HCH

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

l CERTIFICATE OF SERVICE I hereby certify that copies of the RESPONSE OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTEAMPTON MOTION FOR ADDITIONAL TIME TO RESPOND TO LILCO'S SEVEN REALISM

SUMMARY

DISPOSITION MOTIONS have been served on the following this 23rd day of December, 1987 by U.S. mail, first class, except as otherwise noted.

James P. Gleason, Chairman

• Mr. Frederick J. Shon

• Atomic Safety and Licensing Board Atomic Safety and Licensing Board j U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission j Washington, D.C. 20555 Washington, D.C. 20555 i James P. Gleason, Chairman

• William R. Cumming, Esq.

513 Gilmoure Drive Spence W. Perry, Esq. I Silver Spring, Maryland 20901 Office of General Counsel )

Federal Emergency Management Agencyl Dr. Jerry R. Kline

• 500 C Street, S.W., Room 840 l Atomic Safety and Licensing Board Washington, D.C. 20472 U.S. Nuclear Regulatory Commission ] t Washington, D.C. 20555 W. Taylor Reveley, III, Esq. **

Hunton & Williams Fabian G. Palomino, Esq. P.O. Box 1535 Richard J. Zahnleuter, Esq. 707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 State Capitol Albany, New York 12224

Joel Blau, Esq. Anthony F. Earley, Jr., Esq.

Director, Utility Inte've?. tion General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Rcad 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 Building Hauppauge, New York 11788 Veterans Memarial 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 MHS 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 George E. Johnson, Esq.

• New York State Energy Office Edwin J. Reis, Esq.

Agency Building 2 U.S Nuclear Regulatory Comm.

Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 j David A. Brownlee, Esq. Mr. Stuart Diamond ,

Kirkpatrick & Lockhart Business / Financial j 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennef l vania 15222 229 W. 43rd Street New York, New York 10036 i l l

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[ _. _ _ _ _ _ ______________ _______ __ o

- o Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 l

W 4' -

Yawrence Coe Lanpher' KIRKPATRICK & LOCKHART 1800 M Street, N.W.

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

• By Hand

• • By Telecopy

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