ML20214P109

Suffolk County,State of Ny & Town of Southhampton Opposition to Util Motion for Leave to File Reply on Realism.* Response Opposing Util 870522 Motion for Leave to File Reply on Realism.Certificate of Svc Encl

ML20214P109
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/01/1987
From:	Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3628 OL-3, NUDOCS 8706030207
Download: ML20214P109 (12)

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• DOCHETED USNHC-June 1, 1981_

et JU1 -1 P3 M9 UNITED STATES OF AMERICA l CFR'F e r .

NUCLEAR REGULATORY COMMISSION cyca m ,

e&ne Before the Atomic Safety and Licensino Board i

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In the Matter of ) l

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) ) )

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l SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S MOTION FOR LEAVE TO FILE REPLY ON " REALISM" In a " Motion for Leave to File a Reply on ' Realism,'" dated i

May 22, 1987 (hereafter, " Motion"), LILCO has sought leave to file a Reply to the " Answer of Suffolk County, the State of New York l

and the Town of Southampton to 'LILCO's Second Renewed Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP 1 - 10)'" (hereafter, " Answer"). The proposed'LILCO Reply was attached to the Motion. For the reasons set forth below, Suffolk County, the State of New York, and the Town of Southampton (hereafter, the " Governments") oppose the LILCO Motion, and submit that it should be denied and the accompanying proposed Reply l rejected. l 1

8706030207 870601" PDR ADOCK 05000322 G PDR-l>60}

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1. The Board Lacks Authority to Permit.a

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Summary Disposition Movant to Pile a Reolv

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On its-face, Section 2.749(a) barsLabsolutely any reply by.

LILCO: "No further supporting statements or responses (other than answers supporting or opposing the motion] shall-be entertained."

The use of the mandatory language' "shall" permits no discretion for this Board even to consider whether to entertain LILCO's proposed Reply.

Without citing any authority, LILCO proposes that the Board

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should ignore the express prohibition in Section 2.749 and,. based on Section 2.718(e), permit it to file an additional pleading in support of its motion and in response to the Governments' Answer.

Under the NRC's regulations and the case law interpreting it, this Board is not authorized to override the Section 2.749 prohibition.

Thus, although Section 2.718(e) provides the Board with the general authority to " regulate the course of the hearing and the

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conduct of the parties," that general power is limited by the express prohibitions and authorizations set forth in'other regulations. Egg, e.Q., Consumers Power Co. .(Midland Plant, Units -

1 and 2), LBP-84-20, 19 NRC 1285, 1290 (1984); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-2,'15 NRC 48, 53 (1982). These decisions establish that the discretionary. authority provided by Section 2.718(e) cannot be l

i used to override the Section 2.749 express prohibition on the filing of a reply by a summary disposition movant.

The Board's April 22, 1987 Memorandum and Order (Ruling on Staff's Motion of April 8, 1987 to File Reply) requires no different result. That order dealt only with the Staff's request ,

to file its answer to LILCO's summary disposition motion out of time, and, therefore, arguably is analogous to any other time.

extension request which the Board could grant under Sections 2.711 or 2.718(e). In holding that it could consider such a request, the Board found that even such a request must_be supported by a showing of compelling need to justify a departure from the filing procedures expressly set forth in Section 2.749.- It found that the Staff failed to demonstrate any compelling'need.

LILCO's Motion, however, does not merely seek a time extension or even a change in the order of filing a permissible statement or response, as did the Staff's motion which the Board denied. Instead, LILCO seeks permission to file an additional pleading in support of its motion, and in opposition to the Government's Answer, which is expressly orchibited by Section 2.749. Accordingly, the Board's ruling that it could consider the Staff's motion is inapposite here. Section 2.749 requires that LILCO's Motion be denied.1/

2. Even Assuming the Board Has Authority to.

Consider LILCO's Motion, It Must Be Denied Because LILCO Has Demonstrated No Compelling Need to Overcome the Section'2.749 Prohibition on Reolies 1/ In their April 7, 1987 Motion'for Clarification of Procedures the Governments implied that this Board had discretica to permit LILCO to file a reply. With time to research the issue further, however, the Governments have become convinced that Section 2.749(a) absolutely bars the Board from considering the LILCO Reply.

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a Even assuming arouendo that the Board has the authority _to permit the filing of a reply to a summary disposition motion, LILCO has failed to set forth, much less establish, any compelling reason to justify a departure from the prohibition contained in Section 2.749(a). As noted above, in its April 22,.1987 Memorandum and Order, the Board held that even with respect to a filing cermitted by Section 2.749, one seeking to file it at a time different from that set forth in that section "must have a compelling reason." Memorandum and Order,-4. Applying that standard to the LILCO Motion -- assuming even a showing of compelling need could overcome the prohibition in Section 2.749 --

requires that it be denied.

First, LILCO itself asserts that the Governments' Answer, including the affidavits attached thereto, contains no significant

" surprises" with respect to the facts. Seg Motion at 1.

Therefore, LILCO cannot, and does not, argue as a justification for its request for permission to file a reply that there is a l

compelling need to respond to new facts. j Second, LILCO's assertion that it should be permitted to file a reply "to help make sense of the Intervenors' Answer and to focus the issues," (Motion at 2) is unfounded in fact, self-serving, and irrelevant to a compelling need standard. Indeed, this LILCO assertion is insulting and arrogant. The Board is capable of reading and understanding the Governments' Answer without any " help" from LILCO. There is no need, much less a compelling one, for LILCO to "make sense" of the Answer or to

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misc'naracterize or / restate ..it, -. to enable. the ' Board' to rule. on

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LILCO? s {Sumary ' Disposition' Motion'. . ,Moreover, . the asserted ~ y )

,s. p. 1 benefit of;" helping to focus the issues" has'already been reje(cted

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?-  % e by the Board in its. April.22' Order as not sufficient to warrant? )

lifting:thelsNricture;ofSection2.749(a).- SggtApril. 22',,1987 j n \'

Memorandum and Order at.4.

\i Third,LILCO'sassertion.thatsit'absould_he permibted to file

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1 a reply'because!the Governments' Answer includes legal i argument as t j3t '

well as' discussion of tihe 6, fachshMotion at 3) also fa'ils to e provide anyI cogn'idable basis'gfor p'ermitting the filing of a reply.

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Clearly,-lega'l argument is the essence of summary disposit' ion

,5 filings. Sggfl0 CFR 2.749(d).. Indeed, the c;uestion presented - by.

,, c- i ,a LILCO's' summary disposition moti,o'n is 'khether, as a matter of law, X

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LILCO is entitlep to a ruling _ in Iti!' favor dn Contentions 1" ' 10.

If LILCO could not,'or did not, anticipate that legal' argument _on <

.s s this subject would be ipeluded in the Go'vernments'/ Answer,'then

, r, d LILCO must face the conbequences as set fgz:th in Section 2.749. -

The burden oflestablishing entitlement to.asf

' s summary disposition), .

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ruling re' ts s on the ' proponent of the motion, and' as .NRC case law '

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and Section 2.749 make clear, ~ that _ burden musti be mepby the ;I

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motion and supporting af fidavits, oot byhupplementa'l 'fi' lings or_ ~

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( argument. Sa.

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g, e ,'q . , Cleveland Electric Illuminatino Co..(Perry'A' I s .i s

Nuclear Power' Plant, Units 1 and 2), ALAB 443, 6 NRC 741-(197.7)tp

/ Dairvland Power Cooperative (Lacrosse Bo'iling Water' dea'ctor), ,( ,

LBPi 82-58, 16 NRC 512 (1982).,f

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Furthermore, LILCO's asserted failure to anticipate that the Governments' Answer would include discussion and analyses of CLI-86-13, NRC regulations and decisions, and court decisions (see Motion at 3) is similarly no basis for permitting the filing of a Reply. Indeed, the Governments' Answer responded to the matters raised and discussed in LILCO's own Motion. Clearly, LILCO's asserted failure to anticipate the legal argument contained in the Governments' Answer cannot be said to constitute a compelling need which could justify setting aside the Section 2.749(a) prohibition cn the filing of replies.

Finally, it is evident from Section 2.749 that the re ; lation's purpose is to permit disposition of an issue on one ra t we filings -- the motion and the answer. If supplemental filings are necessary, the disposition is no longer " summary."

Furthermore, LILCO's asserted need to file a reply indicates that its summary disposition motion, on its face, fails to meet the prerequisite for a summary ruling -- that is, it fails to demonstrate that there can and should be a ruling as a matter of law without additional prceeedings, argument, or evidence. The fact that LILCO now seeks to reply to the Governments' Answer is proof that the summary disposition it has sought is inappropriate and must be denied.

3. Conclusion In sum, LILCO never addresses whether, under any circumstances the proponent of a summary disposition motion can be permitted to file a reply, given the express prohibition in t

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Section 2.749. LILCO also never even addresses in its Motion the compelling need standard identified by the Board as the criterion for permitting the filing of a reply to a summary disposition motion. For these reasons alone, its Motion and the accompanying Reply must be rejected.

In this Opposition, the Governments do not address the merits of the proposed LILCO Reply because, for the reasons just stated, that Reply is unauthorized and must be rejected summarily.2/ The Governments are concerned, however, by the possibility that the Board may review the proposed Reply, even if it is ultimately rejected, and that such review may affect the Board's consideration of the underlying LILCO Motion and the Governments' Answer. The proposed LILCO Reply contains a number of seriously incorrect and misleading factual and legal assertions and arguments. The Governments must respond to them, unless the Board provides assurance that it will not review the proposed Reply at all. Accordingly, the Governments ask that in addition to denying 1 1

the LILCO Motion and rejecting the proposed Reply, the Board make 2/ Indeed, it appears to have become LILCO's standard practice to i deem itself entitled to reply, as a matter of course, to any I opposition filed by the Governments to a LILCO motion, despite the fact that the NRC regulations do not contemplate or permit such replies. See, e.a., LILCO's Reply to Intervenors' Opposition to Expedited Consideration of LILCO's 25% Power Request (May 12, 1987) (no accompanying Motion seeking leave to file unauthorized reply); Motion for Leave to File Reply and LILCO's Reply to the Intervenors' Responses to its Motion to Limit Cross-Examination (May 22, 1987); LILCO's Motion to File Reply on the Need for Commission Review of ALAB-855 and LILCO's Reply to NRC Staff's and Intervenors' Opposition to Review of ALAB-855 (January 20, 1987).

This Board should not countenance LILCO's apparent refusal to recognize that the NRC's regulations and rules of practice apply to it, and should refuse to accept such unauthorized filings.

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clear that it will give absolutely no consideration'to the proposed Reply. RIf the Board cannot provide such assurance, the Governments respectfully request that the Board so advise the Governmen,ts, so that the Governments can submit the necessary response to the' proposed' Reply.

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

_ / (A La He#bert H. Kbwh Lawrence Cye Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County Fabian G. Pal 6mino Special Counsel to the Governor  !

of the State of New York l Executive Chamber, Room 229 I Capitol Building i Albany, New York 12224 i Attorney for Mario M. Cuomo, Governor of the State of New York

%A Sydphen S. Latham @0 l Twomey, latham'& Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

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C0ChriEP USHRC June 1,'.987 1H JW -1 P3 :49 UNITED STATES OF AMERICA f

NUCLEAR REGULATORY-COMMISSION [0CfQ. fb' 3RM!CH -

Before the Atomic Safety and Licensina' Board

)

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) )

)

-CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORL AND TOWN OF SOUTHAMPTON OPPOSITION TO LILCO'S MOTION FOR LEAVE TO FILE REPLY ON " REALISM" have been served on the following this 1st day of June, 1987, by U.S. mail, first class, except as otherwise noted.

Morton B. Margulies, Esq., Chairman

• Mr.-Frederick J. Shon*

Atomic' Safety and Licensing Board Atomic Safety and Licensing Board I U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 - Washington, D.C.- 20555 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. 20535 Federal Emergency Management Agencj 500 C Street, S.W., Room 840  !

Washington, D.C. 20472 4 1

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Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq.**

Richard J. Zahleuter, Esq. Hunton & Williams Special Counsel.to the Governor P.O. Box 1535' Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq. Ant'hony F. Earley, Jr., Esq.

Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 Martin Bradley Ashare, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature.

Bldg. 158 North County Complex Suffolk County Legislature-Veterans Memorial Highway Office Building Hauppauge, New York 11788 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, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*

New York State Energy Office U.S. Nuclear Regulatory Comm.

Agency Building 2 Office of General Counsel Empire State Plaza Washington, D.C. 20555 Albany, New York 12223 l

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David'A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick &:Lockhart- ' Business / Financial'

.1500-Oliver Building NEW YORK TIMES '

Pittsburgh,' Pennsylvania 15222 229 W. 43rd' Street New York,1New York. 10036 Douglas J. Hynes, Councilmani-Town' Board of' Oyster Bay

- Town Hall-Oyster Bay, New York 11771

) la Karld J. -Letyche KIRKPATRICK & LOCKHART 1800 M Street, N.W..

South Lobby - 9th Floor-Washington, D.C. 20036-5891

• / By hand.

• • / By Federal Express.

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