ML20155H123
| ML20155H123 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/06/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7254 OL-3, NUDOCS 8810180274 | |
| Download: ML20155H123 (7) | |
Text
c 7g54 LILCO, October 6,1988 i
0%KEice UNC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 OCT 12 P4 :42
.:U ':..
Before the Atomic Safety and Licensing Appeal Board MS u
y,,
in the Matter of
)
)
LONG ISLAND LIGitTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S ANSWER TO INTERVENORS' MOTION TO FII.E REPLY On October 5,1988, the Intervenors filed their "Governments' Motion for Leave to file Reply"(hereinaf ter "Motion"). Their reply, which was incorporated into the mo-tion, was to LILCO's Answer to Intervenors' Brief on Bifurcated Appeal (October 4, 1988). This is LILCO's answer to the Intervenors' motion /brief of October 5.
LILCO opposes the Motion. The Appeal Board should deny it and disregard the included brief, In the alternative, the Appeal Board should take into account LILCO's response in Part !! below, Moreover, in light of the importance attached to this "juris-dictional" issue by all parties, the Appeal Board should hear oral argument.
I. The Intervenors' Motion Should He Denied One of the arguments for expedition in the Intervenors' original pleadings was that the "jurisdictional" issue was simple and straightforward, as demonstrated by the shortness of their brief, Governments' Motion for Bifurcation of Appeal and for Expe-dited Treatment of Jurisdictional Issue at 4 (Sept. 27,1988). Now, however, they have filed an additional brief. Meanwhile, they have petitioned the Frye Board for more time to !!;e contentions on the 1988 exercise, based largely on their claim that they are o310180274 882006 3 ())
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busy with other things, including this appeal. Suffolk County, State of New York, and Town of Southampton Motion for Postponement of Deadline for Filing Contentions Re-lated to June 1988 Exercise or, in the Alternative, for Extension of Time at 4-7 (Oct. 4, 1988). Their attempts to hurry the resolution of this issue, claiming it is simple and straightforward, while using the "considerable energy and resources" they have had to expend on it to justif y delay in another part of the proceeding, are not well taken.
The Intervenors' reply brief is not contemplated by the regulations. See 10 C.F.R. S 2.762 (1553): Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2) ALAB-469, 7 NRC 740 (1978). The Appeal Board should deny the Intervenors' October 5 mo-tion and disregard the included brief. In the alternative, the Appeal Board should con-sider the following response to the substantive arguments in the Intervenors' Motion.
II. The Intervenors' Arguments are Incorrect A.
The Intervenors' Theory of How "Jurisdiction" Is Distributed by the Chairman of the Licensing Board Panel Is Their Own invention The concept of "jurisdiction" that the Intervenors ask the Appeal Board to ac-cept has no basis in the NRC regulations. In its October 4 answer to Intervenors' origi-nal brief on bifurcation. LILCO argued that the Intervenors' theory would eliminate the power of licensing boards in a multi-board proceeding to dismiss a party, since no board would have it. The authority to dismiss a party in extreme cases such as this one became, LILCO argued, jurisdiction unaccounted for, in their October 5 Motion Intervenors refine their theory. The power to dismiss a party still exists, they say, but it resides with the Appeal Board:
(U)nder the Commission's rules (the Gleason Board) could have certified the sanctions issue to an entity with proper ju-risdiction. S_ee 10 CFR S 2.718(t).
i 3
Motion at 3.
The Intervenors' theory is now clearer, but it is even more unfounded than be-fore. They claim that whenever the Chairman of the Licensing Board Panel appoints a second licensing board in a proceeding, he actually divides up "jurisdiction" three ways:
he gives the power to impose sanctions up to dismissal of contentions to each licensing board, while ha distributes the jurisdiction to dismiss a party up to the Appeal Board, to be invoked only by certification.
This is heavy freight to be borne by a "case management tool." Too heavy.
Moreover, it is an af terthought: neither Intervenors nor anyone else sought certifica-i tion of the sanctions issue. It is also contrary to the Perkins case, which holds that the Licensing Board determines its jurisdiction in the first instance.
Duke Power CA (Perkins Nuclear Station. Units 1,2 and 3h ALAB-591,11 NRC 741,742 (1980),it is con-l trary to the Limerick case, which holds that "until exceptions are filed there is literally no appeal to invoke ( Appeal Board) jurisdiction." Philadelphia Electric Co. (Limerick Generating Station. Units 1 and 2), ALAB-726,17 NRC 755, 758 (1933). Finally, it is i
unworkable. When, la the Intervenors' theory, does the Licensing Board certify tht.
j sanctions issue? Before it holds a hearing, or af terward? If af terward, doec the Appeal j
Board hold the hearing, or does it remand the issue back to the Licensing Board, thereby reconferring "jurisdiction" to dismiss parties?
The Intervenors' complex "certification" theory simply has no basis in the regu-lations.
}
B.
The Intervenors' Casual Dismissal of i
Federal Case Law Misses the Point i
The Intervenors would dismiss all the federal cases cited by LILCO because, In-tervenors say, each of those cases was only one "case" and presented no "jurisdictional" issue. The Shoreham OL-3 and OL-5 dockets, they argue, are two different "cases" and l
do present a "jurisdictional"issue.
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1 d
By this argument, which is little more than an unsupported assertion based on their definition of "case" the Intervenors assert that the Appeal Board decided the sanctions issue in their favor when it resurrected the OL-5 Board in ALAB-901, when it l
bifurcated the issues in its ex parte Order of S;-* ember 27, and when it characterized 4
the first issue as "jurisdictional" in its September 29 Stemorandum and Order.
Perhaps recognizing the unf airness of this course of events (if it is as intervenors
)
say it is ), Intervenors imply, Slotion at 2 n.1, that LILCO consented to the bifurcation of the issues because it did not seek "reconsideration" of the Appeal Board's bifurcation decision. That LILCO did not seek "reconsideration"is of no consequence; a motion for i
reconsideration is not a prerequisite to a petition for Commission review. See 10 C.F.R. 5 2.786(b).
LILCO yesterday petitioned the Commission to review the bifurcation decision. Long Island Lighting Company's Petition for Review of ALAB-901 and Follow-on Orders (Oct. 5,1988). LILCO made clear in that petition that it would I
have contested the bifurcation if it had been given the opportunity before the decision l
was made. Id. at 11-14.
]
l Storeover, Intervenors' claim that the cases cited by LILCO are inapposite is i
j wrong, because they misstate the proposition for which LILCO cited the cases. LILCO i
j has not argued that a judge in one jurisdiction can dismiss proceedings in another juris-diction. The point is rather that in a single proceeding, even one that is complex and subdivided, a judge can dismiss an offending party from all parts of the proceeding, even a part of the proceeding that was not the basis of the offending activity. The l
cases LILCO cited support this proposition.
l 111. The Appeal Board Should llear Oral Arrument in accordance with its custom, the Appeal Board should hear oral argument on this issue. The importance attsched to this issue by LILCO and the NRC Staff (as l
l i
l l
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's Indicated by their briefs), the importance attached to it by the Intervenors (as shown by their attempt to get additional briefing for themselves), and the speed with which this matter is being resolved suggest that oral argument is important.
Respectf ully submitted, A
lALWh;MM H
Do!. Ad P. Irwin
/
James N. Christman Charles L. Ingebretson Counsel for Long Island Lighting Company liunton & Wi:llams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 6,1988
~
e LILCO, October 6,1988 w.w
.,,a CERTIFIC ATE OF SERVICE
'88 OCT 12 P4 '42 i
j in the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) hn.
0CKii m > t
' I f I.
i t
i Docket No. 50-322-OL i
I hereby certify that copies of LILCO'S ANSWER TO INTERVENORS' MOTION TO FILE REPLY were served this date upon the following by telecopier as indicated by one i
asterisk, by Federal Express as indicated by two asterisks, or by first-class mall, post-l age prepaid.
y Christine N. Kohl, Chairman
- Dr. Jerry R. Kline Atomic Safety and Licensing Atomic Safety arid Licensing
[
i Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission i
j Fifth Floor East-West Towers
]
East-West Towers 4350 East-West Highway l
j 4350 East-West Highway Bethesda, MD 20814 i
Bethesda, MD 20814 Secretary of the Commission Alan S. Rosenthal, Esq.
- Attention Docketing and Service Atomic Safety and Licensing Section Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
1 Fif th Floor Washington, D.C. 20555 j
Eart-West Towers l
4350 East-West Highway Atomic Safety and Licensing l
l Bethesda, MD 20814 Appeal Board Panel U.S. Nuclear Regulatory Commission Mr. Howard A. Wilber
- Washington, D.C. 20555 4
j Atomic Safety and Licensing Appeal Board Adjudicatury File U.S. Nuclear Regulatory Commission Atomic Safety and Licensing i
i Fif th Floor Board Panel Docket i
East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway Washington, D.C. 2055!,
l Bethesda, MD 20814 Edwin J. Reis. Esq.
- i j
Mr. Frederick J. Shon U.S. Nuclear Regulatory Commission Atomic Safety and Licensing One White Flint North
[
Board 11555 Rockville Pike i
U.S. Nuclear Regulatory Commission Rockville, MD 20852 l
East-West Towers J
4350 East-West Highway Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher Esq.
i j
Karla J. Letsche Esq.
i I
i James P. Gleason, Chairman Kirkpatrick & Lockhart j
Atomic Safety and Licensing Board South Lobby - 9th Floor i
513 Gilmoure Drive 1800 M Street, N.W.
j Silver Spring, Marylana 20901 Washington, D.C. 20036-5891 l
i I
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2-Fabian G. Palomino Esq.
- Str. Philip 51cIntire Richard J. Zahnleuter, Esq.
Federal Emergency 51anagement Special Counsel to the Governor Agency Executive Chamber 26 Federal Plaza Room 229 New York, New York 10278 State Capitol Albany, New York 12224 Jonathan D. Feinberg Esq.
New York State Department of Alf red L. Nardelli, Esq.
Public Service, Staf f Counsel Assistant Attorney General Three Rockefeller Plaza 120 Broadway Albany, New York 12223 Room 3-118 New York, New York 10271 51s. Nora Bredes Executive Coordinator George W. Watson, Esq.
- Shoreham Opponents' Coalition William R. Cumming. Esq.
195 East Stain Street Federal Emergency 51anagement Srnithtown, New York 11787 Agency S00 C Street, S.W., Room 840 Evan A. Davis, Esq.
Washington, D.C. 20472 Counsel to the Governor Executive Chamber Str. Jay Dunkleberger State Capitol New York State Energy Of fice Albany, New York 12224 Agency Building 2 Empire State Plaza E. Thoma.i Boyle, Esq.
Albany, New York 12223 Suf folk County Attorney Building 158 North County Complex Stephen B. Latham, Esq. "
Veterans 51emorial Highway Twomey, Latham & Shea Hauppauge, New York 11788 33 % Mt Second Street P.O. Box 298 Dr. 51onroe Schneider Riverhead, New York 11901 North Shota Committs
- P.O. Box 231 Wading River, NY 1 e2 W
.b atC$b Sc 'tt D. 51stcKett' '
Hunton & Williarrs 707 East Stain Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 6,1938 i
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