ML20214J529
| ML20214J529 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/24/1986 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1692 OL-5, NUDOCS 8612010339 | |
| Download: ML20214J529 (7) | |
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LILCO, Novrmber 24,1986 4
UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION
'86 NOV 28 P6 :10 Before the Atomic Safety and Licensinst Board Cfr
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (Emergency Planning)(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S RESPONSE TO INTERVENORS'" MOTION FOR LICENSING BOARD TO FOLLOW THE RULES OF PRACTICE IN RULING ON MOTIONS" AND MOTION RESPECTING SERVICE AND NOTIFICATION PROCEDURES On September 10, counsel for Suffolk County flied a motion on behalf of the County and other governmental intervenors requesting that the Board, as they put it,
" Follow the Rules of Practice in Ruling on Motions." At issue were two procedural rulings which merely expedited the schedule on which the Board granted various parties the right to file various requested papers.
The intervenors' motion is, on the facts, trivial, since the rulings at issue did not involve any substantive determinations on parties' rights or on evidence, but simply avoided otherwise certain delay in the schedule for filing substantive views with the Board. And the Board's actions complained of did not prevent Intervenors from filing their views on the merits of any substantive issues, as distinguished from their views on whether to permit other parties' filings from being filed or considered.
Nevertheless, the problem of which intervenors complain can have substantive overtones. This occurred, in LILCO's judgment, last week, when on November 19 the Board granted Intervenors' November 10 Motion to Compel FEMA to Answer Interrogatories.
Responses to that motion were not due to be served, by LILCO's calcu'ation, until November 24. FEMA responded on November 13; LILCO served its jd) 8612010339 861121 PDR ADOCK 05000322 O
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'y response on November 21, by Federal Express. Today, November 24, LILCO learned that the Board had issued an order granting Intervenors' motion on November 19, without either allowing the response period to run or indicating its intent to rule early.
Unlike the earlier decisions complained of by Intervenors, this one clearly involved substantive determinations, both on specific discovery issues and on the status of FEMA in this proceeding.1 The November 19 Order raises two issues:
first, that of ensuring that all affected parties have an opportunity to comment on pending issues; and second, that of
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ensuring that parties are timely aware of each other's and the Board's issuances. Had LILCO known of the Board's desire to expedite its decision it would have expedited its response further. Had LILCO known that the Board had pre-empted the issue with an early dispositive order, LILCO would not have spent time of counsel and clients on a feckless paper.
With respect to the issue of notice to the parties of the Board's intent to rule quickly on pending issues, LILCO recognizes that the Board has broad latitude to regulate the course of the proceedings.
And LILCO agrees that in this expedited proceeding, matters should move more briskly than the stately outer bound set by the nominal outer limits of the Rules of Practice. LILCO also recognizes that even on substantive issues the outcome may appear so clear that there is no point in allowing a complete response cycle to run before ruling.
LILCO nevertheless agrees with intervenors that on issues of substance,2/ the Board should strongly consider, as a 1/
The Board's conclusion that FEMA is a party in this proceeding notwithstanding the language of the NRC-FEMA Memocandum of Understanding is, to LILCO's knowl-r edge, the first time that any Board has so construed FEMA's status.
l 2/
LILCO does not consider that requesting a brief extension of time or requesting leave to file a paper on the same schedule as other parties - the matters complained of by Intervenors - generally constitute matters of substance. liowever, LILCO recog-nizes that unclear cases may exist and believes that as to them it is better to treat an issue as substantive, and thus as triggering procedural protections - however brief --
for the parties, than as merely ministerial.
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% t' matter of good practice, notifying the parties in advance if it is considering issuing a ruling prior to the reply deadline specified either by the regulations or its own stan61ng orders.
The issue of prompt notice of other parties' or the Board's actions is central to the Board's ability to administer an expedited proceeding.
This ability is being substantially compromised by the absence of any requirement for expedited serviceN
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and, simultaneously, an unusually virulent degree of undependability in the first class malls. On numerous occasions during the past several weeks, LILCO has not received
- c either papers from other parties or orders from the Board in time to react effecthely. -
For unaccountable reasons, first class mall has begun to take typically five days, and in some events even longer, to travel to Richmond; LILCO understands that this circumstance is not unique to it. The issue of the motion to compel discovery is only the most recent example and by no means the only one.
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Accordingly, LILCO moves that the Board take steps to expedite the proceeding while still avoiding the possibility of lack of fair notice to parties, by entering an order requiring the parties to observe the following conventions of service and notification in
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this proceeding:
1.
The term "affected parties" means LILCO, the NRC Staff, FEMAI Suffolk County, New York State and the Town of Southampton, and, on the' facts of any other given motion, counsel for any other party to the proceeding.
Absent such special facts, only the entities named in this paragraph are considered affected parties.
2.
All documents are to be served on the Board and the affected parties by hand service, telecopter, or overnight mail (Saturday delivery if sent Friday).
3/
Counsel for LILCO have recently worked out informal agreements with counsel for the NRC Staff, FEMA, and Suffolk County for mutual service of documents by Fed-eral Express or other expedited means. As a practical matter, most papers are thus served expeditiously. However, these agreements are not uniformly adhered to and not-all affected parties are bound by them.
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q,y 3.
All telecopier transmissions must be verified at the time of transmission and parallelled by hard copy.
1 4.
Documents hand served to an affected party's customary offices or telecopied and verified by the clase of business will be considered to have been received, for purposes of starting reply deadlines, on the day sent.
Documents sent by overnight mail will be considered to have been received, for purposes of starting reply deadlines, the next business day af ter the day sent.
5.
For purposes of service on the various governmental intervenors, i.e.,
Suffolk County, the State of New York and the Town of Southampton, except where the interests of any of them plainly diverge on the face of the pleading from those of.the others, service on counsel for Suffolk County shall constitute service on all intervenors for the purposes of starting reply deadlines.
i 6.
Service on all persons other than affected parties may be by any means permitted under the Commission's regulations.
LILCO also requests that the Board notify all affected parties by telephone at the time it issues any order. In this fashion, affected parties can obtain prompt notice of the Board's orders by messenger or other means.
CONCLUSION LILCO does not agree that the incidents cited by Intervenors in which the Board disposed of motions prior to the customary response time for all parties involved i
substantive decisions or prejudice to any party. However, the possibility for such 4
prejudice can occur and has, LILCO submits, in connection with the Board's November 19 Order on Intervenors' Motion for Order Compelling FEMA to Answer Interrogatories.
I LILCO believes that the ability of the Board to administer an expedited proceeding will be enhanced if three procedures are observed: (1) the parties are required, as by the rules proposed above, to follow expedited service and notification procedures, (2) the Board will notify all parties whenever it intends to decide motions before the otherwise applicable deadline for all affected parties to respond, and (3) the Board will notify all affected parties by telephone whenever it has issued an order.
LILCO moves that, following an expedited opportunity for reply from the other parties, 4
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- ,. Q the Board enter an order requiring the parties to observe the six service ground rules outilned above.
Respectfully submitt I
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s-Doriald P. Irwin Counsel for Long Island Light Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 24,1986 i
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9 LILCO, November 24,1986 Q
00l MU Li-MNRt CERTIFICATE OF SERVICE
'86 NOV 28 P6 :10 In the Matter of LONG ISLAND LIGHTING COMPANY OFF U t; (Shoreham Nuclear Power Station, Unit 1) 00CMEi g g '
Docket No. 50-322-OL-5 A
I hereby certify that copies of LILCO'S RESPONSE TO INTERVENORS'" MOTION FOR LICENSING BOARD TO FOLLOW THE RULES OF PRACTICE IN RULING ON MO-TIONS" AND MOTION RESPECTING SERVICE AND NOTIFICATION PROCEDURES were served on all persons listed below by first-class mail, postage prepaid on November 24,1986, and in addition by telecopier as identified by one asterisk (*) or Federal Express as identified by two asterisks (**) on November 25,1986.
John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Bernard M. Bordenick, Esq.
- Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers 4350 East-West Hwy.
Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche, Esq.
Mr. Frederick J. Shon
- Kirkpatrick & Lockhart Atomic Safety and Licensing Eighth Floor Board 1900 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036 East-West Towers, Rm. 430 4350 East-West Hwy.
Fabian G. Palomino, Esq.
- Bethesda, MD 20814 Richard J. Zahnleuter, Esq.
Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commissica Albany, New York 12224 1717 H Street, N.W.
Washington, D.C. 20555 Mary Gundrum, Esq.
Assistant Attorney General Atomic Safety and Licensing 120 Broadway Appeal Board Panel.
Third Floor, Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555
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'a j Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New "' ek '.2223 r
Wy )s Ddnald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 24,1986
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