ML19273B996

Opposes Suffolk County 790419 Motion to File Supplemental Brief.Arguments Presented Are Outside Scope of Evidence or Redundant of Arguments Already Admitted Into Evidence. Certificate of Svc Encl

ML19273B996
Person / Time
Site:	05000516, 05000517
Issue date:	05/04/1979
From:	Reveley W HUNTON & WILLIAMS
To:
References
NUDOCS 7906180669
Download: ML19273B996 (4)

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5 ff fore the Atomic Safety and Licensing Appeal Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY )

and ) Docket Nos. 50-516 NEW YORK STATE ELECTRIC & ) 50-517 GAS CORPORATION )

)

(Jamesport Nuclear Power Station, )

Units 1 and 2) )

APPLICANTS' OPPOSITION TO SC'S MOTION FOR LEAVE TO FILE MORE PAPER On April 19, 1979, Suffolk County (SC) mailed a " Motion for Leave to File a Supplemental Brief" (SC Motion) . In this pleading, SC claimed that "[s]everal . . . developments of sig-I nificance to the issues litigated in this proceeding have occurred of which the Board should be made aware." Motion at

3. SC listed five specific " developments": (1) the accident I at Three Mile Island, (2) unidentified testimony on peak demand given during New York State's 1978 149-b proceeding, (3) a paper on "the accuracy of dispersion models" printed in the August 1978 Bulletin of the American Meteorological Society, (4) the final IRG report, and (5) "[a] series of scientific and govern-mental reports" on nuclear fuel cycle health effects. See SC Motien passim.

SC made no recuest that the record of this proceeding be reopened to receive evidence concerning these " developments."

It appears that SC simoly wants to write a brief purportedly 2353 160

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related to them. The Applicants oppose SC's request. Three considerations are persuasive.

First, since this proceeding involves adjudicatory liti-gation, it would serve no purpose for the Board to receive a brief from SC and replies from other parties concerning "devel-opments" that are not part of the decisional record. As noted, SC's Motion includes no request that the record be reopened.

To the contrary, the Motion makes clear that SC wants to derive factual allegations from the " developments" in question and then submit written arguments tied to these claims. Decisions in adjudicatory proceedings , however, may not be shaped by such extra-evidentiary arguments.

Second, to the extent that SC intends simply to repeat prior arguments under new " developments" headings, as would very likely be the case if the present motion were granted, no justi-fication for such redundancy exists. SC has already pressed upon this proceeding the arguments reiterated on pages 1-2 of its Motion. No reason comes to mind -- whether as a matter of due process, NRC regulations or sound administrative practice -- to permit SC another, out-of-time opportunity to paraphrase, repeat verbatim or incorporate by reference (a) its prior characteriza-tions of the existing record or (b) its well-worn legal theories.

Third, although SC has not asked that the record be reopened, it is well to note that, even if the present motion were construed to be such a request, SC has nor =ade the showing essential to support reopening. SC has offered nothing, other 2353 161

than bare conclusions, to suggest that the " developments" in question might, much less would, significantly affect the dis-position of any issues litigated in this proceeding. A more detailed factual showing would be required to justify reopen-ing.1/ Arguments for reopening must also, of course, take into account relevant case law. Again, SC has made no attempt to do so.2/

For the reasons stated, SC's Motion lacks merit and should be denied.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY

,/ 49?

hY l W. Taylog Reveley, III Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED: May 4, 1979 1/ See, e.c., Duke Power Co. (Catawba Nuclear Station, Units 1 and 7) , ALA3-359, 4 NRC 619, 620-21 (1976) ; Northern Indiana Pub. Serv. Co. (Bailly Generating Station, Nuclear - 1), ALA3-227, 8 AEC 416, 418 (1974). If SC attempts to make the neces-sary showing in a future pleading, we will respond then to its substance. Given the pertinent facts, we do not believe that SC could carry its evidentiary burden.

m'/ E.2., SC could not meaningfully seek reopening to consider more load-forecast testi=ony (the 1973 149-b " development")

without taking into account Rochester Gas & Elec. Co. (Sterling Power Project, Nuclear Unit 1), ALAB-502, 3 MRC 363, 337-89 (1973). Similarly, any SC reopening request regarding the IRG report would seem to be precluded by Northern States Power Co.

(Prairie Island Generating Plant, Units 1 anc 2), ALAS-e55, 7 NRC 41, 51 (1975).

2353 162

In the Matter of LONG ISLAND LIGHTING COMPANY and NEW YORK STATE ELECTRIC & GAS CORPORATION (Jamesport Nuclear Power Station, Units 1 and 2)

Docket Nos. 50-516, 50-517 CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS' OPPOSITION TO SC'S MOTION FOR LEAVE TO FILE MORE PAPER were served upon the following by first-class mail, postage prepaid, on May 4, 1979:

Jerome E. Sharfman, Chairman Dr. E. Leonard Cheatum Atomic Safety and Licensing Route #3, Box 350A Appeal Board Watkinsville, Georgia 30677 U.S. Nuclear Regulatory Commission Washington , D . C . 20555 U.S. Nuclear Regulatory Commission Richard S. Salzman, Esquire Office of the Secretary Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Bernard M. Bordenick, Esquire Washington, D.C. 20555 U.S. Nuclear Regulatory Co= mission Dr. W. Reed Johnson Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Irving Like, Esquire U.S. Nuclear Regulatory Commission Reilly and Like Washington, D.C. 20555 200 West Main Street Babylon, New York 11702 Sheldon J. Wolfe, Esquire Atomic Safety and Licensing Joseph C. Gramer, Esquire Beard Panel 425 Broadhollow Road U.S. Nuclear Regulatory Co= mission Melville, New York 11746 Washington, D.C. 20555 Mrs. Jean H. Tiedke Mr. Ralph S. Decker Mrs. Shirley Bachrach Route 1, Box 190D Box 1103 Cambridge, Maryland 21613 Southold, New York 11971-Umbfl n W. Taylod Reveley, III Hunt n '& Williams 707 East Main Screet P. O. Box 1535 2353 163 Richmond, Virginia 23212 DATED: May 4, 1979