ML20080J579

Response Opposing Suffolk County 840208 Motion to Change Schedule.W/Certificate of Svc

ML20080J579
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/09/1984
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8402150110
Download: ML20080J579 (8)

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, LILCO, February 9, 1984 DOCgt.1E0 utt,RC UNITED STATES OF AMERICA .g4 gg 14 A.9 50 NUCLEAR REGULATORY COMMISSION fTit YL 3 RANCH Before the Atomic Safety and Licensing Board In the Matter of )

)

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

) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO'S OPPOSITION TO SUFFOLK COUNTY'S MOTION TO CHANGE SCHEDULE A

LILCO opposes Suffolk County's February 8, 1984 " Motion to Change Schedule. The County cites two basic reasons for its change: the latest delay in EEMA'a proposed completion date for its RAC review and, consequently, in filing its testimony, and an undefined notion of " fundamental fairness" that requires, in the County'a view, that all parties file their

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testimony at the same time.

l Neither argument cupports the County's requested relief, l FEMA's latest estimated date for completion of the RAC review-is exactly that: at least the third, and perhaps the fourth, estimated date in a review originally slated for completetion last December 1. Experience also shows that FEMA's estimates may change on short notice: the current estimate, delivered by letter on February 1, altered the previous target date for pho OCS

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. completion (February 7) by three weeks, less than one week from the then-estimated target date, and less than a week after FEMA had affirmed the February 7 target date on the record (Tr.

3639, January 27, 1984). This is not to criticize FEMA for taking as long as it realistically needs in order to finish its work. It is merely to say that there can be no guarantee now, any more than there was last fall, that March 1 is a firm date.

i Similar uncertainty surrounds any estimate of the filing date of FEMA's testimony. Suffolk County's counsel allegec that, on the basis of telephone conversations with FEMA's coun-sel, FEMA could have its testimonf prepared two weeks after a March 1 RAC review completion. FEMA': on-the-record position has always been that it would require three weeks to prepare its own direct testimony after completion of the RAC review.

There is thus uncertainty about how long FEMA will need to pre-pare its testimony piled on top of the uncertainty of the com-pletion date for the RAC review. To predicate a definite schedule slippage, as the County now proposes, on the twin assumptions of (1) completion of the RAC review by.a date cer-tain and (2) a truncated, off-the-record estimate by FEMA of its testimony completion date, is to assume certainty on the timing of two events which the course of this proceeding to date has repeatedly demonstrated to be uncertain.

The County's argument is, in essence, that this proceeding should be paced by the FEMA review. LILCO has never accepted

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this premise; nor, to its knowledge, has any party other than Suffolk County. Nor has the Board. Its October 26, 1983 Order reflected the specific proposition that the pace of the pro-caedings would not be determined by the pace of the RAC review.

Order Establishing Revised Schedule, October 26, 1983, at 2.

Then nearly a month later, when the completion date of the RAC ,

review had slipped from December 1 to February 1, the Board stated:

The impact of this extension upon the sched-ule for this case is uncertain. The Board wishes to hear the views of all parties con-cerning the NRC Staff action granting to FEMA the 60 day delay requested. However, the partice are advised that if they intend to request a delay in the scheduling of Group II issues, they must be prepared to show why each particular contention cannot be heard on the present schedule absent the FEMA RAC review. [ Emphasis supplied).

Order Establishing Supplemental Agenda for Conference of Coun-

, sel, November 18, 1983, at 5. The parties have been on notice of this standard ever since. The County, however, has made no attempt to meet this standard, asserting nothing more specific than that "the FEMA witnesses will contribute the bulk of the Staff's testimony on Group II issues" (Motion at 3) and that if it is not able to rebut the FEMA filings in direct testimony it will have to seek leave to do so in supplemental or rebuttal testimony (Motion at 4, note 4). Nowhere does the County al-lege that the pendency of the RAC review damages its ability to n - l- ' - -

. file testimony on the Shoreham Emergency Plan in accordance with the propositions set forth in its contentions. Still less does the County less itemize any contentions as to which that ability is impaired. In short, the County has failed to sup-port its argument for a FEMA-related delay on the grounds that this Board has made clear are required. The motion should be denied for that reason alone.

In addition, there are two fundamental difficulties with the premise that the pace of this proceeding should be tied in lock step to the FEMA review. First, there is no certainty to the completion date of FEMA's review, for the reasons already stated. Second, to make FEMA's review the centerpiece of this proceeding is to distort its function. The FEMA /RAC review is j an important input to the proceeding; but it is, after all, the Shoreham Emergency Plan which is being appraised here, not ,

FEMA's review of it. The County's contentions, and presumably its direct testimony, are focused on the LILCO plan; and the County has never claimed an inability to file testimony with respect to those contentions by March 2. The RAC review must i come into' evidence when it is completed, and its observations on the Shoreham Emergency Plan will be subject to question and criticism just as will any other party's comments on the Plan.

If that eventually requires either a hiatus in the proceeding or the filing of supplemental testimony on issues within the scope of existing contentions that are specifically raised for

the first time by the RAC review, so be it; there is alw' an opportunity for rebuttal testimony in NRC proceedings for good cause shown. That course, if the need arises and justification can be shown, is far preferable than reflexively holding up the entire proceeding, time and time again, until completion of the RAC review.1/

The County's " fundamental fairness" argument is thus noth-ing more than an indirect way of claiming an aut:matic right of rebuttal to the testimony of FEMA, since that testimony will presumably be predicated on the RAC review. As noted above, the County's premise is faulty: there is no automatic right of rebuttal in NRC proceedings except for good cause shown. An 1/ The possibility of further FEMA review delay is, indeed, enhanced by various actions outside the formal context of this proceeding recently undertaken by Suffolk County. On or about January 13, counsel for and other representatives of Suffolk County met with the FEMA Regional Director, the Chairman of the RAC, and other FEMA personnel without notice to LILCO or invi-tations to either LILCO or the NRC to attend; and, to the best of LILCO's information, discussed or endeavored to discuss sub-stantive issues being considered by the RAC in its review. On January 30, Suffolk County's counsel wrote to the General Coun-sel of FEMA, seeking information on how to " contribute" to the record of the RAC review, and requesting his advice as to the intra-agency and federal-court appealability of RAC findings.

On February 3, counsel for Suffolk County sent a letter to a RAC member advocating use of a 20-mile EPZ at Shoreham and enclosing materials supportive of that argument, without ac-knowledging that that issue has been rejected by this Board.

LILCO is not here suggesting that any of these efforts by the County violated any provision of law, though they are un-questionably inconsistent with the request of FEMA's counsel, in a November 7, 1983 letter to NRC counsel, that the RAC pro-cess be kept nonadversarial. All we suggest here is that if FEMA is. influenced by the County's efforr.s, the completion of the RAC review might be delayed well past March 1.

argument for rebuttal, if it is valid under the circumstances, will be at least as readily available if testimony is filed ncw as if it is forced to await issuance of the RAC review.

LILCO believes that the Board should deny the County's motion for the reasons stated above, and that it should do so promptly, lest any parties devolep a reliance interest, however unjustified, in yet further schedule uncertainty. All testimo-ny other than that part of the Government's case being filsd by FEMA should be filed on March 2, and hearings proceed as cur-rently scheduled. If it is advisable to schedule FEMA witness-es as a group on their entire range of issues after the testimony of the others have been questioned, they sheuld be scheduled in that fashion. If any party can show good cause, after the end of questioning on the direct testimony, for fil-ing supplemental or rebuttal testimony, and can include within that showing issues raised by the FEMA /RAC review, that would be the logical course.

Respectiully submitted, LONG ISLAND LIGHTING COMPANY BY -

. 7f. Tayl'br Reveley, III Donald P. Irwin James N. Christman HUNTON & WILLIAMS 707 East Main Street P.O. Fox 1535 Richmond, Virginia 23212 DATED: February 9, 1984 l

, LILCO, February 9, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

)

(Emergency Planning Proceeding) '

Docket No. 50-322-OL-3 1

I hereby certify that copies of LILCO'S OPPOSITION TO SUFFOLK COUNTY'S MOTION TO CHANGE SCHEDULE were served this date upon the following by first-class mail, postage prepaid, or (as indicated by one asterisk) by hand, or (as indicated by two asterisks) by Federal Express.

1 James A. Laurenson,* Secretary of the Commission Chairman

• U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555-Dr. Jerry R. Kline*

Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 43G0 East-West Hwy.

Bethesda, MD 20814 Bernard M. Bordenick, Esq.*

David A. Repka, Esq.

Mr. Frederick J. Shon* Edwin J. Reis, Esq.

Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission

U.S. Nuclear Regulatory 7735 Old Georgetown Road l

Commission (to mailroom)

East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.

Bethesda, MD 20814 Stewart M. Glass, Esq.**

Regional Counsel l

Eleanor L. Frucci, Esq.* Federal Emergency Management Attorney Agene f Atomic Safety and Licensing 26 Federal Plaza, Room 1349 Board Panel New York, New York 10278 U. S. Nuclear Regulatory

[ Commission Stephen B. Latham, Esq.**

East-West Tower, North Tower Twomey, Latham & Shea 4350 East-West Highway 33 West Second Street i Bethesda,. MD 20814 Post Office Box 398 Riverhead, NY 11901 i

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l Fabian G. Palomino, Esq.** Ralph Shapiro, Esq.** ,

Special Counsel to the Cammer & Shapiro, P.C.

Governor 9 East 40th Street Executive Chamber New York, New York 10016 Room 229 State Capitol James B. Dougherty, Esq.**

Albany, New York 12224 3045 Porter Street Washington, D.C. 20008 Herbert H. Brown, Esq.*

Lawrence Coe Lanpher, Esq. Howard L. Blau Christopher M. McMurray, Esq. 217 Newbridge Road Kirkpatrick, Lockhart, Hill Hicksville, NY 11801 Christopher & Phillips 8th Floor Jonathan D. Feinberg, Esq.

1900 M Street, N.W. New York State Public Service Washington, D.C. 20036 Commission, Staff Counsel 3 Rockefeller Plaza Mr. Marc W. Goldsmith Albany, New York 12223 Energy Research Group 4001 Totten Pond Road Spence W. Perry, Esq.**

Waltham, Massachusetts 02154 Associate General Counsel ,

Federal Emergency Management MHB Technical Associates Agency 1723 Hamilton Avenue 500 C Street, S.W.

Suite K Washington, D.C. 20472 San Jose, California 95125 Ms. Nora Bredes Mr. Jay Dunkleberger Executive Coordinator New York State Energy Office Shoreham opponents' Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, New York 11787 Albany, New York 12223 Martin Bradley Ashare, Esq.

Gerald C. Crotty, Esq.** Suffolk County Attorney Counsel to the Governor H. Lee Dennison Building Executive Chamber Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224

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Donald P. Irwin HUNTON & WILLIAMS 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: February 9, 1984