ML19261C412

Applicant'S Reply to Suffolk County'S 790207 Motion for Protective Order.Urges Denial of Motion as Unfounded & Urges That Motion for Summary Disposition Be Granted. Certificate of Svc Encl

ML19261C412
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/22/1979
From:	Whittemore F HUNTON & WILLIAMS
To:
References
NUDOCS 7903220397
Download: ML19261C412 (5)

Text

NRC PUm 'vc ..

,, 2/22/79

-:OOAf UNITED STATES OF AMERICA N" CLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board 3-  ;,

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322

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(Shoreham Nuclear Power Station )

Unit 1) )

APPLICANT'S REPLY TO SC'S MOTION FOR A PROTECTIVE ORDER The Applicant filed its first group of su= mary disposition motions and supporting affidavits (Applicant's First Group) on December 18, 1978. Suffolk County (SC or County) requested a 30-day extension for, among other things,

" careful review and evaluation" of the Applicant's First Group.

SC's Motion for an Extension at 2 (Dec. 28, 1979). Even though the County was granted the additional time, Board Order of January 10, 1979, SC now requests a protective order,1/rather than responding in accordance with the NRC rules governing summary disposition, which appear in 10 CFR S 2.749.2/ For the following reasons, the Applicant 21/See SC's Motion in Opposition to Applicant's First Group and ?or a Protective Order at 14 (Feb. 7, 1979) (SC's Motion for a Protective Order).

-2/Notwithstanding the County's claim in the note on page 9 of SC's Motion for a Protective Order, that pleading does not comply with 10 CFR 3 2.749. This is because it neither includes affi-davits that " set forth specific facts showing that there is a genuine issue of fact," 10 CFR S 2. 749 (b) , nor explains why such af fidavits are not provided,10 CFR S 2.749(c) . Instead, counsel for the County raises numerous issues that are irrelevant to (footnote continued on next page)

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requests that SC's motion be denied:

1. The County cites 10 CFR S 2.740(c) as the basis for its request for a protective order. That regulation is part of the NRC's rules of discovery, see 10 CFR SS 2.740-

.741, and does not pertain te sucmary disposition.

2. SC claims that the Applicant's First Group is premature and a misuse of ourmary diposition. These argu-ments are unfounded for the following reasons. .

a. The County cites no regulation to support its allegation that the Applicant's First Group is premature, and there is none. While trying to justify the duration of the protective order requested by SC, it referred to the pro-vision in 10 CFR S 2.749(a) regarding the timing of su=cary disposition motions. SC's Motion for a Protective Order at

14. In addition to. not justifying the duration sought by the County, that requirement does not support SC's prematurity argument because it specifies the latest time that a motion for summary disposition may be filed, not the earliest.

b. SC's position is that no su==ary dispo-sition should start earlier than the end of discovery,3/ SC's (footnote continued)

Shoreham, outside the scope of the contentions, or resolved in the Applicant's First Group. See SC's Motion for a Protective Order at 9-14.

-3/The County incorrectly alleges that "the formal discovery period set by the hearing board has not yet begun to run."

SC's Motion for a Protective Order at 4 Quite to the con-trary, the formal discovery period started over lo months ago on the occasion of the October 11, 1977 prehearing conference.

E.e., Tr. 120-22. In pertinent part, the Board Order of March d, 1973, which SC cites to support its assertion, only estab-lished the final dates for filing and answering discovery recuests.

Motion for a Protective Order at 14, which will be 50 days after the SER is issued, Board Order of March 8, 1979 at 5.

The Applicant agrees that necessary discovery on a parti-cular contention should be completed before the Board rules on a motion for summary disposition of that contention.

But the County's proposed prohibition is too broad. There is no reason to forestall the summary disposition process for these contentions on which SC has completed discovery.

And there must be many such contentions in light of the 16 months that the County already has had for discovery, see note 3 above, and the few weeks that remain for filing such requests.4/ Moreover, if the Applicant has req';ested summary disposition of a contention on which SC needs further discovery, then it should so indicate and state precisely what information it seeks.

c. SC cites certain NRC case law which establishes that motions for summary disposition are in-tended to " avoid unnecessary litigation and expedite the decision-making process." SC's Motion for a Protective Order at 7. The County then asserts without support 5/ that

-4/Discovery requests must be filed no later than 30 days after the SER is issued. Board Order of March 8, 1978 at 5. The SER is expected to be issued i=minently.

-5/Instead of supporting its claim, SC blames the Applicant for delaying publication of the SER. Contrary to the County's asser-tion, it is flatly not the case that the SER is being delayed for lack of data from the Applicant. As to the open items listed in the January 26, 1979 Staff letter cited in the note on page 7 of SC's Motion for a Protective Order, they relate to the Mark II containment design, which will be covered 'n a separate SER supplement that will be issued after the document in chier.

the Applicant's motions for summary disposition " work at cross purposes with these goals." Id. To the contrary, the Applicant is trying to further the above goals of su= mary dis-position. It is incontrovertible that resolving contentions before hearings will avoid unnacessary litigation and expe-dite the decision-making process. These goals will also be advanced by resolving contentions as early as possible in the prehearing stage so that the resources of the Board and parties may be concentrated on the remaining contentions.

For the above reasons, SC's motion for a protective order is unfounded and should be denied. Therefore, since the Applicant's First Group has not been answered in accordance with 10 CFR S 2.749, see note 1 above, the Applicant presses its motions for summary disposition in the First Group, as well as those in the Second Group, which were filed on February 5, 1979.

Respectfully submitted, LONG ISLAND LIGNING COMPANY E N ?- 6 F. Case Whittemore W. Taylor Reveley, III Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212

In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S REPLY TO SC'S MOTION FOR A PROTECTIVE ORDER were served upon the following by first-class mail, postage prepaid, on February 22, 1979-Elizabeth S. Bowers, Esq. Richard K. Hoefling, Esq.

Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Jeffrey C. Cohen, Esq.

Mr. Frederick J. Shon New York State Energy Office Atomic Safety and Licensing Swan Street Building - Core 1 Board Panel Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Wasington, D.C. 20555 Howard L. Blau, Esq.

Dr. Oscar H. Paris 217 Newbridge Road Atomic Safety and Licensing Hicksville, New York 11801 Board Panel U.S. Nuclear Regulatory Commission Irving Like, Esq.

Washington, D.C. 20555 Reilly and Like 200 West Main Street Secretary of the Commission Babylon, New York 11702 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ralph Shapiro, Esq.

Cammer & Shapiro, P.C.

Acomic Safety and Licensing Board 9 East 40th Street Panel New York, New York 10016 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Energy Research Group, Inc.

400-1 Totten Pond Road Atomic Safety and Licensing Appeal Waltham, Massachusetts 02154 Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 3 fY$rek F. Case Whictemore Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 DATED: February 22, 1979