ML20155H404

Lilco Answer to Intervenor Motion for Extension of Time.* Board Should Deny 881004 Intervenor Motion for Addl Time. Certificate of Svc Encl

ML20155H404
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/11/1988
From:	Christman D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7271 OL-5, NUDOCS 8810200105
Download: ML20155H404 (6)

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727/ ut.CO, Octon.c u,19 .

00tKETED UNITED STATES OF AMERICA N NUCLEAR REGULATORY COMMISSION

• E OCT 13 P3 :53 Before the Atomic Safety and Licensine Board

'(( ,,, ,

in the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station. )

Unit 1) )

LILCO'S ANSWER TO INTERVENORS' MOTION FOR EXTENSION OF TIME LILCO opposes the Intervenors' request for additional time to file contentions on the June 1988 exercise, styled "Suffolk County, State of New York, and Town of Southampton Motion for Postponement of Deadline for Filing Contentions Related to June 1988 Exercise, or In the Alternative, for Extension of Time" (Oct. 4.1988).

LILCO's reasons are as follows:

1. The fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations. A participant in NRC proceedings should anticipate having to manipulate its resources, however limited, to meet its obligations. General Pub!!c Utilities Nuclear CqrA (Three Mlle Is-land Nuclear Station, Unit 1), LBP-86-14,25 NRC 553,558-59 (1986); State-ment of Policy on Conduct of Licensing Proceedings, CL1-81-8,13 NRC 452. 454 (1981). This polley should apply a fortfort to Intervenors that are governmen's with power. resources, and expertise.

2. This proceeding is supposed to be disposed of "as expeditiously as possible,.

consistent with fairr.ess to all the parties." ALAB-901, 28 NRC , slip l

0910200105 801011 i

PDR ADOCK 05000322 0 PDR j 33Ch i ~-

2-op, at 6-7 (Sept. 20,1988). See also CLI-86-11, 23 NRC 577, 582 (1986),

calling for the hearing on the February 1986 exercise to be expedited.

3. Most of the Intervenors' justification for delay is that they have had to spend time appealing their dismissal from the proceeding in LBP-88-24.

They were dismissed for longstanding bad-f aith obstruction of the Commis-ston's factfinding process.N Thus the expenditure of resources that they complain about results from their own bad faith conduct, as found on the record by the OL-3 Licensing Board. They should not be allowed to use the consequences of their own bad-faith conduct to secure additional delay in this proceeding.

4. Intervenors claim they have been forced to begin preparation of papers seeklng a stay of issuance of a Shoreham license. October 4 Motion at 8.

Since then, however, they have PAnounced their Intention to ask for a tolling of the time for !!!!ng their stay motion.

5. The Intervenors also complain that they have not had enough discovery to allow them to write contentions. But this Board already took into account the state of discovery when it set the schedule in the first place. Interve-nors offer nothing new to justify reconsideration. Moreover, the regula-tions contemplate no discovery at all at the contention-w,'lting stage 2/

J/ The Appeal Board in ALAB-902 issued October 7,1988, ruled that the OL-3 Board lacked the authority to dismiss the Intervenors from the proceeding. LILCO will ask the Commission to review ALAB-902 as well as ALAB-900 and -901, which are al-ready the subjects of petitions for Commission review dated October 5,1988. In the meintime, since the Appeal Board has not reviewed the OL-3 Board's factual findings concerning the Intervenors' bad f aith, those findings must still be deemed to be correct.

2/ Even af ter contentions have been admitted and intervenors are faced with mo-tions for summary disposition that they cannot answer, they are not necessarily entitled to discovery. They must !!rst convince the Licensing Board that discovery is necessary.

Lo_ntisknd Lighting Co, (Shoreham Nuclear Power Station. L' nit 1), CLI-86-11,23 NRC 577, 582 (1936).

i

! s j la, before matters have been admitted into controversy by contention.

{ igg 10 C.F.R. 52.740(b)(1) (1988); Wisconsin Electric Power Co. (Point Bend f: Nuclear Power Plant, Unit 1), ALAB-696,16 NRC 1245,1263 (1982). Inter-j venors may have been permitted premature discovery on the 1986 exercise, i

j but that does not entitle them to it now,let alone justify delay.

9 i 6. In fact, the Intervenors have had ample discovery already. They observed 1

] the exercise itself. LILCO has turned over to them every available docu-ment used or created by participants in the offsite portion of the three-day I exercise. These more than 33,000 pages of documents were turned over al-i i most three months ago, on July 13, (Since LILCO has voluntarily provided l Intervenors with every document used by participants in the otisite portion

)

of the three-day exercise, Intervenors' assertion that LILCO has withheld f

j some player logs,Intervenors' Stotion at 15,is simply incorrect.) The Inter-venors' demand for additional "training" documents simply indicates their intention not only to litigate the exercise but also to reopen issues (like l training) already resolved in 1985.

7. The exercise took place June 7-9,1988. The Intervenors were present at it.

If they had concerns, they should have been putting them in writing for four months now, if af ter all this time they still cannot articulate their concerns, that Inability raises a question over whether they have any legit!-

mate ores.

l 8. Delay is prejudielal to LILCO, as has been explained to this and other boards many times before.

Intervenors have long been engaged in delay for their own advantage. On Starch 10, 1982, they complained at a prehearing conference that the schedule was too "Dra-conlan." Conference of parties. Star. 10,1982 Tr. 525 (counsel for Shoreham

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1 1 , .

Opponents Coalition, now counsel for Town of Southampton); see also Tr. 519 (counse! .

4 for Suffolk County). At the next prehearing conference on April 13 and 14.1982, they l

continued to complain that the proceeding was moving too fast. Conference of parties,  !

f  !

Anr.13,1982, Tr. 537 (Suffolk County Executive),824 (Suffolk County counsel). Simi- l 1

lar y. the first day of hearings on emergency planning, on December 6,1983, produced a 3

{

i j speech by Suffolk County counsel complairilng about the too-f ast pace of the proceed-  ;

i  ;

I ing: '

! Finally, the county is distressed by certain procedural 7 rulings. This proceeding is moving at a pace for which there

! does not seem to be any justification. There are many, many ,

lawyers working on it all the time. These things can be rione >

l but they put a turden on the parties which sometimes has the i

]

effect of compromising quality. There is no need to rush in l

' this case, because everyone knows that Shoreham will not be .

needed for a minimum of ten years, or as much as 15 years.  ;

Tr. 819 (Suffolk County counsel). Now, almost five years later, Suffolk County is still l complaining that the proceeding is moving too fast for its resources. This complaint i

i should not be taken seriously.

For the above reasons the Board should deny Intervenors' October 4 motion for

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l additional time.

i

4 Respectfully submitted.

I l KA$ f Donald P. Itwl,

.* -  ?^J

' James N. Chris}tman

! Charles L. Ingebretson Counsel for Long Island Lighting Company llunton & Williams 707 East Main Stree'.

P.O. Box 1535 l Richmond. Virginia 23212 i

DATED: October 11,1938 l

y i

LILCO, October 11,1988 l

, l

u'byJ ac CERTIFICATE OF SERVICE

'88 OCT 13 P3:53 In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) f4N,l, y . - <

1. ^ C f.

Docket No. 50-322-OL-5 r

I hereby certify that copies of LILCO'S ANSWER TO INTERVENORS' MOTION FOR EXTENSION OF TIME were t,arved this date upon the following by telecopier as in -

dicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.

John H. Frye, III, Chairman

• Adjudicatory Filo Atomic Safety and Licensirg Atomic Safety and Licensing Board Board Panel Docket U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers Washington, D.C. 20555 4350 East-West Hwy.

Bethesda, MD 20814 Edwin J. Reis, Esq.

• U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris

• One White Flint North Ar.omic Safety and Licensing 11555 Rockville Pike Board Rockville, MD 20852 U.S. Nuclear Regulatory Commission East-West Towers Herbert H. Brown, Esq.

• 4350 East-West Hwy. Lawrence Coe Lanpher, Esq.

Dethesda, MD 20814 Karla J. Letsche, Esq.

Kirkpatrick & Lockhart Mr. Frederick J. Shon * - South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.

Board Washington, D.C. 20036-5891 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino Esq.

• 4350 East-West Hwy. '

Richard J. Zahnleuter, Esq.

Bethesda, MD 20814 Special Counsel to the Governor Executive Chamber Secretary of the Commission Room 229 Attention Docketing and Service State Capitol Section Albany, New York 12224 U.S. Nuc! car Regulatory Commission 1717 H Street, N.W. Alfred L. Nardelli, Esq.

Washington, D.C. 20555 Assistant Attorney General 120 Broadway Atomic Safety and Licensing Room 3-118 Appeal Board Panel New York, New York 10271 U.S. Nuclear Regulatory Commisssion Washington, D.C. 20555 N

t

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1 George W. Watson, Esq.

• Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Rxm 840 Smithtown, New York 11787 Washington, D.C. 20472 Evan A. Davis, Esq.

Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.

Stephen B. Latham, Esq. ** Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 Jonathan D. Feinberg, Esq.

New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223

$ an 2rd

/ James N. Chris Hunton & Williams 707 East Main Street P.O. Box 1535 l Richmond, Virginia 23212 DATED: October 11,1988 l

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