ML20236C175
| ML20236C175 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/15/1987 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTH HAMPTON, NH, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4646 OL-3, NUDOCS 8710270043 | |
| Download: ML20236C175 (23) | |
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-October 15, 1987 l
'87 OCT 19 M1:41 UNITED STATES OF AMERICA 0FFICE Of Si Say NUCLEAR REGULATORY COMMISSION 88CKEim6 vide . ,
,BR i Before the Atomic Safety'and Licensino Boar'd
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 '
) (Emergency Planning) -j (Shoreham Nuclear Power Station, )
Unit 1)- )
) 9 SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S MOTION FOR RECONSIDERATION AND ALTERNATIVE REQUEST FOR REFERRAL TO THE COMMISSION (REALISM ISSUE) s on October 5', 1987, LILCO filed a Motion for Reconsiders-tionl_/ which seeks reconsideration or referral of this Board's September 17, 1987 Memorandum and Order 2_/ denying LILCO's latest summary disposition motion 3_/ on the legal authority issues. For j l
l 1/' LILCO's Motion for Reconsideration and Alternative Request j for Referral to the Commission (Realism Issue) (October 5, 1987) 1
(" Motion for Reconsideration").
2_/ . Memorandum and Order (Ruling on Applicant's Motions of March 20, 1987, for Summary Disposition.of the " Legal Authority" Issues and of May 22, 1987, for Leave to File a Reply and Interpreting Rulings Made by the Commission in CLI-86-13 Involving the Remand of the Realism Issue and Its Effect on the Legal Authority Question) (September 17, 1987) (" Memorandum and Order").
3/ Second Renewed Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP l-10) (March 20, 1987)
(" Summary Disposition Motion").
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-1 1the reasons stated below, Suffolk County, the State of'New York, j and the Town of Southampton (the " Governments") hereby. oppose s
LILCO's Motion for Reconsideration.
BACKGROUND
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1 The basis for.the Board's denial of LILCO's Summary Disposi- 1 tion Motion was that genuine issues of material fact exist which !
1 must be resolved in a further proceeding before the " legal authority" issues can be decided. Memorandum and Order, at 27.
In particular, the Board was unwilling to accept LILCO's primary argument that CLI-86-13's assumption of a governmental "best efforts" response compels the conclusion that "the Governments would'have no choice but to respond in conformance to LILCO's i
Plan . . ." Id., at 45. Rather, the Board found that there are i i
genuine issues.of material fact regarding the nature and adequacy l of the State and County's response which are-not resolved by the ;
l "best efforts" assumption. Id.,.at 29-40, 44-45. Accordingly, I
, the Board denied summary disposition. Id., at 2. LILCO now j seeks reconsideration or referral of that ruling, f 1
LILCO's Motion for Reconsideration must be denied. In essence, it represents an attempt to reargue LILCO positions which this Board has already considered and rejected. The Motion {
i for Reconsideration raises virtually no arguments which were not l
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before the Board when it issued its Memorandum and Order;i/ nor does LILCO offer any compelling reasons why its previously l
unpersuasive arguments should now be reconsidered. In fact',
LILCO offers little or no legal analysis to support its assertions that this Board has erred.
As the Board has noted, LILCO's Summary Disposition Motion I 1
is the latest in a series of such motions. Indeed, it represents )
the Board's " third time around on the motion for summary disposition on the legal authority issues." Memorandum and Order, at 7, 9. Each time, LILCO has been unsuccessful; nevertheless, LILCO etubbornly seeks yet another bite at the apple.E/ In.doing so, yet failing to raise new arguments, LILCO succeeds only in wasting the time of the Board and the other parties, and in diverting resources and attention from the fact-finding proceeding which this Board has held is required.
1/ . One exception, notable only for its lack of coherence, is LILCO's vague reference to'a May 28, 1987 NRC letter which discusses emergency classifications issued by a licensee. Motion for Reconsideration, at 8. For the reasons explained below, LILCO's argument must be rejected.
1/ LILCO's Motion for Reconsideration is surprising in light of the statements made to the press by LILCO's counsel that the Memorandum and Order had little effect on LILCO's case on the merits. For instance, Mr. Christman commented that, "All it [the Memorandum and Order) says is that the board wants further development of the record." New York Times, Sept. 22, 1987, at B-2. Likewise, Mr. Christman dismissed the significance of the Board's ruling in comments to Newsday, describing the decision as merely " procedural" and adding that he was confident that LILCO would prevail after hearings. Newsday, Sept. 22, 1987, at 7, 27. ,
These comments themselves undercut LILCO's arguments that the ]
Board's adverse ruling is so significant as to warrant either reconsideration or certification.
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'Likewise, on_the. issue of referral (a request which LILCO now appears to append almost routinely to its pleadings), LILCO offers no cogent reasons why this matter should be referred to !
'the. commission before this Board has even begun the fact-finding proceeding which CLI-86-13 requires. Furthermore, LILCO makes
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virtually no attempt to demonstrate how it meets the standards
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for referral established by NRC case law. Rather, LILCO's !
referral request reflects the frustration of a disgruntled party whose narrow interpretation of CLI-86-13 has not been adopted by this Board. LILCO's frustration, however, provides no valid l grounds for referral. Thus, that request, too, must be denied.
l DISCUSSION I. LILCO Has Provided No Persuasive Reasons
'For This Board To Reconsider Its Rulino A. LILCO's Narrow View of CLI-86-13 Has Been Reiected By The Board LILCO first argues that this Board misinterpreted the Com- l 1
mission's Order in CLI-86-13 by f ailing to limit its inquiry to whether the State and County have sufficient " capabilities" (as
- narrowly defined by LILCO) to implement LILCO's Plan.5/ As it 5/ LILCO uses the term " capabilities" in the narrow sense reflected in its Summary Disposition Motion -- that 12, the alleged existence of personnel, equipment, and systems which, according to LILCO, the State and County could employ in an emergency to implement the LILCO Plan. However, LILCO's narrow (footnote continued) 4_
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did in its Summary Disposition Motion at 9-28, LILCO once again l
contends that because certain State and County " capabilities" have been established, the "best effor'ts" assumption in CLI-86-13 compels the conclusion that those " capabilities" will be
" harnessed" in such a way that the LILCO Plan would be implemented, thus achieving an allegedly adequate response. Egg Motion for Reconsideration, at 4. LILCO, however, offers no analysis to support this narrow interpretation of CLI-86-13 and, in any event, this Board has already rejected LILCO's " leap of logic." See Memorandum and order, at 33.
In doing so, the Board has noted that even if all of the
" capabilities" that LILCO cites do, in fact, exist:
They establish only that specified aspects of emer-gency planning can be done but do not establish what will be done as required by 10 C.F.R. 50.47(a) cited above. LILCO in its motion would have the Board accept that all questions related to how a response specified by the 10 contentions will be implemented is to be answered by reliance on the Commission's "best efforts" assumption under which the Governments would have no choice but to respond in conformance to LILCO's plan and delegate to it the authority it needs to implement a response.
LILCO's Statement of Facts contains nothing that would compel that conclusion.
(footnote continued from previous page) interpretation of the term is a semantic game. The questions of how, when, whether, where and by whom the State and County's resources may be employed -- i.e., questions about the nature of a governmental response which this Board has recognized must be addressed -- are equally matters concerning the State and County's " capabilities." The nature of these capabilities have yet to be resolved.
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'l Memorandum-and Order, at 44-45 (emphasis in origtnal). Thus, the W
.. Board has'already considered LILCO's arguments'and has ruled that l ithe State .and County's capabilities are not dispositive of the issue and that further factual issues remain. . Memorandum and Order, at 26. In particular, the Board noted with respect to all
.ofthelegalauthoritycontentionskhattheadequacy'ofa"best ef forts": response cannot be determined without' knowing, among
, other things, how, when, by whom,'and whether governmental-
" capabilities" would be used. geg generally Memorandiam and '
order, at 29-40. Only when'those inquiries, and similar inquiries, are. resolved, can this Board determine whether a "best efforts" response would be adequate.
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In short, LILCO's arguments have been analyzed-in detail and I rejected by this Board. LILCO has presented no new reasons why I those same arguments now compel a different conclusion.
f B. The Board Jfas Properly 1 4
Considered Cuomo v. LILCO i
LILCO also urges this Board to reconsider its decision on the ground that the Board hasfimproperly applied the New York f
State Supreme Court's holding in cuomo v. LILCO, Consol. Index No. 84-4615 (N.Y. Sup. Ct. Feb. 20, 1985), aff'd, 511 N.Y.S. 2d !
. I 867. (1987), appeal pending. Motion for Reconsideration, at 7.
LILCO argues that it. htis never urged "that the State would simply l hand over an emergency response to LILCO . . . . Rather, the
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l L State and~the County will be involved to the maximum extent possible" in any particular accident. Motion for Reconsiders-tion, at 7-8. Here, LILCO makes the same argument it made in its j 1
Summary Disposition Motion, at 8-9, as well as its proposed Reply )
Brief, at 15-16.1/ 1 The argument is no more persuasive now than q it was then.
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1 It is precisely the nature of the Governments' " involvement" (which must be consistent with Cuomo v. LILCO), and whether such involvement would provide an adequate response, that this Board '
has found are unknown and must be determined through further proceedings. The Board has now construed Cuomo v. LILCO twice --
in the PID and in the Memorandum and Order -- and the Commission in CLI-86-13 did not dispute the Board's interpretation. Rather, CLI-86-13 accepts Cuomo v. LILCO, but calls for further fact-finding on the' nature and adequacy of a "best efforts" governmental response. This Board has properly ruled that that j task cannot be accomplished on the existing record.
l 1/ LILCO's Reply to Interveners' Answer to Motion for Summary Disposition of the " Legal Authority" Issues and Motion for Refer-ral to the Commission (May 22, 1987). This Board rejected the Reply Bried in toto on the ground that it was already fully familiar with the issues presented. See Memorandum and Order, at 5-9.
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< .' I I In short, LILCO presents no bauis o belle,ve that the Ecard I, erred fn its construction of Cuomo v. LILCO whicn would swarrant i
reconsideration of this Board's holding'that there are.qenuine ,
issues of material fact which must be resolved.E/
1 C. LILCO',s' Predictions That the Proceeding #
Will Be Futile Are Unwananted and Premature I i i l MLCO further argues that this Board should have granted j i l summarydispositionbecauseahearingonthenatureandadequacy'{
of the State and County's "best efforts" response would be "a,n [ ,
>> 1 exercise in frust' ration." Ree Motion for Reconsideration, at l
i 4-7.2/- Tnis, argument reficN s'nothing more than LILCO's i
recognition that it will be very difficult for LILCO to sustain its burden of, proof. LILCO's difficulty in prevailing on the merits, however, provides no valid ground for reconsideration of the Board's ruling. s n
hc 1 In any event,ithe Bo' add hws taken appropriate steps to meet a
LILCO's concerns,,$In partflcular, the' Board has ruled that the parties will U sked at the appropriate timq or their vieti on the nature of the proceeding.
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At that time, t.he Board'may
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$/ The Covp'rnments Wwnt it to be clear' chat they do not herein '
endorse tti Board's construction of Cuomo v. LILCO. gin,the Governments' view, the Soard erred in failing to grant' summary disposition in favor of the Governments, based in part on'Cuomo
- v. LILCQ. The Governments urged that the Board so rule, but this was rejected by the Bo'ard. Memorandum and Order, at 27 n.15.
2/ LILCO again attempts to reargue this issue which was raised in its Reply Brief, at 11-12.
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consider suggestions from all parties on ways to structure the proceeding. Furthermore, the Board has the power to regulate the course of proceedings, consistent with due process, so that they are effective. 10 C.F.R. SS 2.718(c), 2.721(d). However, LlLCO's speculative arguments on the frustration it will encounter in attempting to meet its burden of proof -- which I arguments are offered before the proceeding has even begun -- are baseless and premature.lE/
I lE/ LILCO also argues in a footnote that there are two other matters addressed in the Board's ruling that should be I reconsidered. It is evident, however, that LILCO is not serious about these issues since it offers no arguments in favor of its position. Eeg Motion for Reconsideration, at 9, n.10. The first 1 matter raised in LILCO's footnote is the Board's conclusion that summary disposition cannot be granted on a feature of the LILCO Plan which allegedly is not required by NRC regulations -- i.e.,
providing fuel to stranded motorists. See Memorandum and Order, at 39. LILCO, however, has raised this argument previously (Sumn !y Disposition Motion, at 28-29) and the Board has rejected it, ruling that while such a function may not be required by the regulations, it is a material element of the LILCO Plan about which genuine issues of fact remain. Plainly, summary disposition cannot be granted where genuine issues of material f act exist about implementation of important safety features in L LCO's Plan.
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Likewise, LILCO argues that the Board should reconsider its decision to deny summary disposition on Contentions 7 (ingestion pathway) and 8 (recovery and reentry) because, as LILCO argued in its Summary Disposition Motion at 25-28, there is less time pressure involved in making decisions and implementing protective actions during the post-emergency phase. See Memorandum and Order, at 36-39. LILCO argues that it "cannot imagine any plausible scenario in which ' legal authority' would prevent" an appropriate response." Motion for Reconsideration, at 9.
LILCO's refusal to recognize existing issues of fact provides no j reason for reconsideration of an argument that the Board has already rejected. The Board properly recognized in its Memorandum and Order that the " tinting has no bearing on the requirements that the regulations impose." Memorandum and Order, s at 37. Even in the absence of " time pressure" (an assumption I which the Governments do not concede), material questions about the nature and adequacy of a governmental response nevertheless (footnote continued) 4
l D. LILCO's Reliance on an NRC Letter Provides No Loaical Basis for Reconsideration Finally, in the only new argument raised by LILCO in its l
Motion for Reconsideration, LILCO cites (out of context) a letter l to LILCO from the NRCll/ to the effect that a " licensee's declared emergency classification cannot be changed by offsite officials." Motion for Reconsideration, Et 8. From the quote, LILCO draws the conclusion that it is " implausible" that the State or County would not accept LILCO's protective action recommendations and implement the LILCO Plan precisely as LILCO anticipates.12/ This weak LILCO argument cannot prevail.
First, LILCO has failed to quote the letter in context.
Immediately following the sentence quoted by LILCO, the NRC states that the response of offsite emergency officials "may include actions beyond that indicated by the emergency classifi-(footnote continued from previous page) remain. See id., at 36-39. LILCO presents no arguments why the Beard's conclusions on these matters should be reconsidered, much less reversed, 11/ Letter'from Ronald R. Bellamy, Chief, Emergency Preparedness and Radiological Protection Branch, Division of Radiation Safety and Safeguards, Nuclear Regulatory Commission, Region 1 to John D. Leonard, Jr., Vice President, Long Island Lighting Company, dated May 28, 1987, regardin classification in emergency response,g the role of emergency ll/ LILCO's actual words were that it was " implausible that the State or County would act independent of the utility in a destructive manner." Motion for Reconsideration, at 8. The Governments' paraphrase of that language removes LILCO's self-serving statements and shrill tone, which were apparent throughout LILCO's brief.
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cation if they feel it is appropriate." This language makes it plain that'even the NRC Staff recognizes that the response of offsite officials is not bound by LILCO's emergency classifications. The only import of-the letter is the Staff's view (which of course is not binding) that offsite officials cannot change the emergency classification issued by a licensee; it does not state, and in fact refutes, LILCO's apparent
. proposition that offsite officials are restricted to a particular response by a licensee's_ emergency classification.
Second,-in any event, in the three cryptic sentences devoted to this argument, LILCO offers no reasons why the Board should accept LILCO's " logic." Why the letter supports the conclusion that the Governments would accept and implement LILCO's Plan --
in the face of the Board's ruling and the numerous facts and arguments contrary to that proposition which were offered by the Governments -- is left for the reader to divine. In short, !
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L:LCO's argument provides no basis for reconsideration by this Board.
II. LILCO has Failed to Meet the Standard for Referral In what has become a recurring feature of recent LILCO pleadings,ll/ LILCO also requests that this Board refer its 11/ Ege e.o. LILCO's Reply to Interveners' Proposed Findings on Reception Centers (September 21, 1987) at 76; LILCO's Reply to Intervenor's Answer to Motion for Summary Disposition of the (footnote continued) 11 -
I ruling on the Summary Disposition Motion to the Commission, if the Motion for Reconsideration is not decided in LILCO's favor.
Motion for Reconsideration, at 11.1A/ Consistent with its current practice, however, LILCO offers no meaningful explanation of how it meets the NRC's established standards for such interlocutory review. The Board should reject LILCO's casual approach to the extraordinary relief LILCO seeks.
Interlocutory review of Licensing Board rulings should be granted only in the most compelling circumstances. Egg Public Service Co. of New Hamnshire (Seabrook Station Units 1 and 2),
ALAB-762, 19 NRC 565, 568 (1984); Cleveland Electric Illuminating Co x (Perry Nuclear Power Plant Units 1 and 2), ALAB-805, 21 NRC 596, 599 ( 1985 ) ; gag a l so 10 C . F . R . S 2.730(f). The stringent standards applicable to a request for referral or certification were defined by the Appeal Board in Public Service Co. of Indiana (Marble Hill Nuclear Generating Station Units 1 and 2), ALAB-405, 5 NRC 1190 (1977). In Marble Hill, the Appeal Board held that such review is appropriate only in the rare instance where the Licensing Board's ruling either: (1) threatens the party (footnote continued from previous page)
" Legal Authority" Issues and Motion for Referral to the Commission (May 22, 1987); Motion for Acceptance of Protective Order Or, In the Alternative, for Stay of Requirements of
, April 30, 1987, Order and for Expedited Referral or Certification (May 7, 1987).
ld/ LILCO requests referral from the Licensing Board to the Commission pursuant to 10 C.F.R. S 2.785(b)(1). This regulation concerns referral from the Appeal Board to the Commission. The appropriate regulations dealing with referral from a Licensing Board are S 2.718(i) and S 2.730(f).
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l l adversely affected with immediate and serious irrevocable impact which as a practical matter could not be alleviated by a later appeal, or (2) affects the basic structure of the proceeding in a pervasive or unusual manner. Id. at 1192. The Marble Hill standards have subsequently been applied in innumerable cases.
HER e.g. cases cited herein. It is rare that a party succeeds in meeting the standards. LILCO does not come close.
LILCO's first argument in favor of referral does not address M_arble kill. Rather, LILCO focuses on the Commission's 1981 Statement of Policy on Conduct of Licensino Proceedings, CLI-81-8, 13 NRC 452, 456 which states in part:
If a significant legal or policy question is presented on which Commission guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission.
LILCO cites two issues which it " believes" are "significant legal or policy questions:"
One is what is the burden of proof that must be borne by the sponsor of a " utility plan."
Another is the important threshold issue of the construction of the " realism" doctrine outlined in CLI-86-13.
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Motion for Reconsideration, at 9. This, however, is the totality of LILCO's argument. Just why LILCO believes these issues require immediate Commission review and why they are more important than the dozens of matters which have been denied referral or certification in this and other cases, is left to the reader's imagination. While under some circumstances, a showing that an issue is generic or bears on other ongoing proceedings as well might justify referral, see Virainia Electric and Power Co.
(North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371, 376 (1983), citing Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983), LILCO has made no such showing.
Furthermore, LILCO places too much emphasis on the quoted language f rom CLI-81-8, the NRC's 1981 Policy Statement. As LILCO's counsel was told by the Appeal Board after relying on the same language in an unsuccessful attempt at certification on behalf of a different client, CLI-81-8 was not intended to relax the stringent standards of Marble Hill. North Anna, supra, ALAB-741, 18 NRC at 375 (Hunton & Williams representing VEPCO);
see also, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1) ALAB-791, 21 NRC 1579, 1583 (1984). LILCO's bald claims that "significant legal and policy issues" exist do nothing to demonstrate how the Marble Bill standards are met. It may be that LILCO " believes" that the questions it has raised are
important to the success of its case. However, the fact that 1
certain questions may be novel or important to a party's case
) does not satisfy the Marble Hill standards. Three Mile Island, suora, 21 NRC at 1582.
LILCO's second argument in favor of referral also does little more than pay lip service to the Marble Hill standards.
LILCO acknowledges their existence, but then fails to demonstrate either irreparable harm or pervasive or unusual effect on the proceeding. Rather, after quoting the standards, LILCO argues that referral is proper where the public interest will suffer or unusual delay or expense will be encountered. For this proposition, it cites a pre-Marble Hill case, Public Service Co.
of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975). Motion for Reconsideration, at 10. LILCO makes no attempt to tie this argument into the Marble Hill standards. That omission is evidence of its failure to meet those standards.
LILCO's argument that the Board's ruling will result in unusual delay or expense is as follows:
Furthermore, the delay and expense of litigating what the State and County would do in an emergency, in the teeth of their unrelenting insistence that they do not know and refuse to decide, is bound to entail unusual delay and expense. Discovery will be time-consuming and burdensome; the hearing will be likewise.
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l Motion for Reconsideration, at 10'(footnote omitted). The Governments have already. demonstrated above why LILCO's claim ,
I that the proceeding will be " frustrating" is speculative and unfounded. In any event, and as even LILCO concedes, the mere fact that an' alleged error of a Licensing Board may lead to additional litigation is not a controlling consideration in favor 1 of interlocutory review. North Anna, suora, 18 NRC at 378 and n.11; Cleveland Electric Illuminating Co., (Perry Nuclear Power Plant Units 1 and 2), ALAB-675, 15 NRC 1105, 1113-14 (1982); seg als2, Public Service Co. of New Hamoshire (Seabrook Units 1 and
- 2) ALAB-858, 25 NRC 17 (1987). Thus, the fact that a party may be required to engage in additional litigation because of an adverse ruling does not result in irreparable harm or alter the basic structure of the proceeding in a pervas'.ve or unusual manner so as to require interlocutory review. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 371, 378 (1983); North Anna, suora, 18 NRC at 378.
The weakness of LILCO's argument is further demonstrated by the Appeal Board's decision in Pennsylvania Power & Licht Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550 (1981). There, the Licensing Board denied in part the Applicant's motion for summary disposition on certain issues. )
The NRC Staff sought directed certification of the issue by the Appeal Board, arguing that litigation of the issues on which 1
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summary disposition was denied would force them into preparing
" wasteful, expensive and time-consuming predictions about remote and speculative matters." Id. at 52. Such unnecessary expense j and delay, the Staff argued, would amount to immediate !
irreparable harm that could not be alleviated by appeal. Id. at 552. Applying the Marble Hill standards, the Appeal Board found the Staff's argument unconvincing:
In the context of the denial of a motion for partial summary disposition, the staff's arguments do little more than state the apparent. Obviously the Licensing Board's ruling will result in the trial of issues with the concomitant investment of time and money such litigation-entails. Equally obvious is the fact that once the hearing is held the time and money expended in the trial of an issue cannot be recouped by any appellate action.
But the same is true any time summary disposition of an issue is denied and a litigant must go to hearing. The fact that the ruling below may have erroneously expanded the. issues to be tried . . . l does little to distinguish this case from any other where it is alleged that summary disposition was erroneously withheld. . . .
In reality, adoption of the staff's rationale would alter-the standard for discretionary interlocutory review; certainly where a denial of summary disposition is involved it would be reduced to a simple determination whether the Licensing Board erred. As we stated in Houston Lichtina and Power Comoany (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635,.13 NRC 309 (1981): "It is scarcely necessary to expound at any length upon why a drastic alteration of existing practice to accommodate that thesis would !
be intolerable -- as well as in derogation of the Commission's explicit policy disfavoring interlocutory review."
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i By~the-same: token, LILCO's speculative and unsubstantiated 1
O claims that'-the Board's failure to' grant LILCO's Summary I Disposition Motion will result in unnecessary litigation and expense are. equally.uncompelling. LILCO'has failed.to show why !
its claimLof " unusual delay or expense" is'any more persuasive
'than'the Staff's unsuccessful argument in Susouehanna.
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'Furthermore, LILCO's argument that.the public interest I j- -demands "a proper? construction of the scope" of the CLI-86-13 remand is specious. .Any-disgruntled party can make such an argument about an adverse ruling. LILCO makes no effort to show why.its discontent with the Board's decision places it in a better' position forfinterlocutory review than any other losing pa r ty . ll/-
15/ . Finally, LILCO seeks to bypass the Appeal Board and have the matter referred directly to the Commission.- LILCO cites Southern California Edison- Co. (San Onofre Generating Station Units 2 and 3), LBP-81-36, 14 NRC 691 (1981), as suggesting that referral '
directly-to the Commission is possible. The Governments will not debate whether such certification is possible. Suffice it to say that-in' San Onofre the Board ruled that the matter would not be referred directly to the Commission absent a " strong reason" for i
- bypassing the~ Appeal Board. See id., at 701. The Governments' '
research reveals no case where a party has successfully demonstrated'a reason strong enough to bypass the Appeal Board.
LILCO's argument'that the matter should be immediately referred to .the full Commission' because the issue concerns a Commission decision .is 'not well taken. The Appeal Board is perfectly capable of applying Commission - rulings, as it does routinely.
Indeed,1the Appeal Board is already familiar with CLI-86-13. See ALAB-847, 24 NRC 412, 429-33 (1986).
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In short, LILCO's case for referral has no support in NRC case. law or the facts!of the case. . LILCO's argument, in essence, is that-the Board erred in_its interpretation of the scope of CLI-86-13 and.that it-wishes further review of the matter.
~ Simple assertions of error,.however, do-not meet the Marble Hill standErds. If they did, cases ~would never move.toward final disposition as they bounced back and forth between the~ Licensing Board ~and theiCommission (or-Appeal Board). Certainly, after the Board's detailed.48-page Memorandum and Order analyzing CLI-86-13, ,it makes no sense to refer -the matter to the
. Commission before the fact-finding which CLI-86-13 ordered has even commenced.-
CONCLUSION For the foregoing reasons, LILCO's Motion for Reconsiders-tion should be denied. Furthermore, LILCO's motion for referral of the issue to the full Commission should also be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 19 -
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LMrence t. La'nphef Christopher M. McMurray /
KIRKPATRICK & LOCKHART 180 0 "M St r ee t , N. W.
South Lobby :- Ninth Floor j Washington, D. C. 20036-5891
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Attorneys for Suffolk County Fab'ian G. Palg4ftinf
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Richard J. Zahnleuter Special Counsel to the Governor of the State of New York- )
Executive Chamber, Room 229 l
Capitol Building Albany, New York 12224 Attorneys for Mario M. .Cuomo, j Governor of the State of New York l
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/A q Stephen 4. Latham
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Twomey, Latham & Shea Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton j l
October 15, 1987 l
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4 USNflC I October 15. 1987-
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'87 OCT 19 All:41 r.
' UNITED STATES OF AMERICA (FFICE 0f 3 ETA L ' ' -
NUC LEAR REGULATORY . ' COMM I S S IO!588K6,p lN Ryl ,-,'
'8A Before t,he-Atomic'Safet'v and Licensino Board.
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket.No.-50-322-OL-3
) (Emergency Planning). !
~(Shoreham Nuclear Power Station, )
Unit?l) .)
)
~ CERTIFICATE OF SERVICE L
I hereby. certify that' copies of the SUFFOLK COUNTY, STATE O'F NEW YORK AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S MOTION FOR
~ RECONSIDERATION AND ALTERNATIVE. REQUEST:FOR REFERRAL TO THE COMMISSION (REALISM ISSUE) have been served on the following this.
15th day of. October, 1987,:by. United States mail, first class, except.as.otherwise noted.
Morton B.HMargulies, E' squire
- Joel Blau, Esquire
' Chairman Director Atomic-Safety and Licensing Board Utility Intervention United : States Nuclear Regulatory -New York State Consumer
.-Commission Protection Board Washington, D. .C. 20555- Suite Number 1020.
-Albany, New York 12210 Dr. Jerry R. Kline* William R. Cumming, Esquire Atomic Safety and Licensing Board Spence W. Perry, Esquire
-United-States Nuclear' Regulatory Office of the General Counsel l Commission' Federal Emergency Management Washington, D. C. 20555 Agency '
500 "C" Street, S. W.
Room Number 840 j Washington, D. C. 20472 l
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Mr. Frederick J. Shon* Anthony F. Earley, Jr., Esquire Atomic. Safety and Licensi'ng Board General Counsel United States Nuclear Regulatory Long Island Lighting Company (
commission 175 East Old Country Road j Washington, D. C. 20555 Hicksville, New York 11801
] 1 Ms. Elisabeth Taibbi W. Taylor Reveley, III, Esquire **
Clerk '-
Hunton and Williams ] 1 l Suffolk County Legislature Post Office Box 1535 l
Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 i Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esquire Long Island Lighting Company Twomey, Latham and Shea Shoreham Nuclear Power Station 33 West Second Street j 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 United States Nuclear Regulatory 195 East Main Street Commission Smithtown, New York 11787 1717 "H" Street, N. W.
Washington, D. C. 20555 Mary M. Gundrum, Esquire Honorable Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway H. Lee-Dennison Building Third Floor Veterans Memorial Highway Room Number 3-116 Hauppauge, New York 11788 New York, New York 10271 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite "K" Post Office Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esquire Fabian G. Palomino, Esquire Suffolk County Attorney Richard J. Zahnleuter, Esquire **
Building Number 158 Special Counsel to the Governor North County Complex of the State of New York Veterans Memorial Highway Executive Chamber Hauppauge, New York 11788 Room Number 229 Capitol Building Mr. Jay Dunkleburger Albany, New York 12224 New York State Energy Office Agency Building Number Two Richard G. Bachmann, Esquire
- i Empire State Plaza United States Nuclear Regulatory Albany, New York 12223 Commission Washington, D. C. 20555
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David A. Brownlee, Esquire Mr. Stuart Diamond 1 Kirkpatrick and Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 West 43rd Street I New York, New York 10036 l i
Douglas J. Hynes, Councilman '
Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 Cfiristo1her 5 M. McMurray /
KIRKPATRICK & LOCKHART / i 1800 "M" Street, N. W. !
South Lobby - Ninth Floor Washington, D. C. 20036-5891 i
- Via Hand-Delivery
- Via Federal Express October 15, 1987 1
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