ML20155G841
| ML20155G841 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/05/1988 |
| From: | Lanpher L, Latham S, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7216 OL-3, NUDOCS 8810180012 | |
| Download: ML20155G841 (10) | |
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00CKETE0 USNRC October im L988 oo u -5 P4 :02 i
UNITED STATES OF AMERICA crn NUCLEAR REGULATORY COMMISSION f>06. j i.
Atomic Safety and Licensina Anneal Board I
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3 j
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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i GOVERNMENTS' MOTION FOR LEAVE TO PILE REPLY
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i On Octcber 4, 1988, the Governments received two pleadings
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related to the pending appeals the NRC Staff Response to j
Intervenors' Motion for Bifurcation of Appeal and Expedition,
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October 4, 1988 ("NRC Staff Response"); and LILCO's Answer to i
j Intervenors' Brief on Bifurcated Appeal, October 4, 1988 j
("LILCO's Answer").
The Governments do not seek leave to file a I
I i
i response to the NRC Staff Response.
That is because the NRC I
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Staff Response fails to address the issue presented in this t
l bifurcated appeal.1/
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As the title of the NRC Staff Response suggests, the NRC I
i Staff does not address, except in passing (111 NRC Staff Response i
at 9-10), the merits of the jurisdictional issue raised in this appeal but, rather, takes issue with the Appeal Board's September 27, 1988 Order granting bifurcation of the appeal and urges the Appeal Board to determine whether the OL-3 Board was i
j (footnote continued)
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8810100012 881005 PDR ADOCK 05000322 i
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i The Governments do seek leave to address two discrete aspects of LILCO's Answer.2/
Good cause is present to permit the filing of this brief reply.
The Governments could not have known that the particular matters discussed below would be raised by LILCO: to assist the Board in reaching its decision, the Govern-ments submit that this brief reply is appropriate.
The Govern-l ments re-emphasize, however, that they seek an expedited decision by the Appeal Board.
If the Board believes that consideration of
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this Reply would materially delay an Appeal Board decision, we i
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(footnote continued from previous page) correct on the merits in throwing the Governments out of all proceedings.
This Staff position cannot be considered in the context of the instant appeal.
The Staff's attempt to redefine the issue on appeal violates the scope of the issue to be considered, as articulated by the Appeal Board in its a
i September 27 Order and as reiterated in the Board's September 29
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Memorandum and Order.
Neither LILCO nor the NRC Staff sought I
reconsideration of the Appeal Board's bifurcation decision (LILCO
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on September 28 sought and obtained a less expedited briefing j
schedule but did not contest the bifurcation decision).
It is l
thus inappropriate for the Staff in its present filing to take issue with the Appeal Board's decision to bifurcate the appeal.
2/
In many respects, LILCO's Answer, similar to the Response i
filed by the NRC Staff, is non-responsive to the jurisdictional I
issue which the Appeal Board set for expedited briefing.
For l
example,Section V of LILCO's Answer (pages 14-17) is wholly unrelated to the jurisdictional issue.
Similarly,Section I of l
LILCO's Answer (pages 2-5) purports to set forth "groundrule(s)"
(111 page 2), but then LILCO violates its own "rules" by seeking to have the Board reconsider its September 29 Memorandum and Order (Ett page 4).
The Governments do not in this filing l
address LILCO's non-responsive assertions.
We emphasize, j
however, that our silence in no way suggests that the Governments l
agree with LILCO's characterizations or other assertions.
In particular, LILCO's characterizations of the bases of the OL-3 l
Board's decision (agg page 3) and the Governments' alleged l
motives in seeking an expedited appeal (111 page 8-9) are wrong.
j Further, LILCO's seeming assertion that the instant appeal represents some sort of improper tactic by the Governments has already been rejected by this Board.
Egg Memorandum and Order (September 29, 1988) at 5.
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i ask that the Appeal Board disregard this Motion and Reply and proceed to a decision.
First, LILCO asserts that if the Governments' appeal is sustained, the NRC in multi-Board adjudications will be deprived of the ability to impose the "ultimate sanction" of dismissal.
LILCO's Answer at 4.
This is not true.
The OL-3 Board is limited to its own jurisdiction in the imposition of sanctions.
Yet, under the Commission's rules it could have certified the sanctions issue to an entity with proper jurisdiction.
Egg 10 CFR $ 2.718(i).
The OL-3 Board, however, ignored the limits to its authority.
It must therefore be reversed.
Escond, at pages 11-14 of its Answer, LILCO cites certain 4
cases which LILCO alleges to be persuasive in upholding the OL-3 Licensing Board's authority to dismiss the Governments from all proceedings, even those over which the OL-3 Board had no juris-diction.
Because LILCO's Answer fails to disclose pertinent facts concerning those cases,3/ the Governments seek leave to l
demonstrate that the cases cited by LILCO are distinguishable.
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1.
Branca by Branca v. Security Ben. Life Ins. Co.,
773 F.2d 1158 (llth Cir. 1985), modified, 789 F.2d 1511 (1986).
I 3/
LILCO is less than clear as to how persuasive it purports i
the cases to be.
At one point, LILCO states that the cases are l
"clear precedent" to support the OL-3 Board's action.
LILCO's l
i Answer at 10, n.10.
Later, however, LILCO states that the cases "may be distinguishable on one ground or another from the l
Shoreham case."
LILCO's Answer at 14.
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.l LILCO fails to disclose that the Federal rules specifically 1
provided that the United States District Court in Florida could impose sanctions for failure of a party to comply with a discovery order issued in the same case by another* United States District Court.
Egg 773 F.2d at 1165, citing Fed. R. Civ. P.
37(b)(2).
The NRC rules contain no comparable provision.
Further, in Branca, the discovery order issued by the Kansas court was clearly directly part of the same case as was pending in Florida.
There was no question -- as exists here -- of I
separate jurisdiction over different issues.
2.
Weisburc v. Webster, 749 F.2d 864 (D.C. Cir. 1984).
In this case, a single United States District Court had jurisdiction over a single case.
For pre-trial purposes, the Court had bifur-l cated the case into a discovery phase and a phase rolated to the 1
propriety of certain Freedom of Information Act exemptions.
When 1
l the plaintiff was found to be in violation of discovery orders in j
the first phase, the entire case was dismissed.
No jurisdic-tional issue was presented in the case, since a single court had I
jurisdiction over all phases of the case.
I 3.
Wyle v.
R.J.
Reynolds Industries. Inc., 709 F.2d 585 (9th Cir. 1983).
In this case, there was a single United States District Court involved which had jurisdiction over an entire proceeding.
When it found that plaintiff's conduct was improper, 1
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it clearly had jurisdiction to dismiss the entire proceeding.
No jurisdictional issue was presented.
4.
Aztec Steel _,Co.
v.
Florida Steel coro., 691 P.2d 480 (11th Cir. 1982), cert. denied, 460 U.S. 1040 (1983).
- Here, plaintiff's anti-trust action was dismissed for failure to comply with court-ordered discovery.
There was no question whether the District Court had jurisdiction to order the dismissal.
The i
Court of Appeals rejected the argument that the dismissal should have been limited to only the two defendants who had propounded interrogatories, rather than against a third defendant as well, based upon a finding that the plaintiff's conduct was so improper i
that the complete dismissal sanction was appropriate.
- Again, i
however, no question of the court's jurisdiction to take such action was at issue.
The foregoing demonstrates that r.tLCO's cases provide no 4
support for the extraordinary action saken by the OL-3 Licensing 1
Board in the Shoreham proceeding.
The OL-3 Licensing Board had 1
no jurisdiction to order sanctions over matters pending before another Beard.
Neither LILCO nor the NRC Staff has cited any l
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s L
's c
t support for the proposition that the OL-3 Licensing Board had such jurisdiction.
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Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway i
Hauppauge, New York 11788
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W W
Herbert H. Brown r Lawrence Coe Lanpher i
Karla J. Letsche i
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
t South Lobby - 9th rioor Washington, D.C.
20036-5891 Attorneys for Suffolk County f
& c b ). a t tu x o t y)
Fabian G.
Palomino Richard J. Zahnleuter Special Counsel to the Governor l
of the State of New York
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f Executive Chamber, Room 229 Capitol Building Albany, New York 12224 l
Attorneys for Mario M. Cuomo, f
Governor of the State of New York i
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k Stephen B.
L& tham
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Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 7-
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! C r. w.f, t i -
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Octobe r S ine198* -5 P4 :03 UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION D ] ' d,( '7'"i Atomic Safety and_Licensina Anoeal Board
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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CERTIFICATE OP SERVICE I hereby certify that copies of GOVERNMENTS' MOTION FOR LEAVE TO FILE REPLY have been served on the following this 5th day of October 1988 by U.S. mail, first-class, unless otherwise indicated.
Christine N. Kohl, Chairman */**
Alan S. Rosenthal*/**
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Howard A. Wilber*/**
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John H. Frye, III, Chairman Dr. Oscar H. Paris 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 Mr. Frederick J. Shon Lando W.
Zech, Jr., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
Commissioner Kenneth C. Rogers Commissioner Kenneth M. Carr U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Frederick M. Bernthal Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission U.S. Nuclear regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 James P. Gleason, Chairman Dr. Jerry Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C.
20555 William'C. Parler, Esq.
U.S. Nuclear Regulatory Commission Edwin J. Reis, Esq.*
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 William R. Cumming, Esq.
Anthony F. Earley, Jr., Esq.
Spence W. Perry, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W.,
Room 840 Hicksville, New York 11801 Washington, D.C.
20472 Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.*
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O.
Box 1535 i
Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 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 J
Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section**
Executive Director Office of the Secretary Shoreham Opponents Coalition U.S.
Nuclear Regulatory Commission 195 East Main Street Washington, D.C.
20555 Smithtown, New York 11787 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 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788
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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 E. Thomas Boyle, Esq.
Fabian G. Palomino, Esq.*
Suffolk County Attorney Richard J. Zahnleuter, Esq.
Bldg. 158 North County Complex Special Counsel to the Governor Veterans Memorial Highway Executive Chamber, Rm. 229 Hauppauge, New York 11788 State Capitol Albany, New York 12224 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 10036
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Mr. Philip McIntire David A. Brownlee, Esq.
Federal Emergency Management Agency Kirkpatrick & Lockhart 26 Federal Plaza 1500 Oliver Building i
New York, New York 10278 Pittsburgh, Pennsylvania 15222 Adjudicatory File **
Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Cor. mission Washington, D.C.
20555 1
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%;/w Lawrence Coe Lanpher'
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KIRKPATRICK & LOCKHART 2
1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 4
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