ML20149D842
| ML20149D842 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/05/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5550 OL-3, NUDOCS 8802100038 | |
| Download: ML20149D842 (10) | |
Text
$5 ScY LILCO, February 5,1988 00CKETED USNRC UNITED STATES OF AMERICA
.gg g _g g *E NUCLEAR REGULATORY COMMISSION CFF!E 0.: W rr. g v 00CKET+c.
- r. ",1ci, Before the Atomic Safety and Licensing Board E'D In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION TO REPLY IN PART TO THE INTERVENORS' RESPONSE ON 10 CFR S 50.47(cXIXi) AND (11)
On December 18, 1987, LILCO moved for summa'y disposition of the issue of compliance with subparts (1) and (11) of the Commission's new rule,10 CFR S 50.47(c)(1),
52 Fed. Reg. 42,086 col.1 (Nov. 3,1987).I/ The Intervenors filed a Response on January 18,1988. LILCO hereby asks leave to file a reply to the Intervenors' Response.
LILCO's reply, if allowed, would address only subpart (11) of the new rule, not (1). It would be no longer than ten pages. It would be filed within five days of receiving no-tice of permission to file it. LILCO submits that it has good cause for filing such a reply, as explained below.
A. BACKGROUND
[
Subpart (ii) of the Commission's new rule provides than an operating license may be issued on the basis of a utility plan if the applicant demonstrates (among other things) that i
l 1/
LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR S 50.47(c)(1)(1) and (11), December 18,1987.
l 2/
Suffolk County, State of New York, and Town of Southampton Response in Oppo-sition to LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to j
10 CFR S 50.47(c)(1)(1) and (ii), Jan. 18,1988.
8802100038 080205
'b PDR ADOCK 05000322 G
e,
.4 (11) The applicant has made a sustained, good faith ef-fort to secure and retain the participation of the pertinent s state and/or local governmental authorities, including the fur-nishing of copies of its emergency plan.
52 Fed. Reg. 42,086 col.1 (Nov. 3,1987). To attack LILCO's compliance with this part of the regulations, the Intervenors have asserted that the "good faith" standard "focuses on LILCO's intentions, motives, and purposes." Response at 16. They have then argued that "summary judgment is particularly inappropriate where the issue of good faith is determinative," citing a number of federal court cases. Response at 13. It is this argu-ment to which LILCO wishes to reply.3/
B. LEGAL STANDARD Section 2.749(a) of 10 C.F.R. provides that "(n]o further supporting statements or responses... shall be entertained" af ter a motion for summary judgment, answers, and responses to supporting answers hcVe been filed. However, LILCO submits that the Board has discretion to permit a reply by the moving party and should do so in this case.
The Board has in the past modified the time periods of S 2.749(a). S_ee Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, NRC (Sept.
17, 1987), slip o_g. at 5.
To modify S 2.749(a), the Board has relied upon 10 C.F.R.
S 2.718(e), which gives boards the authority to "[r]egulate the course of the hearing and the conduct of the participants." Such flexibility is necessary to ensure that licens-l ing proceedings are conducted fairly, efficiently and expeditiously. See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452,453-54 (1981).
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LILCO disagrees with Intervenors' argumentr that LILCO acted in bad faith and I
indeed with many of the statements that the Intervenors have made in their pleadings l
on this issue. But this motion to reply addresses only the purely legalissue raised by the Intervenors of whether summary disposition is inherently unsuitable for the "good f aith" l
issue created by the new NRC regulation.
The Board has raised the question, however, whether it lacks authority to accept a reply. LBP-87-26, slip op. at 6. The answer is that the Board does have authority, under S 2.718(e). As the Board notes, in the past the NRC Staff (see LBP-87-26, slip op, at 4-5) and the Intervenors (id. at 6) have not considered the permitting of a reply to be jurisdictional. LILCO agrees with Intervenors and Staff on this point.
It would be contrary to the spirit of NRC regulations to interpret S 2.749 so as to prevent the Board from accepting additional argument on a novel and important legal issue. LILCO does not, af ter all, seek to surprise Intervernors by asserting new f acts; it asks only to respond to a purely legal argument that in its view is misapplication of caselaw. The Board unquestionably has the authority to ask for additional briefs on points of law; it must also have the authority to accept, for sufficient cause shown, briefs volunteered by a party.
Indeed, the Commission's summary disposition rule was intended as an analog to Rulo 56 of the Federal Rules of Civil Procedure, which deals with summary judgment.
See 37 Fed. Reg.15,127 col. 3 (July 28,1972) (S 2.749 has been revised to track more closely the Federal Rules of Civil Procedure). Rule 56 does not provide for replies, but LILCO does not believe it can seriously be argued that a federal judge lacks the power to receive additional briefs on legal issues.
The history of 10 C F.R. S 2.749 suggests that replies are permitted, if not fa-vored. The statement "(nlo further... responses... shall be entertained" was not in the rule as originally promulgated. See 37 Fed. Reg.15,135 col. 2-3 (July 28,1982). It l
was added in 1980. See 45 Fed. Reg. 68,919 col. 3 (Oct.17,1980). At that time the Commission clarified S 2.749(a) "to specifically permit responses from parties which support motions for summary disposition." Ld. col. 2.
This clarification, the Commis-sion said, would "help ensure that the relevant issues are fully developed before the presiding officer rules on the motion and is consistent with the general policy of the l
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w a
, Commission's Rules of Practice to encourage parties to express their views before adju-dicatory tribunals." Id.
The Commission also intended to "harmonize" its summary disposition procedure with 10 C.F.R.S 2.730(c), "Motions," which permits a party to file an answer in support of or in opposition to a motion filed by another party. 45 Fed. Reg. 68,919 col. 2 (Oct.
17, 1980). Section 2.730(c) provides that the moving party shall have no right to reply, except as permitted by the presiding officer or the Secretary or Assistant Secretary.
10 C.F.R. S 2.730(c) (1987).
Because the supporting statements allowed by the 1980 amendment could raise new facts and arguments, the Commission also amended S 2.749(a) to permit opponents to file a supplemental response. 45 Fed. Reg. 68,919 col. 3 (Oct.17,1980). The Com-mission said that This departure from Commission practice (which does not or-dinarily allow further pleadings beyond the initial pleading and response thereto) is desirable here to avoid potential un-fair surprise to parties opposing motions for summary disposi-I tion. No further supporting statements of responses thereto shall be entertained.
(
45 Fed. Reg. 68,919 col. 3 (Oct.17,1980).
i l
What this history shows is that the summary disposition procedure was intended to be consistent (except for a special provision for the benefit of opponents of summary disposition motions) with the Commission's ordinary motions practice. Ordinary mo-tions practice permits a reply as permitted by the presiding officer. This consideration, as well as the policy of helping "ensure that the relevant issues are fully developed,"
l suggest that the Commission did not intend to prohibit boards from permitting replies for compelling reasons. And the countervailing policy of preventing "unfair surprise to parties opposing motions" simply does not come into play tu the present case, where LILCO seeks only to reply to an Intervenor legal argument which LILCO could not reasonably have anticipated.
l
C. ARGUMENT In the past, this Board has required the movant to establish o compelling reason for its request to waive the prohibitions of 10 C.F.R. S 2.749(a). See LBP-87-26, slip o.
J at 6. Following are the reasons why LILCO should be allowed to file a reply to Interve-nors' January 18 Response.
1.
The Interpretation of the New Regulation Is a Question of First Impression on an Important Issue of Law and Policy The first reason why LILCO should be allowed to reply is that the question raised by the Intervenors' Response goes fundamentally to how the Commission's new rule should be interpreted. This question involves a substantial issue of law and policy, namely whether Libensing Boards should be diverted into lengthy proceedings on sub-jective "good faith" issues when those issues have nothing to do with the public health
' and safety. Furthermore, because subpart (11) is new, there is no caselaw on the ques-tion. Thus, the issue presented by Intervenors' Response is a question of first impres-sion. Accordingly, additional argument is necessary and appropriate in the interest of helping the Board reach the soundest decision.
2.
The Argument Made in the Response Is Fundamentally at Odds with the Purpose of the New Rule The second reason for allowing LILCO to file a reply is that Intervenors' Re-sponse misconstrues the "good faith" standard of 10 CFR S 50.47(c)(1)(li) and thus is at odds with the purpose of the new rule.
In their Response, Intervenors cite cases that they argue show that summary judgment is inappropriate where "good faith" is in question. See Response at 13-15.
What Intervenors' cases actually show, however, is that summary judgment should be l
granted only warily in cases in which "good f aith" is an essential element of a statute or 1
cause of action.
For example, in Hotel & Restaurant Employees & Bartenders International Union v. Rollison, 615 F.2d 788, 793 (9th Cir.1980), for example, the
court said summary judgment was clearly inappropriate "[w]here the heart of the International's case is so vigorously contested" (emphasis added)N And in McGee v.
Hester, 724 F.2d 89,91 (8th Cir.1983), the court said summarv judgment is notoriously inappropriate when good f aith and other subjective feelings riay "dominant roles" in the claim or cause of action.N As the Intervenors concede the existence of good faith, motive, or intent as a controlling legal issue does not wholly preclude the granting of summary judgment. Response at 15 n.7.
Intervenors' error is in treating the "good f aith" standard as an essential element of the new rule. The good faith standard is a teUection of the Commission's view that ideally emergency planning should be a coeperative effort between utilities and State and local governments. S_ee 52 Fed. Reg. at 42,082 col.1. The purpose of the "good faith" requirement is to prevent utilit'.es from using the new rule to avoid cooperation with State and local governments, a concern expressed by some commentors. M. at 42,083 col. 2. But even while anuring those commentors that the new rule would not discourage cooperation on emergency planning, the Commission doubted that applicants would ever find the new rne an easier avenue to licensing than the route provided by existing regulations. M. Furthermore, the Commission emphasized that the essential purpose of the new ri'2e is to address those situations "in which states and localities de-cide to take themsolves out of the emergency planning process." M. at col. 3 (emphasis in original). In such circumstances, among them certainly the Shoreham proceeding, the question of whether the utility made a good faith effort to involve State and/or 4/
This case involved a challenge to the International Union's motive underlying its decis'an to impose a trusteeship on a union local. The court observed that it should be "wary" of granting summary judgment when good f aith is in issue. 615 F.2d at 793.
ff In McGee, a retail liquor store owner sued officers of the Tennessee Alcoholic Beverage Commission alleging unlawful interference with business relations. The offi-cers had maintained a conspicuous surveillance of the store, photographing customers and writing down license plate numbers, among other tidngs. The officers obtained summary judgment, but the Eighth Circuit reversed.
> local governments in emergency planning is at best a p_rq forma requirement and as such would not prevent the Board from consider'.ng a motion for summary judgment.
3.
LILCO Could Not Reasonably Have Foreseen the Intervenors' Argument The third reason for permitting a reply is that LILCO could not reasonably have foreseen the Intervenors' argument. As noted above, the argument relles on such prec-edent as labor law and tort law cases and, more to the point, is quite out of touch with the whole thrust of NRC regulation, which is aimed squarely at matters of radiological health and safety. It is out of touch also with the purpose of the new NRC emergency planning rule.
4.
The Argument Made in the Response Is Fundamentally at Odds With the Purpose of the NRC Regulations in General The fourth reason for permitting LILCO to reply is that the result of Intervenors' argument will be to undermine the purpose of the Commissions' regulations. The pur-pose of the Commission's regulations is to protect the public health and safety. Inter-venors' requests for additional discovery and he
's, if granted by the Board, would expand the scope, length and complexity of this Jeeding without any beneficial ef-feet whatsoever on health and safety. It would be fundamentally at odds with the Com-wission's regulations to allow a full-blown legal proceeding on what was in utility offi-clais' minds years ago, when the only consequence of such a proceeding would be additional delay without any benefit to the public.
l Indeed, the essential immateriality of the Intervenors' argument can be easily demonstrated as follows. The Intervenors' arguments about LILCO's "good faith" could not possibly be important unles: Intervenors asserted that more "good faith" woulJ have caused them to participate in emergency planning. They do not claim such a thing.
Thus their entire argument is essentially a diversion from the important issues.
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g D. CONCLUSION For the reasons cited above, LILCO asks leave to file a brief reply to the Inter-venors Response to LILCO's December 18, 1987 motion for summary disposition on 10 CFR S 50.47(c)(1)(1) and (11).
Respectfully submitted, W
Donald P. Irwin I
' James N. Christman Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 5,1988 l
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- l LILCO, February 5,1988 00C KE T EC-USNRC E FEB -8 P3 :51 CERTIFICATE OF SERVICE OFFICf. CF Snatwy 00CKEimc 4 syg' BRANCS In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S MOTION TO REPLY IN PART TO THE INTERVENORS' RESPONSE ON 10 CFR S 50.47(c)(1) AND (11) were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
James P. Gleason, Chairman **
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel 513 Gilmoure Drive Washington, D.C. 20555 U.S. Nuclt.ar Regulatory Commission Silver Spring, Maryland 20901 Dr. Jerry R. Kline **
George E. Johnson, Esq. **
Atomic Safety and Licensing Richard G. Bachmann, Esq.
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, I?m 427 11555 Rockville Pike 4350 East-West Hwy.
Rockville, MD 20852 Bethesda, MD 20814 Herbert H. Brown, Esq. **
Mr. Frederick J. Shon **
Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Rm. 430 1800 M Streret, N.W.
4350 East-West Hwy.
Washington, D.C. 20036-5891 Bethesda, MD 20814 i
Fabian G. Palomino, Esq. **
l Secretary of the Commission Richard J. Zahnleuter, Esq.
I Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W.
State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alfred L. Nardelli, Esq.
Appeal Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway l
Washington, D.C. 20555 Room 3-118 l
w a
' Spence W. Perry, Esq. **
Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.
Stephen B. Latham, Esq. **
Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 26 Federal Plaza Wading River, NY 11792 Agency New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223
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' James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 5,1988
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