ML20209A788

Lilco Answer to Intervenor Motion of 870122 for Reconsideration of Schedule.* No Objection Raised to Expedited Treatment of Intervenor Motion.Certificate of Svc Encl

ML20209A788
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/29/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2383 OL-3, NUDOCS 8702030442
Download: ML20209A788 (7)

Text

3 3 (f 3 LILCO, JanuSry 29,1987 s

DCLKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 FEB -2 P2 :19 Before the Atomic Safety and Licensing Board

{S 1,.

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

1 LILCO'S ANSWER TO INTERVENORS' MOTION OF JANUARY 22.1987 FOR RECONSIDERATION OF SCHEDULE On January 22,1987, the Intervenors filed their "Suffolk County, State of New York, and Town of Southampton Motion for Reconsideration of Schedule." LILCO op-poses that motion.

Intervenors request expedited treatment of their motion, and LILCO has no ob-jection to that.II Intervenors also offer to confer with the Board and other parties.

Although LILCO would be happy to participate in a conference (preferably by phone) if the Board wants it, LILCO does not think a conference is necessary because the Inter-venors' motion so clearly lacks merit.

1. The Commission and Appeal Board intended this proceeding to move forward.

The most important part of the Intervenors' Motion is a request that the Board put this proceeding "on hold" (for example, Motion at 14). The Intervenors would have all activity in this proceeding stop until LILCO answers certain questions and takes cer-tain actions demanded by Intervenors.

1/ In an order telephoned to LILCO on January 23, the Board set January 30 (noon) and February 3 (close of business) for LILCO and the NRC Staff, respectively, to re-

spond.

0702030442 070129 PDR C

ADOCK 05000322 PDR l

i i The Board should not seriously consider such a thing. There is every indication that the Commission and Appeal Board intend this proceeding to proceed. The issue of the suitability of the relocation centers is before the Board pursuant to the remand in ALAB-830,23 NRC 135,162. There is no appeal of that decision pending insof ar as re-ception centers are concerned. And the Appeal Board gave no indication in ALAB-832 that the remanded proceeding depended on LILCO's first answering questions or revising its emergency plan. See & Similarly, ALAB-855, which remanded the issue of the capacity of the reception centers, said that if LILCO's motion to reopen the record was granted, LILCO would be permitted to stand on its old estimate or proffer a new estimate of the needed capacity. ALAB-855, slip op. at 18. Again, the Appeal Board gavo no indication that the proceeding should stop while LILCO revised the plan. Obvi-ously the Appeal Board intended that this proceeding should go forward.

A further indication that this proceeding should go forward is that the compan-lon -05 proceeding is ordered by the Commission to be an " expedited" one. That implies

- tnat this -03 proceeding must be expedited also, since there would be little sense in expediting one proceeding and letting the other lag.

2. The capacity issue dealt with in ALAB-855 is no reason to delay.

The Intervenors argue that, because ALAB-855 found that LILCO must estimate the number of evacuees who will need monitoring, this proceeding should stop until LILCO revises the emergency plan.

ALAB-855 and the capacity issue are no reason to stay this proceeding.2/

LILCO's filing of a petition for review of ALAB-855 did not stay the effect of the 2/ In its Memorandum and Order reopening the record, this Board said that it would deal with whatever matters might be raised by the Appeal Board decision when that de-cision issued. Memorandum and Order (Rulings on LILCO Motion to Reopen Record and ,

Remand of Coliseum Issue) Dec. 11,1986, slip op. at 11. LILCO sees no reason why the capacity issue cannot go forward while the Commission is deciding whether to review A LAB-855.

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. Appeal Board's decision.10 C.F.R. 5 2.786(b)(8)(1986). What Intervenors seem to be doing now is themselves requesting a stay of ALAB-855 pending Commission review.

The proper way to do this is pursuant to 10 C.F.R. S 2.788, and under that regulation l l

the Intervenors' request is untimely and addressed to the wrong body.  !

Moreover, Intervenors' rationale for a stay are unpersuasive. Part of the Inter-venors' argument is that they neul to know LILCO's capacity estimates to prepare their l case. But they do not need a revision of the emergency plan for that. The information they seek can be had through discovery. Indeed, the Intervenors have already sent LILCO interrogatories asking about the capacity of the relocation centers. See Suffolk County, State of New York, and Town of Southampton's First Set of Interrogatories and Request for Production of Documents to LILCO Regarding Reception Center Issues (Jan. 21,1987), at 7-8.

A second part of the Intervenors' argument is apparently a claim that, simply as a matter of form, capacity cannot be litigated until it is stated in the plan. This is in-l correct.E Many details have been litigated in this proceeding without being in the l

plan, and there is no reason why a record cannot be made without a formal plan revi-sion. If necessary, the plan can be revised af ter the hearings to incorporate any changes ordered by the Board.

3. The FEMA criticism of LILCO's monitoring procedures is no reason to delay.

The Intervonors arguo that the latest RAC review, which critized the monitoring procedures proposed in Revision 8 of the emergency plan, means that this proceeding should be stayed until LILCO first states that it will change the plan and then changes it. Again, this suggestion lacks merit.

l 3/ Intervenors repeat their recently conceived theory that changing reception cen-ters changes the entire plan. Motion at 4. Only now they claim that even the failure l to state a capacity in the plan "affects so many issues in this litigation that its exis-tence makes meaningful evaluation of any proposed new procedures or f acilities impos-sible." % This statement is incorrect as a matter of fact, and it is certainly not sup-ported by the Intervenors' Motion.

i o Like the capacity information, the information about LILCO's monitoring proce-dures can be had by discovery. Indeed, the same arguments that militate against a stay of the proceeding for the capacity issue apply to the monitoring procedures as well.

4. Complaints of two towns about violation of the zoning laws are no reason to delay.

The Intervenors claim that the use of the relocation centers would violate local zoning ordinances. Again, this claim is no causa for a stay, and indeed no cause for Board consideration at all. The Intervenors' argument is merely a variant of the " legal authority" issues raised by Contentions EP 1-10. In effect, the Intervenors argue that LILCO would not have the authority to use its facilities as relocation centers if needed.

The Commission has already concluded, in CLI-86-13, that governments would do their utmost to protect the public in the event of a real emergency. It is inconceivable that a local government in time of crisis would ban evacuees because of a zoning ordinance, even if the ordinance did apply to LILCO's plan. (And LILCO disagrees with Interve-nors' interpretation of the ordinances.) Even if the Board were to undertake to decide the validity of the ordinances, an issue of state law in the first instance, this would be just an additional issue to litigate - not grounds for a stay.

i

5. The proposal to freeze LILCO's plan is improper.

In perhaps the most extreme suggestion contained in the January 22 motion, the Intervenors propose that the Board bar LILCO from further revising its reception cen-ter proposals or facilities and direct that LILCO be bound by the present or the next re-vision of the plan. This is another version of the Intervenors' earlier attempts to

" freeze the data base." They continue to feel that it is an undue burden on them to deal with (M, attack) changes to the emergency plan.

It would be improper under NRC rules, and probably a violation of due process, 4

for the Board to restrict LILCO in this manner. The Intervenors' proposalis to require l

i I the licensee to freeze its emergency plan as of a certain date, so that improvements l

l l

,}

o cannot be made and deficiencies cannot be corrected. LILCO submits that the NRC should want improvements to be made and deficiencies to be corrected.

It would be particularly offensive to freeze the plan when the changes about which Intervenors complain were made necessary by their own actions. The reason LILCO has had to change its relocation centers is that Intervenors themselves refused to make public buildings available and then lobbied the Nassau County government to do the same thing. Thus the basic question is whether an Intervenor who has sabotaged an emergency plan is entitled to claim victory without risk that the licensee will fix the problem. LILCO cannot see how any responsible agency could adopt such a position.

The Intervenors' complaints about wasting their resources pale next to the approxi-mately million dollars that LILCO loses each day that a full power license is delayed, not to mention the resources LILCO must use to provide private relocation centers when public ones would be readily available but for the Intervenors' tactics. Simple fairness, and the doctrine of " clean hands," should prevent the Intervenors from prof-iting by these tactics.

Respectf ully submitted, i M ames N. Chr$tman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 29,1987

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LILCO, J nuary 29,1987 i

CX E:

w CERTIFICATE OF SERVICE '87 FEB -2 P2 :19 Vt s In the Matter of GGCm i

LONG ISLAND LIGHTING COMPANY " _.j *

(Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-3 l I hereby certify that copies of LILCO's Answer to Intervenors' Motion of January 22,1987 for Reconsideration of Schedule were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mail, postage prepaid.

Morton B. Margulies, Chairman ** Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission

, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l East-West Towers, Rm. 407 l 4350 East-West Hwy. Bernard M. Bordenick, Esq. **

Bethesda, MD 20814 Oreste Russ Pirfo, Esq.

Edwin J. Reis, Esq.

l Dr. Jerry R. Kline ** U.S. Nuclear Regulatory Commission 1 Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mallroom) i U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers, Rm. 427 l 4350 East-West Hwy. Herbert H. Brown, Esq. **

Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.

l Karla J. Letsche, Esq.

i Mr. Frederick J. Shon ** Kirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20036-5891 East-West Towers, Rm 430 4350 East-West Hwy. Fabian G. Palomino, Esq. **

Bethesda, MD 20814 Richard J. Zahnleuter, Esq.

l Special Counsel to the Governor l Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol l U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.

Washington, D.C. 20555 Mary Gundrum, Esq.

Assistant Attorney General ,

Atomic Safety and Licensing 120 Broadway Appe9l Board Panel Third F1me, Rmm 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555 ,

s.

Spence W. Perry, Esq. ** Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.

Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.

Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq.

Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.

New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 ba ='

~ James N. @ristman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 29,1987