ML20155H336
| ML20155H336 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/11/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7272 LBP-88-24, OL-3, NUDOCS 8810200026 | |
| Download: ML20155H336 (7) | |
Text
7p}SL g
LILCO, Octobor 11, 1988 DOCKETED
!. ':N R C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 118 OCT 13 P3:55 Before the Atomic Safety and Licensina Aeneal Bos'd; r
vu.t In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
i LILCO'S RESPONSE TO INTERVENORS' TOLLING MOTION LILCO responds as follows to Intervenors' tolling motion of i
i this morning:
- 1. Intervenors' Motion is Untimelv and must therefore be denied.
LILCO objects to Intervenors' request to toll the deadline for filing a stay request of LBP-88-24 on the basis that it is untimely.
LBP-88-24 was issued on September 23. It was also served, and service was completed, that afternoon, by telephone notification to the parties of the decision's availability and their actually picking it up that day.
Service may be completed by a variety of means under the pertinent Commission regulation, 10 CFR $ 2.712. One of them is:
a (d) (1) by personal delivery, on handina the oacer to i
the individual....
It is undisputable that counsel for Intervenors dispatched an agent who received a copy of LBP-88-24 from the Licensing Board on the afternoon of September 23.
The Appeal Board itself has so i'
noted in its September 29 Memorandum and Order:
P I
I 88102OOOL6 081011 PDR ADOCK 05000322 o
PDR g
)N) f
.m--
m.e
V,
We have been advised by Licensing Board Panel Staff that counsel for LILCO, the Govern-ments, and the NRC Staff picked up copies of LBP-88-24 on September 23.
Id. at 7 note 6.
The Rules of Practice also prescribe that a motion for a stay must be filed within 10 days after service of the pertinent decision of action sought to be stayed.
10 CFR 5 2.788(a). With service effective on September 23, the ten-day period expired on Monday, October 3.1 One Appeal Board case, Consolidated Edison Comoany of New York, (Indian Point Station, Unit No. 2), ALAB-414, 5 NRC 1425 (1977), is apparently to the contrary, at least as to practice involving courtesy service of Appeal Board decisions.
It deter-mines, as a subsidiary issue, that courtesy notification to the parties of the availability of an Appeal Board decision as rot effective as a substitute for the manner of servic s delegated by the NRC Manual to the Docketing and Service Section.
5 NRC at 1427-28.
However, LILCO submits that that case does not govern here.
First, the circumstances in that case were complicated by the fact that the regulations involving stays and petitions for review of Appeal Board decisions (10 CFR 55 2.2786, 2.788) took effect during the period in which the stay request under con-sideration was to be filed.
Second, the pertinent provision 1 Indeed. the Appeal Board used this fact -- that the par-i ties had cctually picked up LBP-88-24 on September 23 -- as a basis for criticizing LILCO'S motion for additional time to brief the bifurcation of Intervenors' appeal from LBP-88-24. Memorandum
(
and order, September 29, 1988, at 7.
l l
l l
l c,.
i regarding completion of service -- 10 CFR $ 2.712 (d) (1) is not even mentioned.
Further, the NRC Manual provision on which the
(
Appeal Board relied in that case, which is not published as part of the regulations themselves, should not override the plain text of the Rules of Practice: that service is complete when "the
~
paper" in question -- here, LBP-88 "is handed to the individual" -- here, the authorized agent of Intervenors.
Construction of the plain text of the regulations so as not
)
to frustrate expedition is particularly important in situations l
involving a stay, where time is of the essence.
Intervenors' 1'
construction of the regulations adds over a week to what is contemplated under the regulations as a 10-day process. LILCO l
l submits that the better construction, at least in cases where, as here, actual receipt has been verified, is that the litoral text
]
of 5 2.712 (d) (1) governs.
Intervenors' current tolling motion, dated October 11, is therefore a week out of time and must be denied.
j 2.
If the Acceal Board crants Intervenors' notion, it should do I
so in a way that does not nreiudice LILCO.
i In the event the Appeal Board determines that Intervenors' i
motion is not untimely, LILCO does not object to granting the extension requested by them as long as it is so conditioned as l
not
- pr9 judice LILCO, as indicated below:
{
.ILCO does not oppose Intervenors' notion for l
an extension tolling the deadline for filing with the Appeal Board a motion to stay the i
portions of LBP-88-24 reversed by ALAB-902 i
i until 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after a decision reinstating
]
the license authorization reversed in ALAB-t b
f F
r~a.
1 l
i 902, provided that: (1) the 48-hour period l
shall begin with receipt by Intervenors of any decision reinstating the license authori-J zation, (2) the Appeal Board has previously
&pproved this extension, and (3) the granting j
of this extension shall not be deemed to l
affect in any way any party's right to bring i
any matter before the Commission.
The inclusion of the conditions above is necessary to avoid l
?
unnecessary future delays in perfecting motions for stays and to
?
ensure that LILCO's ability to take to the Commission matters which may properly be brought before it is not inadvertently impeded by the granting of any tolling motion.2 CONCLUSION l
The Appeal Board should deny Intervenors' tolling motion for untimeliness.
In the event it grants the motion, it should I
i condition it as stated above, so as to avoid prejudicing LILCO.
i
)
Re pectfully s
- itted, f j19
)
~w I.
vm Donald P.
Irwin James N. Christman Counsel for Long Island d
I Lighting Company l
Hunton & Williams j
707 East Main Street i
P.
O.
Box 1535 Richmond, Virginia 23212 DATED: October 11, 1988 2 LILCO takes passing issue with Intervenors' description of their "opportunity" for LILCO to comment in advance (see Motion j
at 5).
The motion was telecopied, without notice, in draft late Saturday afternoon; yesterday was a federal holiday, which LILCO 4
observed; and the motion was filed at the very start of business i
today.
There was no opportunity for LILCO to comment on it in advance i
1 l
e LILCO, October 11,1988 CERTIFICATE OF SERVICE Ndf in the Matter of
'88 OCT 13 P3 :55 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit.14 Docket No 50-322-OL-3 Q O,' ', !
reAq; I hereby certify that copies of LILCO'S RESPONSE TO INTERVENORS' TOLLING MOTION were served this date upon the following by telecopy as indicated by an aster-isk, by Federal Express as indicated by two asterisks, or by first-class mail, postage pre-paid.
Lando W. Zech, Jr., Chairman Alan S. Rosenthal
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing One White Flint North Appeal Board 11555 Rockville Piko U.S. Nuclear Regulatory Commission Rockville, MD 20852 East-West Towers, Fif th Floor 4350 East-West Highway Commissioner Thomas M. Roberts Bethesda, MD 20814 U.S. Nuclear Regulatory Commission One White Flint North Howard A. Wilber
- 11555 RockvillePike Atomic Safety and Licensing Rockville, MD 20852 Appeal Board U.S. Nuclear Regulatory Commission Commissioner Kenneth M. Carr East-West Towers, Fif th Floor U.S. Nuclear Regulatory Commission 4350 East-West Highway One White Flint North Bethesda, MD 20814 11555 Rockville Pike Rockville, MD 20852 James P. Glease'
- hairman Atomic Safety ar. Licensing Commissioner Kenneth C. Rogers Board U.S. Nuclear Regulatory Commission 513 Gilmoure Drive One White Flint North Silver Spring, MD 20901 11555 Rockville Pike Rockville. MD 20852 Dr. Jerry R. Kline William C. Farler, Esq._
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-Wes' Towers One White Flint North 4350 East-West Hwy.
11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852 John H. Frye, Ill, Chairman Christine N,. Kohl, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers East-West Towers, Fif th Floor 4350 East-West Hwy.
4350 East-West Highkay Bethesda, MD 20814 Bethesda, MD 20814 P2
- P i
Dr. Osettr H. Paris Fabian G. Palo.nino, Esq.
- Atomic. Safety and Licensing Richard J. Zahnleuter Esq.
Board Special Counsel to the Governor i
U.S. Nuclear Regulatory Commission Executive Chamber East-We:lt Towers Room 229 l
4350 East West Hwy.
State Capitol Bethesdai, MD 20814 Albany, New York 12224 Mr. Frederick J. Shon Alf red L. Nardelli, Esq.
Atomic !ialety and Licensing Assistant Attorney General i
Board 120 Broadway I
U.S. Nuclea:' Regulatory Commission Room 3-118 East-West Towers New York, New York 10271 4350 East-West Hwy.
Bethesda, MD 20814 George W. Watson, Esq. *
[
William R. Cumming. Esq.
f Secretary of the Commission Federal Emergency Management Attention Docketing and Service Agency Section 500 C Street, S.W., Room 840 U.S. Nuclear Regulatory Commission Washington, DC 20472 One White Flint North 11555 Rockville Pike Mr. Philip McIntire Rockville. MD 20852 Federal Emergency Management Agency Atomic Sn!ety and Licensing 26 Federal Plaza Appeal Ikiard Panel New York, New York 10278 i
U.S. Nucletir Regulatory Commission Washington, DC 20555 Mr. Jay Dunk!cberger New York State Energy Of fice Adjudicatory File Agency Building 2 4
Atomic Safety and Licensing Empire State Plaza Board Panet Docket Albany, New York 12223 j
U.S. Nuclear Regulatory Commission l
Washington, DC 20555 Stephen B. Latham, Esq. "
l Triomey, Latham & Shca i
Edwin J. Reis. Esq.
- 33 West Second Street U.S. Nuclear Regulatory Commission P.O. Box 298 One White Flint North Riverhead, New York 11901 11555 Rockville Pike Rockville, MD 20852 Jonathan D. Feinberg, Esq.
New York State Department of Lawrence Coe Lanpher Esq.
- Public Service, Staff Counsel Karla J. Letsche, Esq.
Three Rockefeller Plaza l
Kirkpatrick & Lockhart Albany, New York 12223 South Lobby - 9th Floor i
1800 M Street, N.W.
j Washington, DC 20036 5891 i
i i
\\
~.
f 3-t Ms. Nora Bredes E. Thomas Boyle, Esq.
i Executive Coordinator Suffolk County Attorney Shoreham Opponents' Coalition Bu!! ding 153 North County Complex 195 East Mr.n Street Veterans Memorla! Highway l
Smithtown, New York 11787 Hauppauge, New York 11788
[
T Evan A. Davis. Esq.
Dr. Monroe Schneider Counsel to the Goverror North Shore Committee Executive Gamber P.O. Svx 231 StJte Capitol Wading River, NY 11792 i
i Albany, New York 12224 l
(1/
i
~
.. N\\
,s Donald P. Irwin
(
c ifunton & Williams 707 East Main Street P.O. Box 1515 Richmond, Virginia 23212 DATED: October 11,1988 I
l t
f
,i c
1 1
r I
i t
i i
t i
i i
i f
l i
l t
,..,,-.,...,~._---.,--_E
.c.-n.--..-,,y_..,-,,-_..
-,, _ _ _ _