ML20149L049
| ML20149L049 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/17/1988 |
| From: | Brown H, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5645 OL-3, NUDOCS 8802240091 | |
| Download: ML20149L049 (10) | |
Text
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g {3 Dec. N E N ap/a c L.es g February 17, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
)
RESPONSE OF SUFFOLK COUNTY, NEW YORK STATE, AND THE TOWN OF SOUTHAMPTON IN OPPOSITION TO "LILCO'S MOTION TO REPLY IN PART TO THE INTERVENORS' RESPONSE ON 10 CFR S50.47(ciflifi) AND (11)"
By Motion dated February 5, 1988,1 LILCO requests leave to reply to the Governments' Response to LILCO's motion for summary disposition of LILCO's compliance with 10 CFR S 50.47(c)(1)(1) and (11).2 LILCO's request is expressly prohibited by Section 2.749(a) of the Regulations.
This Regulation provides that at the present point in the summary disposition pleading process, "No further supporting statements or responses thereto shall be entertained."
LILCO recognizes that Section 2.749(a) is an obstacle to its Motion.
Nevertheless, it strains fact, law, and 1
Motion to Reply In Part to the Intervenors' Response on 10 CFR S 50.47(c)(1)(i) and (ii).
The LILCO Motion may be denied as untimely, as well as for the reasons detailed in the body of this response.
Even allowing 5 days for service, LILCO waited 12 days before filing its Motion.
2 Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR S 50.47(c)(1)(i) and (ii), January 18, 1988.
8802240091 880217 PDR ADOCK 05000322 G
PDR b)
logic to plead that the words of Section 2.749(a) do not mean what they say.
As demonstrated below, LILCO's pleas are i
baseless, and its Motion must be denied.3 None of LILCO's arguments in support of its Motion merits serious consideration.
While the Governments reply below to each of LILCO's arguments for the purpose of providing the Board with a complete response, the essence of LILCO's Motion is that it simply seeks from the Board a favor where LILCO has no right.
Indeed, the Motion pleads for the Board to erase from Section 2.749(a) the very words which the Commission inserted to establish an orderly pleading process for deciding motions for summary disposition.
LILCO's argument is essentially twofold.
First, LILCO claims that this Board has the authority to discard the language of Section 2.749(a) that prohibits LILCO from filing a further pleading.
Second, LILCO claims that, given such authority, there are compelling reasons for the Board to discard the prohibition and to let LILCO file a further pleading.
3 This Board has previously considered but did not decide whether it has authority to allow the proponent of a summary disposition motion to file further pleadings.
Egg Lono Is1 nd A
Lichtino Comnoany (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, NRC (Sept. 17, 1987) (slip op. at 3-9). l
As for the Board's authority, LILCO alleges that the Board has "discretion" to discard Section 2.749(a) (Motion, p._2).
The Regulation, however, says no such thing, and LILCO cites neither legal authority nor sound logic to support its claim.
- Instead, LILCO invokes the "spicit of NRC regulations" (Motion, p. 3),
claiming that its spirtual interpretation of Section 2.749(a) takes precedence over the plain language of the Regulation.
LILCO's claim is groundless.
LILCO's suggestion (Motion, p. 2) that because the Board has modified time periods for pleadings under Section 2.749(a), it can erase the prohibition against further pleadings is logically vacuous.
Similarly, its claim (Motion, p. 3) that the Board's authority to regulate the course of a hearing permits the Board to ignore the prohibition of Section 2.749(a) is vacuous.
Regulating the course of a hearing is a far cry from changing the substance of a regulation.
The fact is that there is nothing in the language of Section 2.749(a) or in NRC practice that permits the Board to disregard or "harmonize" (Motion, p. 4) Section 2.749(a) out of existence.
Indeed, Section 2.749(a) is written with mandatory language:
further pleadings "shall not be entertained."
Neither the history of Section 2.749(a) nor anything else lends support to LILCO's Motion.
The Commission wrote into Section 2.749(a) a prohibition against what LILCO now seeks because this is the way in which the Commission sought to order the pleading process.
The fact is that the Commission consciously established procedures whereby the Board would render a decision on the basis of a prescribed number of pleadings.
The Governments submit that the Board has no authority to negate the Commission's prescription.4 After arguing that the Board has the authority to discard the prohbition of Section 2.749(a), LILCO offers four "reasons" why the Board should allow LILCO to file another pleading.
None of these reasons can be taken seriously as a basis to disregard Section 2.749(a).
First, LILCO claims that it should be freed from the prohibition of Section 2.749(a) because the ultimate issue here relates to the NRC's new emergency planning rule -- a L
matter of "first impression." (Motion, p. 5)
LILCO's claim is baseless.
Section 2.749(a) carves out no exceptions; not for cases of first impression or for any others.
Indeed, the Regulation mandates a pleading process for all summary disposition motions without regard to the subject-matter of the motions.
i 4
Significantly, the original version of Section 2.749 did not have any statement regarding whether additional responses by the L
moving party were permitted.
The regulation was amended in 1980 to provide that responses (such as by the NRC Staff) in support t
of summary disposition motions were permitted.
In that same 1980 l
amendment, however, the NRC added the express provision in
[
Section 2.749(a) stating that further responses by the moving I
party were not permitted.
_4-
Second, LILCO claims that the Governments' Response to its summary disposition motion is "fundamentally at odds with the purpose of the new rule." (Motion, p. 5)
This is a transparent claim.
LILCO's concern is simply that it now recognizes the weakress of its summary disposition motion and wants a second chance to try to bolster it.
This was LILCO's own tactical decision, and LILCO is now bound by it.
LILCO's dissatisfaction with itself is no reason for this Board to permit LILCO to experiment with new tactics until it is satisfied or to plead its case more than once.
Third, LILCO claims it "could not have reasonably foreseen" the Governments' reliance on judicial caselaw concerning the standard of good faith.
(Motion, p. 7) This claim, if not tongue-in-cheek, teases rationality.
Surely, LILCO cannot suggest that it was surprised to find that the Governments --
LILCO's opponents -- relied on legal precedent in support of their case.
Citing the law is the way of litigation, and LILCO knows that from six years of practice in this very case.
Fourth, LILCO claims that the Governments' Response is "fundamentally at odds with the purpose of the NRC regulations in general."
(Motion, p. 7) This claim lacks meaning; it is but surplusage where LILCO can raise no claim of merit.
The Governments' Response to LILCO's summary disposition motion complies with all applicable NRC regulations, including the prescriptions of Section 2.749(a).
The fact that LILCO is uncomfortable with the content of the Governments' Response does not provide reason to discard Section 2.749(a) and to entertain yet another LILCO pleading.
In the event LILCO's Motion were granted, the Governments would be required to file a response to LILCO's pleading.
LILCO is the proponent of the motion for summary disposition.
Under Section 2.749, the Governments have a right to respond to any pleadings filed by the proponent of a motion.
For the foregoing reasons, the Governments submit that LILCO's Motion must be denied.
1 Respectfully submitted, 1
1 I
E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Herbert H. Brown Lawrence Coe Lanpher KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 L.
e Attorneys for Suffolk County M W Tabian G. Palomino
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Special Counsel to the GMernor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York h :, -
Stephen B. Latham f/
Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton j
i i
1 7-1 l
February 17, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r
Before the Atomic Safety and Licensina Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket-No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON IN OPPOSITION TO "LILCOS' MOTION TO REPLY IN PART TO THE INTERVENORS' RESPONSE ON SECTION 50.47(c)(1)(i) & (ii)" have been served on the following this 17th day of February 1988 by U.S. mail, first class.
In addition, copies of the SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON IN OPPOSITION TO "LILCOS' MOTION TO REPLY IN PART TO THE INTERVENORS' RESPONSE ON GECTION 50.47(c)(1)(1) & (ii)" will be served on the members of the Licensing Board by hand delivery on February 18, 1988.
James P. Gleason, Chairman Mr. Frederick J.
Shon i
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 James P. Gleason, Chairman William R. Cumming, Esq.
513 Gilmoure Drive Spence W.
Perry, Esq.
Silver Spring, Maryland 20901 Office of General Counsel Federal Emergency Management Agency Dr. Jerry R. Kline 500 C Street, S.W.,
Room 840 Atomic Safety and Licensing Board Washington, D.C.
20472 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
O e
Fabian G. Palomino, Esq.
W. Taylor Reveley, III, Esq.
Richard J. Zahnleuter, Esq.
Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq.
Anthony F. Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq.
Ms. Elisabeth Taibbi, clerk Suffolk County Attorney Suffolk County Legislature l
Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 I
Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 Alfred L. Nardelli, Esq.
Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger George E. Johnson, Esq.
New York State Energy Office Edwin J. Reis, Esq.
Agency Building 2 office of the General Counsel Empire State Plaza U.S. Nuclear Regulatory Comm.
Albany, New York 12223 Washington, D.C.
20555 David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 L
f'
, a Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 b A /x, hihan ii awredce Coe Lanpher
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KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 k
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