ML20214N364

Motion for Leave to File Reply on Realism.* Encl Reply to Suffolk County & State of Ny 870511 Response to Applicant 870320 Second Renewed Motion for Summary Disposition of Legal Authority Issues (Contentions EP 1-10) Warranted

ML20214N364
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/22/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20214N366	List: ML20214N364 ML20214N384
References
CON-#287-3566 OL-3, NUDOCS 8706020152
Download: ML20214N364 (3)

Text

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, LILCO, M:y 22,1987 DCLKEIFE unc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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Before the Atomic Safety and Licensing Board 00CKf.7,un . g r%. vrcr BM t cs In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

MOTION FOR LEAVE TO FILE REPLY ON " REALISM" On March 20, 1987, LILCO filed "LILCO's Second Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Contentions EP 1-10)." In that Motion LILCO asked to be allowed to file a reply within ten days of receiving the Intervenors' answer. See Second Renewed Motion at 30-31. Intervenors served their Answer on May 11, entitled " Answer of Suffolk County, the State of New York and the Town of Southampton to 'LILCO's Second Renewed Motion for Summary Disposition of the

" Legal Authority" Issues (Contentions EP 1-10)."' LILCO hereby submits its ReplyM and renews its request that the Board consider it.

First, LILCO must concede that, as to the facts, the Intervenors' Answer says little that is new. Some of the Intervenors' arguments, it is true, could not reasonably  ;

have been anticipated. For example, the new argument that the expected response of Connecticut is encompassed by the " legal authority" issues comes as a surprise. But the affidavits attached to the Answer are for the most part statements made long in the past; indeed, LILCO addressed some of these statements in its Second Renewed Motion.

I g- LILCO's Reply to Intervenors' Answer to Motion for Summary Disposition of the! .

~

" Legal Authority" Issues and Motion for Referral to the Commission, May 22,1987.  !

i 8706020152 870522 MO PDR ADOCK 05000322 O PDR y

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. Nevertheless, LILCO submits that there is still good cause for the Board to ac-cept a reply. First, LILCO could not reasonably have anticipated that the Intervenors would ignore the requirements of the summary disposition regulation,10 CFR S 2.749, and instead try to recast the issues into legal ones. LILCO anticipated that the Interve-nors would try to specify what facts in LILCO's Motion they alleged to be wrong. In-stead, as discussed in the attached Reply,Section I, Intervenors almost completely failed to address the statement of facts appended to LILCO's Motion. Instead, they draf ted a statement of issues that do not address specific facts at all. This approach complies with neither the spirit nor the letter of the regulation and justifies LILCO's making a reply.

Second, a response from LILCO is necessary to help make sense of the Interve-nors' Answer and to focus the issues. As the Board recognized,E the purpose of the summary disposition process is to narrow and focus the issues and eliminate those that do not deserve a public hearing. LILCO tried hard in its Second Renewed Motion to i

narrow the issues and set out a limited number of material facts that should resolve the issues. LILCO's Motion was only 33 pages long.

By contrast, the Intervenors have filed an Answer 85 pages long that diffuses and expands the issues rather than narrowing and focusing them. In the first place, the An-swer is repetitive; it makes a limited number of arguments but makes each of them sev-eral times. For example, the argument that CLI-86-13 ordered a hearing to be held is made at page 11 n.7 and again at 21 and 28. In the second place, the Answer raises ex-traneous matters. For example, it addresses at least one matter that is not within the scope of the contentions; this is the issue of Connecticut, which has never been includ-ed in the legal authority contentions. Likewise, the Answer spends a good deal of time

_2/ Memorandum 'and Order (Ruling omintervanors' Motion to Convene Conference of Counsel, and Other-Relief), Apr.: 10,1987,rst'7p ("The filing of the motion promotes the focusing of the issues of the CLI-86-13 remand proceeding early on.")

on the " history" of the realism issue (Answer at 8-16), which Intervenors say is useful as a " backdrop" (Answer at 9), but appears to serve little purpose and is inaccurate to boot. LILCO has tried to weed out such extraneous matters in its Reply and get to the five or so realissues raised by the Answer. See the Reply,Section II.

In the third place, as noted above, the Answer relles almost entirely on legal, rather than factual, arguments and for the most part devotes itself to challenging the Commission's decision in CLI-86-13. LILCO did not anticipate, and could not have an-ticipated, that the Intervenors' arguments would amount in large part to a challenge to the Commission's regulations and decisions and to decisions of federal courts; LILCO believes it has successfully shown, in the attached Reply,Section II.B, that the Interve-nors' Answer amounts to a challenge to federal law.

Also, LILCO could not have anticipated some of the statements and character-izations in the Answer, since they are incorrect. For example, the Intervenors' counsel speculates that WALK radio's emergency signal does not activate the tone alerts, when in fact it does. The Intervenors argue that LILCO's " realism" argument has changed, when it can be shown that it has been substantially the same since the beginning. The Intervenors argue that the realism argument was first made in August 1984, when in fact it was raised in 1983 and again in January 1984. These errors, while they are ex-traneous to the important issues, justify a reply to correct the record.

For the above reasons, LILCO renews its request to file the attached Reply.

Respectfully submitted, ames N. Christman Hunton & Williams

-7" 707 East Main Street s

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DATED: May 22,1987