ML20205K452

Fundamental Flaw Definition.* Requests That Aslab Provide Opinion on Required Exercise Scope to Assist in Design of Exercise as Appeal Board Did for June 1988 Exercise.W/ Certificate of Svc

ML20205K452
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/26/1988
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Johnson W, Kohl C, Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#488-7381 ALAB-900, ALAB-902, LBP-88-02, LBP-88-2, OL-5, NUDOCS 8811010153
Download: ML20205K452 (4)

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..a BY TELECOPY Christine N. Kohl, Esquire Alan S. Rosenthal. Esquire Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. NLclear Regulatory Commission Fif th Floor (North Tower)

East-West Towers 4350 East-West Highway Bethesda, Maryland 20814 Docket 50-322-02-5: "Fundamental Flaw" Definition

Dear Members of the Appeal Board:

At the September 14 oral argument on LILCO's appeal from the Licensing Boart' decision on the conduct of the February 1986 Shoreham exercise, LBP-88-2, 27 NRC 85 (February 2,1988), the Appeal Board raised the issue of whether the 1986 exercise was moot. Counsel for LILCO noted then that in the event of !!tigation on the June 7-91988 exercise, having a settled definition of a "fundamental flaw" ~ an issue treated at some 'ength in LBP-88-2 and on appeal

- could be of material value to the parties. Tr. 5 (McCleskey). The Appeal Board seemed to accept that proposition. M. (Judge Rosenthal), LILCO counsel j

also noted the apparent imminence of such : litigation and the value cf promptness in a decision. Tr. 5-6 (McCleskey).

Litigatinn on tne 1988 exercise is already underway. ALAB-901,28 NRC

_. (September 20,1988); ALAD-9n2, 28 NRC _ (October 9,1988). As permitted by the "OL-5" Licensing Board's most recent scheduling order, issued October 12, Intervenors filed 103 pastes of contentions on ih? 1988 exercise on Oct@r ?4; it! COs respones to those cc..tMtions are due Thursday, November 3.1.1LCC4 ability to detenine.< nether a cuatenWn u..ed pinded - JA,, whether it alleges matters which, if proven, could amount to a "fundamental flaw" - could l

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n HUNTON Oc WILLI AM S Page Two October 26,1988 be materially aided by the availability of an authoritative definition of that term from the Appeal Board. Egg CU-86-11,23 NRC 577,581(1986).

Under similar circumstances last spring, with the imminent approach of the June exercise, the Appeal Board issued a summary, unpublished $aA* on required exercise scope whleh reasonably presaged its definitive later full opinion in ALAB-900, and was of assistance in design of the exercise.

l Memorandum, May 25, 1988. If the Appeal Board is now in a position to issue comparable guidance sufficiently in advance of ULCO's November 3 response deadline, that guldsnee might permit more definitive Licensing Board rulings on the bitial admianihility of contentions, and thus contribute to the efficioney of this litigation from the outset.1/ ULCO accordingly requests that the Appeal Board issue such guidance now if it is in a position to do so.

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R pectfully

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Donald P. Irwin One of Counselior Long Island Ughting company cc:

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In the event the Appsal board rsnders its d4dston too late to la of M in

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responding to initial contentions, ULCO w!!! factor it appropriately into subsequent pleadings.

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LILCO, October 26,1988 CJRTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-5 I hereby certify that copies of letter from Donald P. Irwin to the Appeal Board were served this date upon the following by telecopy as indicated by two asterisks, by Federel Express as indicated by one asterisk, or by first-class mail, postage prepaid.

Christine N. Kohl, Chairman "

John H. Frye, HI, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Re2ulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor East-West Towers East-West Towers 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Alan S. Rosenthal, Esq."

Dr. Oscar H. Paris Atomic F.afety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor East-West Towers East-West Towers 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Mr. Frederick J. Shon Mr. Howard A. Wilber**

Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers Fif th Floor 4350 East-West Highway East-West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 James P. Gleason, Chairman Atomic Safety and Licensing Board B. Paul Cotter, Jr.

513 Gilmoure Drive Chief Administrative Judge Silver Spring, Maryland 20901 Atomic Safety and Licensing Board Panel Dr. Jerry R. Kline U.S. Nuclear Hegulatory Commission Atomic Safety and Licensing East-West Towers Board 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers 4350 East-West Highway Dr. W. Itaed JohnFOne Bethewim, MD 20814 Atomic Safety anu Licensing Appeal Board Secretary of the Commission U.S. Nuclear Regulatory Commission Attention Docketing and Service 115 Falcon Drive, Colhurst Section Charlottesville VA 22901 U.S. Nuclear Regulatory Cor.1 mission 1717 H Street, N.W.

Washington, D.C. 20555 l

Atomic Safety and Licensing Mr. Jay Duakleberger Appeal Bosni Panel New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building 2 Washington, D.C. 20555 Empire Stato Plaza Albany, New York 12223 Adjudicatory File Stephen B. Latham, Esq.

• I Atomic Safety and Licensing Twomey, Latham & Shea Board Pane! Docket 33 West Second Street U.S. Nuclear Regulatory Commission D.O. Box 298 Washington, D.C. 20555 Riverhead, New York 11901 Edwin J. Reis, Esq. **

Mr. Philip McIntiru U.S. Nuclear Regulatory Commission Federal Emergency Management One White Flint North Agency 11555 Rockville Pike 26 Federal Plaza Rockville, MD 20852 New York, New York 10278 Herbert H. Brown, Esq. **

Jonathan D. Feinberg, Esq.

i Lawrence Coe Lanpher, Esq.

New York State Department of Xarla J. Letsche, Esq.

Public Service, Staff Counsel Kirkpatrick & Lockhart Three Rockefeller Plaza South Lobby - 9th Floor Albany, New York 12223 4

l'300 M Street, N.W.

Washington, D.C. 20036-5891 Ms. Nora Bredes Executive Coordinator Fabian G. Palomino, Esq. **

Shoreham Opponents' Coalition l

Richard J. Zahnleuter, Esq.

195 East Main Street i

Special Counsel to the Governor Smithtown, New York 11787 Executive Chamber l

Room 229 Evan A. Davis, Esq.

i State Capitol Counsel to the Governor Albany, New York 12224 Executive Chamber State Capitol Alfred L. Nardelli, Esq.

Albany, New York 12224 Asslatant Attorney General 1

120 Broadway E. Thomas Boyle, Esq.

l Room 3-118 Suffolk County Attorney New York, New York 10271 Building 158 North County Complex Veterans Memorial Highway George W. Watson, Esq.

• Hauppauge, New York 11788 William R. Cumming Esq.

l Federal Emergency Management Dr. Monroe Schneider Agency North Shore Committee 500 C Street, S.W., Room 840 P.O. Box 231 Washington, D.C. 20472 Wading River, N 11792 k

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Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 26,1988

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