ML20093M789
| ML20093M789 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/19/1984 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#484-629 OL-3, NUDOCS 8410230294 | |
| Download: ML20093M789 (5) | |
Text
Mke)P(.
LILCO, October 19 84 1
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- ~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00LKETEf Before the Atomic' Safety and Licensing Boars
'84 00T 22 P1 :14'
~ In.the Matter of
)-
)
- LONGfISLAND LIGHTING COMPANY
)'
Docket No. 50t322EOL;3?d.-
)
(Emergency Pla"ririfng',y'EPW '
'(Shoreham Nuclear, Power Station, )
Proceeding)
Unit 1)
)
4 LILCO'S MOTION TO STRIKE UNAUTHORIZED PLEADING
- On October 115,-counsel for Suffolk County and New York State filed' an ostensible " Response"1/ 'to the NRC's opposition to LILCO's August 6 Motion for' Summary Disposition of Contentions l-10 (the " Legal Authority" Issues).
That " Response is an i
unauthorized plesding in violation of Commission regulations and
. previous rulings.ofEthis-Board, and should be struck and given no consideration'by the Board. :If the Board does not strike it,
-LILCO_ requests lerve to file a reply to'it'within five working days'of the Board's decision.
1.
-The' Commission's pertinent regulation, 10 C.F.R.
- 5 2.749(a),. contemplates the filing of a motion for summary dispo-
. sition and of answers supporting or opposing it.
It also provides that an opposing party may file a further response if, but only c
if,ctwo conditions ~are. met:
he~may " respond in writing to new 1/,
' None of the signators-of the " Response" has entered an appearance in this proceeding.
However, LILCO does not rely on
- this fact to; establish that the " Response" is unauthorized.
~
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facts-and arguments presented in any statement filed in support of the motion."
(Emphasis supplied).
The unauthorized SC/NYS "Re-sponse" does not meet either of these tests.
The subject-matter of the SC/NYS Response -- the preemption-by-frustration-of-federal-purpose argument -- is not new; it was briefed in LILCO's original motion at pages 39-42.
Thus Suffolk County and New York State were on notice of it (and, in fact, touched on it in their September 24 Opposition at 33).
Second, the Staff's October 4 Re-sponse in Opposition to LILCO's motion, as its title plainly indi-cates, was not filed in. support of LILCO's motion.
Thus the cur-rent SC/NYS " Response" does not fulfill either of the
. preconditions for responsive filings under S 2.749(a), and is not otherwise authorized by that provision.
2.
~The SC/NYS Response violates the filing schedule agreed upon by the parties and approved by the Board in a September 13, 1984 telephone conference call.
Letter, Sherwin M. Turk to Board and Parties, dated September'13, 1984.
In that agreement, LILCO
' consented to giving the Staff and Suffolk County each an extension of their filing deadlines in return for LILCO's obtaining a right of reply.
No further filings were discussed or were contemplated by that agreement; none would have been acquiesed in by LILCO.
3.
The NRC's normal pleading rules, 10 C.F.R.
S 2.730, con-template a motion and response thereto, and reply (by the movant) only:with leave of the Board.
They do not contemplate third party
. comments on the responses of other parties.
The summary-disposition pleading rules are even more stringent.
10 C.F.R.
S 2.749(a).
The SC/NYS " Response" makes no attempt whatever to justify this filing of an extraordinary and unauthorized pleading.
l'
]
4.
'This Boa'rd has previously struck unauthorized pleadings.
- Memorandum and ' Order ; Denying Suffolk-County's Motion to Change Schedule, February 28, 1984, at 7.
' Submission of this unauthorized pleading without even an attempt to show good cause
- why -this Board's previous orders should not be adhered to here should not be tolerated.
For'the foregoing reasons, LILCO moves that the Board strike
- the SC/NYS " Response" and give it no consideration in its disposi-tion of LILCO's pending' summary disposition motion.
In the event this motion to strike is denied, LILCO respectfully requests five working days from receipt of the Board's denial to reply to the SC/NYS " Response."2/
Respectfully submitted, LONG ISLAND LIGHTING COMPANY t%
kN Dehald P. Irwin James N. Christman Hunton & Williams 707 East' Main Street P.O. Box 1535 Richmond, Virginia 23212 t
DATED:
October 19, 1984 jb/
The SC/NYS " Response" seriously misuses the Perez line of cases, as can be seen generally from LILCO's October 15 Reply at 34-46, especially 42-45; however, had SC/NYS briefed these cases in their authorized, i.e.,
September 24, Opposition, LILCO could and would have already addressed them specifically with reference to the current SC/NYS arguments.
However, LILCO believes that the Board already had quite enough paper before
'it prior to the latest unauthorized SC/NYS pleading.
p
A LILCO, October _19, 1984
~*'-
CERTIFICATE OF SERVICE RELATED,%ggAygggQ%8s In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
(Emergency Planning Procceding)
DCLETU Docket No. 50-322-OL-3 USNAC I Lcertify. that copies of LILCO's MOTION TO STRIi&4 00T 22 P1 :14
' UNAUTHORIZED PLEADING were served this date upon the following by'first-class mail, postage prepaid,-or (as indicat g ygan Mt.b.,
-asterisk) by hand.
00CKETING & SERV!D BRANCH James A.JLaurenson, Secretary of the Commission Chairman
- U.S. Nuclear Regulatory Atomic Safety and Licensing Commission
' Board _.
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory Bethesda,-MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R.
Kline*
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear. Regulatory U.S. Nuclear Regulatory
. Commission
-Commission
' East-West Tower, Rm. 427 Washington, D.C.
20555 4350-East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
Oreste Russ Pirfo, Esq.
Mr. Frederick J. Shon*
Edwin J.
Reis, Esq.
Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to-mailroom)
' East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD 20814 Stewart M.
Glass, Esq.
Regional Counsel Donna Duer, Esq.*
Federal Emergency Management Law Clerk Agency Atomic Safety and Licensing 26 Federal Plaza, Room 1349 Board-Panel New York, New York 10278 U. S. Nuclear Regulatory Commission Stephen B.
Latham, Esq.
East-West Tower, North Tower John F.
Shea, Esq.
4350 East-West Highway Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O. Box 398 Riverhead, NY 11901
x 2-
- s Fabian G. ~Pa'lomino', Esq.
Ralph Shapiro, Esq.
Special Counsel to the Cammer & Shapiro, P.C.
. Governor 9 East 40th Street Executive Chamber
.New York. New York 10016 Room:229 State Capitol
. Albany,.New York12224.
' James B.
Dougherty, Esq.
3045 Porter Street Washington, D.C.
20008 Herbert H. Brown, Esq.*-
~ Lawrence Coe Lanpher, Esq.
-Jonathan D.
Feinberg, Esq.
Christopher M. McMurray, Esq.
New York State Public Service Kirkpatrick, Lockhart, Hill Commission, Staff Counsel Christopher &1Phillips
'3 Rockefeller Plaza
'8th' Floor.
' Albany, New York ' 12223 1900'M Street, N.W.
Washington, D.C.
. 20036 Spence W.
Perry, Esq.
Associate General Counsel MHB Technical Associates Federal Emergency Management 1723 Hamilton Avenue Agency
' Suite K 500 C Street, S.W., Rm. 840 San Jose, California 95125 Washington, D.C.
20472 Mr. Jay Dunkelberger Ms. Nora Bredes New York State Energy Office Executive Coordinator Agency Building 2 Shoreham Opporents' Coalition Empire-State Plaza 1 195 East Main Street Albany, New York. 12223 Smithtown, New York 11787 Gerald C.
Crotty, Esq.
Martin Bradley Ashare, Esq.
' Counsel to the Governor Suffolk County Attorney Executive' Chamber H.
Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 l
~
ik%
M onald P.
Irwin Hunton & Williams 707~ East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
October 19, 1984 1
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