ML20238F288

Lilco Views on Priority of Remaining Issues Before Board.* Util Urges Board to Request Separate Board for 25% Power Issue & to Decide Reception Ctrs Issue on already- Established Schedule.W/Certificate of Svc

ML20238F288
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/11/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4371 ALAB-832, ALAB-847, ALAB-855, CLI-86-13, CLI-87-05, CLI-87-5, OL-3, NUDOCS 8709160059
Download: ML20238F288 (8)

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q LILCO, Sept:mber 11,1987

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 SEP 14 P4 :02

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Before the Atomic Safety and Licensinst Board  !

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) )

LILCO'S VIEWS ON THE PRIORITY OF THE REMAINING ISSUES BEFORE THE BOARD

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In its " Notice to the Parties" of . August 31, 1987, tIIe Board asked the parties' views on the various matters before it. The Notice points out that the Board has pend-ing on its docket the remands in CLI-86-13, CLI-87-05, ALAB-832, and ALAB-847, as well as LILCO's Second Renewed Motion for Summary Disposition of the " Legal Author-

. ity" Issues Contentions EP 1-10) and a related LILCO motion for leave to file a reply, l plus LILCO's request for approval to operate Shoreham at 25 percent power. The No- ,

I tice asks asked for the parties' views as follows:

In order to be able to timely consider the matters pending before this Board, we are requesting the views of the parties on prioritizing the docketed matters, whether there is a need to assign discrete issues to another Board, and if so, to I identify the issues that can be assigned; and whether the pro- )

visions of 10 C.F.R. 2.722 can be usefully employed.

Notice to the Parties, at 2 (August 31,1987). The Board asked for the comments of the  ;

parties by September 14, 1987, and provided that responses may be filed by September 21,1987.

j 8709160059 B70911 PDR ADOCK 05000322 0 PDR 3s0

t c L The Priorities to be Given to the Various Issues The Board has the following issues before it:

1. The Reception Center issues (ALAB-832, ALAB-847, ALAB-855)

2. The " Legal Authority" issues, including " Realism" and " Immateriality" (CLI-86*13) l

3. The School Bus Drivers Availability issue (ALAB-832)

4. Contention 92, the " Absence of State Plan" issue (ALAB-847)

5. The Emergency Broadcast System (TBS) issue (a subpart of the Realism issue) (CLI-87-05)

6. The 25 percent power issue (LILCO's application)

All of the thst five of these six issues need to be decided before a full power license can be issued. The sixth, the 25 percent power issue, is also pressing: power shortages on Long Island may occur as soon as the weather turns warm again, beginning next May or June. From the applicant's point of view, then, all of the issues are pressing, and so LILCO has no basis for assigning priorities based on urgency. There is, however, a basis for assigning priorities based on the relationships of the issues and the most logical way to go about deciding them. By " priorities" here we mean simply an order for addressing the issues; in truth, all of them need to be decided as soon as possible.

In the first place, there is a distinction between the first five issues (the remand issues) and the 25 percent power issue. As LILCO has already said, it believes that this 1

Board should decide the five remand issues and that another Board should be assigned to decide the 25 percent power issue.

As for how the five remand issues should be decided, LILCO proposes the follow-ing. First, the Reception Center issues are already on a schedule, with the last pleading due October 1. Of the remaining remand issues, the Legal Authority issues, the State Plan issue, and the EBS issue are all of one piece. The Appeal Board's remand of Con-tention 92 makes it clear that the Board is to reconsider the issue in light of the I

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Commission's " Realism" decision, CLI-86-13, and today LILCO is filing its views on the proper resolution of Contention 92. The EBS issue is also related to the realism issue.

Indeed, by the terms of LILCO's motion for summary disposition of the Realism issue, j information is already before the Board sufficient to decide the EBS issue. That is, the Realism motion relles on the existing State EBS and on LILCO's plan to secure permis-sion from the authorities to use it. See LILCO's Second Renewed Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP 1-10), at 11-16 (Mar. 20, 1987).

The Board should be aware, however, that LILCO has nearly completed arrange-ments for a supplementary EBS. LILCO plans to provide the information about this sys-l tem to the Board and parties by October 1,1987. Accordingly, LILCO urges the Board to consider this soon-to-be-filed information, and responses by the other parties, and then to decide the Legal Authority, the State Plan, and the EBS issues together. In LILCO's view the Board's decision should resolve all three issues in LILCO's favor on the pleadings. But if the Board concludes otherwise, then it should resolve those issues that can be summarily disposed of and specify what issues, if any, remain for hearing.II This Board should retain jurisdiction over any such hearing.

The School Bus Driver issue is different from the other remand issues in that it is not as closely connected to the " Realism" issue. In LILCO's view the School Bus Driver issue can be resolved quickly by simply taking into account the evidence that the Ap-peal Board ordered to be heard. However, since this appears to be the last issue that may delay the issuance of a full power license, LILCO is considering measures to in-crease the assurance of availability of bus drivers in an emergency. LILCO hopes to 1/ It may or may not be necessary to have a hearing on the " Immateriality" issue. If a hearing is necessary, then it should be part of the same hearing that addresses the othe eemand issues.

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W t advise the Board of these measures, if any, by October 1,1987. Upon receiving that in--

formation, and responses from the other parties, LILCO believes that the Board will be in a position to resolve the School Bus Driver issue. 'If any issues of school bus driver availability are deemed to deserve a hearing, it should be made part of the hearing, if any, on the Legs 1 Autnority and EBS issues.

, In short, LILCO believes that the Board should decide the Reception Center 1s-1 sues on the schedule already established; should decide the Legal Authority issues, the

, State Plan issue, and the hBS issue as soon as LILCO supplies the additionalinformation n

y it plans to provide by' October 1 and the other parties have responded; and should re-M

^ solve the Senool' Bus Driver Availability issue as soon as its schedule permits af ter

,>7 , resolving the other issues.1 If dhearing is necessaty, all remaining f actual issues should

! be included in it. > '

s IL Who Should Decide i

As has been indicated above, LILCO believes that this Board should decide the i i remand issues itself. It'Delieves that a separate Board should be appointed to decide the 25 gercent power issue. As LILCO said in its motion to appoint a Board for the 25 per-cent k:'aes, those issues are consideraMy d!fferent from, and relatively unrelated to, the other issues.

f The Board has acred whether the provisions of 10 CFR S 2.722, authorizing the use of "special assntants" to the presiding officer, can be usefully employed. LILCO's answer is the special assistants may prove helpful, depending -on the exact nature of the issues to be heard. In particular, S 2.722(a)(2) provides that; j such special assistants may function as:

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i (2) Upon consent of all the partjes, Special Masters m L + hear evident!ary por,entations by 'thu parties on specific 1y wchnical (netters, and, upon coinpletion of the presentation L of evdence, to prepare a report that would become part of b 2

>,- ~5-the record. . . . Special Masters' reports are advisory only; the presiding officer shall retain final authority with respect to the issues heard by the Special Master; . . .

10 CFR S 2.722(a)(2) (1987).-

LILCO does not believe that further evidentiary hearings will be necessary on the remand issues, because it believes that the issues are susceptible of summary dispo-

. sition'as a means of expediting closure of the remaining issues in this docket, which has now been in process some four and a half years. However, in the event that the Board

.does identify certain specific issues that deserve hearing, then LILCO believes that the use of one or more Special Masters to hear certain issues as they become defined might be desirable.

Of the remaining remand issues, it appears preliminarily that several could bene-fit from the use of a Special Master, assuming a hearing were to be held. The School Bus Drivers Availability issue is a narrow issue that could be heard by a Special Master.

The State Plan issue requires no further evidence. The EBS issue is, again, a fairly nar-row issue, and one with which f amiliarity with the past record would not be particularly .

helpful; the issue with respect to the EBS earlier in this proceeding was simply whether WALK could broadcast at night, and the record on the issue is a relatively short one.

LILCO . doubts that the other forms of special assistance provided under S 2.722 - technical interrogators, consultants, and the like -- will prove necessary or would expedite completion of this proceeding.

One other procedure available to the Board that might be beneficial, however, is

'the use of " evidentiary depositions," initially proposed by the Brenner Board in the onsite portion of this proceeding in 1982 and upheld by the Appeal Board. ALAB-788, 20 NRC 1102,1178 (1984).E This technique is designed to economize on actual hearing l

2/ Suffolk County, at that point the only active intervenor on emergency planning matters, refused to participate in proceedings using evidentiary depositions and was held in default by the Board. ALAB-788,20 NRC 1102,1177 (1984).

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• . time by having the parties assemble and condense the record, including prefiled written testimony, answers to questions on it, and evidentiary motions, for an abbreviated hear-ing, upon review of those submissions, by the Board itself.

III. Summary in summary, LILCO urges the Board to (1) request a separate Board for the 25 percent power issue; (2) decide the reception centers issue on the already-established schedule; (3) decide the Legal Authority (Realism), State Plan, and EBS issues together as soon as its workload permits; and (4) decide the school bus driver availability issue as soon af ter that as its workload permits. To the extent that the Board identifies specific litigable issues still remaining, focusing and expediting techniques, such as the use of Special Masters or evidentiary depositions, should be employed.

Respectfully submitted,

@rMA4L - "

Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 11,1987

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, . LILCO, S:ptember 11,1987 g mm' t ;< W .

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!. '87 SEP 14 P4':02 CERTIFICATE OF SERVICE

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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 LILCO'S VIEWS ON THE PRIORITY OF THE RE-MAINING ISSUES BEFORE THE BOARD were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mail, postage prepaid.

Morton B. Margulies, Chairman ** Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy. Atomic Safety and Licensing Bethesda, MD : 20814 Board Panel U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline ** Washington, D.C. 20555

. Atomic Safety and Licensing Board Richard G. Bachmann, Esq. **

U.S. Nuclear Regulatory Commission George E. Johnson, Esq.

East-West Towers, Rm. 427 U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 7735 Old Georgetown Road Bethesda, MD 20814 (to mallroom)

Bethesda, MD 20814 Mr. Frederick J. Shon **

Atomic Safety and Licensing Herbert H. Brown, Esq. **

Board Lawrence Coe Lanpher, Esq. i' U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.

East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy. South Lobby - 9th Floor Bethesda, MD 20814 1800 M Street, N.W.

Washington, D.C. 20036-5891 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq. **

Section Richard J. Zahnleuter, Esq.

U.S. Nuclear Regulatory Commission Special Counsel to the Governor 17t7 H Street, N.W. Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224

i Mary Gundrum, Esq. Jonathan D. Feinberg, Esq. .

Assistant Attorney General New York State Department of 120 Bmadway 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

' Empim 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 1

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James N. Christman i

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 11,1987

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