ML20239A619
| ML20239A619 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/14/1987 |
| From: | Lanpher L, Latham S, 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-#387-4395 OL-3, NUDOCS 8709180009 | |
| Download: ML20239A619 (16) | |
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'87 SEP 16 P1 Motember 14, 1987 I
t UNITED STAT 5 OFIAMERICA NUCLEAR REGULA[Td(RYE ; COMMISSION l Before the Atomic S'afety and Licensina 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) )
)
RESPONSE OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON TO AUGUST 31, 1987, LICENSING BOARD NOTICE By Notice to the Parties dated August 31, 1987, the Licensing Board requested the parties' views on prioritizing docketed matters, whether there is a need to assign issues to another Board, and whether the provisions of 10 CFR S 2.722 can be usefully employed. The preliminary views of Suffolk County, the State of New York, and the Town of Southampton (hereafter, the
" Governments") on those subjects are set forth below. As the Board provided, responses to the views of the other parties, should they differ from those expressed below, will be filed on September 21, 1987.
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1 I. Prioritizino Docketed Matters In the Notice, the Board identified the docketed matters as the remands in CLI-86-13, CLI-87-05, ALAB-832 and ALAB-847, LILCO's Second Renewed Motion for Summary Disposition of Legal Authority Issues, and the related LILCO Motion for leave to file a reply. In addition, the Board acknowledged the Commission's August 13 Order referring to the Board LILCO's Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request, relating to LILCO's Motion for Authorization to Increase Power to 25%. Finally, the Board indicated that while awaiting post hearing briefs on the reception center issues, it is considering the pending LILCO motions relating to the legal authority issues.
The Governments believe that the Board's first priority
.should be, as implied in the Notice, a decision on the reception center issues, since they will soon be fully briefed and ready for decision. Following that, the Board should next take up LILCO's summary disposition motion on the legal authority issues, since that, too, is fully briefed and ready for decision. Then the remanded matters, followed by the motions relating to operation at 25% power, should be considered. The rationale for this prioritization is as follows.
First, it makes sense for the Board to complete its I
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deliberations on'the' reception-center issues while the trial and the' parties' briefing are fresh in mind. In addition,-the issues involved are relatively discrete,.and they can and should be-wrapped up before the parties and the Board embark upon new, different or' unrelated matters'or' proceedings. Furthermore, a
' decision in-the Governments' favor on the. reception center issues
-- which, in the Governments' view,'is required by the trial
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record -- would be. dispositive of the case as a whole, since it would result in a finding that LILCO does not comply with NRC
- regulatory requirements and thus cannot tua granted a license to operate Shoreham-above 5% power. Therefore, the Board should make
'the issuance ~of a decisionson the reception center issues its first' priority. <
LILCO's summary d?sposition motion should be the Board's 1'
second priority because it is also ready for decision, and, apparently, the Board has already begun to consider it. Further, it is logical to. dispose of it before moving on to consider the other docketed matters or the motions relating to 25% power operation, because it, too, is potentially dispositive of the entire case. In addition, the CLI-86-13 remand (and perhaps other remanded issues) and the 25% power motions rely centrally upon matters raised by the summary disposition motion; therefore, a decision on that motion is a prerequisite to decisions on the other docketed matters.
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Specifically, as noted in the Governments' Answer to LILCO's summary disposition motion,l/ that motion is ripe for denial for several reasons, and it should be disposed of expeditiously, so other matters can be addressed.2/ Indeed, the Governments have urged that LILCO's acknowledged lack of legal authority requires summary disposition as a matter of' law in favor of the' Governments on Contentions 1-10, and such a ruling would end this case.since it would bar the issuance of a license. Although LILCO attempts to' characterize its motion as a follow-up to the Commission's remand in CLI-86-13, and, indeed, the general subject matter of LILCO's " realism" argument -- that is, the concept of some kind of ad' hoc, government response to a Shoreham accident -- is discussed 1./ See Answer of Suffolk County, the State of New York and the l Town of Southampton to "LILCO's Second Renewed Motion for Summary l Disposition of the ' Legal Authority' Issues (Contentions EP l-10)," filed May 11, 1987.
2/ .First,.LILCO's acknowledged lack of legal authority actually requires-summary disposition as a matter of law in favor of the Governments on the issues raised in Contentions 1-10. Second, LILCO's motion should be denied because it offers no new arguments on the legal authority or so-called " realism" issues raised in Contentions 1 - 10, and this Board, the Appeal Board, the Commission, and the New York courts have already rejected LILCO's realism'and legal authority arguments. Third, the motion should be denied because it seeks a result inconsistent with Cuomo v.
Lona Island Lichtina Comoany, Consol. Index No. 84-4615 (N.Y. Sup.
Ct., slip op., Feb 20, 1985), aff'd, 511 N.Y.S. 2d 867 (1987),
acoeal oendina. Fourth, the motion should be denied because it is inconsistent with the Commission's rulings in CLI-86-13. Fifth, the motion must be denied because the record before the Board is devoid of evidence which would permit the findings of fact sought by LILCO on.the issues raised in Contentions 1-10. And sixth, the motion must be-denied because there are genuine issues of material fact raised by the LILCO motion. All these matters are discussed in detail in the Answer of Suffolk County, the State of New York and the Town of Southampton to "LILCO's Second renewed L Motion for' Summary Disposition of the ' Legal Authority' Issues (Contentions EP 1-10)," and will not be repeated here.
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% t L 1 in both the motion and'CLI-86-13[ in fact, as demonstrated in the Governments' May ll. Answer, LILCO's Motion misconstrues, distorts,-
and' conflicts:with the Commission's holding in CLI-86-13. 1 Therefore,; disposition of the Motion is also a prerequisite to proceeding 1with the.CLI-86i13 remand, assuming arouendo that the q t
Board rejects the Governments' pcsition that the Board should rule
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with finality for'the Governments on Contentions 1-10. After the' t
LILCO Motion has been denied, the remand issues raised by CLI 13 can be appropriately addressed, once those issues have been defined through the normal procedures involvino conferences and briefings among the Board and parties. -!
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Among the'other docketed matters, and following decisions on l the reception center issues and the summary disposition motion, the CLI-86-13 remand should logically beltaken up next'(again 1 assuming the Board does not rule dispositively in the' Governments' favor on Contentions 1-10), because in the Governments' view it can be dealt with largely as a matter of law, and it, too, is dispositive of the proceeding.. The Governments' view on the 1
matter is well-known: under the NRC's regulations, a speculative, )
uncoordinated, unplanned and ad hoc response to an emergency by governments and personnel who have not planned or trained for such response, cannot, as a matter of law, provide the basis for the reasonable assurance finding required by 10 CFR S 50.47. No i
amount of speculation or "what ifs" can change that conclusion. i Thus, even in light of the "best effort" ad hoc Government
response assumption postulated in CLI-86-13, there can be no basis for the finding necessary to permit issuance of a license for Shoreham. A ruling for the Governments on this threshold I dispositive legal issue raised by the CLI-86-13 remand would finally end this proceeding.
Furthermore, even if the threshold CLI-86-13 legal issue were to be decided against the Governments, ptoceeding on the factual issues identified by the Commission in CLI-86-13 and raised by the "best effort" assumption 3/ should also take priority over the other docketed matters. This, again, is because the issue involved -- could an ad hoc response satisfy the regulatory requirements -- is dispositive, in that a decision favorable to the Governments would require license denial. It would make no sense to have litigation on the emergency planning issues which have been remanded, or on new, first of their kind, 25% power issues, prior to dealing with the dispositive ad hoc response issue. Thus, for example, there would be no point in litigating whether there are a sufficient number of school bus drivers available to evacuate school children (one of the ALAB-832 remanded issues) if evacuation itself is not a viable protective action under the ad hoc response assumption (one of the CLI-86-13 issues) or if there is no assurance that an evacuation decision could be made or implemented to provide adequate protection to the public, a matter also raised by the CLI-86-13 remand. Thus, the t
3/ The Governments' Answer to .he LILCO summary disposition motion discusses these issues at length.
7 CLI-86-13' remand should proceed before the other emergency
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planning remands.
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Similarly, as explained in the Governments' response to LILCO's motions relating to 25% power operationd/, LILCO's 25%
power request is premised upon, and assumes a ruling in LILCO's favor on, the legal authority and " realism" issues raised in the summary disposition motion and CLI-86-13. It is also fundamentally rooted upon LILCO's allegation that various deficiencies in its Plan, including those covered by the various docketed remands, are not significant.5/ Thus, there is literally no way that the 25% power issues can be addressed prior to decisions on the realism, legal authority, and remanded factual issues upon which the 25% power request is premised. Accordingly, in prioritizing the docketed matters before this Board, the 25%
power matters must await decisions on the romanded emergency planning issues which underlie, and form the fundamental premise of, LILCO's 25% pover request.6/
A/ Egg Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request, de" d July 27, 1987, at 12-13.
5/ Id. at 10-12.
5/ In addition, as stated in the Governments' Response to LILCO's motion for designation of a licensing board, it is not appropriate to deal with the merits of the 25% power request in any event.
That request is a blatant attack on the regulations. It seeks unprecedented authority to operate Shoreham in violation of NRC regulations, without even acknowledging the need for, much less demonstrating entitlement to, an exemption. Thus, before the merits of that request can be addressed, the threshold issues (footnote continued)
II. Whether There Is a Need to Assion Issues to Another Board The Governments' view on "whether there is a need to assign discrete issues to another Board," is simple. There is no such "need," and to do so would be inappropriate and improper.
First, all the docketed matters are directly related to emergency planning issues with which this Board has been dealing for several years.1/ The members of this Board are familiar with the LILCO Plan, the complex factual, legal and procedural history and background of the proceeding, the factual and legal issues involved in the docketed matters, their interrelationships and their ramifications. Thus, this Board has the experience, and knowledge necessary to address the docketed matters in the most efficient and productive manner.
Second, as noted in Section I above, the docketed matters can and should be handled seriatim, not simultaneously by different decisionmakers, because they build upon each other and they are inextricably intertwined. To assign some matters to one (footnote continued from previous page) involving the procedural and substantive propriety of the request must be addressed. See also NRC Staff Response to LILCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LILCO's 25% Power Request, dated July 29, 1987.
1/ This is true with respect to the LILCO motions relating to 25%
power operation as well, for the reasons set forth in the Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule ors LILCO's 25% Power Request, July 27, 1987. See that filing for details.
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l adjudicator, while other related issues are simultaneously being i handled by another, would lead to inconsistent results, and repetitive, wasteful, and potentially unnecessary litigation. It would also lead to large, potentially unnecessary expenditures of resources, and major scheduling and logistical difficulties among attorneys, parties, technical experts, and witnesses. In addition, such an arrangement would be counterproductive in that it would make even more unmanageable a proceeding which has already become a procedural nightmare, as a result of the numerous and bifurcated trials, appeals, remands, Commission actions, motions, and piecemeal license requests. It would only make this procedural situation even worse, if the interdependent matters now on this Board's docket were split up and assigned to more than one Board.
Third, no one has offered any legitimate justification or "need" for separating the related issues now before this Board nor, in the Governments' view, is there any such justification.
For the reasons already stated, the only sensible course in this proceeding is for this Board to continue to address, in a logical order, the issues with which it has become intimately familiar. l If the prioritization suggested by the Governments is followed, those issues which are potentially dispositive will be addressed
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first., thus maximizing the potential for an expedited and !
I efficient end to this proceeding. In addition, following the order suggested by the Governments will eliminate the possibility i
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4 of inconsistent decisions and repetitive, redundant, or unnecessary litigation.
III. Employment of the Provisions of 10 CFR S 2.722 The Governments believe that the Board's inquiry concerning rne possibility of employing the procedures in Section 2.722 is premature, and not amenable to meaningful response at this time.
Until particular issues and the nature of proceedings on them have been identified and defined, and the Board has provided some indication of which of the Section 2.722 provisions (in particular, Section 2.722(a)(1), (2), and/or (3)) it would even consider using, and how, it is not possible to address the matter in any meaningful way. It is certainly not possible to indicate any consent to their use in a vacuum.
As a general matter, however, in light of what it now appears that the docketed matters will involve, it is the Governments' preliminary view that the Section 2.722 procedures are not likely to be useful or appropriate in dealing with the docketed matters.
While this view may change when presented with a concrete proposal by the Board concerning a specific proceeding on particular issues, the basis for this view is as follows.
In general, the Section 2.722 procedures are designed to deal with fact intensive and complex technical issues, as to which
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Board members lack specific expertise. They are also designed for use in detailed evidentiary hearings on such complex technical issues. With one possible exception, none of the issues involved
'in the docketed matters are of that nature. Indeed, as explained l above,.most are not even factual in nature; they are primarily 1
legal, and therefore totally inappropriate for special master or 1
technical interrogator procedures such as those in Section 2.722.
l Those factual issues which may remain to be resolved after threshold legal issues have been decided are of the type with which this Board has dealt during the past several years. There i is no basis to bring in new people, unfamiliar with the extensive
' factual, procedural and legal background of this case to perform the job which this Bcard has already shown itself to be capable of performing.
As to the one'possible exception, consisting of certain technical matters raised in LILCO's 25% power request, it is plainly premature to discuss the possibility of using one of the Section 2.722 procedures in dealing with them. As noted above and in the Governments' July 27 Response to LILCO's Motion for a new Licensing Board, many threshold legal and procedural issues must be briefed and decided before any of the substantive technical issues discussed by LILCO can properly be addressed, even preliminarily; and, the other docketed emergency planning issues must also be disposed of before the merits of the 25% power l
request can be properly or meaningfully handled. Furthermore, in i l
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light of'the technical expertise possessed by the members of this Board, there.is no basis for believing that whatever technical matters ultimately may be involved in deciding the 25% power request -- assuming.it ever becomes proper to address the merits:
L of that request -- cannot be understood and decided by'the R
i existing Board.
Respectfully submitted, Martin BradleycAshare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788' l .f V
' Herbert H. Brown "
Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 i
Attorneys for Suffolk County
/C k .S Fabian G. Palomino ff 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 h- ___.--._.._________-m____..__m...__.
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Latham . .
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Twomey,'Latham &.Shea
'P.O. Box.398 33 West Second Street Riverhead, New York 11901 Attorney.for the Town of Southampton 4'
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September 14, 1987
'87 SEP 16 P1 :38 UNITED STATES OF AMERICA HUCLEAR REGULATORY COMMISSION f.j;
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ERf2re the Atomic Safety and Licensino Board
)
In the Matter of )
)
LONG ISLAND LICHTING COMPANY ) Docket No. 50-322-OL-3 l ) (Emergency Planning)
( (Shoreham Nuclear Power Station, )
l Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON TO AUGUST 31, 1987, LICENSING BOARD NOTICE have been served on the following this 14th day of September 1987 by U.S. mail, first class, except as otherwise noted.
Morton B. Margulies, Esq., Chairman
- Mr. Frederick J. Shon*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington D.C. 20555 Dr. Jerry R. Kline* 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 Washington, D.C. 20472
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 Albany, New York 12224 Joel Blau, Esq. Anthony F. Earley, Jr., Esq.
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 l Martin Bradley Ashare, Esq. Ms. Elisabeth Talbbi, 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, Nes: 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 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 Richard G. Bachmann, Esq.*
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Office of General Counsel Empire State Plaza Washington, D.C. 20555 Albany, New York 12223
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David A. Brownlue, 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 Douglas J. Hynes, Councilman Tc"n Board of Oyster Bay Tcwn Hall Oyster Bay, New York 11771
% W M Lawrence Coe Lanpher pf' KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 By Hand By Federal Express