ML20149N064

NRC Staff Answer in Support of Lilco Motion to Strike Intervenor Reply - Summary Disposition of Hosp Evacuation.* Unauthorized Pleading to Reply to NRC Submission on Hosp Evacuation Issues Should Be Stricken.W/Certificate of Svc

ML20149N064
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/24/1988
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5689 OL-3, NUDOCS 8803010082
Download: ML20149N064 (5)

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, 02/24/88 00CKETED USNRC UNITED STATES OF AMERICA '88 FEB 26 P3:15 NUCLEAR REGULATORY COMMISSION OFOCE 0; r[NFio.v 00CKEMG r ';Pv!,.r.

. BEFORE THE ATOMIC SAFETY AND LICENSING BOARD BRANN In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF ANSWER IN SUPPORT OF LILCO'S MOTION TO STRIKE INTERVENORS' REPLY -

SUMMARY

DISPOSITION OF HOSPITAL EVACUATION DISCUSSION

1. The NRC Staff supports Applicant's February 8,1988 Motion O to strike Intervenors' 24 page "Reply ... to the NRC Staff Response in Support of LILCO's Motion for Summary Disposition of the Hospital Evacuation issue" of February 1, 1988. See "NRC Staff Supplemental Response to LILCO's Motion for Summary Disposition of the Hospital Evacuation issue," at 4 n.7. The Staff particularly agrees that the reply is not one permitted under the Rules of the Commission. Section 2.749(a) of those Rules, 10 C.F.R. 5 2.749(a), provides in part: "No further supporting statements or responses" to motions for summary disposition 1/ LILCO's Motion to Strike Intervenors' Unauthorized Reply to NRC Staff's Response to LILCO's Hospital Summary Disposition Motion

( Motion") . The Board has Indicated in an Order of February 22, 1988, that it has ruled on LILCO's underlying motion for summary disposition of hospital evacuation issues, granting it in part and denying it in regard to evacuation time estimates. It appears this pleading remains germane to matters to be discussed in the forthcoming written decision on the motion.

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are permitted other than those "respond [ing) in writing to new facts or arguments presented in any statement filed in support of the motion".

The Intervenors aver that "[t]he Staff's response offers little in the way of new facts or arguments." Intervenors' Reply at 2. By Intervenors admission, no basis exist for intervenors to file this 24-page reply in this proceeding, which already suffers from a surfeit of pleadings.

2. The intervenors' response of February 18, 1988, to LILCO's motion to strike the unauthorized response reiterates arguments that the Staff might not be delegated post-hearing verification of the formulation and implementation of LILCO's emergency plan because the Staff has supported the licensing of the Shoreham facility. The Staff has often been delegated those duties where it has supported the licensing of a facility meeting statutory and regulatory requirements. See eg:

Loulslana Power and Light Co. (Waterford Steam Electric Station, Unit No.

3), ALA B-732, 17 NRC 1076, 1103-04 (1983); Philadelphia Electric Co.

(Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 494-95 (1986).

The Intervenors' apparently seek to distinguish those cases on the basis of their claim that "the Staff has shed objectivity in this proceeding and ailled itself with LILCO as a matter of Staff policy and commitment."

At 4. The Staff, in the past, has felt it could ignore such claims as transparent attempts to divert attention from serious matters before this Board relating to the licensing of the Shoreham Nuclear Power Plant. As the Intervenors continue to make such claims, they now require comment to prevent their repetition from lending them credence. These and like

claims by the Intervenors' are belled by the very major issues in this proceeding where the Staff's position has been contrary to LlLCO's and I similar to that of the intervenors. These include:

- The question of the preemption of Federal law.

- The qualification of diesels prior to requalification.

- The need to safety qualify "important-to-safety" as well as "safety-related" components, i i

- The adequacy of the demonstration of the implementability of j LILCO's emergency plan in the emergency planning exercise. i Thus the talk of collegiality between the Staff and LILCO, or of LILCO l and the Staff acting as one, is not the cant of those who wish to see the facts, but rather of those who wish to be influenced by preconceived notions. 2,/ ,,

Lastly, the point must be made that Staff attorneys have indeed met with LILCO attorneys in an attempt to move this proceeding forward.

Rather than this meeting being secret, a Staff attorney telephoned an j attorney for the Intervenors telling him of and describing the meeting.

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This is not the first time that counsel for Intervenors have spoken without examining the facts predicating their statements. See  !

"Memorandum and Order f Ruling on intervenors' Motion for Leave to '

Reply to LILCO's and Staff's Proposed Findings)," December 7,  ;

1988. In Public Service Co. of Oklahoma (Black Fox Station, Units 1 i and 2), A LA B-505, 8 NRC 527, 532, reconsideration denied, ALAB-808, 8 NRC 559 (1978), the Appeal Board stated:

Counsel appearing before this Board (as well as other NRC adjudicatory tribunals) has a manifest and Iron-clad obligation of candor. This obligation is hardly fulfilled when, as here, there is a failure to call attention to facts of record which, at the very least, cast a quite different light upon the substance of arguments being advanced by counsel. (Footnote omitted]

Accord Consumers Power Co. (Midland Plant, Units 1 and 2),

LBP-81-63,14 NRC 1768,1701-85 (1981).

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_q_ I He further invited attorneys for the Intervenors to meet with Staff l attorneys to discuss scheduling and any other matters they wished to l

raise, including Staff support of the Intervenors. The Staff is at a loss l I

to explain why the Intervenors' attorneys have not accepted this I invitation of the Staff for a meeting.

The arguments that the Staff cannot be delegated the ministerial l post-hearing verification of the formulation and implementation of l emergency plans, because of Staff blas, is without foundation, and must 1

be rejected both as a matter of law and as a matter of fact. I CONCLUSION l For the reasons set out above, Intervenors' 24-page unauthorized pleading seeking to reply to the Sta ff's submission on the hospital evacuation issues pleadings, should be stricken.

Respectfully submitted, Edwin J. Rei Deputy As tant General Counsel Dated at Rockville, Maryland this 24th day of February 19RR

00Ufil?

thNhC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 FEB 26 P3:15 BEFORE THE ATOMIC SAFETY AND LICENSING BOAROFf!CE F % W uvCMEi m G A W Rvict' BRANCH In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies cf "NRC STAFF ANSWER IN SUPPORT OF LILCO'S MOTION TO STRIKE INTERVENORS' REPLY -

SUMMARY

DISPOSITION OF HOSPITAL EVACUATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, this 24th day of February 1988.

James P. Gleason, Chairman

• Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licenslng Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline* Fablar, G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor i Atomic Safety and Licensing Board Executive Ct. amber '

U.S. Nuclear Regulatory Commission State Capitol '

Washington, DC 20555 Albany, NY 12224 I Frederick J. Shuri* Jor.athan D. Feinberg, Esq.

Administrative Jedge New York State Department of i Atomic Safety and Licensing Board Pubile Service l U.S. Nuclear Regulatory Commission Three Empire State Plaza l Washington, DC 20555 Albany, NY 12223 i Phlhp McIntire W. Taylor Reveley ill, Esq.

Federal Emergency Management Donald P. Irwin, Esq. l Agency Hunton G Williams 1 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY .0278 Richmond, VA 23212 l

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Douglas J. Hynes, Councilman Dr. W. Reed Johnson Town Board of Oyster Bay 115 Falcon Drive, Colthurst Town Hall Charlottesville VA 22901 Oyster Bay, New York 11771 Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Tworey, Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11931 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York Stata Energy OfHce .

Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washingtcn, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, fiW Hauppauge, NY 11738 Washington, D': 20472 Anthony F. Earley, Jr. Dr. Monroe Schneider General Counsel North Shore Committee

, Long Island L8ghting Company P.O. Box 231 175 East Old County Road Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes '

Dr. Robert Hoffman Shoreham Opponents Coalition Long Island Coalition for Safe 195 East Main Street Living Smithtown, NY 11787 P.O. Box 1355 i Massapequa, NY 11758 William R. Cumming, Esq. l Of0ce of General Counsel l Alfred L. Nardelli, Esq. Federal Emergency Management I New York State Department of Law Agency 120 Broadway 500 C Street, SW l Room 3-118 Washington, DC 20472 ,

j Docketing and Service Section* Barbara Newman Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living Washington, DC 20555 Box 944 Huntington, New York 11743 Edwin J. Rip (

Deputy stant General Counsel

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