ML20238D127
| ML20238D127 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/28/1987 |
| From: | Leugers M HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5231 OL-3, NUDOCS 8801040113 | |
| Download: ML20238D127 (8) | |
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5 23 /-l-LitCO, Dec:mber 28,1987 g
DgED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 DEC 29 P2 65
'Before the Atomic Safety and Licensing Board-0FFICE CF SU.rt:TArv DOCKCium s u,ivwr 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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. Unit 1)
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MOTION TO STRIKE UNAUTHORIZED PLEADING, OR, IN THE ALTERNATIVE, ANSWER TO INTERVENERS' DECEMBER 16 MOTION FOR
SUMMARY
REJECTION On October 22,1987, LILCO filed for summary disposition of the Appeal Board's
- remand of Contention 25.C, on the narrow issue of " role conflict" of school bus drivers.
LILCO's Motion for Summary Disposition of Contention 25.C (" Role Conflict" of School Bus Drivers) (October 22,1987) (hereinaf ter "LILCO's Motion"). The Interveners re-sponded to LILCO's Motion on November 13,1987 within the time specified in the regu-lations.1! ' A day earlier the Interveners argued for summary rejection of LILCO's Mo-tion, in a second, separate pleading.E Now, in a third pleading, the Interveners once again argue that the Board should reject LILCO's summary disposition motion on " role conflict" of school bus drivers.E 1/
See Answer of Suffolk County, the State of New York and the Town of Southampton to LILCO's Motion for Summary Disposition of Contention.25.C (" Role Conflict" of School Bus Drivers) (November 13,1987) (hereinaf ter " November 13 An-swer").
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See Suffolk County, State of New York, and Town of Southampton Motion for Summary Rejection of Summary Disposition Motion and for Expedited Consideration (November 12,1987) (hereinaf ter " November 12 Motion"). The Interveners did not re-quest that relief be granted pursuant to this second pleading since it was filing a sepa-rate answer to LILCO's Motion.
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See Governments' Motion for Summary Rejection of New LILCO Proposal for Im-piementing Evacuation of School Children (December 16,1987) (hereinaf ter " December
~ 16 Motion").
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l -. g Interveners' Motion presents basically the same arguments advanced in its two previous pleadings and adds another argument that they failed to include in their November 12 l
and 13 pleadings. There is nothing new about this Motion that could not have been pres-ented earlier in the Interveners' November 13 Answer. As such, the Interveners' Motion l
should be rejected outright as unauthorized and untimely.O In the alternati.ve, if the Board should entertain this additional answer to LILCO's Motion, LILCO herein offers its response to the Interveners' new pleading on school bus drivers. For the most part, the Interveners mischaracterize the substance of LILCO's summary disposition motion and distort the record by not fully presenting the Board's findings on schools. As the following sections show, the Interveners' Motion should be denied.
Interveners' Third Response to LILCO's Motion Rearrues Their Earlier Pleadinrs LILCO's Motion for Summary Disposition addresses the narrow issue remanded by the Appeal Board of whether " role conflict" would prevent enough school bus drivers from being available to evacuate school children during a Shoreham emergency. LILCO argued that, based on the existing record and the excluded evidence on the firemen's survey, the Licensing Board was correct that " role conflict" would not be a problem for school bus drivers. LILCO Motion at 5-12. In that Motion, LILCO also committed to re-cruit additional bus drivers to support a decision by the school districts and private schools to evacuate all schools in the EPZ in a single wave. I_d. at 15-17.
y LILCO was prepared to file this paper on December 22 or 23, but deferred filing in light of the Board's expectation, stated in the telephone conference of counsel on December 22, that it would issue its decision on this matter before Christmas. In view of the apparent slippage of that decision, LILCO has determined to file its response to Interveners' unauthorized pleading.
I A In their November 13 Answer and their November '12 Motion, the Inte' Tenors urged the Board to reject LILCO's Motion, claiming that its proposal to recruit addition-j al school bus drivers represented a "new plan" for implementing protective w.icas for schools. November 12 Motion at 2; November 13 Arswer at 2,30. LILCO explMned in i
its Answer to the Interveners' November 12 Motion that the schwl plan had no oeen changed; as before, "LERO would make prctective action recenmendations and the school districts would then decide whien protective action (shdtMng, early dismitsah or evacuation) to implement." LILCO's Answer to Five Recent Pleadirgs on dealisn;
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and Summary Disposition (November 27,1937) (hereinaf ter "Nacmber 27 Answer") y i
- 13. As LILCO noted, its Motion " simply maken the third alternative mder *,:'ae plan (evacuation) surer and swif ter." [d. Now the Inta vened a tempt to rearTp these two previous pleadings, stating that LILCO's Motion should be cejected because it represents
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a "new proposal for evacuating school children." December 16 Noti.on at 2,10./
q The Interveners also claim, as they did in th Jir first r.wo responses, that the re-I mand of Contention 25.C includes whether bus drivers mt' pf avaDable for early dis-af missal. December 16 Motion at 3-41113. For the third Y,'ne, tho ) rervenors ignoro C
p the record on this ic,ue even af ter LILCO traced its hbtog in its {sponsa to the Inter-
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venors' November 12 Motion. LiLCO's Noveaber 27 Answer atl'.4. Mere, LILCO tvned s
that the Appeal Board 'Jeclined to review the Lietmin B,oard's findings on,tW apil--
s ability of bus drivets for cally dismism! and thus c:d not remand the isse to the Licens-ing Board for reconsideration. Id. Even with these facts before thvn, the interveners tj y
make the same krguinent on early dismisssi udtanced in their two earlier pleadings.
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The Interveners' ntempt to teargue their idy.ver in yet another p'eading is improper. $ j, l
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The Interveners' New Mgument Should
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l Have Been Made in Their Novembeqq,@wer In addition to revisiting arguinents hade in their Nommber 12 and 13 pedings,-
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%p the Interveners have advanced a new argomem !that the record o,n Contentions 70 and s
71 must be reopWed by LILCO) that could h/1ve then raised in their November 13 An-swer. The Interveners try to cover up this impropriety by arguing that th!s new plead-ing focuses "on the scope of the substance of LILCO's oc) p oposal, particularly when
' dewed in light of this Board's prior rulings c:1 Contenuons 70 and 71.'
Decem'oer 16 Motion at 2.
Their November 13 Answer, however, shouid have /chised cn'the sub-
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stance of LILCO's proposal. The Interveners should have considered the existing record and prior decisions then and should not be permitted now to ref ashion old pleadings into
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l new in order to include an argument they f ailed to make earlier.EI
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I LILCO's Motion for liummary Disposition l
Does Not Require That The Record j
Be Reopened On Con.tentions 70 and 71 1
As noted above, LILCO's IAotion does two (nh@s: first,it demonstrates that the firemen's survey does not change the Board's conclurion on the school bus driver " role conflict" issue; and second, it presents LILCO's commitment to recrut. additional LERO j
bus drivers to eliminate any further concern about school burdrivEs and " role con-filet." The issue is a narrow one and does not involve any other contentions no matter
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how hard the Interveners my to broaden its scope.S!
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For example, tha Interveners included d chart in their December 16 Motion that compares their interpretation of LILCO's proposal to recruit additional bus drivers to
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LILCO's prior testimony on school evacuation. December 1& Motion at 11. The Inter-
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venors should have included this chart in their December 13 Answer and not in a sup-a plemental brief.
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Not only do the Interveners argue that LILCO's proposal to recruit additional btw drivers requires that the issue be reopaned as to Contentions 70 and 71, but they claim that if the record is reopened, it wou'd not bc limited to these two contentions but would raise new contentions that woad flave to be identified and litigated. Interveners' December 16 Motion at 14-15 n.14. As LILCO discusses below, there is no basis for this conclusion.
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The Interveners argue that LILCO must reopen the record on Contentions 70 and l
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71 because LILCO's proposal provides the school districts with the resources needed to implement a single-wave evacuation rather than a multiple-wave evacuation. Decem-ber 16 Motion at 1,8,10,11. The Interveners claim that the Board contemplated only a j
multiple-wave evacuation when it ruled that LILCO's plan for school evacuation was workable. Interveners' December 16 Motion at 8. Therefore, according to the Interve-
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4 nors, any proposal for a single-wave evacuation would require that LILCO reopen the record. A thorough review of the Board's ruling on Contention 71.B, however, shows that the Interve'iors' interpretation of the record is incorrect.
In ruling on Contention 71.B. the Board found that there was no reasonable as-surance that there would be enough buses to evacuate school children in approximately the same time as the general populatio's - tould be evacuated. PID, 21 NRC 644, 874 (1985). The Board was not assured by LILCO's testimony that extra buses would be made available during an emergency since LILCO did not have prior commitments for those buses. I_d. The Board concluded that this deficiency, however, could be corrected "by a showing" that multiple bus runs would be adequate or that LILCO had obtained enough buses to effect a single-wave evacuation. The Board said:
This deficiency could be corrected by a showing that multiple bus runs will accomplish evacuation of schoolchildren in ap-proximately the.same time as a general population evacuation or that LILCO has received commitments for release of buses from schools outside the EPZ, thus eliminating the need for multiple bus runs.
I_d. at 874.
Contrary to the Interveners' assertions, the Board did contemplate that a single-wave evacuation might be used to evacuate school children. In fact, the Board knew that LILCO was considering a single-wave evacuation when it noted that LILCO had l
suggested la its testimony " supplying additional buses to replace some or all of the mul-tipIChus runs." Id. at 872. Since the Board contemplated that additional buses might be J
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L l t used for the evacuation of schools,it follows that the Board must have realized that ad-1 ditional bus drivers would be needed.
It is also clear from the Board's ruling on Contentions 71.B that LILCO's proposal to use extra drivers for a single-wave evacuation does not require that the record be reopened. The Board said that all that was necessary to resolve the deficiency sur-rounding the availability of buses was a " showing" that LILCO has enough bus commit-ments to eliminate multiple runs. Id. at 874. Since additional buses require additional drivers, a " showing" that additional qualified drivers are available would also be satis-factory. The Interveners' argument that the Board has no jurisdiction to consider LILCO's proposal and that LILCO must seek to reopen the record, therefore, is without foundation.
Conclusion For the foregoing reasons, the Interveners' Motion for Summary Rejection should be stricken as an unauthorized pleading or, in the alternative, the Interveners' Motion should be denied on its merits.
Respectfully submitted, N
Jathes f(/d)(1stma/ ~ ((
Mary Jotedgers F
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 l
Dated: December 28,1987 l
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l LILCO, Dec:mber 28,1987 t
00LKETE0 thNFC CERTIFICATE OF SERVICE OFFICE CF 5 Eda iAr y 00CMEilNG & SLhvid.
BRANC.H In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of MOTION TO STRIKE UNAUTHORIZED PLEAD-ING, OR,IN THE ALTERNATIVE, ANSWER TO INTERVENERS' DECEMBER 16 MOTION FOR
SUMMARY
REJECTION were served this date upon the following by hand as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mall, postage prepaid.
James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission 513 Gilmoure Drive Washington, D.C. 20555 Siver Spring, MD 20901 Atomic Safety and Licensing Dr. Jerry R. Kline
- Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Washington, D.C. 20555 U.S. Nurdear Regulatory Commission East-West Towers, Rm. 427 George E. Johnson, Esq.
4350 East-West Hwy.
Richard G. Bachmann, Esq.
BeGesda, MD 20814 U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road Mr. Frederick J. Shon *
(to mallroom) atomic Safety and Licensing Bethesda, MD 20814 Soard U.S. Nuclear Regulatory Commission Herbert H. Brown, Esq.
East-West Towers, Rm. 430 Lawrence Coe Lanpher, Esq.
4350 East-West Hwy.
Karla J. Letsche, Esq.
Bethesda, MD 20814 Kirkpatrick & Lockhart South Lobby - 9th Floor Secretary of the Commission 1800 M Street, N.W.
Attention Docketing and Service Washington, D.C. 20036-5891 Section U.S. Nuclear Regulatory Commission Fabian G. Palomino, Esq.
1717 H Street, N.W.
Richard J. Zahnleuter, Esq.
Washington, D.C. 20555 Special Counsel to the Governor Executive Chamber Room 229 State Capitol Albany, New York 12224 t
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 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 N
MarMo rs [
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 28,1987 l
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