ML20150C616

Govts Motion for Reconsideration of Board Ruling on 10CFR50.47(c)(1)(i)-(ii) Compliance.* ASLB Requested to Reconsider 880303 Order Based on Util Not Sustaining Good Faith Test.W/Certificate of Svc

ML20150C616
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/15/1988
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-#188-5875 OL-3, NUDOCS 8803210114
Download: ML20150C616 (9)

Text

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00CKETED tlSNRC March 15, 19M MR 17 A10:58 g *.e+s . I UNITED STATES OF AMERICA hfg e0CiUIt.Nhh,[N*

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i NUCLEAR REGULATORY COMMISSION Bh aldS P

Before the Atomic Safety and Licensino Board L

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) ) '

)

GOVERNMENTS' MOTION FOR RECONSIDERATION OF BOARD RULING ON SECTION 50.47(c)f1)fi)-fli) COMPLIANCE k

On March 3, 1988, the Board ruled that LILCO has complied  !

with the requirements of 10 CFR S 50.47(c)(1)(i) and (ii). Egg  !

Memorandum and Order (Granting LILCO's Motion for Summary Dispo-sition with Respect to Compliance with Section 50.47(c)(1)(i) and >

(ii)), March 3, 1988 ("Order"). The Governments (Suffolk County, i'

the State of New York, and the Town of Southampton) hereby move l the Board to reconsider its Order.

The Governments seek reconsideration of the Board's finding 1

that LILCO has complied with Section 50.47(c)(1)(ii). First, the i

Board ignored the plain language and requirements of the regula- (

tion. Section 50.47(c)(1)(ii) requires a "sustained" good faith

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effort by LILCO to secure and retain the Governments' partici-pation in emergency planning for Shoreham. The Board itself admitted that since February 1983, LILCO has not met the sustained good faith test. Egg Order at 18 ("the evidence suggests that (since February 1983 when the Suffolk County Legis-lature decided not to adopt a plan] both pt attempted coercive acts on one another which could hardly meet a test of good faith by any definition").1/ That finding -- that LILCO has not demonstrated a good faith effort, much less a sustained good faith effort, since February 1983 -- is conclusive: given the express words of the regulation, LILCO cannot prevail on its motion.

Nevertheless, the Board then proceeded to rule that LILCO's lack of good faith since February 1983 is "not material to the decision we make." Order at 18. No basis is provided for this conclusion; no basis could be given because the regulation itself makes the lack of sustained good faith conduct material. The Board's statement is flatly contrary to the express requirements of the regulation. The Board, therefore, must reconsider its ruling.

1/ Contrary to the Board's statement, there is no "evidence" that the Governments in any way acted so as not to "meet a test of good faith by any definition." First, "any definition" of good faith is not at issue herer it is the definition imposed by the regulation under which the Governments have sought to obtain a factual ruling after fair hearing. Second, the Governments' good faith is not at issue under the regulations, and no "evidence" therefore has been directed to the Governments' conduct.

t Second, the Board concluded that during 1982 -- apparently the critical period in question from the Board's perspective --

LILCO did not act in bad faith. Thus, the Board stated:

In the climate of dispute then prevailing, it was not bad faith for LILCO to seek plan review by the cognizant state agency although it may have been bad judgment considering the impact this action had on further aggravating the climate of dispute between the parties.

Order at 17. The Board applied the wrong legal standard. The Jesue is not whether LILCO was acting in bad faith (although the Governments believe there were actual instances of bad faith as manifested by the evidence and, as discussed below, that the Board has no basis in a summary judgment context to reach conclu-sions on disputed facts), but rather whether LILCO's actions constituted sustained good faith. The Board misinterpreted the regulation to impose a burden on the Governments to demonstrate actual bad faith by LILCO in order to rebut the motion. That is incorrect and requires reconsideration.

Third, the Board made factual findings on the conflicting evidence before it. In ruling on disputed factual matters in a summary disposition context, the Board is prohibited from l

l resolving such factual disputes en the merits. Indeed, in such a context the Board's only function is to determine whether there are facts in dispute and, if so, to set the matter for hearing.

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4 The Governments have set forth in detail, and will not repeat herein, many facts which demonstrate that LILCO's course of conduct in 1982 and thereafter did not represent a sustained good faith effort and, in fact, even demonstrated repeated instances of actual bad faith. Egg Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR S 50.47(c).(1)(i) and (ii), January 18, 1988 (and particularly the Affidavit of Frank R. Jones attached thereto). The Governments' Response and the affidavits demon-strate that there are material facts in dispute regarding the nature of LILCO's conduct. It was error for the Board to have resolved those disputed factual issues in the context of a motion for summary disposition. Instead, the Board should have set this t

j natter for hearing.

i

! NRC precedent establishes that a motion for summary dispost-l tion must be denied if there is any possibility that the party

! opposing the motion has raised a genuine issue of material fact.

l Egg, gigz, General Electric Co. (GE Morris Operation Spent fuel 4

l Storage Facility), LBP-82-14, 15 NRC 530, 532 (1982) ("in order

to grant a motion for summary disposition, the record before us must demonstrate clearly that there is no possibility that there j exists a litigable issue of fact"). The party cpposing summary l

l disposition need not establish that it would prevail on the l merital rather, it must only demonstrate that there exists a l

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1 genuine dispute as to a material fact. Commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12, 23 NRC 414, 418 (1986).

The party moving for summary disposition -- here, LILCO --

has the burden of establishing the absence of any issue of 1

material fact. Dairvland Power Coooerative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982), aff'd, ALAB-733, 18 NRC 9 (1983). Moreover, all inferences'in the pleadings

and affidavits submitted by the parties must be construed in l favor of the party opposing the motion for summary disposition.

i Id. at 519 ("Under both Federal and NRC rules, the record is to be reviewed in the light most favorable to the party opposing the motion.").

1 The Governments submit that it was arbitrary for the Board i

to have dismissed the factual content of the Governments' affi-i davits and rule on the merits of LILCo's motion as if nu such l affidavits existed. Indeed, any objective :es. ding of the affi-davits inevitably leads to the conclusion that material facts are in dispute.

In light of the foregoing NRC precedent, the Board erred in making a determination on the merits of the disputed issue of sustained good faith conduct in the context of LILCO's motion for A

summary disposition. Instead, the Board was required to set this  !

matter for hearing. The Board must reconsider its Order.

1 Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 i

Herbert H. Brown

' /

Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART l 1800 M Street, N.W.

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

faboS h bkwl<f Fabian G. Palomino '

Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building l Albany, New York 12224 I

Attorneys for Mario M. Cuomo, Governor of the State of New York

& $/

Step' hen B. Ldtnam Y f/

Twomey, Latham & Shea ,

P.O. Box 398 '

33 West Second Street i Riverhead, New York 11901 Attorney for the Town of Southampton '

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00CKEIEP USNkC March 15, 1ee8 MAR 17 #0:58 UNITED STATES OF AMERICA QFFfCi d H L aiA>;*

NUCLEAR REGULATORY COMMISSION 00CKf igt A}llMCE Before the Atomic Safety and Licensino Boatd

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

GERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' MOTION FOR RECONSIDERATION OF BOARD RULING ON SECTION 50.47(c)(1)(i)-(ii)

COMPLIANCE have been served on the following this 15th day of March 1988 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 Boa:d 513 Gilmoure Drive U.S. Nuclear Regulatory Cor. mission Silver Spring, Maryland 20901 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

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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 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 E. Thomas Boyle, 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.

Smithtown, New York 11787 Washington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin Assistant Attorney General Suffolk County Executive r

New York State Department of Law H. Lee Dennison Building 120 Broadway Veterans Memorial Highway i Room 3-118 Hauppauge, New York 11788 i New York, New York 10271 I MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee

{ Suite K P.O. Box 231 l San Jose, California 95125 Wading River, New York 11792 l

l Mr. Jay Dunkleburger Edwin J. Reis, Esq.*

j New York State Energy Office Richard G. Bachmann, Esq.

, Agency Building 2 U.S. Nuclear Regulatory Comm.

l Empire State Plaza Office of General Counsel l

Albany, New York 12223 Washington, D.C. 20555 l

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David A. Brownlee, Esq. Mr. Stuart Diamond i Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building UEW YORK TIMES 7

Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036  !

Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency Management  ;

Town Hall Agency i Oyster Bay, New York 11771 26 Federal Plaza  ;

New York, New York 10278 '

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Cawrence Coe Lanpb,(f l KIRKPATRICK & LOCKHART  !

1800 M Street, N.W. l South Lobby - 9th Floor  !

Washington, D.C. 20036-5891 ,

By Hand  !

• • By Federal Express t

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