ML19323D795

Reply in Opposition to Shoreham Opponents Coalition 800403 Response to ASLB 800505 Order,Requesting Prehearing Conference.Intervenor Repeats Arguments Previously Tendered to & Rejected by Aslb.Certificate of Svc Encl

ML19323D795
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/15/1980
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8005220353
Download: ML19323D795 (9)

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4/15/80 TN UNITED STATES OF AMERICA // Ag NUCLEAR REGULATORY COMMISSION DQCKETED

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• APR1171980 > :g Before the Atomic Safety and Licensing Board -

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In the Matter of ) e

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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 SOC PLEADING OF APRIL 3, 1980 I.

On April 3,1980, the Shoreham Opponents Coalition (SOC) submitted a document entitled " Response of the Shoreham Oppo-nents Coalition (SOC) to Board Order Dated March 5,1980" (SOC Response). SOC's pleading (1) presents certain material re-sponsive to the Board Order of March 5, (2) requests a special prehearing conference under 10 CFR $ 2.751a, and (3) seeks to reargue certain issues already decided by the Board. Some reply seems appropriate to SOC's request for a prehearing conference and to its attempt to raise anew already resolved issues.

4 II.

Part VII of the SOC Response requests the Board.to con-vene a special prehearing conference. SOC would have the con-ference reconsider those contentions dismissed by the Board 8005220353

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and reconsider the Board's decision that no supplemental FES is needed. See SOC Response at 15-16. A conference for these purposes is not warranted. First, in light of the Board's disposal of all contentions except those rsquiring particular-ization and SOC's apparent inability to particularize in the near future,1/ a special prehearing conference at this time would serve no useful particularization purpose. Second, as noted below, no basis exists for reconsideration of issues decided against SOC. In the event the Board decides nonethe-less to entertain SOC's Response as if it were a motion for re-consideration, ordering a conference would amount to granting a motion for oral argument on the reconsideration request -- l an extraordinary step for which no predicate exists in the present circumstances. See 10 CFR 5 2.730(d). SOC's recon-sideration claims do not present issues justifying any such time-consuming, expensive procedure.

III.

SOC, in its response to the Board Order of March 5, 1980, has gratuitously included a commentary on the validity 1/ The Applicant will be delighted to join SOC and the NRC Staff in efforts to particularize SOC's claims if and when there is reason to believe that the process will produce meaningful results. In our judgment, inadequate groundt for such belief exists as to the SOC /NRC gather-l ings herd to date and scheduled for this week. Past experience in the Shoreham and Jamesport proceedings in-dicates, however, that LILCO will go far beyond the second mile to encourage, nurture and staff informal efforts to i

particularize, when the time and expense involved have a '

reasonable prospect of bearing fruit.

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of those parts of the Board's decision that SOC dislikes. No procedural grqpnd for filing such a commentary is stated. It would be entirely appropriate for the Board to disregard the commentary as an improper filing, as the Board is under no ob-ligation to speculate about what the pleading is supposed to mean. See Kansas Gas and Elec. Co. (Wolf Creek Generating l

Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975). The l NRC Rules of Practice specify the prescribed form for motions, including the requirement to state "with particularity the grounds and the relief sought." 10 CFR $ 2.730(b) (emphasis added). In at least one case, the Appeal Board admonished that "we will expect the caption of every future filing in which certain immediate affirmative relief is being requested

to make reference to that fact explicitly by adverting to the relief sought and including the word ' motion'." Duke Power Co.

(Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-457, 7 NRC 70, 71 (1978). In SOC's pleading, the word " motion" is not only omitted from the caption but it also does not appear anywhere in the text in such a way as to indicate the particular relief requested. Where an intervenor is represented by counsel, failure to meet such basic procedural requirements should be fatal to the pleading. See Wolf Creek, above, 1 NRC at 577 (dismissing vague antitrust contentions drafted by experienced counsel); cf. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-469, 7 NRC 470, 471-72 (1978) (requiring some degree of precision from a layman).

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Even if the Board were to accord SOC the special treat-ment usually reserved for non-legal draftsmen (see, e.g. , Public Service Elec. and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973)) and to deem SOC's pleading to be a motion for reconsideration,2/ doubt re-mains about the propriety of entertaining it. Most cases in-volving motions for reconsideration do not address the threshold criteria that such motions must satisfy. See, e.g., Houston Lighting and Power Co. (South Texas Project, Unit Nos. 1 and 2),

ALAB-387, 5 NRC 638 (1977); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-166, 6 AEC 1148 (1973). The Rules of Practice in 10 CFR S 2.771(a), however, do authorize petitions for reconsideration of a " final decision." The ques-tion, then, is whether this authorization really is reserved simply to the reconsideration of " final" decisions or whether it may be extended by analogy to other decisions made in NRC proceedings. The precise issue was addressed in Consumers l Power Co. (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645  !

(1974). Intervenors in a construction permit proceeding moved the Licensing Board to reconsider its initial. decision in the case. Another party opposed the motion on the ground that 5 2.771 limited such petitions to requests for reconsideration

-2/ See Public Service Co. of Oklahoma (Black Fox Station, Unfts 1 and 2), ALAB-370, 5 NRC 131, 132 n.2 (1977)

(unauthorized interlocutory appeal may be treated as a motion for reconsideration). l

-5 of final decisions. The Appeal Board disagreed, stating:

Like many procedural rules . . . those l of the Commission have evolved over many years, during the course of which i they have been modified from time to time to meet specific situations. These l changes have perhaps obscured the intend- l l ment of section 2.771. In practice, '

l however, it is established that the rule

, does not preclude a party from petition-l ing a licensing board to reconsider its initial decision.

Id. at 646. The Appeal Board went on to hold both that 5 2.771 was the authority for entertaining the motion to reconsider and l that all of $ 2.771's requirements were applicable to the re-consideration request. Id. at 648.

Under the rationale of Midland, then, this Board's au-thority for entertaining a motion for reconsideration would be

$ 2.771, (see als_o_ Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-402, 5 NRC 1182,1183 n.1 (1977)),

and all aspects of f 2.771 would govern the motion. One of these provisions, $ 2.771(a), imposes a ten-day time limit on the filing of motions for reconsideration. SOC's pleading falls well beyond this period. SOC offers no explanation for its un- l 1

timeliness, nor for that matter even asks leave to make the un- l timely filing. Cf.10 CFR $ 2.711(a) . Thus, even if SOC's pleading may be transformed by grace into a motion for reconsid-eration, it remains unjustifiably out of time.

Procedural defects to one side, SOC's pleading alao lacks substantive merit. Its points fall far short of the r'.rong l

i showing of error that would be required to occasion relief.

Duke Power Co, (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976). Indeed, SOC lurgely repeats argu-ments previously tendered to and rejected by the Board. As I

such, these arguments merit summary denial. Houston Lighting l and Power Co. (South Texas Project, Units Nos. 1 and 2), ALAB-387, 5 NRC 638 (1977); see also Public Service Co. of Indiana I (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB- l 493, 8 NRC 253, 258 (1978).3/

IV.

The basic tenor of SOC's pleading is well reflected on  !

its tenth page, where " SOC specifically demands the right to 1 1

present a direct case on all matters raised by the contentions submitted in its January 24, 1980 Petition . "

. . . (Emphasis l

-3/ SOC says nothing to alter the balance under 10 CFR $ 2.714 for those of its contentions found by the Board to lack good cause for their untimely submission. If, however, the Board decides to reconsider its talancing, the Appli-cant stands ready to elaborate its views on the merits of  !

SOC's arguments, at the Board's request. We do not do so  !

here in light of Appeal Board guidance in Maine Yankee, above:

[I]t will never be necessary for a party to respond to a petition for reconsidera-tion filed with an Appeal Board unless that Board has specifically requested it to do so. Absent the most extraordinary circumstances, such a petition will not be granted without a request for responses having first been made.

i 6 AEC at 1150 n.7.

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added.) Parties to NRC adjudicatory proceedings may not

" demand" anything of the Board.

It is particularly inappro-priate for people who enter a case over 3-1/2 years late to

" demand" that the Board reshape the proceeding in their un-

. timely image. SOC nonetheless comes with many demands and, in the process, ignores the NRC Rules of Practice.

For the reasons stated, SOC's request for a prehearing conference and its apparent desire for reconsideration of certain of the Board's March 5 rulings should be denied.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY J  !

W. Taylob Reveley, III  :

i W. Taylor Reveley, III Anthony F. Earley, Jr.

Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 Dated: April 15, 1980 l

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i In the Matter of I

LONG ISLAND LIGHTING COMPANY I (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 CERTIFICATE OF SERVICE  :

I hereby certify that copies of APPLICANT'S REPLY TO SOC PLEADING OF APRIL 3, 1980 were served upon the following by first-class mail, postage prepaid, on April 15, 1980:

i 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. 20553 Jeffrey C. Cohen, Esq.

i Dr. Oscar H. Paris New York State Energy Office j Atomic Safety and Licensing Swan Street Building, Core 1 Board Panel Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, D.C. 20555 Mr. Jay Dunkleberger Mr. Frederick J. Shon New York State Energy Office

! Atomic Safety and Licensing Agency Building 2

Board Panel Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, D.C. 20555 i

Howard L. Blau, Esq.

Secretary of the Commission 217 Newbridge Road j U.S. Nuclear Regulatory Commission Hicksville, New York 11801 Washington, D.C. 20555 Ralph Shapiro, Esq.

Atomic Safety and Licensing Cammer and Shapiro, P.C.

, Appeal Board 9 East 40th Street U.S. Nuclear Regulatory Commission New York, New York 10016 Washington, D.C. 20555 Irving Like, Esq.

Atomic Safety and Licensing Richard C. Hand, Esq.

. Board Panel Reilly and Like

! U.S. Nuclear Regulatory Commission 200 West Main Street Washington, D.C. 20555 Babylon, New York 11702

) Mr. Harold R. Denton, Director Mr. Marc W. Goldsmith Office of Nuclear Reactor Energy Research Group, Inc.

Regulation 400-1 Totten Pond Road U.S. Nuclear Regulatocy Commission Waltham, Massachusetts 02154 Washington, D.C. 20555

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. Hon. Peter F. Cohalan David J. Gilmartin, Esq.

Suffolk County Executive County Attorney H. Lee Dennison Building Suffolk County Department Veterans Memorial Highway of Law Hauppauge, New York 11787 Veterans Memorial Highway Hauppauge, New York 11787 Stephen B. Latham, Esq. ,

Twomey, Latham & Schmitt 33 West Second Street Post Office Box 398 Riverhead, New York 11901 k

W. Taplof Reveley, III Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 Dated: April 15, 1980

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