ML20238D049

Responds to Util 871219 Motion for Immediate Certification of Commission of Issues.Substantive Nature of Case Does Not Warrant Certification or Special Expedition.Certificate of Svc Encl

ML20238D049
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/22/1987
From:	Zahnleuter R NEW YORK, STATE OF
To:	Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5229 OL-3, NUDOCS 8801040071
Download: ML20238D049 (5)

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.uaw' STATE OF NEW YORK [d 5.N ExtcuTive CHAMBER OW OfflC[QQg3W ,

FABI AN PALOMINO Special Counsel to the Governor December 22, 1987 Alan S. Rosenthal, Esq., Chairman Mr. Harold A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Appeal Board Judges:

This is in reference to "LILCO's Motion for Immediate Certification to the Commission of Issues Presented by LBP-87-32 or for Expedited Briefing, Argument and Decision by the Appeal Board," dated December 19, 1987 ("LILCO's Motion"). Given the constraints of having to reply within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, I have endeavored to the maximum extent possible to coordinate a response with Suffolk County's attorneys in Washington, D.C.1 Accordingly, New york State hereby joins in the response filed today by suffolk County. Nevertheless, the State wishes to emphasize the following points.

1. LILCO's Motion presupposes that LILCO is entitled to receive a full-power license and that the NRC's appellate procedures should be tailored to suit LILCO's self-interest.

It is not legitimate to shape t.he NRC's procedures to f avor LILCO. In this instance, LILCO is asking for the Appeal Board to provide it with an escape from the NRC's 2-year rule with respect to full participation exercises. This is relief which this Appeal Board may not grant.

2. New York State, Suffolk County, and the millions of citizens they represent have a right to a decision of the 1 The State does not understand why the Board ordered the Governments to prepare a reply to LILCO's Motion within approximately 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. LILCO used at least 10 days to prepare the Motion, and there is no apparent reason why the State and County could not have been given a more reasonable opportunity to analyze LILCO's pleading and to coordinate a response.

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Alan S. Rosenthal, Esq., Chairman Mr. Harold A. Wilber Atomic Safety and Licensing Appeal Board December 22, 1987 Page 2 Appeal Board based on considerations of public safety, not on whether one appellate schedule or another satisfies LILCO's desire to avoid conducting a new full participation exercise. If NRC regulations require LILCO to conduct a new and properly scoped, full participation exercise, then so be it. It is unseemly for LILCO to plead for this Board to bail LILCO out of the very situation that LILCO has created for itself by its insistence on licensing Shoreham under untenable circumstances.

3. LILCO's reference to the New York State Public Service Commission's (State PSC") recent decision, and the enclosure of that decision with the Motion, is improper. What the State PSC does within its lawful jurisdiction is of no relelvance to this proceeding. If LILCO does not like the State PSC's action, LILCO's remedy is to be sought before the courts of New York. LILCO is not entitled to ask this Appeal Board to fashion NRC appellate procedures so that LILCO can circumvent the lawful requirements of the State PSC.

4. The substantive nature of the instant case does not warrant certification or special expedition, but adherence to the NRC's standard appellate procedures. The Licensing Board's decision involves a mixture of facts and law that does not accommodate LILCO's push for hasty briefing and rushed decisionmaking. LILCO is bound by NRC procedures  !

just like every other party, and present circumstances do not justify any departure.

Sinc- ly, p7 Richard J. - euter Deputy ecial Counsel to the Governor cc: Service List

5 e

DATE: December 23,1987 000KETED USNRC UNITED STATES OF AMERICA >

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board 0FFICE OF SECRt.1ARY l

DOCKEhNG A SEHVlCI.

BRANCH In the Matter of )

)

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

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of a letter from Richard 3. Zahnieuter to Alan S.

Rosenthal, dated December 22,1987, have been served on the following this 23rd day of December,1937 by U.S. mail, first class, except as noted by an asterisk.

John H. Frye,111 Dr. Oscar H. Paris Chairman .

Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers East-West Towers 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20S14 Mr. Frederick 3. Shon Spence W. Perry, Esq.*

Atomic Safety and Licensing Board William R. Cumming, Esq.

U.S. Nuclear Regulatory. Commission Of fice of General Counsel, East-West Towers Federal Emergency Management Agency 4350 East-West Highway 500 C Street, S.W., Room 340 Bethesda, MD 20S14 Washington, D.C. 20472 Dr. Jerry R. Kline Mr. Alan C. Rosenthal, Chairman

• Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Board East-West Towers Fif th Floor (North Tower) 4350 East-West Highway East-West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20314 Mr. Howard A. Wilber*

l- Atomic Safety and Licensing Appeal Board Fif th Floor (North Tower)

East-West Towers 4350 East-West Highway Bethesda, MD 20814

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

General Counsel Director, Utility Intervention l Long Island Lighting Company N.Y. Consumer Protection Board l 175 East Old Country Road Suite 1020 a Hicksville, New York 11801 Albany, New York 12210 l Ms. Elisabeth Taibbi Mr. Donald P. Irwin*

Clerk Hunton & Williams Suffolk County Legislature 707 East Main Street Suffolk County Legislature Richmond, Virginia 23212 Office Building Veterans Memorial Highway Hauppauge, New York 11788 Stephen B. Latham, Esq.

Twomey, Latham & Shea Mr. L. F. Britt 33 West Second Street Long Island Lighting Company Riverhead, New York 11901 Shoreham Nuclear Power Station North Country Road Docketing and Service Section Wading River, New York 11792 Office of the Secretary U.S. Nuclear Regulatory Commission Ms. Nora Bredes 1717 H. Street, N.W.

Executive Director Washington, D.C. 20555 Shoreham Opponents Coalition 195 East Main Street Hon. Michael A. Lo Grande Smithtown, New York 11787 Suffolk County Executive H. Lee Dennison Building Veterans Memorial Highway Adrian Johnson, Esq. Hauppauge, New York 11788 New York State Department of Law 120 Broadway,3rd Floor Dr. Monroe Schneider Room 3-116 North Shore Committee New York, New York 10271 P.O. Box 231 Wading River, New York 11792 MHB Technical Associates 1723 Hamilton Avenue Lawrence Coe Lanpher, Esq.*

Suite K Kirkpatrick & Lockhart San Jose, California 95125 1300 M. Street, N.W.

South Lobby - Ninth Floor Martin Bradley Ashare, Esq. Washington, D.C. 20036 Suffolk County Attorney Building 158 North County Complex George Johnson

• Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11733 Washington, D.C. 20555 Mr. Jay Dunkleburger Douglas 3. Hynes New York State Energy Office Town Board of Oyster Bay Agency Building #2 Town Hall Empire State Plaza Oyster Bay, NY 11771 Albany, New York 12223 Mr. James P. Gleason Mr. Philip McIntire Chairman FEMA Atomic Safety and Licensing Board 26 Federal Plaza 513 Gilmoure Drive New York, New York 10278 Silver Spring, MD 20901

6 David A. Brownlee, Esq. - Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 -229 W. 43rd Street New York, New York 10036 Anthony F. Earley, 3r., Esq.

General Counsel Mr. Lando W. Zeck, Jr.

Long Island Lighting Company U.S. Nuclear Regulatory Commission 175 East Old Country Road . 1717 H Street, N.W.

Hicksville, New York 11801' Washington, D.C. 20555 Commissioner Thomas M. Roberts Commissioner Frederick M. Bernthat U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission-1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555

' Commissioner Kenneth M. Carr Commissioner Kenneth C. Rogers U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20535 Washington, D.C. 20555

.l 0 i/

g" )t 7 (( L b5'Ch Richard 3. Za nlejiter, Esq.

Deputy Specia(l Counsel to the Governor Executive Chamber Capitol, Room 229 Albany, New York 12224 (518)474-1273

• By Telecopier on December 22,1937.

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