ML20206S840
| ML20206S840 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/16/1987 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3158 OL-3, NUDOCS 8704230061 | |
| Download: ML20206S840 (9) | |
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JfSY Apri r 1987 17 AMt 20 R2:05 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gg.y7
,, q;.
00CKlilC s ~> m O BR/Ct Before the Atomic Safety and Licensino Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
)
i SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON OPPOSITION TO NRC STAFF MOTION FOR LEAVE TO REPLY TO INTERVENOR RESPONSE TO LILCO'S RENEWED MOTION FOR
SUMMARY
DISPOSITION OF " LEGAL AUTHORITY" ISSUES On March 20, 1987, LILCO filed a Renewed Motion For Summary Disposition of the " Legal Authority" Issues (" Summary Disposition Motion").
On April 8, 1987, the NRC Staff filed a motion for leave to file a reply to the Governments' response to the Summary Disposition Motionl/, which response is currently due to be filed on May 11, 1987.
For reasons set forth below, the NRC Staff's Motion should be denied.
+
1/
NRC Staff Response to LILCO Motion to Reply and Motion for Leave to Reply to Intervenor Response to LILCO's Renewed Motion for Summary Judgment of " Legal Authority" Issues ( April 8,1987)
("NRC Staff Motion").
8704230C61 870416 PDR ADOCK 05000322 PDR h60 3 C
7'
I.
BACKGROUI.'
LILCO's March 20, 1987, Summary Disposition Motion repre-sents another attempt by LILCO to dispose of the pending " legal authority" issues by means of summary disposition.
Pursuant to the Board's Order of April 10, 1987, the Governments' response to the Summary Disposition Motion is due May 11, 1987.
The Staff now proposes that it not be required to respond to the Summary Disposition Motion within the time frame established for the Governments' response (i.e. by May 11), but rather that it be permitted to file a reolv ten days after the Governments' response is filed.
The stated purpose of the NRC Staff's pro-posed reply would be to address the Governments' response as well as LILCO's Motion.
NRC Staff Motion, at 3.
The asserted reason for the NRC Staff Motion is that the Staff's contribution to the Board's consideration of the Summary Disposition Motion will be "more focused and useful" if the Staff has advanced knowledge of the Governments' position.
See NRC Staff Motion, at 2-3.
For the reasons discussed below, the Staff's Motion is contrary to the NRC's regulations governing summary disposition motions and, furthermore, is an attempt by the Staff to gain unfair advantage over the Governments.
On these grounds, the NRC Staff Motion should be denied. -
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II.
DISCUSSION 10 C.F.R. S 2.749(a) states in pertinent part as follows:
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.
Any other party may serve an answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion.
The opposing party may within ten days after service respond in writing to new facts and arguments presented in any statement filed in support of the motion.
No further supporting statements or responses thereto shall be entertained.
Thus, the plain language of Section 2.749(a) permits only three kinds of filings related to a summary disposition motion.
They are:
1.
The motion for summary disposition itself; 2.
Responses by other parties in opposition or support of the motion for summary disposition; and 3.
Reolies by any party (ies) to "new facts and arguments l
presented in any statement filed in succort of the motion."
Lest there be any doubt as to the strict limitations placed upon summary disposition filings, Section 2.749(a) also includes the following admonition:
"No further sucoortina statements or responses thereto shall be entertained." Id.
(emphasis added).
Therefore, in seeking to file a reolv to the Governments' response to LILCO's Summary Disposition Motion, the NRC Staff is seeking leave to do exactly what the NRC's regulations state cannot be done.
Section 2.749(a) could not be clearer; a reply to response in opposition to a motion for summary disposition shall not be entertained.
Therefore, the NRC Staff Motion cannot be granted by this Board.
i i
In addition, the Staff offers no compelling reason why it should be permitted to await the filing of the Governments' response before filing its reply.
The Staff does not specify, other than in vague and ambiguous terms, why it should be given the right to address the Governments' response and file a pleading which is specifically disallowed by the NRC's own rules.
It appears that, in asking for the opportunity to review and evaluate the facts presented by both LILCO and the Governments, the Staff is attempting to cast itself in the role of a neutral,
{
objective arbiter;.however, it is obvious to everyone that that l
1s not the role which the Staff has assumed in this proceeding.
t Rather, the Staff has consistently championed LILCO's interests, and there is no reason to believe that it will not do so in response to LILCO's Motion for Summary Disposition.
Allowing the Staff to file a pleading not contemplated by the regulations will
thus prejudice the Governments and give a unilateral advantage to LILCO and the Staff in advancing LILCO's interests.
This cannot be condoned.
III.
CONCLUSION For the foregoing reasons, the NRC Staff's Motion should be denied.2/
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 b
$~
1 Lawrence C.
Lanpher Christopher M. McMurray KIRKPATRICK & LOCKEART 1800 "M"
- Street, N. W.
South Lobby - Ninth Floor Washington, D.
C.
20036-5891 i
2/
To the extent that the NRC Staff Motion is also a motion in support of LILCO's request to file a reply memorandum (see LILCO Summary Disposition Motion), the NRC Staff Motion should also be denied for the reasons set forth above, and for the reasons which will be stated in the Governments' May 11 response to LILCO's Summary Disposition Motion. !
Attorneys for Suffolk County a
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Richard J. Zah'nletJ er f
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Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Governor Mario M. Cuomo and the State of New Yor'<
d b
I~
b/<m Stephen 43. Latham
/
Twomey, Latham and Shea Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton April 16, 1987. _. -___.-_-.. - - _ _.
DOLKETED April 16, 1987 USNRC UNITED STATES OF AMERICA
'87 APR 20 Pl2:05 NUCLEAR REGULATORY COMMISSION OFFICE C' TL r it.t Before the Atomic Safety and Licensino Board 00CKETmG l iipact BRAN:H
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON OPPOSITION TO NRC STAFF MOTION FOR LEAVE TO REPLY TO INTERVENOR RESPONSE TO LILCO'S RENEWED MOTION FOR
SUMMARY
DISPOSITION OF " LEGAL AUTHORITY" ISSUES have been served on the following this 16th day of April, 1987 by United States mail, first class, except as otherwise noted.
Morton B. Margulies, Esq., Chairman
- Joel Blau, Esq.
Atomic Safety and Licensing Board Director, Utility Intervention U.S.
Nuclear Regulatory Commission N.Y.
Consumer Protection Board Washington, D.C.
20555 Suite 1020 Albany, New York 12210 Dr. Jerry R.
Kline*
William R. Cumming, Esq.
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S.
Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 i
b Mr.-Frederick J.
Shon*
Anthony F. Earley, Jr.,
Esq.
Atomic Safety and Licensing Board General Counsel C.S.
Nuclear Regulatory Commission Long Island Lighting Company
/ Washington, D.C.
20555 175 East Old' Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi W. Taylor Reveley, III, Esq.*
Clerk Hunton and Williams Suffolk County Legislature Post Office Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr.
L.
F.
Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 "H"
- Street, N.
W.
Smithtown, New York 11787 Washington, D.C.
20555 Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, Third Floor H. Lee Dennison Building Room Number 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MBB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite "K"
Post Office Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Richard J.
Zahnleuter, Esq.
Bldg. 158, North County Complex Special Counsel to the Veterans Memorial Highway Governor of the State Hauppauge, New York 11788 of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Washington, D.
C.
20555 Empire State Plaza Albany, New York 12223 l !
l
N David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick and Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 West 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 uk2 1
/k f Christopher M.
McMurray David T. Case KIRKPATRICK & LOCKART 1800 "M"
- Street, N. W.
South Lobby - Ninth Floor Washington, D.
C.
20036-5891
- Via Telecopy April 16, 1987 J,-_
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