ML20214D869

Motion for ASLB to Follow NRC Rules of Practice in Ruling on Motions.Board Issued 861014 & 31 Orders on FEMA 861010 & 27 Motions W/O Providing Involved Parties W/Notice or Time to Respond

ML20214D869
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/10/1986
From:	Latham S, Letsche H, Letsche K, Lstham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20214D730	List: ML20214D869 ML20214D900 ML20214D944 ML20214E336
References
OL-5, NUDOCS 8611240279
Download: ML20214D869 (5)

Text

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November /10,~198

. ,1 S 2-' ' 4 g UNITED STATES OF AMERICA , g NUCLEAR REGULATORY COMMISSION -

- i Before the Atomic Safety and Licensino C

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR LICENSING BOARD TO FOLLOW THE RULES OF PRACTTCE IN RULING ON MOTIONS Suffolk County, the State of New York, and the Town of Southampton (" Governments") hereby move the Board to follow the NRC's Rules of Practice in ruling on motions in the exercise fk proceeding. The Governments file this Motion because the Board i

I recently has adopted procedures which are contrary to normal procedures and those prescribed by the NRC's Rules of Practice.

The facts which prompt this Motion are briefly described below, i

On October 3, 1986, the Margulies Licensing Board issued its e

Prehearing Conference Order (Ruling on Contentions and Estab-lishing Discovery Schedule) in this exercise proceeding. On October 10, 1986, FEMA filed a " Request for Enlargement of Time l

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8611240279 861110 l PDR ADOCK 05000322 G PDR

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to Respond to Board's Prehearing Conference Order." Since the  !

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, NRC rules do not provide for " Requests," the Governments natu-rally construed FEMA's " Request" to constitute a motion, under 10 CFR S 2.730, for enlargement of time in which to file objections f to the Board's Prehearing Conference Order. In accordance with the rules, the Governments had until October 19, 1986, to respond to FEMA's motion (since the FEMA motion was served by telecopier

_ that day). On October 14, 1986, more than five days before the ji time prescribed by the rules, the Governments filed a response to 1

the FEMA motion, or " Request." However, without any notice to I !

l; the parties that it intended to rule immediately on FEMA's i

motion, and thus without inviting other parties to file responses on an expedited basis prior to a Board ruling,1 this Board granted FEMA's Request on October 10, 1986, one day after it had received FEMA's motion.2

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Under 10 CFR S 2.730(c), the Board has authority to enlarge or shorten the standard 10-day period for responding to motions.

Section 2.730 does not contain any authorization, however, for a

; Licensing Board to afford parties n2 Opportunity to respond at 4; all to motions which are filed.

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} 2 In a subsequent pleading ("Suffolk County, State of New York, and Town of Southampton Motion for Reconsideration and 4

Response to Staff Motion for Time Extention," October 15, 1986), l

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the Governments objected to the Board's procedure of dealing with i FEMA's motion -- or any other mation for that matter -- out of l l 6 the ordinary course of 10 CFR S 2.730, absent prior notice to the l parties. i i

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Recently, the Board took similar actions in a second, similar situation. On October 27, FEMA filed a " Motion for '

Reconsideration of the Board's Prehearing Conference Order." On October 30, LILCO filed a " Motion for Leave to File a Pleading in Support of FEMA's Motion." The Governments received that LILCO motion on October 31, 1986. Under the rules, unless otherwise changed by order of the Board, the Governments had 10 days, plus

{ 2 days for service, in which to file a response to the LILCO 1

, motion. Notwithstanding that fact, the Board, without any prior i notice to the parties, granted LILCO's motion in an Order dated 1

October 31, 1986.

4 The Board did not notify the parties that it had taken this action and subsequent to that action, but before having learned I

of it, the Governments expended time and effort in filing papers with the Licensing Board in which the Governments objected to the LILCO motion.3 Obviously, the Board did not have an opportunity to take the Governments' views into consideration before it ruled

on LILCO's motion on October 31.

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Such actions by this Licensing Board cannot and should not i

l continue. As participants in this proceeding, the Governments 3

rely on the Board to conduct the proceeding in accordance with j ,

the NRC's Rules of Practice. While under Section 2.730(c), the 3

Egg Letter from Lawrence Coe Lanpher to Licensing Board '

Judges, November 3, 1986.

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Presiding Officer has the authority to alter standard time limits for responding to motions, the regulatione make clear that when the Board takes such action, it must notify the parties thereof, and give them an opportunity to file _ responses in accordance with a schedule so that the Board will rule upon motions having the benefit of all parties' views -- not just the views of the motion's proponent. Egg Houston Lichtina & Power Co. (Allens

{ Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979) ("the cardinal rule, so far as fairness is concerned, is that each side must be heard"). Neither the NRC's rules, nor basic principles of fairness and due process, provide a justifi-cation for an adjudicator to grant motions without providing all parties an opportunity to be heard.

The Governments respectfully move that the Board hereafter comply with the regulations. In the event the Board feels that an alteration of the normal 10-day reply period for motions is required, the Governments request that the Board notify the parties, either orally or in writing, so that they will have an opportunity to make their views known to the Board in advance of any ruling. -

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788

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M Nevaert H. sdwn Lawrence e Lanpher Karla J. Letsche Michael S. Miller Kirkpatrick & Lockhart 1900 M Street, N.W.

Washington, D.C. 20036 Attorneys for Suffolk County e

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• Tabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of New York State Executive Chamber Two World Trade Center New York, New York 10047 Attorney for Governor Mario M.

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Cuomo and the State of New York SVepheyB. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton I

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