ML20214W586

NRC Staff Response to Lilco Motion for Leave to Reply on Realism.* Motion Supporting Util 870522 Motion for Leave to File Reply on Realism. Certificate of Svc Encl

ML20214W586
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/08/1987
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3727 OL-3, NUDOCS 8706160091
Download: ML20214W586 (6)

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, 37L7 June 8, 1987 y

Ogi,ED UNITED STATES OF AMERICA .g g j ) p3 g NUCLEAR REGULATORY COMMISSION crr!u BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARDOOM In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Urdt 1) )

NRC STAFF RESPONSE TO LILCO MOTION FOR LEAVE TO REPLY ON " REALISM" I. INTRODUCTION On May 22, 1987, Long Island Lighting Company (LILCO) filed a Motion for Leave to File Reply on " Realism" (" Motion") with the Licensing

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Board. This Motion was accompanied by LILCO's Reply to Intervenors' Answer to Motion for Summary Disposition of the " Legal Authority" Issues and Motion for Referral to the Commission. The Motion asserts gocd cause exists to permit the Reply, based on the following: (1) LILCO could not have anticipated that Intervenors would recast the issues as legal ones, rather than specifically addressing the facts asserted in LILCO's Second Renewed Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP 1-10); (2) Intervenors' Answer (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)) diffuses and

, expands the issues rather than narrowing them, warranting identification by LILCO of "the five or so real issues raised by the Answer;"

(3) LILCO could not have anticipsted Intervenors' challenge to Commission 8706160091 870600 2 ADOCK O gQg gDR

g regulations and decisions and Federal law; and (4) LILCO could not have

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anticipated factual inaccuracles in the Answer.

For the reasons set forth below , the Motion should be granted.

TT. DISCUSSION As noted by the Licensing Board in its Memorandum and Order (Ruling on Staff's Motion of April 8,1987 to File Reply), dated April 22, 1987, the Commission's Regulations do not permit either the moving party or a party tiling a response in support of summary disposition to file a reply. Memorandum and Order , at 1, 3, citing 10 CFR 2.749(a).

However, the Board interpreted the Regulations as permitting the Board to allow a reply where there is a compelling reason for doing so.

Memorandum and Order, at 4. Although the Licensing Board offered no claboration as to what might constitute " compelling reasons," such a standard appears to control the decision on the subject Motion. O As LILCO's Motion suggests, Intervenors' Answer contains extensive legal argument as to the nature of the legal authority issues contained in Contentions EP 1-10 and as to the appropriate scope of litigation of the

! 1/ Title 10 CFR 2.749 provides for summary disposition of issues where there is no genuine issue as to any material fact and the moving party is entitled to a decision as a matter of law. Summary disposition is favored as a means for resolving and narrowing i

contentions when no genuine issues exist, thus avoiding the cost and delay of unnecessary litigation. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241 (1973), aff'd sub nom. BPI v. Atomic Energy Commission, 502 F.

2d 424 (D. C-'"Dir.1T7Tl; Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542,

. 550 (1980); Statement of Policy on Conduct of Licensing Proceedings, c

CLI-81-8,13 NRC 452, 457 (1981).

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1. .I " realism" issue under the Commission's remand decision in CLI-86-13. .

The principal basis offered by LILCO for filing its reply brief is to address various legal arguments contained in Intervenors' Answer.

Civen the unusual posture of the " realism" remand aspect of the  ;

, proceeding, there are compelling reasons for permitting LILCO to file its reply. The instant motion for summary disposition and the Intervenors' Answer raise not only factual questions, but numerous legal questions relating to the nature and scope of the remanded " realism" aspect of this proceeding. Examination of both LILCO's and Intervenors' pleadings shows numerous disagreements regarding what facts are relevant to the remanded proceeding, what issues the Commission intended to be within its scope, the effect to be given official statements by the Governor of New York and the Suffolk County Executive, and the effect to be given New York State court decisions in light of CLI-86-13, to name several.

Given the number and complexity of these legal issues , and the 1

impossibility of LILCO anticipating in its original motion all of the arguments proffered by Intervenors, there are compelling reasons to provide LILCO with an opportunity to respond to the legal issues raised

in Intervenors' Answer so that the Board will have the legal arguments of the Applicant as well as the Intervenors on what facts are material to the subject summary disposition motion.

l III. CONCLUSION Since Intervenors' Answer to the motion for summary disposition raises legal issues which could not have been anticipated and which must i

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be resolved in deciding the subject motion, there are compelling reasons for permitting LILCO to file a reply to address Intervenors' legal arguments.

Respectfully submitted,

< ih.

M' y ld ---

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' George .J nson Couns for NRC Staff Dated at Bethesda, Maryland this 8th day of June,1987

Q C % qi,i I t ate.

UNITED STATES OF AMERICA '87 JLW11 P 3 :09 NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BdhlED y , , :, Eu 39 &

In the Matter of )

)

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

) (Emergency Planning)

(Shorcham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that ecples of "NRC STAFF RESPONSE TO LILCO MOTION FOR LEAVE TO FILE REPLY ON ' REALISM'" in the above-captioned proceeding have been served on the following by deposit in the United States mr.il, first class , or a6 indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system , this 8th dky of June,1987.

Morton B. Margulics, Chairman

• Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuc! car Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline* Fabian G. Palomino, Esq.

Administrative Judge Richard J. Zahnleuter, Esq.

' Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol -

Washington, DC 20555 Albany, NY 12224 Frederick J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire James N. Christman, Esq.

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771

Stephen B. Latham, Esq.

Twomey,' Latham & Shea Christopher M. McMurray, Esq.

Attorneys at Law David T. Case, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1600 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy OfKce '

Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.

Mcrtin Bradley Ashare, bq. General Counsel Suffolk County Attorney' Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.

North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.

Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr. William R. Cumming, Esq.

General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Ilicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*

Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743

/ W5 Y George E Joh,'nsyn

~ Counsel f{or NRC Staff

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