ML20136J456

Memorandum & Order Denying Suffolk County & State of Ny Request to Enlarge 70-page Limitation on Appellate Briefs Re Emergency Planning Phase of OL Proceeding.Served on 860110

ML20136J456
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/09/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NEW YORK, STATE OF, SUFFOLK COUNTY, NY
References
CON-#186-706 ALAB-827, OL-3, UL-3, NUDOCS 8601130386
Download: ML20136J456 (4)

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.- - =;  :.==- m 16 A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h' fe ATOMIC SAFFTY AND LICENSING APPEA 0%g A8:29 Administrative Judges: yy b J th(;% W s Alan S. Rosenthal, Chairman Januarys 7 1986 Gary J. Edles (ALAB 827)

Howard A..Wilber SERVED JAN101996 In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station,)

Unit 1) )

)

MEMORANDUM AND ORDER The Commission's regulations impose a 70-page limit on appellate briefs.1 Intervenors Suffolk County and the State of New York sought leave to file a 165-page consolidated brief in support of their appeals from one of the Licensing Board's partial initial decisions in the emergency planning phase of this operating license proceeding 2 In an unpublished May 15, 1985 order, we authorized the County'and State to file either a consolidated brief not to exceed 100 pages or separate 70-page briefs in accordance with the regulations. Thereafter, the parties moved for reconsideration of our May 15 order; specifically, they sought leave to file separate briefs not to exceed 100 pages I

10 C.F.R. S 2.762 (e) .

2 See LDP-85-12, 21 NRC 644 (1985).

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each. We denied that request in an unpublished October 3, 1985 order.

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The County and the State, together with the intervenor Town of Southhamp'on, t have filed a 100-page consolidated brief. In a footnote contained in the brief, the intervenors s

now request leave to file another 20-page brief to address additional issues. We deny the request.

We see no justification for any further enlargement of the page limit. In accordance with our earlier orders, the two intervening parties had the option of filing separate briefs (with ' an aggregate total of 140 pages) or a consolidated brief not to exceed 100 pages. They selected the latter option and we see no reason why they should not be bound by their election.3 The intervenors aver that, despite their efforts to produce a concise product, the additional issues could not We note, in addition, that the most recent request for additional pages was not filed seven days in advance of the due date for filing the brief as required by 10 C.F.R.

S 2.762 (e) . The request could be summarily denied on that ground. Moreover, the " motion" is contained in a footnotn.

There is no indication on the face of the brief, in the Table of Contents, or, indeed, in the Conclusion section that sets out the prayer for relief, that the intervonors seek any enlargement of the page limit. We expect an

! affirmative request for relief, such as an application for enlargement of the page limit, to be set out prominently.

Cf. Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-457, 7 NRC 70 (1978).

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3 be covered within the 100-page limit.4 They argue, in this

' connection, that "no significant error" in the Licensing Board's decision should escape appellate review. But, contrary to intervenors'. apparent belief,.not every error justifies an' appellate remedy. Our experience, both generally and with respect to earlier appeals in this very case, satisfies us that every assertion of error does not translate into grounds for reversal'of Licensing Board -

determinations. Equally important, the number of pages e

contained in the appellate briefs does not bear any ,

necessary relationship to the substance of the issues  !

raised.

Appellate review is not intended to offer losing parties a forum for simply renewing claims presented to, but rejected by, the trial tribunal. To be sure, NRC licensing proceedings ordinarily involve lengthy evidentiary records and present numerous complicated and detailed technical issues for resolution. In recognition of that fact, the Those issues include the evacuation of the transit-dependent population and the identification and notification of the handicapped and the deaf. Suffolk County, State of New York, and Town of Southhampton Brief on Appeal of Licensing Board April 17, 1985 Partial Initial Decision on Emergency Planning (Oct. 23, 1985) at i n.1.

The intervonors nonetheless appear to have referred to these issues, at least in part, elsewhere in the brief. Id. at 79.

5 See, e.g., ALAN-788, 20 NRC 1102, 1151 (1984).

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4 Commission, in contrast with many federal agencies, has provided two levels of appellate review, and appeal boards frequently examine in some depth a wide range of technical and legal matters. But that does not alter the fundamental purpose of appellate review. Proceedings on appeal are intended to focus on significant matters, not every colorable claim of error.6 We expect advocates to cull the issues and arguments to be pursued on appeal.

Intervenors' request for further enlargement of the page limitation is denied.

It is so ORDERED.

.FOR THE APPEAL DOARD k, ^ h&

. .. A C. Jeg Sh6emaker Secretary to the Appeal Board i

6 See generally Jonen v. Barnen, 463 US 745, 752-53 (1983) (the purpose of an appellate presentation is to select the mont promining isnues for review). See also 1d.

at 761 (llrennan and Marnhall, JJ., dinnenting) (good appelinte advocacy demands selectivity among arguments).

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