ML20207A269
| ML20207A269 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/22/1987 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#287-3213 86-540-08-OL, 86-540-8-OL, OL-3, NUDOCS 8704270047 | |
| Download: ML20207A269 (4) | |
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00tKETEC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
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Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED APR 231987
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In the Matter of
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Docket No. 50-322-0L-3
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(Emergency Planning)
LONG ISLAND LIGHTING COMPANY
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(ASLBPNo. 86-540-08-OL)
(ShorehamNuclearPowerStation,
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Unit 1)
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April 22, 1987
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MEMORANDUM AND ORDER (Ruling on Staff's Motion of April 8,1987 to File Reply)
On March 20, 1987 LILC0 filed a motion pursuant to 10 C.F.R. 2.749, for summary disposition of the legal authority issues (Contention EP-10).
Incorporated in the motion was a request by LILC0 to file a reply within ten days of receiving Intervenors' answer. Applicant acknowledged that 10 L.F.R. 2.749 does not permit such a reply.
It made the request under 10 C.F.R. 2.718(e) which permits Boards to regulate the course of hearings, and under the general powers of Boards to conduct fair and impartial hearings according to law. The request to file a reply was based on LILCO's assertion that it had no way of anticipating how Intervenors will respond to the motion for summary disposition. Applicant believes a reply will be necessary to address whatever new theories Intervenors may put forth.
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2 On April 8,1987 Staff filed a motion seeking permission to reply to both LILC0's motion for sumary disposition of March 20, 1987, and Intervenors' answer to the motion, at the same time that LILCO had requested to file its reply, i.e. ten days after receipt of Intervenors' answer. Staff based its motion on the assertion that its response would be more focused and more useful to the resolution of the issues remaining if it were premised not only on the facts relied on by LILC0, but also on those relied upon by Intervenors. Staff stated that knowing Intervenors' view on certain contentions would assist the Staff in formulating its views on the scope of litigation.
Upon the request of the Intervenors, the Board by Memorandum and Order of April 10, 1987 granted them an extension of time to May 11, 1987 to file a response to Applicant's sumary disposition motion. The Board found that LILCO's suninary disposition motion is important to the dispute and that a proper response will require a significant effort.
Intervenors on April 16, 1987 filed a response to Staff's motion requesting that it be denied. They assert that 10 C.F.R. 2.749(a) provides that a reply to a response in opposition to a motion for summary disposition shall not be entertained and that the motion cannot be granted by the Board. They further assert that the Staff provides no compelling reason why it should be permitted to await the filing of Intervenors' response before filing its reply.
Intervenors state Staff l
only sets forth its position in vague and ambiguous terms. To Intervenors, it appears that Staff is attempting to cast itself in the j
role of a neutral objective arbiter, when in actuality Staff favors l
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3 Applicant.
Intervenors claim that to pemit Staff to file a reply not contemplated by the regulations will prejudice Intervenors and give a unilateral advantage to LILC0 and the Staff in advancing LILC0's interest.I As pertinent, 10 C.F.R. 2.749(a) provides 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 cpposing 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.
It is clear that 10 C.F.R. 2.749(a) does not permit the reply filing the Staff motion requests. That dces not mean ipso facto that the Board does not have the authority to permit a reply filing under the regulatory process. The Board was not proscribed from extending the time for filing an answer to the motion for sumary disposition beyond the twenty days provided for in 10 C.F.R. 2.749(a) Memorandum and Order (Ruling on Intervenors motion to Convene Conference of Counsel, and OtherRelief), April 10,1987 at 7-8.
I In its response to Staff's motion to file a reply, Intervenors state that they will oppose Applicant's request to file a reply in their response to LILC0's sumary disposition motion, due May 11, 1987. We will rule on the LILC0 request at that time.
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4 The issue at this point is not whether the Board has the authority to pennit the filing of a reply to a motion for sumary disposition but whether movant has presented sound grounds for doing so.
The language used in 2.749(a) makes it apparent that one seeking to file a reply must have a compelling reason for doing it. The Board is not convinced Staff has furnished a basis that satisfies this standard.
Although it would assist Staff to go last in filing a reply in which it could more sharply focus its response, there is nothing to assure that it will materially add to the record than if the response were filed as the regulation requires. A case was not made to warrant further review of the stricture in 10 C.F.R. 2.749(a), "No further supporting statements or responses thereto shall be entertained," with a view to its possible lifting.
ORDER l
It is hereby ordered that Staff's motion of April 8,1987, to file a reply to both LILC0's motion for summary disposition of March 20, 1987, and Intervenors' response to the motion, ten days after receiving Intervenors' response, is denied.
FOR THE ATOMIC SAFETY AND LICENSING BOARD k+
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Morton B. Margulies, Cp)innan ADMINISTRATIVE LAW JUDGE Dated at Bathesda, Maryland this 22nd day of April, 1987
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