ML20083J205
| ML20083J205 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/11/1984 |
| From: | Brown H, Gilmartin D KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8401160244 | |
| Download: ML20083J205 (10) | |
Text
J. _
y
-00LMETED UST711/84 UNITED STATES OF AMERICA
'84 JAN 13 A11 :08-NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appea10 Board %
~. <,
)
In the Matter of-
)
)
L LONG ISL'AND LIGHTING COMPANY-
)
Docket No. 50-322-OL
)
(Shoreh'am Nuclear Power Station,
)
Unit-1)
)
)
SUFFOLK' COUNTY RESPONSE TO LILCO MOTION
]O STRIKE CERTAIN REFERENCES IN SUFFOLK COUNTY'S BRIEF By Motion dated January 5, 1984, LILCO moved to strike from Suffolk County's brief on appeal certain references to its briefs
~
of January'31, April 7, and May 9, 1983, which had been filed with the Licensing Board.
See LILCO's Motion to Strike Certain Refer-ences in Suffolk County's Brief, January 5, 1984.
LILCO alleges that the references listed in Attachment 1 to the LILCO Motion constitute an improper attempt to-incorporate by reference portions of the County's Licensing Board briefs.
Pursuant to the Appeal Board's Order, dated January 6, 1984, Suffolk County now files this response and submits: (a) LILCO's Motion should be denied; and (b) even if the Board were inclined to agree with LILCO's argument, the prcposed relief -- the striking of refer-
^
ences -- is too severe and, instead, the alleged defect in the County's brief can be remedied by simply supplying the Appeal i
8401160244 840111 7
gDRADOCK D
05000 2
3 s
-2
~
l
-Board and the; parties with the references-to the. underlying record..
A.
LILCO's Motion Should Be Denied VLILCO has alleged' baldly that all-the references in the
-Countys DecemberL23, 1983 ALAB brief which are listed in
" Attachment 1 to the LILCO Motion constitute improper attempts to
-incorporate material by reference.in violation of guidelines Lestablished by ALAB decisions.
LILCO does not attempt, however, o
inlany instance to provide any supporting explanation for this bald assertion.
Thus, in essence,.LILCO has filed a motion making unsupported: allegations and expects-the County to have to respond in.detailLto it.
'The County submits that LILCO's Motion does not comply with'10 C.F.R.
$ 2.730(b) and 2.732 and should be denied
.on:its face.
Suffolk County has reviewed the references set forth.in
-Attachment-1 to LILCO's Motion.
As documented in Attachment 1 of t'is' response, most of the references do not constitute at all h
l attempts to incorporate by reference portions of earlier briefs.
i; Thus, for-reasons specified in Attachment 1 hereto, LILCO's Motion clearly'must be denied as to these references.
f-B.
LILCO's Remedy is Improper LILCO asks that all references listed in Attachment I to the LILCO Motion be stricken.
This " remedy" is not proper.
ll'
.The County agrees that several of the references listed by L
i
'LILCO arguably-do constitute incorporations by reference.
How-ever, the. proper remedy is not to strike those references but, rather, is to ask the County to supply the underlying record
references.
See Kansas Gas & Electric Co..(Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 127 (1977).1/
The County has; voluntarily set forth in Attachment 1 hereto the underlying record citations for those references which argu-ably constitute ~ instances of incorporation by reference.
The County does this in order to end needless further dispute on this matter,'although' it does not agree that even this " remedy" is required.
See footnote 1.
With these references supplied, the County submits that all possible appropriate relief has been provided and, accordingly, the LILCO Motion should be denied.
Respectfully submitted, David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 W
v w
Herbert H.
Brown
/"~~
Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, l
CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 i
Attorneys for Suffolk County January,11, 1984 i
1/
In Wolf Creek the Appeal Board did not even require the references to be supplied, noting that "[ilt should not be particularly burdensome for the staff and the applicants to consult the earlier Coalition filing."
Id.
The same is true in o
this instance, particularly since LILCO has almost two months from now in which to submit its brief.
As noted in the text, however, the County has submitted those references voluntarily.
1
,_m s
,. ~,
ATTACHMENT.1
~
t Page in SC Findings M1ich LIICO Alleges SC Brief Have Been Incorporated by Reference County Response 6
County Findings, 5/9/83,-at 37-49 Not an,incorpor& tion'by reference at all. Rather this is' citation to earlier Findings and to PID in support of-the Ccunty's assertion that the ASLB inproperly failed to address an issue raised in proceeding. Such a citation to the Findings is proper to Av-nt M<pate ASLB con-sideration of issues which have been raised.
14 Id. at 79-82 This arguably does constitute an incorporation ~by refer-ence. 'Ihe underlying citations are as follows:
Goldsmith et al., ff. Tr. 1114,.at 34-39; Tr. 1642-43, 1645-46, 1732-33, 1012-13 (Gold-smith); Tr. 4446, 4794-95, 4824 (Dawe);
Burns et al., ff. Tr. 4346,'at 141-43, 146-48; Tr. 4760, 4766, 4769 '(M:Guire); Tr. 7475-80 (Kirkwood);
Tr. 7482-84 (Speis); Tr. 7128 (Hodges);
Tr. 1737 (Hubbard); Tr. 6528-29 (Rossi);
Tr. 4785-88, 4797-98, 4802 (Robare);
Speis et al., ff..Tr. 6357, at 20, 22, 27.
14 Id. at 80-82 Not an incorporation by reference at all. Reference to earlier Findings was in support of argument that ASLB had mischaracterized what the County's position wasi Refer-ence to Findings was appropriate means to denonstrate County's position and ASLB's mischaracterization of it.
17 County Findings, 1/31/83, Vol. I, at 121-26 Not an incorporation by reference at all. Rather, detailed citations to record are~provided. In addition, the County has cited its brief of findings under a "see generally" category, thus making clear that this was an additional reference for the ALAB's benefit in the event it desired to know what was argued before the ASLB.
~
26 Id. at 215-40 Not an incorporation by reference. Detailed citations to' PID are provided. Citations. to County Findings are in -
~ ddition to the PID findings and thus are helpful refer-a ences to permit the ~ AIAB to know what wasiargued before the AIAB.
'27 Id. at 245-49
. Ihis ar'guably does constitute an. incorporation by refer '
.ence. 'Ihe underlying citations' are as follows: :
Burns et al., ff. Tr. 4346, at-102; Goldsmith et al., ff. Tr. 1114, at 67-68; Tr. 5666-67, 5731-32, 6150.(Burns);-
SC Ex. 22, at 2-34; Tr. 6462, 6629, 6654-57 ('Ihadani);
Tr. 7510-12, 7143-44, 7147 (Conran).
50 County Findings, 4/7/83, Vol. I, at 33-39 Not an incorporation by reference at all. Citation is.in context of assertion that County raised an issue before.
the AS M but the AS m did not specifically consider it.
Citation is for purpose of docunenting fact that the issue wus specifically raised.
56 Id.
at 59-71 Not an incorporation by reference. Reference to Find-ings was to provide only an exanple..At any rate, since reference is to housekeeping deficiencies, the lack of citations at page 56 of brief is of no inportance since detailed record citations on housekeeping deficiencies are provided at'pages 62-67.
58 Id. at 28-33 Not an incorporation by reference at all. Rather, the citation to the County findings was in context of point-ing out that the County had made specific argtunents which the AS G had never addressed. 'Ihe citation to findings in this context is proper to show that AS M had not provided a properly articulated decision which responds to arguments which specifically were raised..
63 Id.
at 67-68' mis arguably does constitute an incorporation by refer-ence._ 2e underlyiag citations'are as follows:
SC Ex. 66, Field Audit 1086, Finding 4.2, Field Audit 1275, Finding'4.1,' Field' Audit i
'1325, Findings 3.1, 4.1; SC FA. 56, INC Audit 34, Finding N.2.C, M)C.
Audit _40, Finding 13(A)(5).
103 Id. at 166 Wis arguably does constitute an incorporation by refer-ence. h underlying citation is as follows:
Tr. 19,707-08 (Minor).
4 103 Id. at 168 his arguably does constitute an incorporation by refer-
.ence.. % e underlying citations are as follows:
Minor, ff. Tr. l>665, at 6; Tr. 19,709 (Minor).
4 104 Id. at 168-69 Reference to County Findings may be deleted.
104 Id. at 167-68 Reference to County Findings may be deleted.
111 County Pindings, 1/31/83, Vol. II, at 21-24, 26-27 Not an incorporation by reference at all. Rather, this is another instance where ASLB has failed to address specific arguments raised by the County. Reference to Findings is appropriate to document fact that specific arguments were made.
112 Id. at 22 his arguably does constitute an incorporation by refer-ence. We underlying citations are as follows:
i Tr. 9028 (Hodges, Calone); Tr. 9029, 9223 I
(Calone); Calone et al., ff. Tr. 8870, (Attachment 1), at 1-3.
112 Id. at 26
'1his arguably 'does constitute an incorporation by refer-ence. '1he underlying citations are as follows:
i Tr. 9060-64, 9070-71-(Hodges).
113 Id. at 23
'1his arguably does constitute an incorporation by refer-ence. % e underlying citations are as follows:
Tr. 8239-42 (Eckert); Tr. 6161-62 (Kascsak).
115 Id. at 34-36 Not an incorporation by reference but rather a reference in support of statement regarding what the County had argued. 'Ihus, a reference to Findings to document what County had argued was entirely proper.
1 116 Id. at 34 Not an incorporation by reference. Rather, the County asserts that ASLB misstated the issue in its PID.
'Ib support this assertion, it is entirely proper for the County to cite to its Findings to M nent what the issue was which the County framed for decision.
i
r L -.a.
-i
)
-UNITED STATES OF-' AMERICA JNUCLEAR: REGULATORY COMMISSION' Before the ' Atomic Safety and Licensing - Appeal Board
~
-)~
0 In the Matter of
).
)
'LONGLISLAND LIGHTING COMPANY
)
Docket No. 50-322 0.L.
)
-(Shorehab1 Nuclear-Power Station,-
)
Unit 1)-
):
')-
CERTIFICATE OF~ SERVICE I hereby certify that copies of SUFFOLK COUNTY RESPONSE'TO
- LILCO MOTION TO' STRIKE CERTAIN REFERENCES IN SUFFOLK COUNTY'S
'BRIEF, dated January 11,1984, :have been. served to the following
- this llth day of January'1984 by U.S. mail,-first class, except as otherwise indicated.
Lawrence J. Brenner, Esq.
Ralph Shapiro, Esq.
Administrative Judge
~
Cammeriand Shapiro Atomic Safety and Licensing. Board 9 East 40th Street U'. S. Nuclear Regulatory Commission New York, New York 10016 We ;hington, D.C.
20555 Dr.nGeorge A. Ferguson Howard L.
Blau, Esq.
Administrative Judge
'217 Newbridge Road
.At'omic Safety and Licensing. Board Hicksville, New York 11801
- School of
- Engineering
-Howard University:
W. Taylor Reveley, III, Esq.
2300.16th Street, N.W.'
Hunton & Williams l
Washington,.D.C.
20059 P.O.
Box 1535 i
707 East Main Street
~
Dr.' Peter A. Morris Richmond, Virginia 23212
. Administrative Judge Atomic Safety and Licensing Board Mr. Jay Dunkleberger U.S. Nuclear Regulatory Commission New York State Energy Office Washington,.D.C.'
20555 Agency Building 2 Empire State Plaza l
" Edward M.
Barrett, Esq.
Albany, New York 12223
' General' Counsel
.LongTIsland Li'ghting Company James B. Dougherty, Esq.
l-
- 250 Old-Country? Road-3045 Porter Street, N.W.
l' Mineola, New York 11501 Washington, D.C.
20008 e
2-Mr. Brian'McCaffrey' Stephen B.
Latham, Esq.
- Long Island Lighting Company 1 Twomey, Latham & Shea 175 East Old Country Road P.O. Box 398 Hicksville, New York 11801 33 West Second Street Riverhead, New York 11901
.JeffLSmith Marc W. Goldsmith Shoreham Nuclear Power Station Energy Research Group, Inc.
P.O. Box 618-400-1 Totten Pond Road North Country Road Waltham, Massachusetts 02154 Wading-R'iver,.New York 11792
'Joel Blau, Esq.
MHB Technical Associates
. New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building; San Jose, California 95125 Empire-State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive David J. Gilmartin, Esq.
H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison. Building Hauppauge, New York 11788
. Veterans Memorial Highway
.Hauppauge, New York
.11788
' Atomic Safety and Licensing Board Ezra I.
Bialik, Esq.
Panel _.
Assistant Attorney General
-U.S.
Nuclear Regulatory Commission Environmental Protection Washington, D.C.
20555 Bureau New York State Department
-Docketing and Service Section of Law Office of the Secretary 2 World Trade Center U.S. Nuclear Regulatory Commission New York, New York 10047 17171H Street, N.W.
Washington, D C.
20555 Atomic Safety and Licensing Appeal Board Bernard M.
Bordenick, Esq.
U.S.
Nuclear Regulatory
' David.A. Repka, Esq.
Commission U.S.. Nuclear Regulatory Commission Washington, D.C.
20555 Washingtop, D.C.
20555 Jonathan D.
Feinberg, Esq.
-Stuart Diamond Staff Counsel Environment / Energy Writer New York State Public NEWSDAY Service Commission Iong_ Island, New York 11747 3 Rockefeller Plaza Albany, New York 12223
.r i
e
+w y 9 r--
-v-
-y r,-
y y
3
- en
e,-,m+-..r-----wr------m-r--m-m--F+---wm-,y---x-aw - v
w c-e-=--+e+--w,e e,-
-rw
Stewart M. Glass, Esq.
Dr. Peter F._Rieh'm Regional _ Counsel KMC, Inc.
Federal Emergency Management 801 18th Street, N.W.
Agency Washington, D.C.
20006 26 Federal Plaza New York, New York 10278 Anthony F. Earley, Jr., Esq.
Hunton & Williams Alan S. Rosenthal, Chairman
- P.O.
Box 1535 Atomic Safety and Licensing 707 East Main Street Appeal Board Richmond, Virginia 23212 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Bruce L. Harshe Consumers Power Company Mr. Gary J.
Edles*
1945 W.
Parnall Road Atomic Safety and-Licensing Jackson, Michigan 49201 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gerald C. Crotty, Esq.
Counsel ~to the Governor Mr. Howard A. Wilber*
Executive Chamber Atomic Safety and Licensing State Capitol
_ Appeal Board Albany, New York 12224 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ben Wiles, Esq.
Assistant Counsel to the Governor Executive Chamber State Capitol Albany, New York 12224 W
l M
N' Lawrence Coe LanpKer KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street,'N.W., Suite 800 Washington, D.C.
20036 DATE:
January 11, 1984 By Hand on 1/12/84
-