ML20196D378
| ML20196D378 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/09/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5578 OL-5, NUDOCS 8802170094 | |
| Download: ML20196D378 (7) | |
Text
o - 5^5 71 LILCO, February 9,1988 s
DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 FEB 12 P3 C4 0FFICE Di IECi W El Before the Atomic Safety and Licensing Appeal BoardOOCKEigiGgERVG In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S REPLY TO INTERVENORS' MOTION FOR EXTENSION OF TIME TO FILE BRIEF LILCO opposes the request for extension submitted on behalf of the state and local governmental intervenors in this proceeding because they have not shown good cause for the requested extension and because delay in these proceedings prejudices LILCO. LILCO's reasons are explained below.
1.
Intervenors' attempted good-cause showing amounts principally to the unavalling assertion that meeting all of their currently scheduled deadlines is not con-sistent with their discretionary staffing plans in this and other cases. Their argument fails, both because of the availability of their resources and the nature of their de-ployment. Shortage of knowledgeable resources is not a problem in fact for these well, and publicly, funded intervenors. Over a dozen lawyers representing Suffolk County, two representing New York State, and one from the Town of Southampton have entered appearances in this proceeding. Further, the litigation currently in process before the Commission stems entirely from their own opposition; and they cannot well rhuest re-lief from the burdens impc, sed by the process which they have set in motion. As the Commission stated in its 1381 Statement of Policy on Conduct of Licensing Proceedirits, CLI-81-6,13 NRC 452,454 (1981):
g2170094800209 o
ADOCK 050003 2 D)
e * -
Fairness to all involved in NRC's adjudicatory proce-dures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Com-mission regulations. While a Board should endeavor to con-duct the proceeding in a manner that takes account of the special circumstances f aced by any participant, the fact that a party may have pursued other obligations or possess fewer resources than others to the proceeding does not relieve that party of its hearing obligations.
The Statement of Policy has been consistently applied. See, eg, Duke Power Co. (Ca-tawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1048 (IV,3); Texas Utilities Generatinst Co. (Comanche Peak Steam Electric Station, Units 1 and 2),
2.
A review of the intervenors' filings since January 19, when LILCO filed its brief in the pending appeal, suggests that any staffing difficulties they may be encoun-l tering are of their own making. During this period,intervenors have chosen to make at least four lengthy discretionary pleadings (M. ones not normally envisioned by the Commission's regulations) that have a totallength of 95 pages. These filings include:
1.
a January 21 motion to this Appeal Board for interlocu-tory appeal of a preliminary Licensing Board ruling on LILCO's motion to operate at 25% power (22 pages);
2.
a February 1 reply before the OL-3 ASLB to the NRC Staff's response to LILCO's motion for summary dispost-tion on hospital planning issues (23 pages) - the motion was filed despite intervenors' admission that the Staff's response "offers little in the way of new facts or argu-ment";
3.
a February 1 reply before the OL-3 ASLB to the NRC Staff's response to LILCO's motion for summary dispost-tion on factual matters raised by 10 CFR S 50.47(c)(1)(1) and (11) (9 pages); and 4.
a February 5 response before the OL-3 ASLB to Staff and LILCO objections to contentions proffered by intervenors on LILCO's EBS system (41 pages).
In short, intervenors have allocated their time as they have seen fit, filing purely dis-cretionary, lengthy protective papers rather than responding to LILCO's brief. It is
. i unfair for them to expect to be given additional time, af ter the fact, to fulfill this clear ar.d important obligation af ter they have already spent their resources as they saw fit.
3.
The current request for an extension is merely one of at least five requests for extension made by Intervenors in various aspects of this proceeding within the past month-and-a-half. Each of these requests recites a litany of pressing commitments in the Shoreham case, and of ten in other matters as well; each of them asks an acceler-ated reply by other parties. However, Intervenors have not disclosed these requests to this Appeal Board. A listing of these requests (and their dispositions) follows:
a.
Governments' Motion for Postponement of Briefing and Consideration of LILCO's Latest "Realism" Summary Disposition Motions Pending Issuance of Board Guidance (OL-3 docket) - Motion was denied orally during confer-ence call on December 22,1987; b.
Suffolk County, State of New York, and Town of Southampton Motion for Additional Time to Respond to LILCO's Seven "Realism" Summary Disposi-tion Motions (December 23,1987) (OL-3 docket) - Request for 75-day ex-tension of the normal 20-day period for responding to summary disposition motions was denied; instead, a rolling schedule was adopted by the Licens-ing Board which extended response times from 7 to 30 days; c.
Governments' Motion for Extension of Discovery in the Remanded Proceed-ing Regarding Role Conflict of School Bus Drivers (January 27,1988) (OL-3 docket) - Motion for extension of close of discovery period from February 3 to March 4; Board extended discovery until February 19; d.
Governments' Motion for Immediate Conference Call to Discuss Postpone-ment of February 10 Filing Deadline Pending Consideration of Impact of LBP-88-2 on Matter Pending in this Proceeding (February 4,1988) (OL-3 docket) - Motion was derded.
The state and local intervenors are attempting to arrest development of numerous f ac-ets of this case simultaneously. As is discussed below, any delay in progress of any mat-ter now before the Commission is actively prejudicial to LILCO. Simultaneous attempts to produce delay on all fronts are all the more prejudicial. Attempts to secure such delay, without disclosure of the others, is improper.
j gyg*,f y,
y,
.n
..s
+
s s
v
,,4_
A i
r 4.
T!.e size of the record n Contentions EX IS'and;16, cited by intervenors (motion at 3), ot d5forminative. LILCO's appell brief raises predominantly legals
/
^
rather than hac.ile issues.
d
~
y g
5.
Intervenors' genera! assertion (motion at 4) that a ' delay Ift$e briefing and' E
x
. ~
argument of thLe $nding appeal is of no account becauss of unspecified 6ffect,s of the most roient decision by the Licensing Board in this dudket, LBP-88-2, is unpernuasit'e. '
That decision does not prevent LILCO from holding another exercise or ntherwise' completing remaining licensing tasks. In addition LILCO intends to appeal the deelslon promptly to 'the Appeal Reard. Its pendency does not commend delay in the Appeal Board's processing of the appeal now before it.
6.
Intervenotf unsupported apertion (motion at 4) that delay will pose no prejudice to other pardes is profoundly incorrect. As LILCO noted in its prior Motion for Immediate Certification ne for Expedited Briefing, Argument and Decision by the Appeal Board (December 19,1967h the fact that two years has passed, largely as the result of lit!gatiots insisted upon by the intervenors, since the February 13,1986 exer-cise now requires LILCO to conduct another exercise before being able to receive a 11-cense to exceed 3% of reted power at Shor? ham.1 A prompt appellate decision on the proper scope of a "full psetic!ps. tion" exercise is essential to ensure that the scope of this upcoming exercise is not again found inadequate by a Licensing Board af ter both
. FEMA and the NRC Staff have approved its design and LILCO has relied on those ap-provals to con (htt the exercise. In addition, delay in the disposition of this matter prejudices LILCO by the approximately $1 million per day carrying charges on the idle Shoreham plant, and by tae clear threat in the New York Stato Public Service 1/
Indeed, LILCO has formally requested the NRC to conduct such an exercise. See letter, Donald P. Irwin, to the CommLdon, the Appeal and Licensing Boards, and all parties, December 22, 1937, transmitting December 18, 1987 letter from John D.
Leonard (LILCO) to the NRC (SNRC 1406).
e
- "q t
Commission's December 3,1987 decision tuat unless it receives indications by April 1988 sufficient to give it high confidence that Shoreham will be in commercial op-eration prior to the 1989 summer peak it may attempt to force LILCO through the rate process to abandon Shoreham. Delay in resolution of questions involving the required scope of LILCO's next exercise for Shoreham - the exact subject of the pending appeal-directly impacts LILCO's ability to plan and conduct that exercise.E WHEREFORE, LILCO respectfully requests that the intervenors' motion for ex-tension of time to file their brief be denied.
Respectfully submitted, Donald P. Irwin Lee B. Zeugin Counsel for Long Island Lighting Company Hunton & Wililams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 9,1988 2/
LILCO has just received the Staff's Response to Intervenors' Motion for Exten-sion of Time to File Brief. LILCO agrees that the staff's time to respond to Intervenors' Brief should not be truncated.
However, the Staff neither provides any argument showing good cause for an extension for intervenors, nor considers the prejudice to LILCO from delay. Thus, the Staff's paper does not bear on the issues which interve-nors must satisfy. Intervenors' motion should be denied and the Staff's response dead-line lef t where it now is.
F et.
LILCO, February 9,1988
\\
CERTIFICATE OF SERVICE 00(KETEC' U)NRC In the Matter of
'N FEB 12 P3 :39 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 0FFICE & 5t uo IAn f 00CKETING & SERVICf.
BRANCH I hereby certify that copies of LILCO'S REPLY TO INTERVENORS' MOTION FOR EXTENSION OF TIME TO FILE BRIEF were served this date upon the following by telecopier as indicated by an asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage 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 Fif th Floor (North Tower)
East-West Towcrs, Rm. 430 East-West Towers 4350 East-West Hwy.
4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 James P. Gleason, 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 (North Tower)
Dr. Jerry R. Kline **
East-West Towers Atomic Safety and Licensing 4350 East West Highway Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers, Rm 427 Dr. W. Reed Johnson
- 4350 East-West Hwy.
Atomic Safety and Licensing Bethesda, MD 20814 Appeal Board U.S. Nuclear Regulatory Commission Secretary of the Commission 115 Falcon Drive, Colthurst Attentf.on Docketing and Service Charlottesville, VA 22901 Section U.S. Nuclear Regulatory Commission John H. Frye, III, Chairman "
1717 H Street, N.W.
Atomic Safety and Licensing Washington, D.C. 20555 Board U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Towers Appeal Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 Washington, D.C. 20555 Dr. Oscar H. Paris **
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Bethesda, MD 20814 l
h,
t Edwin J. Reis. Esq.
- Stephen B. Latham, Esq. **
U.S. Nuclear Regulatory Commission Twomey, Latham & Shea Office of the General Counsel 33 West Second Street Washington, D.C. 20555 P.O. Box 298 Riverhead, New York 11901 Herbert H. Brown, Esq.
- Lawrence Coe Lanpher, Esq.
Mr. Philip McIntire Karla J. Letsche, Esq.
Federal Emergency Management Kirkpatrick & Lockhart Agency South Lobby - 9th Floor 26 federal Plaza 1800 M Street, N.W.
New York, New York 10278 Washington, D.C. 20036-5891 Jonathan D. Feinberg, Esq.
j Fabian G. Palomino, Esq.
- New York State Department of Richard J. Zahnleuter, Esq.
Public Service, Staff Counsel Special Counsel to the Governor Three Rockefeller Plaza Executive Chamber Albany, New York 12223 Room 229 State Capitol Ms. Nora Bredes Albany, New York 12224 Executive Coordinator Shoreham Opponents' Coalition Alfred L. Nardelli, Esq.
195 East Main Street Assistant Attorney General Smithtown, New York 11787 i
120 Broadway l
Room 3-118 Gerald C. Crotty, Esq.
New York, New York 10271 Counsel to the Governor Executive Chamber Spence W. Perry, Esq.
- State Capitol William R. Cumming, Esq.
Albany, New York 12224 Federal Emergency Management Agency E. Thomas Boyle, Esq.
500 C Street, S.W., Room 840 Suffolk County Attorney Washington, D.C. 20472 Building 158 North County Complex Veterans Memorial Highway Mr. Jay Dunkleberger Hauppauge, New York 11788 New York State Energy Office Agency Building 2 Dr. Monroe Schneider Empire State Plaza North Shore Committee Albany, New York 12223 P.O. Box 231 Wading River, NY 11792 I
D6nald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 9,1988
. _ _ _ _.