ML20206M691

NRC Response to Intervenors Motion for Conference of Counsel & for Board Clarification of Procedures Or,In Alternative, for Addl Time to Respond to Lilco Summary Disposition Motion.* Certificate of Svc Encl

ML20206M691
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/09/1987
From:	Pirfo O NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3131 OL-3, NUDOCS 8704200155
Download: ML20206M691 (8)

Text

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3h[ April 9,1987 r7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCHETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD "

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-3124Il-3 ? E O. iAb '

) (Emerge.ncy PIM2fdnQ"' y FM .

(Shoreham Nuclear Power Station, )

Udt 1) ) _

NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR CONFERENCE OF COUNSEL AND FOR LICENSING BOARD CLARIFICATION OF PROCEDURES OR, IN THE ALTERNATIVE, FOR ADDITIONAL TIME TO RESPOND TO LILCO'S

SUMMARY

DISPOSITION MOTION On March 20, 1987, applicant LILCO filed its "Second Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Contention EP 1-10) . " The intervenors thereupon filed "Suffolk County, State of New York, and Town of Southampton Motion for Conference of Counsel and for Licensing Board Clarification of Procedures or, in the Alternative, for Additional Time to Respond to LILCO's Summary Disposition Motion" on April 7, 1987. II In that motion the Intervenors 4

ask that the Board convene a conference of counsel to first address procedural issues and set guidelines for responses before LILCO's motion for summary disposition is considered. In the alternative Intervenors ask for over two months instead of the usual 20 days to reply to the motion.

Upon receipt of the Intervenors' motion , the Licensing Board ordered d '

-1/ Intervenors' response on the substantive merits of the LILCO motion is due April 13, 1987, as is the Staff's response. 10 C.F.R.

I 2.749(a).

DO h50 PDR 22

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expedited respcnses thereto due April 9, 1987. The Staff hereby '

responds to the Intervenors' rnotion.

The NRC Rules of Practice and Procedure provide for summary disposition of issues if the motion, affidavits and other filings, show that there is no genuine issue of -material fact and that the moving party is entitled to a decision as a matter of law. 10 C.F.R. I 2.749. - The

- Commission rule is modeled after the summary judgme f 3rovisions of the Federal Rules of Civil Procedure (Rule 56). Alabama hower Company (Farley Nuclear Plant, Units 1 and 2), ALAD-182, 7 AEC 210, 217 (1974).

The use of summary disposition is the preferred method of resolving and narrowing contentions when no genuine issues exist. so that the cost and delay of unnecessary litigation is avoided by all parties and the tribunal.

4 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241 (1973), aff'd sub nom. BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir.1974); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550 (1980); Statement of Policy on Conduct of Licensing 2/ Title 10 C.F.R.I 2,749(a) provides that motions for summary disposition may be filed within such time "as may be fixed by the

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presiding officer" and that such motions may be dismissed summarily if they are filed shortly before or during hearing if the motion would divert substantial resources from the hearing. The Statement l

of Consideration on adoption of the rules recognized that " motions for summary disposition may be filed at any time," although Boards were given authority to reject those motions if filed immediately before or during hearing. 46 Fed. Reg. 30328, 30330 (June 8,1981).

Although Boards are directed to set schedules for filing motions for summary disposition, no prohibition is set on filing those motions absent a schedule. Id. A proposed amendment to 10 C . F . R .

I 2.749(a) would provide that motions for summary disposition may be filed at any time , even during trial. 51 Fed. Reg. 24365 (October 17, 1986),

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Proceedings , CLI-81-8, 13 NRC 452, 457 (1981). As the Appeal Board has stated, a hearing on each issue "is not inevitable," but " wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact." Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 sad 3), ALAB-654,14 NRC 632, 635 (1981).

The Intervenors' motion sets out two bases for its requested relief.

First, it states that the LILCO motion is " inconsistent with standard NRC practice" and, second, that the motion "comes as a surprise." Neither reason constitutes valid grounds for the delay sought by Intervenors.

The LILCO summary disposition motion is not improper. The Commission in CLI-86-13, on July 24, 1986, provided that proceedings commence to determine, in a realistic manner, the extent to which LILCO's presumed lack of legal authority to carry out its plan would affect the public health and safety. See 24 NRC 22, 30-32. LILCO filed its motion on March 30, 1987, to resolve or narrow those issues. Intervenors cite no authority to show that such a motion may not be filed and considered at this time. While " normal practice" of scheduling summary disposition motions is mentioned in the Intervenors' filing, no such normal practice in fact exists. LILCO carries the burden of proof on the admitted contentions. Simply put, LTT.CO has the right to a decision on the merits of its motion for summary disposition without first getting Intervenors'

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approval of when it may file that motion and what it may include in that motion. -

Intervenors seek to buttress their argument that motions for summary disposition can only be filed after consultation with claims that LILCO has wrongly construed Commission Order CLI-86-13 and " engaged in a host of assumptions" in the motion. Intervenors' Motion at 6. If there were any such misconstructions of the Commission's Order or untoward assumptions, Intervenors can address those matters in their substantive reply to the motion. Such issues could be dealt with better in a substantive reply to the motion rather than preliminary procedural submittals. Thus it appears that convening a conference of counsel to address the meaning of the Commission Order or to set procedures and guidelines to govern the filing of summary disposition motions would accomplish nothing but further delay the proceedings.

The second reason stated for Intervenors' motion is the claim that the motion came as a surprise to Intervenors and that they need over two months to reply to the motion. Intervenors say that they now need time to comb the earlier emergency planning record. Certainly, Intervenors knew since the Commission Order of July 24, 1986, that the record of the emergency planning hearing on the LILCO plan was material to a determination of the issues which would have to be litigated in the realism 4

proceeding. See 24 NRC at 30-32. The Intervenors' failure to review 3/ Thus LILCO's decision not to include " immateriality" issues in the

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motion is of no moment, a party has a right to choose those issues j

upon which it might file a motion for summary disposition.

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6 that record for the last eight months provides no ground for an extension of time now. Intervenors also maintain that their "available" resources are devoted to the exercise and relocation center proceedings.

While the Board in its discretion might grant some schedular relief from the filing of Intervenors' response (the Staff would respectfully suggest two weeks), to suggest that the entire process be put on hold until the l

close of the exercise and relocation hearings --

as the Intervenors suggest -- is untenable. The scheduled hearings, with necessary filing of findings of fact, will be going on for at least several months.

Intervenors' suggestion that the proceedings remanded in CLI-86-13 await the completion of all other proceedings should not be sanctioned by the Licensing Board.

As this Board is aware, numerous attorneys, in addition to those named in the Intervenors' pleading, have appeared on behalf of the Intervenors. Affiants who might respond to the motion for summary disposition on the legal authority issues are mostly officials of the respective governments. The imminence of these issues in the context of the realism argument has been known for at least eight months, since i

CLI-86-13 was issued. The Intervenors are required to file a timely response to LILCO's motion for summar'f disposition.

There are the significant benefits of judicial economy to the expediting of this case by entertaining the motion now. See Policy Statement, CLI-81-8, 13 NRC 453-54. Expedition has been encouraged by the Commission in these proceedings. See CLI-86-11, 23 NRC 577, 582 (1986). While the Commission remanded on the " realism" question for further evidentiary hearings because it was unwilling to

7 6-assume that "best-effort government response would necessarily be adequate" in an actual emergency (see CLI-86-12, 24 NRC 1, at 31 (1986)), 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 and thereby streamline this remanded proceeding. In so doing, the delay and expense of unnecessary or redundant trial time is avoided and t'he purposes of summary judgment are accomplished.

In conclusion, the Intervenors' motion should be denied. If the Board feels some delay in Intervenors' response is appropriate in view of the scope of LILCO's motion, the Staff respectfully suggests an extension of up to two weeks might be granted.

Respectfully submi ,

Oreste Russ Pir Counsel for NRC Staff Dated at Bethesda, Maryland

,' this 9th day of April,1987 1

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^t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOLMETEC USNRC BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD g7 yR 16 P419 In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50%dOh7 5 Nthbf

) (Emerge.ncy PlHriIrghHCH (Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR CONFERENCE OF COUNSEL AND FOR LICENSING BOARD CLARIFICATION OF PROCEDURES OR, IN THE ALTERNATIVE, FOR ADDITIONAL TIME TO RESPOND TO LILCO'S

SUMMARY

DISPOSITION MOTION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by (*) deposit in the Nuclear Regulatory Commission's internal mail system, or (") by telecopy or ("*) by hand delivery, this 9th day of April,1987.

Morton B. Margulies, Chairman"* Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline"* Fabian G. Palomino, Esq.

Administrative Judge Richard J. Zahnleuter, Esq."

Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washingten, DC 20555 Albany, NY 12224 l

Frederick J. Shon"* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza j

Wcshington, DC 20555 Albany, NY 12223 Philip McIntire James N. Christman, Esq.**

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 Douglas J. I!ynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771

1 . . .

Stephen D. Latham, Esq.

Twomey, Latham a Shea Christopher M. McMurray, Esq.

Attorneys at Law David T. Case, Esq.**

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Buil'ding 2 Appeal Bohrd Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.

North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.

Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr. William R. Cumming, Esq.

General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*

Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743

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Oreste Russ Pirfo V Counsel for NRC S ff