ML20154S228
| ML20154S228 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/28/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7186 LBP-88-24, OL-3, NUDOCS 8810050017 | |
| Download: ML20154S228 (7) | |
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?/86 LILCO, Sept:mber 28,1988 W KCT[D udNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 SEP 30 P3 :08 crt u : u-
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Before the Atomic Safety and Licensing ADDeal Board OCh! b'(,
In the Matter of
)
)
LONG ISLAN9 LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION FOR ENLARGEMENT OF BRIEFING TIME LILCO hereby requests that tha Appeal Board grant it an additional week (that ic, until /riday, October 7.1988) to respond to the "Governments' Brief on Bifurcated Appeal from the September 23, 1988 Concluding Initial Decision in LBP-88-24," dated September 27,1988 (herelaaf ter "Governments' Brief"). LILCO's reasons are as follows:
1.
The urgency that the intervenors allege does not in trutn exist.
2.
The issue being briefed is important and, contrary to the Intervenors' argu-ments, needs more than three days' time. LILCO believes that the Interve-nors' arguments are based on txth a fundamentally incorrect viev. of the emergency planning regulations and a fundamentally unround view of a !!-
censi-* taard's authority to enforce NRC rules. Among other things, what is at. ue here is whether the NRC's process is to be taken seriously or held in contempt. Such issues deserve more than three days' briefing time. The Appeal BoaMs order severely prejudices LILCO's ability to rynd.
3.
LILCO asks only for ten days, the ad.e that the regulations provide to an-swer a motion. Indeed, under the regulations, LILCO is entitled to 39 days to respond to Intervenors' brief.10 C.F.R. S 2.762(c).
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I. The Urrency Claimed By The Intervenors Does Not Exist The urgency to complete Appaal Board review asserted by the Intervenors simply does not exist.
The Intervenors argue strenuously that "the issue to be bifurcated should be resolved expeditiously." Governments' Motion for Bifurcation of Appeal and for Expedited Treatment of Jurisdictional Issue at 4 (Sept. 27,1988)(hereinaf ter "Gov-ernmants' Motion"). Their reason is primarily that they must be allowed to litigate the June 1988 exercise because othermse "there would no party in a position to protect the puclic's right to have the 1983 exercise and its results scrutinized and, as appropriate, challenged." Id, at 5-6.
Further, Intervenors' unattributed allegation that the Staff is likely to make findings concerning the 1988 exercise within 2 to 4 vseks (Governments' Motion at 7), cannot be verified. On September 27 Staff counsel, Mr. Reis, could not I
corroborate Intervenors' allegation and disclaimed any knowledge as to where it could have come from. Thus there is no basis for Intervenors' allegation of urgency.
l The Intervenors have a fu tamental misconception of the NRC process. In the first pbce, their rush to resolve this particular is::ue is basically an end-run around the Commission's process for immediate effectiveness review, which is expressly designed to identify significant. safety issues that would warrant withholding a license pending Appeal Board review. See 10 C.F.R. S 2.764t 47 Fed. Reg. 40535 (Sept.15,1982). The r
Intervenors' attempt to hurry up Appeal Board review is a cialm that the Commission's immediate effectivencu review cannot be trusted. It is just another form of precisely
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what the Intervenors he.ve received sanctions for: disrespect for the NRC process. In i
the second place, it is simply not true, and it is offensive to suggest, that the Interve-i nors are the only ones protecting, or representing, the public. Surely the NRC Staff and FEM A (including their 68 exercise evaluators) have that primary role.
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II. _The fasue Beine Briefed is Important The additional week requested by LILCO is also justified by the itcportance of the issue. The question is whether the Gleason Board lacked the power (jurisdiction) to implement the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452 (1981), in the only way lef t to it in the face of repeated Interve-nor violations of its orders. These same intervenors have, among other things, defied the "Phase !" Board's orders, passed an unconstitutional law making it a crime to partic-Ipation in an emergency planning exercise, and now defied the -03 Board's legitimate discovery orders. Along the way they have advised potential witnesses to ignore Board-issued subpoenas and have failed to produce important documents in discovery. They tiow seek to overturn the Board's imposition of sanctions in a hurry, allowing the opposing parties only thice days to respond. Expedition is a fine thing, but in this case
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it does not serve the interests of justice.II Moreover, the Intervenors' argument on jurisdiction is based on another funda-mental misconception: that emergency planning exerciso litigation takes on a life of its own independent of the fundamental legal issue being addressed, which is whether i
the emercency PhD is adequate. This issue is fundamental, it is sopnisticated, and it is of first impression. It deserves more than three days' briefing time.
The Intervenors argue to the contrary that the issue is not all that complicated l
and refer to the shortnea of their own brief as proof. Governments' Motion at 4. They claim that the L. sue has already been decided in their favor by A LAB-901. See Govern-ments' Motion at 4t Governments' Brief at 5-6. LILCO will shortly ask for Commission review of ALAB-901, but even without that *eview L!LCO does not concede that ALAB-901 resolves the issuo of the -03 Board's authority to impose the sanctions it did. And 1/
If measures to protect the status quo turn out to be needcd at some point, they can be provided by a stay at the appropriate time if the circumstances warrant one.
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even if LILCO turns out to be wrong, it should first be given more than three days to brief an issue so potentially prejudicla! to it.
1 III. LILCO Asks No More Than What The Rerulations Provide The Appeal Board's Order of September 27, which was issued ej gang within hours of receipt of Intervenors' Stotton, without hearing the views of any parties exc6pt the Intervenors, provided only three days for briefs. Under the regulations,30 days are allowed for filing responsive briefs.10 C.F.R. S 2.762(c). Ten days are allowed for an-swering motions.10 C.F.R. S 2.730(c).
Because of the apparent importance of resolving this issue, LILCO asks less than the amount of time allowed to respond to briefs on appeal, and asks merely for the 10 4
days permitted for rcsponses to motions (i.e., unt!! October 7,1988). Since the issue is j
complicated, important, and of first impression, this seems littie enough to ask.
IV. Conclusion For the above reasons. LILCO requcsts tnat the Appeal Board grant it until October 7 to answer the "Governments' Brief on Bifurcated Appeal From the September 23,1989 Concluding Initial Decision in LBP-88-24." LILCO asks that the Ap-peal Board give this motion expedited treatment, since briefs are cue about 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> from now.
LILCO also respectfully notifies the Appeal Board that it believes that the Ap-peal Board's eZ parte Granting cf Intervenors' Stotion to bifurcate the appeal was itself
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erroneous procedurally and substantively, given the history of this case, and that it in-l tends to seek Commission review of that decision.
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Respectfully submitted, Don'ald P. Irwin/__
IM James N. Chris(man i
Counsel for Long Island Lighting Company liunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 t
i DATED: September 28,1988 h
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LILCO, Sept:mber 28,1988 Y
VCunn CERTIFICATE OF SERVICE W
In the Matter of 88 SEP 30 ' P3 :08 LONG ISLAND LIGHTING COMPANY t
(Shoreham Nuclear Power Station, Unit 1)
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. ( at.y Docket No. 50-322-OL-3 00CMD mg I hereby certify that copies of LILCO'S MOTION FOR ENLARGEMENT OF BRIEFING TIME were served this date upon the following by telecopy as indicated by an asterisk, by Federal Express as indicated by two asterisxs, or by first-class mail, post-4 age prepaid.
Christine N. Kohl, Chairman
- Mr. Frederick J. Shon Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission n
Flf th Floor East-West Towers East-West Towers 4350 East-West Hwy.
l 4350 Fast-West Highway Bethesda, MD 20814 l
Betnesda, MD 20814 James P. Cleason, Chairman Alan S. Rosenthal
- Atomic Safety and Licensing Board Atomic Safety and Licensing 513 Gilmoure Drive Appeal Board Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Fif th Floor Dr. Jerry R. Kline East-West Towers Atomic Safety and Licensing 4350 East-West Highway Board i
Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers Dr. W. Reed Johnson *, **
4350 East-West Hwy, Atomic Safety and Licensing Dethesda, MD 20814 Appeal Board
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U.S. Nuclear Regulatory Commission Secretary of the Commission 115 Falcon Drive, Colthurst Attention Docketing and Service i
j Charlottesville, VA 22901 Section j
j U.S. Nuclear Regulatory Commission i
John H. Frye, !!!, Chairman 1717 H :atreet, N.W.
Atomic Safety and Licensing Washington, D.C. 20555
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Board i
U.S. Nuclear Regulatory Commiss!on Atomic Safety and Licensing East-West Towers Appeal Board Panol 4350 East-West Hwy.
U.S. huelear ReCulatory Commission Bethesda, MD 20814 Washington, D.C. 20555 Dr. Oscar 7^ Paris Adjodicatory File j
Atomi fe(y and Licensing Atomic Safety and Licensing i
i Boart Board Panel Docket j
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l
East-West Towers Washington, D.C. 20555 l
4350 East-West Hwy.
i Bethesda, MD 20814 i
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l c 1 Edwin J. Reis, Esq.
- Stephen B. Latham, Esq. **
U.S. Nuclear Regulatory Commission Twomey, Latham & Shea One White Flint North 33 West Second Street 11555 Rockville Pike P.O. Box 298 Rockville, MD 20852 Riverhead, New York 11901 Herbert H. Brown, Esq.
- Mr. Ph!!!p McIntire Lawrence Coe Lanpher, Esq.
Federal Emergency Management Karla J. Letsche, Esq.
Agency Kirkpatrick & Lockhart 26 Federal Plaza South Lobby - 9th Floor New York, New York 10278 1800 M Street, N.W.
Washington, D.C. 20036-5891 Jonathan D. Feinberg, Esq.
New York State Department of Fabian G. Palomino, Esq.
- Public Service Staff Counsel Riched J. Zahnleuter, Esq.
Three Rockefeller Plaza Special Counsel to the Governor Albany, New Yor!: 12223 Executive Chamber Room 229 Ms. Nora Bredes State Capitol Executive Coordinator Albany, New York 12224 Shoreham Opponents' Coalition 195 East Main Street Alfred L. Nardeill, Esq.
Smithtown, New York 11787 Assistant Attorney General 120 Broadway Evan A. Davis, Esq.
Room 3-118 Counsel to the Governor New York, New York 10271 Executive Chamber State Capitol George W. Watson, Esq.
- Albany, New York 12224 William R. Cumming, Esq.
c'ederal Emergency Management E. Thomas Boyle, Esq.
Agency Suffolk County Attorney 500 C Street, S.W., Room 840 Building 158 North County Complex Washington, D.C. 20472 VuiGrans Memorial Highway Hauppauge, New York 11788 Mr. Jay Dunkleberger New York State Energy Office Dr. Monroe Schneider Agency Building 2 North Shore Committee Empire State Pla:a P.O. Box 231 Albany, New York 12223 Wading River, NY 11792 CLntfh h 5mes N. ChrOtman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 28,1988