ML20238D149

Govts Motion for Postponement of Briefing & Consideration of Lilco Latest Realism Summary Disposition Motions Pending Issuance of Board Guidance.* Requests That Board Rule Quickly on Motion.Certificate of Svc Encl

ML20238D149
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/21/1987
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-#188-5227 OL-3, NUDOCS 8801040122
Download: ML20238D149 (10)

Text

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, 5227 00CKETED USHRC December 2N IN N OmCE Di set'M M" !

UNITED STATES OF AMERICA 00CKEhtm s SEWICL NUCLEAR REGULATORY COMMISSION BRANCH Before the Atomic Safety and Licensino Board

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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) )  !

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I GOVERNMENTS' MOTION FOR POSTPONEMENT OF BRIEFING AND CONSIDERATION OF LILCO'S LATEST " REALISM"

SUMMARY

DISPOSITION MOTIONS PENDING ISSUANCE OF BOARD GUIDANCE I

On December 18, 1987, LILCO filed yet another version of its l

motion for summary disposition of Contentions 1-10, the

" realism"/ legal authority issues. This time, it appeared in the j form of 7 separate motions, with an introductory memorandum of law, and 6 affidavits. The Governments / received these documento Saturday, December 19. LILCO's latest realism filing totals 495 pages, including attachments.2/

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

2/ At the same time, LILCO filed a 36 page motion for summary disposition of the hospital evacuation remand issues (counting affidavits and attachments).

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The purpose of this motion is to request a Board ruling that no response is required to LILCO's latest 7. motions until after I the Board has ruled upon and issued guidance concerning the already-filed voluminous and divergent views of the parties on

! the meaning of prior Board Orders, the scope of the CLI-86-13 remand, the Commission's new rule, and its impact upon this proceeding.

LILCO's motions are all based fundamentally upon LILCO's

" interpretation" of the Board's September 17 Memorandum and Order i

and the newly-amended 10 CFR S 50.47(c)(1), and on LILCO's views '

as to the scope of the CLI-86-13 remand.3/ The parties have filed extensive briefs on these matters, totalling 235 pages.

Each party has taken a different position on how the realism remand should proceed, how the new rule should impact that pro-ceeding, and the scope of the issues to be decided. Egg filings of October 30 (all parties), November 17 (all parties),

November 27 (LILCO), and November 30, 1987 (Staff, Governments).

These filings were made pursuant to the Board's orders of October 8, November 9, and November 23, and were designed to assist the Board in its determination as to the structure of this proceeding and "the impact of the new emergency planning rule on j this proceeding." Memorandum and Order, Nov. 23, 1987, at 3.

3/ This can be seen from even a quick review of LILCO's introductory memorandum of law.

4 It is our understanding that the Board requested briefs after'its issuance of the September 17 Memorandum and Order, and again after enactment of the amended rule, so that the Board could issue rulings and guidance which set the stage for further proceedings. The Board has not yet done so. It makes no sense for any party at this time to engage in further argument, brief-ings, or motions pertaining to the " realism"/ legal authority issues until this Board has (1) dealt with the extensive briefs which already have been filed; and (2) provided the parties with its views and rulings on how it intends to conduct this proceeding, how it intends to apply its September 17 Order, and how it interprets the new rule and intends to apply it in this adjudication. The filing of additional realism-related pleadings by the parties, in the absence of any indication by the Board of

.its reaction to the previous voluminous filings, could only be repetitive, duplicative, and unproductive. Even a cursory review of LILCO's 7 realism motions and its introductory memorandum of law reveals that they repeat the arguments already asserted by LILCO in its last summary disposition motion, as well as in its filings of October 30, November 17, and November 27.

The point of this motion is not to challenge LILCO's right to have filed its latest motions. The Governments' views on the inappropriateness of such filings, given the procedural posture of this case, have been stated elsewhere. And, the bulk and nature of LILCO's latest filing -- which includes among other

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things, draft versions of an entirely new revision of the LILCO Plan -- merely illustrate the points previously made about the further procedural and substantive morass such filings would create in the absence of prior threshold rulings by the Board.

The point of this motion is much more limited. The Board's November 23 Memorandum and Order can be read as suggesting that it may have been proper for LILCO to have filed its latest motions; it did not address, however, whether it would make sense for there to be responses to, or Board consideration of such motions prior to the Board's having issued rulings and guidance on the important threshold matters identified by the Board and discussed by the parties, at the Board's request, in the extensive previously filed briefs. The Governments submit that such a procedure would, in fact, make no sense whatever.

1 Once the Board has issued rulings on all the already-filed briefs, the parties will be in a position to respond to LILCO's latest motions productively and meaningfully, taking into account whatever guidance the Board provides on the meaning of its September 17 Order, the impact of the new rule, and the intended scope and structure of the remand proceeding. Indeed, issuance of such Board guidance, depending upon its nature, could well prompt LILCO to withdraw or revise its latest summary disposition motions to conform with the Board's announced views. At any rate, it certainly makes no sense for the parties either to

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0-O rehash the already-filed 235 pages of realism-related briefing or i to attempt to address LILCO's 500 page filing in a vacuum.

Without the benefit of rulings and guidance from the Board, any filing would, of necessity, have to address the differing positions of each party, repeat arguments already made at length, and otherwise be unfocused, repetitive, and an unproductive waste of resources. Moreover, such filings in the form of a response to LILCO's 500 pages of motions, would, of necessity, be extraordinarily lengthy. Postponing the filing of responses until the Board has ruled on the submitted briefs and provided the parties with some information on how it intends to conduct this proceeding, is the only sensible course of action.

For obvious reasons, given the imminence of the holidays, the Governments respectfully request that the Board rule quickly on this motion, and that it advise the parties by telephone of its ruling.1/ This motion does not present legal argument which requires lengthy responses; rather, it merely requests the Board A/ Under the NRC's rules, the Governments' responses to LILCO's 7 summary disposition motions would ordinarily be due 20 days from service of the motion, 10 CFR S 2.749(a) -- in this case, January 11, 1988. It would obviously be impossible to respond to LILCO's 7 motions within that time, given their sheer size and the host of issues that need to be addressed. In the best of  !

circumstances, a substantial time extension would be needed; with the imminent holidays and related office closings and longstanding family and other commitments of attorneys, an even more substantial extension would be necessary. The Governments will file a formal motion for an extension at the appropriate time. It is nonetheless essential that the Board first deal with the fundamental question of whether responses to LILCO's motions are appropriate at all, in advance of a Board ruling on the already submitted filings.

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to take control of this proceeding, provide some guidance, and permit the parties to expend resources in a rational and produc-tive manner. The Governments suggest, therefore, that if the Board wishes to hear from either LILCO or the Staff on the sub-ject of whether responses to LILCO's 7 motions should.be postponed pending issuance.of rulings and guidance by the Board, it should convene a telephone conference call for that purpose immediately. Undersigned counsel are available for such a conference at the Board's convenience.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788

- 3 Lawreqce Coe Lanpyer Karla J. Letschef Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County J

Fabian G. Palomino '

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

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Steppn B. Latham Y Twomey, Latham-& Shea P.O. Box 398 33 West Second Street Riverhead,.New York 11901 Attorney for the Town of Southampton o

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DOCKETQ \

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December 21, IN7 EC 28 AH ;3h UNITED STATES OF AMERICA ,OCNfik k M h'/ '

NUCLEAR REGULATORY COMMISSION BRANcy -

Before the Atomic Safety and Licensino Board l l

1

)

In the Matter of )- ,

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' MOTION FOR POST-PONEMENT OF BRIEFING AND CONSIDERATION OF LILCO'S LATEST " REALISM"

SUMMARY

DISPOSITION MOTION PENDING ISSUANCE OF BOARD GUIDANCE have been served on the following this 21st 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 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 James P. Gleason, Chairman

• William R. Cumming, Esq.*

Atomic Safety and Licensing Board- Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Dr. Jerry R. Kline* Washington, D.C. 20472 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission

' Washington, D.C. 20555

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Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq.**

Richard J. Zahleuter, Esq. Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212

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i Albany, New York 12224 )

Joel Blau, Esq. Anthony F. Earley, Jr., Esq. i Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road 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 Memorial 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.

Smithtcwn, 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 MHB 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 Edwin J. Reis, Esq.*

New York State Energy Office George E. Johnson, Esq.

Agency Building 2 U.S. Nuclear Regulatory Comm.

Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 1

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t David A. Brownlee, Esq. Mr. Stuart Diamond j l Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES 15222 Pittsburgh, Pennsylvania .229 W. 43rd Street l New York, New York 10036 '

Douglas J. Hynes, Councilman Mr. Philip McIntire l

Town Board-of Oyster Bay Federal Emergency Management Town Hall . Agency l Oyster Bay, New York 11771 26 Federal Plaza

) New York, New York 10278 l

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• By Hand

• • By Telecopy Ka41a J. Letschp _

KIRKPATRICK & WCKHART 1800 M Street, N.W.

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

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