ML20149F162
| ML20149F162 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/08/1988 |
| From: | Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20149F167 | List: |
| References | |
| CON-#188-5573 OL-3, NUDOCS 8802120049 | |
| Download: ML20149F162 (11) | |
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LILCO, Fcsbruary 8,1988 00CKETED USN90 UNITED STATES OF AMERICA a M P2i43 NUCLEAR REGULATORY COMMISSION orac:: 67 3G ' :W
Before the Atomic Safety and Licensing Board CGCM}'Q [ #-
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 STRIKE INTERVENORS' UNAUTHORIZED REPLY TO NRC STAFF'S RESPONSE TO LILCO'S HOSPITAL
SUMMARY
DISPOSITION MOTION LILCO filed its "Motion for Summary Disposition of the Hospital Evacuation Issue" on December 18, 1987. The NRC Staff and Intervenors filed their responses to LILCO's Motion on January 15, 1988. On February 1 Intervenors filed their "Reply of Suffolk County, the State of New York and the Town of Southampton to the NRC Staff Response in Support of LILCO's Motion for Summary Disposition of the Hospital Evacu-ation Issue" ("Reply").
LILCO moves to strike Intervenors' Reply. Under the NRC's summary disposition l
regulation, a party opposing a summary disposition motion may reply only "to new facts and arguments presented in any statement filed in support of the motion", and "no fur-ther supporting statements or responses thereto shall be entertained."
10 C.F.R.
S 2.749(a) (emphasis added). In Intervenors' Reply, however, they concede that "the Staff's Response offers little in the way of new facts or argument," and that "many of the matters raised by the Staff were dealt with by the Governments in their January 15 Response." Reply at 2,3. Therefore, Intervenors' 24-page Reply, which is nothing more than a reclamorir.g of arguments previously made, should be rejected.II l
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On February 5,1988, LILCO received the Board's Memorandum and Order (Ruling on Applicant's Motion of December 8.1987 for Summary Disposition of the Hospital g21g y ho 2
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!. Discussion NRC regulations provide for only two types of pleadings in response to a summa-ry disposition motion. 10 C.F.R. 5 2.749(a). The first type is the normal response (sup-porting or opposing the motion) that any party may file within 20 days of service of the summary disposition motion. I_d. The second type is a response to new facts or new ar-guments raised in any response supporting the motion. Ld.E Intervenors filed their re-sponse on January 15, 1988.
S_ee, Suffolk County, State of New York and Town of I
Southampton Response to LILCO's Motion for Summary Disposition of the Hospital (footnote continued)
Evacuation Issue), dated February 1,1988. LILCO interprets that Memorandum and Order as allowing Intervenors and Staff to file by February 15 an additional response to LILCO's Summary Disposition Motion based specifically on their evaluation of the perti-nent changes in Rev. 9 to the LILCO Plan. LILCO does nqt interpret the Memorandum and Order as permitting clean-slate responses reiterating arguments made previously in the Intervenors' and Staff's January 15 Responses. Intervenors' Feb.1 Reply does not purpo:t to be the Rev. 9 - specific response contemplated by the Memorandum and Order. Instead, as set forth more fully below, the Reply is nothing but a rehash of Inter-venors' previous arguments plus a bald attack on the Staff. Thus, this motion to strike i
that Reply is not inconsistent with the Feb.1 Memorandum and Order.
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The regulation states as follows:
The opposing party may within ten days af ter service re-spond in writing to new facts and arguments presented in any statement filed in support of the motion. No further supporting statements or responses thereto shall be enter-tained.
10 C.F.R. S 2.749(a). The supplementary information provided with the Final Rule modifying 10 CFR S 2.749 makes clear that this section permits replies only to "new matters raised in supporting statements and not presented in the initial motion" in order to "avoid potential unfair surprise to parties opposing motions for summary dispo-sition." 45 Fed. Reg, at 68919 (Oct.17,1980).
As LILCO has recently argued, it does not believe that further responses are ab-solutely prohibited under compelling circumstances. See LILCO's Motion to Reply in Part to tae Intervenors' Response on 10 C.F.R. S 50.47(c)(1)(1) and (11), Feb. 5,1988. But here the Intervenors have not shown, or attempted to show, compelling reasons for fil-ing additional argument.
.. -Q Evacuation Issue" (Jan. 15,1988).W But their February 1 Reply, by Intervenors' own admission, does not qualify as the response to new facts or arguments allowed by S 2.749(a).
The February 1 Reply is instead little more than another salvo in Intervenors' re-cent Staff-bashing campaign. The Reply, and its accompanying affidavit by counsel, are full of derogatory statements about the legitimacy and propriety of the Staff's par-ticipation. Such statements are improper and baseless. Moreover, they are totally ir-relevant to the hospital evacuation issue. Intervenors have used the Reply not to rebut new facts or arguments raised by the Staff but instead to reargue their case and engage in improper a_d hominem attacks on the Staff itself.
A.
Intervenors' Reply Does not Respond to New Facts or Arguments Intervenors' Reply should be rejected because it does not address "new facts and arguments." See 10 C.F.R. S 2.749(a). Indeed, Intervenors admit that the Staff's Re-sponse, to which the Feb.1 pleading purportedly replies, contains no new facts or argu-ments. See Reply at 2. Thus, Intervenors cannot claim to have suffered unfair surprise at the hands of the Staff. As indicated by Intervenors' frequent references to their January 15 Response, the Reply merely reiterates and expands upon arguments that In-tervenors forwarded previously. See, e&, Reply at 3-5, 7, 8, 9, 11.
In particular, Intervenors set forth and respond to "three basic arguments" of-fered by the Staff in support of LILCO's Motion. Reply at 5. The first is that the re-manded hospital issue is a limited one. Ld. The Intervenors' argument in response --
that the remand is not limited and that there is a whole slew of open issues concerning hospital evacuation - is not new at all. Intervenors' January 15 Response makes clear what Intervenors think the scope of the remand is, and why they think summary 3/
Intervenors' Jan.15 Response consists of a 40 page pleading plus a four page Statement of Material Facts and a six page Affidavit by one of the County's counsel.
. 4, disposition is not appropriate. Indeed, the Jan.15 Response includes a "Statement of Material Facts" which purports to specify all the open, material facts that Intervenors allege are at issue.M No further argument on or specification of these issues in Inter-venors' Reply is warranted.
The second Staff argument to which Intervenors respond is that deficiencies in LILCO's hospital evacuation plans are not significant under 10 C.F.R. S 50.47(c)(1).
Reply at 5.
This argument is not new either. In fact, that argument was the most prominent one in LILCO's Summary Disposition Motion, see_ LILCO's Summary Dispost-tion Motion at 8-13 (December 18,1982); the Staff simply supported it. In their January 15 Response Intervenors provided the Board with at least 15 pages of argument as to why they think any such deficiencies ar_e significant under 10 C.F.R. S 50.47(c)(1). S_ee Jan.15 Response at 4-7, 28-38. The Staff':: support of LILCO's "not significant" argu-ment is not a license for Intervenors to submit six more pages of reasons for their post-tion. See Reply at 8-13.
The remaining Staff argument to which Intervenors respond is that the Rev. 9 additions to LILCO's hospital plans are sufficient to eliminate any previous deficiencies.
Reply at 5,13-20. Again, Intervenors have already made clear their preliminary post-tion regarding the Rev. 9 improvements. _See_, e_.L. Jan.15 Response at 17-20, 23-28.
presumably, the Reply does not constitute the additional response to Rev. 9 that the Board's Feb.1 Memorandum and Order permits; that response is due Feb.15. The Reply then, is surplusage.
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Intervenors' Reply refers the Board back to their Jan.15 Response for a list of alleged "material issues in dispute," and promises not to list them again. Reply at 7.
Intervenors go on to list many of them anyway. Id. at 7-8.
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Intervenors' Attack on the Staff is Improper and Irrelevant i
I Intervenors have used their Reply as yet another opportunity to malign the inde-pendence, propriety, and legitimacy of the Staff's participation in this proceeding.
These presumptuous attacks on the Staff are not only inappropriate and unseemly but are also totally irrelevant to the hospital evacuation issue.EI In particular, Intervenors argue in Part III.B of the Reply that the Staff should somehow be "disqualified" from performing confirmation functions in regard to the hos-pital plans because it has supported LILCO on the adequacy of those plans. Reply at 20-21. Intervenors give no cognizable legal or factual basis for this argument, and in fact none exists. Even more questionable is the Lanpher Affidavit which is attached to the Reply. That Affidavit recounts and describes a "secret meeting" between Staff counsel and LILCO counsel that took place on January 14,1988. But, as LILCO pointed out in a January 27 letter to Mr. Lanpher (which is attached to this motion along with a letter from Mr. Lanpher to Staff counsel), there was absolutely no impropriety involved in the holding of that meeting, and Mr. Lanpher has not demonstrated any.SI
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In at least one instance, Intervenors' criticism of the Staff is absurd. In their footnote 4 Intervenors refer to the Staff's comparison of the hospital issue with the school bus driver issue, and note that summary disposition of the latter issue was denied despite the Staff's support. Reply at 6. n.4. Intervenors then say that "it ill-behooves the Staff to pretend to be a reliable interpreter of these Appeal Board and Commission orders when it is clear that the Staff's past interpretation has been rejected." Id. In effect, Intervenors are saying that the Board should reject the Staff's position on this issue because it rejected the Staff's position on another. entirely separate. Issue; even further, Intervenors seem to be asserting that it is somehow improper for the Staff to d
set forth its position on the hospital issue because its position on the school bus driver issue did not prevail. This assertion makes no sense.
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In fact, Staff counsel invited Suffolk County and the other government interve-nors to participate in a meeting similar to the one in which LILCO counsel partici-pated. Mr. Lanpher's intemperate letter to Staff counsel (Attachment 2 to this Motion) admits this fact, and states that Intervenors are considering Staff's offer. However, in-tervenors fall to mention it in their Reply and the attached Lanpher affidavit, i
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- j 4 More pointedly, that meeting of counsel had absolutely nothing to do with the hospital evacuation issues that are the subject of LILCO's Summary Disposition Motion.
The Lanpher Affidavit concedes as much, since its description of the topics discussed at the meeting does not include any mention of the hospital evacuation issue. Thus, Inter-venors' Reply and the accompanying Lanpher Affidavit are not relevant to this pro-ceeding and can only be deemed an improper and unseemly attempt to intimidate the NRC Staff and prejudice the Board's decision on LILCO's hospital summary disposition motion.II For this reason alone, the Board should strike Intervenors' Reply.
II. Intervenors' February 5 Letter Finally, on February 8, LILCO received a copy of Intervenors' Feb. 5 letter to the Board concerning the hospitalissue. (The Feb. 5 letter is Attachment 4 to this motion).
That near-hysterical letter lambasts the Board for issuing its Feb.1 Memorandum and Order withcut first notifying the Intervenors, complains about the Board's "dlSregard for the procedures," and instructs the Board to "follow the rules." See Att. 4. Interve-nors' letter merits a brief response.
First, Intervenors' claim that the Board "unfairiy" violated their right of reply under 10 C.F.R. S 2.749(a) is vacuous.
As Intervenors recognize, section 2.749(a) 1/
It is remarkable that the Intervencts ask this Board to disqualify the Staff from confirmation responsibilities because of the Staff's alleged impropriety. As LILCO has noted, there is no basis for Intervenors' allegation of improper conduct. But aside from that, if impropriety were the standard by which rights to future participation in this case were assigned, Intervenors' right to participate would have been abrogated long ago, especially af ter their collaboration with the Suffolk County Legislature produced a criminal ordinance making it a crime to participate in the February 13,1986 federally-mandated exercise. That ordinance was declared unconstitutional by the United States District Court.
Long Island Lighting Co. v. County of Suffolk, 628 F. Supp. 654 (E.D.N.Y. 1986). A more recent example of such questionable activity is Intervenors' i
blatant effort to undermine the Shoreham EBS while at the same they continue to liti-1 gate its adequacy before this Board. See attached letter from Suffolk Legislator Thiele te radio station WGLI. (LILCO understands that similar letters were sent to all Long Is-land members of the EBS.)
> g affords them the right to reply only to "new f acts and arguments." Yet, as Intervenors explicity concede in their Reply, the Staff's response did not present "new facts or ar-guments." See Reply at 2 ("The Staff's Response offers little in the way of new facts or argument. Rather, in a series of largely conclusory generalizations, the Staff gives sweeping support to almost every LILCO assertion"). Instead of a rebuttal of "new facts and arguments," the Reply contains a rehash of old arguments. Thus, even if a right of reply did exist in this case,Intervenors failed to take advantage of it.
More importantly, the Board's Feb.1 Memorandum and Order did not prejudice the Intervenors in any way. The Board did not rule on the merits of LILCO's Summary Disposition Motion; it merely provided Intervenors and Staff an additional opportunity to respond to the Motion based on their evaluation of Rev. 9. There is no connection between the Intervenors' Reply to the Staff Response and the Board's decision to allow further responses on Rev. 9, so Board consideration of the Reply presumably would not have affected the Memorandum and Order at all. Thus, Intervenors suffered no harm from the Board's unannounced issuance of its Memorandum and Order on Feb.1. Inter-venors' Feb. 5 letter should be dismissed as yet another attempt to intimidate this Board and prejudice not only its decision on the merits of the hospitalissue but its conduct of all of the remand proceedings.II 3/
Intervenors caution the Board to "be sensitive to the waste of resources and per-sonal hardship" occasioned by its actions. LILCO agrees, but in LILCO's view it is In-tervenors' filing of intemperate letters and pleadings !!ke the Feb.1 Reply and Feb. 5 letter that most offends such sensitivities.
LILCO also notes that the tone of the February 5 letter is disrespectful to the Board. The letter accuses the Board of "disregarding the procedures," "ignoring the Governments' rights," uslD2 "unf air" procedures, and, "without even the courtesy of ad-vising the Governments,""unfairly causing a waste of resources." See Att. 4. Such lan-guage hardly reflects counsel's duty to maintain a respectful attitude toward this Board or any other adjudicatory tribunal. See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-121, 6 AEC 319 (1973); Long Island Lighting Co.
(Shoreham Nuclear Power Station Unit 1), LBP-82-115,16 NRC 1923,1930 n. 5 (1982)("A licensing board is to be accorded the same respect as a court of law").
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III. Conclusion For the reasons stated above,.the Board should strike Intervenors' unauthorized and improper Reply.
Respectfully submitted, Wu 044 MN Donald P. Irwin James N. Christman Scott D. Matchett 9
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8357 Lawrence Coe Lanpher, Esq.
Kirkpatrick & Lockhart South Lobby - 9th Floor 1800 M Street, N.W.
Washington, DC 20036-5891
Dear Larry:
Your January 22 letter to Ed Reis unfortunately contains statements which cannot be ignored.
First, it mischaracterizes the roles of two individual par-ticipants in the meeting between counsel for LILCO and the NRC Staff in a fashion intended, apparently, to ske it appear that the meeting was not purely one among lawyers acting as lawyers.
You are wrong.
While Tony Earley has recently been appointed Executive Vice President of LILCO, he remains the Company's Gen-eral Counsel until a search for a successor is completed.
It was in his capacity is a lawyer that he attended the meeting with staff lawyers.
Ira Freilicher is a lawyer and, since Tony's acquisition of new duties, has taken over day-to-day legal re*7onsibility for Shoreham.
It was in his :3pacity as a lawyer thac he attended the meeting with Staff lawyers.
Second, on the matter of the relevance of power shortages or other exigent time circumstances to the pace of shoreham's licensing your letter misreads both Judge Gisason's order and prevailing law.
The existence of power shortages or other fac-tors is not a reason to issue a license to 3 plant that is not otherwise eligible to receive a license, and LILCO has never argued that it is.
On the other hand, responsible decision-makers must apply sufficient resources to analyzing problems that the result is determined by the merits and nn by the speed of the process.
Thus it is indeed correct to ssy that the 25%
motion seeks review and decision t.efore Long Island is faced with blackouts or LILCO is confronted with state-level regulatory i
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Y H UNTON & WILLI AM S Lawrence Coe Lanpher, Esq.
January 27, 1988 Page 2 extortion; it is not correct to assert that LILCO seeks a result that is not deserved on the merits.
Third, as I understand your letter, you would apparently deny counsel for two independent parties -- here, LILCO and the Staff -- the right to meet with one another without your consent and opportunity to attend.1/
There is no concept of litigation known to me -- and you cite none -- that bars counsel for one independent party from meeting with counsel for another on mat-ters of mutual interest.
Indeed, the Commission's regulations specifically empower the Staff to confer privately with any party, 10 CFR S 2.102(a), in contested as well as uncontested proceedings.
Northeast Nuclear Energy Company (Montague Nuclear Power Station, Units 1 and 2), 1 NRC 436, 437 (1975).
If you were talking about meeting with members of a licensing board or with other decision-makers covered by agency ex parte rules, see 10 CFR S 2.780, I could understand your argument.
As stated, it is baseless.
In any event, it is obvious that your : lent's activities in this case have extended considerably further than merely meeting with counsel for other litigants, and that ~'kes your complaint ring even more hollow in context.
Documents on public file show that counsel for Suffolk County have met wit-representatives of the American Red Cross and with representatives of a school bus drivers' union concerning Shoreham.
Counsel for Suffolk County has met with the Director of FEMA (described by counsel for the County as a former expert witness and an "old friend") during the Shoreham litigation.
The first two of these instances involved' third-party organizations whose cooperation 3uffolk County insists must be secured by LILCO: the only possible purpose would have been to induce their noncooperation.
In the third case, the meeting was with the head of a federal agency whose cooperation is important to review and approval of emergency plans.
In none of these cases did the County provide LILCO with notice or opportunity to attend.
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A corollary of your argument would be that LILCO has as much right to be present at any meeting suffolk County has with the Staff, or with New York State, as the County has to be present at a meeting between LIL20 and the Staff.
However, I am unaware of any invitations to LILCO counsel to be present at meetings or l
other communications between counsol for the County and New York State or the Staff.
m
-1 H UNTON & WILLI AM S Lawrence Coe Lanpher, Esq.
January 27, 1988 Page 3 In short, it is difficult to see any purpose to your letter other than an attempt to chill legitimate communications by in-timidation.
sine rely yours, b
. Donald P.
Irwin cc Fabian G. Palomino, Esq.
Stephen B.
Latham, Esq.
William R.
Cumming, Esq.
Edwin J.
Reis. Esq.
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