ML20206H011

Lilco Answer to Intervenors Motion of 870407 Re Realism.* Motion Contrary to Regulations & Relies on Own Ipse Dicit Definition of What NRC Procedure Should Be.Motion Opposed. W/Certificate of Svc

ML20206H011
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/09/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3090 OL-3, NUDOCS 8704150221
Download: ML20206H011 (9)

Text

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LILCO, April 9 01987 03CKETED USNRC UNITED STATES OF AMERICA _. . -

NUCLEAR REGULATORY COMMISSION '87 APR 13 P3 :3'.

OFFICE OF SEEiiARY Before the Atomic Safety and Licensinst Board Y/,bh In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S ANSWER TO INTERVENORS' MOTION OF APRIL 7,1987 REGARDING " REALISM" l On March 20, 1987, LILCO filed "LILCO's Second Renewed Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP 1-10)." The motion was filed under 10 C.F.R. S 2.749, which allows 20 days to respond. Fif teen days af ter receiving the motion, on April 7,1987, Intervenors filed their "Suffolk County, State of New York, and Town of Southampton Motion for Conference of Counsel and for Licens-ing Board Clarification of Procedures or, in the Alternative, for Additional Time to Re-spond to LILCO's Summary Disposition Motion." By Board order received by telephone the same day, April 7, the date for responding to the April 7 Motion was set for April 9.

This is LILCO's response to the Intervenors' April 7 Motion. For the reasons stated below, LILCO opposes the Intervenors' Motion and asks the Board to require the Intervenors to file their substantive answer to LILCO's motion for summary disposition on April 13, as required by the regulations.

The Intervenors give two reasons for seeking special treatment. First, they say LILCO's motion did not follow " standard NRC practice." Second, they say they are too 5

busy. We address each of those points in turn.

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t I. LILCO is Entitled to Invoke the Commission's Regulations Intervenors' first argument is that LILCO's Second Renewed Motion for Summary Disposition violates " normal (or " standard") practice." The Intervenors define " normal practice," apparently, to require a conference of counsel before every " major substan-tive motion" (p. 2M), presumably to be followed by a Board order on matters of " timing, the scope of issues to be litigated, and the procedures to be applied" (p. 6). The Inter-

- venors argue that S 2.749 cannot be used until the Board has first written " guidelines" (p. 2) for using it.

The Intervenors' attempt to define " normal practice" is a challenge to NRC regu-lations. The Intervenors cite no regulations and no caselaw for their definition.

LILCO,in contrast, relles on the regulations, particularly 10 C.F.R. S 2.749:

S 2.749 Authority of presiding officer to dispose of certain issues on the pleadings.

(a) Any party to a proceeding may move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding. . . . Motions shall be filed within such time i as may be fixed by the presiding officer. . . . The board may '

dismiss summarily motions filed shortly before the hearing  ;

commences or during the hearing if the other parties or the board would be required to divert substantial resources from the hearing in order to respond adequately to the motion.

The Intervenors argue that LILCO has filed its motion too early, before the <

Board has set up a formal procedure. But S 2.749 reveals no policy against early mo-

• tions for summary disposition, but rather a policy against late ones. The regulation pro-vides that the Board may dismiss motions filed shortly before the hearing commences or during the hearing.E 1/ Page references, without more, refer to the Intervenors' April 7 Motion.

2/ Moreover, the Commission has proposed to amend the rule to allow motions at .

any time during the proceeding, including during the hearing. 51 Fed. Reg. 24,365, '

24,367 col. 3,24,372 cols. 2-3 (July 3,1986).

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, The Intervenors may be relying on (though they do not mention it) the provision of S 2.749 that says motions for summary disposition may be filed within such time as may be " fixed by the presiding officer." If the Intervenors' argument is that the presid-ing officer has not yet fixed such a time, their argument is too late. The March 20 mo-tion for summary disposition is LILCO's third attempt to get the relief that it has asked for since 1984. LILCO first moved for summary disposition of the " legal authority" con-tentions on August 6,1984; the Intervenors filed a substantive response (119 pages plus affidavits) on September 24,1984, and another, allegedly in response to the NRC Staff, on October 15, 1984. LILCO renewed its motion on February 27,1985, and the Interve-nors filed a substantive response on March 19, 1985. At no time did the Intervenors suggest that the Board had not " fixed the time" for filing such motions. Nor did the Ap-peal Board (in ALAB-818) or Commission (in CLI-86-13) say that summary disposition motions were out of order.

Intervenors argue that LILCO should not be permitted to file a summary disposi-tion motion until the Board has convened a conference of counsel. Again, LILCO ap-peals to the regulations. The Commission's regulations provide for only two prehearing conferences. Section 2.751a of 10 C.F.R. provides for a "special" prehearing confer-ence within 90 days af ter the notice of hearing is published or such other time as is ap-propriate. Section 2.752 provides for a prehearing conference to be held within 60 days af ter discovery has been completed or such other time as may be specified. There have been far more than two prehearing conferences in this proceeding already; there is no requirement that another one be held before a summary disposition motion is filed. It is

, plainly incorrect to argue that a prehearing conference is required for each separate issue, or for each " major substantive motion." The purpose of summary disposition, af ter all, is to avoid wasteful litigation by identifying and eliminating issues that raise no genuine issues of material fact; to burden the summary disposition procedure with

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, layer upon layer of additional procedures not found in the regulations would defeat much of the purpose of S 2.749.

The Intervenors suggest that the Board itself has abo!!shed summary disposition.

They say (pp. 6-7) that the Board has said that summary disposition motions in the re-ception centers proceeding would delay the hearing. LILCO believes the Intervenors read far too much into the Board's observation. If in fact the Board were disapproving summary disposition, it would be putting itself at odds with Commission policy. Licens-ing Boards "should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues." Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452, 457, 46 Fed. Reg. 28,533, 28,535 col. 2 (1981).

The Intervenors claim that filing a summary disposition motion is usurping the Licensing Board's authority ("arrogat[ing] to [LILCO) itself the right to proclaim how and when the remand proceeding will begin," p. 4). Again, this is a challenge to the regulation; it is plainly incorrect to argue that filing a summary disposition motion is an attempt to " seize power" away from the Board (p. 5).

The Intervenors complain (pp. 4-5) because LILCO in its March 20 motion sought summary disposition of only the " realism" issue and not the " immateriality" issue.

Again, this is a challenge to S 2.749, which says that a party may move for summary disposition as to all"or any part" of the matters involved in the proceeding.

In short, the Intervenors' Motion is contrary to the regulations and relles almost entirely on its own ipse dixit definition of what NRC procedure should be. It should be denied for that reason.

, II. The Intervenors' Claim of Lack of Resources is Not a Valid Reason for Delay The second argument in the Intervenors' Motion is that they are unable to com-ply with the regulation. The reason they give is that they have chosen to litigate nu-merous details of both the emergency planning exercise and the reception centers and that they have committed all their resources to those other issues. LILCO's response is fivefold:

First, Suffolk County's special counsel alone has 11 lawyers actively involved in this case, plus at least one or two others who have been involved in the past. Of the 11, the County claims that only three can address the realism issue, but they omit Mr.

Brown and Mr. Lanpher, who are both senior and closely involved with this proceeding.

As for the State of New York, LILCO submits that no party, let alone a large and pow-erful one like the State of New York, should be permitted to delay a proceeding by as-signing only one lawyer to it.

Second, the Intervenors created all three sets of issues (realism, reception cen-ters, and exercise) that they now claim they are unable to staff. No judge should give weight to a party's claim that he is so litigious that he cannot manage all the legal pro-ceedings he has begun, particularly when delay costs.another party approximately a million dollars each day. Indeed, "the fact that a party may have personal or other ob-ligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations." Statement of Policy on Conduct of Li-censing Proceedings, CLI-81-8,13 NRC 452,454 (1981). And "[i]t is well-settled that a participant in an NRC proceeding should anticipate having to manipulate its resources, however limited, to meet its obligations." General Public Utilities Nuclear Corp. (Three Mlle Island Nuclear Station, Unit 1), LBP-86-14,23 NRC 553,559 (1986).

Third, the Intervenors have waited until 15 of their 20 days have passed to claim that they cannot comply with the regulation and to say that they now need a Board decision promptly. This is reason enough to deny their Motion.

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, Fourth, the Intervenors claim that in order to respond they "need to comb liter-ally thousands of pages of the earlier emergency planning record" (p. 8). Thus, having taken advantage of every opportunity to expand the record, they now claim that the expanded record is reason to delay the proceeding still further. Moreover, the Interve-nors give no specifies as to why they need to do such an extensive search of te record.

While LILCO's motion does rely to some extent on the existing record (as well as on CLI-86-13), the material facts set out in the motion are few in number (63 to be pre-cise) and straightforward.W And, except for reliance on the State EBS, Intervenors have had notice of the elements of LILCO's case since 1984, and of the groundrules of CLI-86-13 since last July.M Fif th, in any event, the argument that it takes more thar 20 days to respond to a summary disposition motion (the Intervenors claim they need the 20 days plus six weeks more)is simply a challenge to S 2.749. It is also a challenge to the regulations generally in that it claims that the Intervenors' own staffing decisions, and not the regulations, should control the pace of the proceeding.

3/ Many of the " material facts" are excerpts from the Intervenors' own documents or words of their own witnesses (see, for example, nos. 1-5, 37-39, 47-51, and others).

Many are quite simple (for example, 6,11,12,14-16, and others).

4/ Intervenors say they need to do " extended legal analysis" (p. 3), apparently of CLI-86-13 and Cuomo v. LII.CO. The text of CLI-86-13 is 12 pages long, including the dissent, and has been availabic for eight months. The two decisions in Cuomo v. LILCO total 21 typed pages and have been available since February 20,1985, and November 20, 1986, respectively. Surely the Intervenors analyzed Cuomo v. LILCO before filing their answer on March 19, 1985, to LILCO's first Renewed Motion. Also, it is not clear why analysis of Cuomo v. LILCO is necessary, since LILCO's summary disposition motions assumed that the specified activities were illegal under state law.

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Conclusion For the reasons stated above, LILCO opposes the Intervenors' April 7 motion.

The Board should insist that the Intervenors comply with 10 C.F.R. S 2.749 and file a I

substantive response by April 13.

Respectfully submitted, i

r ?K James N. Christman ilunton & Williams

, 707 East Main Street i P.O. Box 1535 Richmond, Virginia 23212 DATED: April 9,1987 i

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LILCO, April 9,1987 02'.viTED USNRC CERTIFICATE OF SERVICE "d7 APR 13 P3 :3:

OFFICE CF SE%tTM Y In the Matter of 00CMEilNG A SERVICf.

LONG ISLAND LIGHTING COMPANY ORD (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-3 I hereby certify that copies of LILCO's Answer to Intervenors' Motion of April 7, 1987 Regarding " Realism" were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.

Morton B. Margulies, Chairman

• 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, Rm. 407 4350 East-West Hwy. Richard G. Bachmann, Esq.

• Bethesda, MD 20814 George E. Johnson, Esq.

U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline

• 7735 Old Georgetown Road Atomic Safety and Licensing (to mallroom)

Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Herbert H. Brown, Esq.

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

Bethesda, 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. Nuclear Redulatory Commission 1717 H Street, N.W. Mary Gundrum, Esq.

Washington, D.C. 20555 Assistant Attorney General 120 Broadway Atomic Safety and Licensing Third Floor, Room 3-116 7

Appeal Board Panel New York, New York 10271 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Spence W. Perry, 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., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, 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 Martin Bradley Ashare, Esq. **  !

- Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq.

Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 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 N.

James N. Chriftman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: April 9,1987 t

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