ML20235R488

Suffolk County,State of Ny & Town of Southampton Motion for Leave to Respond to Lilco Reply Findings.* Govt Not Intended to Address Lilco Realism,Abstention,Or Preemption Arguments Any Further as They Have Been Sufficiently Briefed

ML20235R488
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/01/1987
From:	Latham S, Mcmurray C, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:
Shared Package
ML20235R490	List: ML20235R488 ML20235R534
References
CON-#487-4539 OL-3, NUDOCS 8710080070
Download: ML20235R488 (6)

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, l 94CKETED 'j October 14SNIO87 -

i 90 UNITED STATES OF AMERICA )

NUCLEAR REGULATORY COMMISSION j Before the Atomic Safety and Licensina Board cme

,lF.FICE-pf BRAN y'

, i l '

)

In the Matter of )

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

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

Unit 1) )

)

)

l SUFFOLK COUNTY, STATE OF NEW YORK j AND TOWN OF SOUTHAMPTON MOTION FOR LEAVE TO RESPOND TO LILCO REPLY FINDINGS In its September 21, 1987, Reply Findings,1/ LILCO addressed the zoning issues currently before this Board. For the reasons i

set forth below, Suffolk County, the State of New York and the Town of Southampton (the " Governments") hereby move for leave to respond to LILCO's Reply Findings on the zoning issues.

BACKGROUND On September 2, 1987, LILCO filed its initial proposed find-ings on the suitability of LILCO's reception centers.2/ Those 1/ . LILCO's Reply To Interveners' Proposed Findings On Reception Centers (September 21, 1987) (" Reply Findings").

2_/ LILCO's Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers (September 2, 1987) ("LILCO Findings").

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findings devoted only one and one-half pages to the zoning issues before this Board. Egg LILCO Findings, at 118-19. In that short space, LILCO did little more than identify the issue, and argue that there was no evidence supporting the Governments' position on the zoning law issues and that the matter was governed in any event by LILCO's " realism" argument. ggg id.

1 The Governments filed their proposed findings on September 14, 1987.2/ In contrast to LILCO's sparse findings, the Governments devoted 15 pages of their findings to the zoning issues. However, while the Governments were able to set forth their affirmative case on the zoning issues, the paucity of LILCO's initial findings precluded the Governments from respond-ing to LILCO's position on the matter.

Taking advantage of its opportunity to submit a reply brief, LILCO filed Reply Findings on September 21 which addressed the zoning issues in much greater detail and revealed for the first time various arguments which the Governments could not reasonably have foreseen in filing their initial findings. For the most part, LILCO's arguments mischaracterize the nature of the reso-lutions and the applicable law. Without the opportunity to respond to LILCO's arguments on the zoning issues, the Board will have before it a distortion of the facts and the law which apply 1/ Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers (September 14, 1987)

(" Governments' Findings").

]

l to this issue. Accordingly, it is appropriate for the Board to l

grant the Governments' Motion to file a response to LILCO's {

l arguments. That response can be filed within seven days of {

l notice from the Board that the Governments' Motion has been  !

granted.

l ARGUMENT I i

Among the arguments advanced by LILCO are three asserted i reasons why the resolutions have "no conclusive ',egal effect." 4 i

Reply Findings, at 69-72. The first argument is that the l resolutions are not valid zoning ordinances. Reply Findings, at

70. This mischaracterizes the resolutions which are not, and l

were never intended to be, zoning ordinances. Rather, they are interpretations of the local law which the zoning boards are authorized to provide. The Governments seek leave to explain why LILCO's false portrayal of the resolutions should not be accepted by the Board.

The second issue raised by LILCO in its Reply Findings is that the resolutions are not valid " enforcement actions." Reply Findings, at 71. Again, this is an attempt to mischaracterize the nature of the resolutions which are not " enforcement actions." The Governments seek the opportunity to explain to the Board why LILCO's arguments in this regard are merely a smoke screen to hide the actual significance of the resolutions.

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The third reason LILCO cites for the proposition that the resolutions have no legal effect is that the resolutions concern i

" prospective zoning violations" and thus are invalid. Reply Findings, at 71. This assertion, however, is contrary to the laws of New York and the Governments request the opportunity to demonstrate this point.

Another issue raised by LILCO is that the Board should not rule on the zoning issues against LILCO without having held a hearing to review the evidence on the zoning issues. Reply Findings, at 74. This argument requires rebuttal, particularly in light of LILCO's statement in its initial findings that "it is not the Board's function to interpret or enforce local laws."

LILCO Findings, at 118.

None of the above LILCO arguments could have been antici-pated by the Governments in light of LILCO's cryptic initial findings on the zoning issues. Nevertheless, LILCO has now raised for the first time arguments which the Governments must fairly be provided the opportunity to rebut. In the' absence of such a Government response, the Board will have only LILCO's views on the new matters LILCO has raised. For this reason, the Governments seek leave to file a response to LILCO's Reply 1

i 1

Findings on the zoning issues noted above. .The Governments do-not intend to address LILCO's realism, abstention, or preemption arguments 1/-any.further, as they have been sufficiently briefed.

CONCLUSION I

For the foregoing reasons, the Governments motion to file a response to LILCO's Reply. Findings should be granted.

Respectfully submitted, Martin Bradley Ashare Suffolk County' Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 l

dEristopher M. McMurr6p" l

KIRKPATRICK & LOCKHART 1800 "M" Street, N. W. i South Lobby - Ninth Floor  ;

Washington, D. C. 20036-5891 '

Attorney for Suffolk County The Governments have today filed a separate pleading opposing LILCO's motion for certification of the preemption issue to the full Commission.

_ _ _ _ _ _ - _ = _ _ _ _ _ - _ _ _ _ _ _ _ - _ - _ . _ - _ _ _ _ _

/

'A Fabian G. Palomino Special Counsel to the Governor of the State of New York "

Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York q-r Stephen B/ . Latham b /

Twomey, Latham & Shea Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton October 1, 1987