ML20206H292
| ML20206H292 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/10/1987 |
| From: | Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel |
| To: | NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| References | |
| CON-#287-3104 86-540-08-OL, 86-540-8-OL, OL-3, NUDOCS 8704150320 | |
| Download: ML20206H292 (8) | |
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' UNITED STATES OF AMERICA' USNRC NUCLEAR REGULATORY COMMISSION T1 APR 13 P3 56 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
OFFICE G~-L.. Ar
00CKETi.Ti A Si &'i Morton B. Margulies, Chairman N'.
Dr. Jerry R. Kline Mr. Frederick J. Shon SEVED APR 141987 In the Matter of Docket No. 50-322-OL-3 (Emergency Planning)
LONG ISLAND LIGHTING COMPANY
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(ASLBP No. 86-540-08-OL)
(Shoreham Nuclear Power Station,
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Unit 1)
)
April 10, 1987
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MEMORANDUM AND ORDER (Ruling on Intervenors' Motion to Convene Conference of Counsel, and Other Relief)
On April 7,1987, Intervenors filed a motion requesting that the i
Board permit them to defer their response beyond April 13, 1987, the due date for responses to Applicant's March 23, 1987 motion for summary disposiMon of the " legal authority" issue.
Intervenors seek for the Board to defer requiring any response to the LILCO motion until the Board has had an opportunity to consider when and how to proceed.
In the alternative, they request that the Board establish May 26, 1987, or a time thereafter as the date for Intervenors to respond to the motion.
Because Intervenors response to Applicant's motion was due within six days after receipt of Intervenors' motion, the Board ordered that responses to the latter motion be filed by April 9, 1987. Appitcant, responded on April 9, 1987 and requested that Intervenors' motion be NR S
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2 denied. Staff, in its response of April 9,1987 requested denial of Intervenors' motion.
However, it suggested a delay -in the time for Intervenors to respond of up to two weeks should the Board wish to exercise its discretion.
In this Memorandum and Order the Board denies tne need for a conference of counsel to provide it with a means for determining when and how to proceed in this matter. The Board finds that Intervenors do require additional time to respond to the motion and sets May 11, 1987, as the date by which to respond.
Intervenors' assert that the filing of Applicants' motion is inconsistent with NRC practice; that the motion should only be filed after the Board decides that the remanded proceeding, CLI-86-13, which involves the " legal authority" issue begin, and after the convening of a conference of counsel to address procedural issues.
Intervenors say this is required where Intervenors are confronted with a major substantive motion and because this " Board has ruled that it does not favor sumary disposition motions in the relocation center proceeding."1 Intervenors feel that the Board should initially establish guidelines for the filing of such motions, a
I Memorandum and Order (Rulin on LILCO's and Intervenors' Motion for Reconsideration of Schedule, February 9,1987, at 7-8, confirming Order (Ruling on Motion for Reconsideration on Scheduling),
February 4,1987, at 2.
3 Intervenors request in the alternative, should the Board determine that the remand proceeding begin and that the LILCO motion repres,ents the best means to proceed in the remand proceeding, that the Intervenors be granted additional time to prepare a response.
Intervenors quote from the LILCO motion at 31 that "the ' legal authority' issue is exceptionally important." They go on to state that the response will require extended review of the record and legal analysis, that the response will require meetings with officials and experts and the preparation of affidavits relating to the response, and i
that given the press of work on other matters relating to emergency planning hearings, Intervenors must have substantial additional ~ timeio j
prepare their response. They request until May 26 to respond or sometime thereafter.
Applicant in its response states that its summary disposition motion followed normal Commission practice. The motion was filed pursuant to 10 C.F.R. 2.749, which provides for a 20 day response period. LILCO further argues that this is the third time it has l
requested such relief and that nothing in the Commission regulations requires that the filing of the motion be preceded by a conference of counsel. Applicant asserts that its filing of the summary disposition motion is not an attempt to seize power from the Board and that it can limit its motion to the " realism" issue omitting the " immateriality" issue because 10 C.F.R. 2.749 permits moving on part of the matters at issue.
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r LILCO claims Intervenors' plea.of'a lack of resources to respond by April 13 lacks merit. Applicant asserts Suffolk County has sufficient g
counsel with which to proceed and that New York State should assign more I
than one attorney to the proceeding. LILCO states litigants before the-Commission should anticipate having to manage their resources, however.
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limited, to meet their obligations.-
9 LILCO further contends Intervenors should not have waited until 15 days of their 20 days to respond have passed to claim that they cannot i
l comply with the regulations. Applicant does not understand why Intervenors have to engage in such extensive analysis to respond to the j
i motion.
It further asserts Intervenors have been fully aware of the elements of the LILCO case since 1984 and the ground rules of the. remand.
f in CLI-86-13 since July 1986.
j Lastly.- Applicant contends Intervenors request for more than 20 days to respond to a sunnary disposition motion is a challenge to 10 t
C.F.R. 2.749 and to regulations in general because it makes Intervenors' j
I own staffing decisions the factor that should control the pace of the proceeding.
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Staff, in its response, contends that the LILCO-summary disposition motion is not improper.
It states that LILCO carries the burden of i-proof on the admitted contentions and has the right to a decision on the 1
merits of its motion for summary disposition without first getting 3
Intervenors' approval of when it may file that motion and what-it may 1
include in it.
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-Staff finds no basis for granting Intervenors the requested six week extension.
It claims Intervenors had eight months to rtview the record in the proceeding and are not entitled now to an extension of time. Staff indicates Intervenors have an adequate number of attorneys to handle the matter and that the individuals from whom Intervenors would obtain affidavits are mostly officials of the respective governments. Staff further asserts that a decision on the questions presented by the LILCO summary disposition motion will bring into focus the genuine issues of material fact which must be determined in hearing CLI-86-13 and thereby streamline the remanded proceeding. It states that the delay and expense of unnecessary or redundant trial time wil'1 be avoided and the purposes of summary disposition accomplished. Staff suggests that the Board in its discretion might grant Intervenors _some scheduling relief, with a two week extension for responding.
The Board having carefully reviewed the parties' pleadings on Intervenors' motion reaches the following determinations.
Applicant's filing of a summary disposition motion of March 23, 1987, on the " legal authority" issue in CLI-86-13, is consistent with NRC regulation and practice and does not preempt Board prerogatives.
Intervenors' motion to first hold a conference of counsel before proceeding with motions for summary disposition is premised on the need for the Board to initially establish guidelines for the filing of motions for summary disposition. This Board did express itself previously on the matter of employing sumary disposition, in considering the scheduling of the emergency planning exercise
6 litigation.2 Applicant sought to modify the use of the Comission's rule governing sumary disposition,10 C.F.R. 2.749. We would not allow it saying, "The Board denied the request to depart from the established rules of practice and procedure which have been designed to afford parties a full, fair and expeditious hearing.... The procedures for sumary disposition, provided for in the Rules of Practice, will be followed in this proceeding."
Intervenors assertion that the Board does not favor sumary disposition motions is without merit. On February 9, 1987 we did rule in the Memorandum and Order previously cited on page 2 that "The Board has chosen not to set a schedule for the filing of motions for sumary disposition because the hearing is already set for a time not far off.
The submission of motions could result in insufficient time to fully review them and then again having to treat with the issues on hearing."
Clearly, the circumstances involved in what the Board was discussing above were wholly different from those surrounding Applicant's motion for sumary disposition.
Intervenors' current argument is that the motion for summary disposition comes too early not too late as happened in the cited instance. Although allowed under 10 C.F.R. 2.749(a), we never prohibited Applicant from filing motions for summary disposition, pursuant to the regulation. We chose not to set a schedule for filing 2
Memorandum and Order (Prehearing Conference, July 8,1986), July 11, 1986, at 7-8).
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i-sumary disposition motions so as not to invite them at a time when the-
. hearing was close to starting. The Board has not departed from its-previously established ' guideline' that the existing rule,10 C.F.R.
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2.749, be followed in filing motions for summary disposition'.
l-The Board finds nothing in the filing of Applicant's motion that ~
4 conflicts with the procedural requirements of 10 C.F.R. 2.749 or with I
Commission practice. The filing of the motion promotes the focusing of.
the issues of the CLI-86-13 remand proceeding early on.. This should l-ultimately result in the saving of resources for all participants. The 1
filing of the motion for summary disposition is not viewed by the Board i
as an interference in the carrying out of its functions, but as t
beneficial for resolving the dispute. That part of Intervenors' motion to defer the filing of responses until after the holding of a conference l
l of counsel is without merit and shall be denied.
j There is merit to Intervenors' alternative request to postpone the date for filing responses. The Board agrees that the motion is important to the dispute and that a proper response will. require a
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significant effort. We are not convinced it will take an additional 6 weeks for a total of three times the number of days that 10 C.F.R. 2.749 allows for filing a response. This is especially so where Intervenors failed to show that they productively used the time that elapsed prior 4
i to the filing of their motion.
An extension of the time to respond, to May 11, 1987, should afford Intervenors adequate time for submission of a response. This is more-than twice the time allotted by the regulation.
It will permit l
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sufficient time for filing a disciplined response; one that is free of i
1 immateriality, prolixity and redundancy. The time for Intervenors to
f file a response to Applicant's motion of March 23, 1987 shall be j
extended to May 11, 1987.
The parties will be notified today, by telephone, of the
.,-j disposition of the motion.
F
.l ORDER
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.n Upon consideration of all of the foregoing, it is hereby ordered j[.
that:
1.
Intervenors' request, in its motion of April 7,.1987, that it be permitted to defer filing a response to Applicant's motion.for f
summary disposition, of March 23, 1987, until after the holding of a conference of counsel, is denied.
2.
Intervenors are granted an extension of time to file a response to Applicant's motion by May 11, 1987.
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THE ATOMIC SAFETY AND LICENSING BOARD Morton B. Margulies, hairman ADMINISTRATIVE LAW J GE
&lAA.4 herry R. Vlin~e' '
ADMINI ATIVE JUDGE Frederick J. Shon ADMINISTRATIVE JU E Dated at Bethesda, Maryland this 10th day of April,1987 i