ML20235W172

Lilco Opposition to Intervenors Motion for Leave to File Further Proposed Findings.* Intervenors Have Not Justified Request to Disregard Structure of NRC Regulations & Burden Record W/Further Argument.W/Certificate of Svc

ML20235W172
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/08/1987
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4598 OL-5, NUDOCS 8710160032
Download: ML20235W172 (8)

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45 9 LILCO, October 8,1987 s

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i BgTED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,.

7. 7 OCT 14 P4:13 Before the Atomic Safety and Licensing Board jF f gtgfiAg j BRANCH 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) )

3 LILCO'S OPPOSITION TO INTERVENERS' MOTION FOR LEAVE TO FILE FURTHER PROPOSED FINDINGS LILCO responds to the Interveners' 24 page " Motion for Leave to Reply to LILCO

, and NRC Staff Exercise Findings," dated October 5 and received on October 7. The

" Motion for Leave" requests that Interveners be allowed two more weeks to add to the 1400-odd pages of proposed findings (almost half of them submitted by Interveners themselves) already before this Board.

LILCO urges the Board to reject " Motion for Leave" and to do so promptly.M The " Motion for Leave" is a prohibited substantive motion merely posing as a request for leave to file. It requests a filing which is not authorized by the pertinent Commis-sion regulation,10 CFR S 2.754(a), and is contrary to its structure. It is not justified on the merits. Its crux is conceded by Interveners to be based not on an unanticipatable need to adduce new material, but rather simply on a desire for another chance to regrind the record. It does not assert, much less demonstrate, that the further material 1/ LILCO does not undertake to treat separately Interveners' desire to respond to the Staff's findings. The insubstantiality of Interveners' request on this issue is high-lighted by its untimeliness: the Staff's findings, on which Interveners claim to desire only narrow comment, were filed over three weeks before Interveners' motion.

8710160032 871000 PDR ADOCK 05000322 O PDR

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proposed to be filed would be dispositive of any contention.or essential to its proper outcome. It would, if granted, inevitably delay this proceeding's completion by several weeks, meanwhile diverting this Board's and the parties' time and limited resources from remaining matters in this and other Shoreham dockets.

1.- This Board's September 15 Order, granting LILCO an additional five busi-ness days to file its consolidated reply to the Interveners' and Staff's proposed findings, prohibited any further substantive filings without its explicit leave. The " Motion for Leave" does not seek that leave. It is not predicated on assertedly new arguments ad-i duced by LILCO only in its reply findings and not reasonably anticipatable by Interve-nors in their proposed findings.2/ Nor, dcspite its complaints about the detail of the tabular Volume II of LILCO's proposed reply, does the " Motion for Leave" assert that as an affirmative justification for leave for further reply, M. at 4, perhaps in concessk.1 that Interveners themselves created the need for such a detailed response with their 627 pages of initial proposed findings. Nor does the " Motion for Leave" claim that the further argument Interveners make will be dispositive of, or is essential to a correct outcome of, any major issue. In short, the " Motion for Leave" does not focus, as it properly should and as the Board required, on justification for being allowed to file fur-ther material which could not reasonably have been filed earlier. Thus, under any rea- l sonable threshold test for granting leave to file further proposed findings, the test has not been met.E 2/ While Interveners claim that LILCO's reply contains " expansive, new arguments on virtually all issues," they concede that they "do not petition for leave to reply pri-marily because of the length of the LILCO Reply Findings or because there are new ar-guments." " Motion for Leave" at 4. They thus implicitly concede that they have not been prejudiced in any way other than by the force of facts and argument asserted by LILCO and the Staff.

3/ Indeed, the justification necessary for reply findings by a party not having the burden of proof may be higher than that for other unauthorized pleadings. The Com-(footnote continued)

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2. The " Motion for Leave" improperly proceeds directly to and consists simply of lengthy substantive rehashing and repackaging of material already before this Board, )

l with.the intent.of influencing the Board's thought process. It thus illustrates vividly ]

1 that any further filing would raerely consist of efforts to retint portions of the existing i record in hues more palatable to Interveners. It concedes that it does not rest on sur--

prise or on the need to adduce new material. Indeed, a review of the Motion discloses ]

that each of the six issue areas addressed is treated by means of reference, not to new 1

material, but to Interveners' existing proposed findings. It contains no showing of ma- 1 teriality: no assertion, much less a showing, that a further reply would determine the outcome of any contention or is essential to its proper disposition. Indeed, the issues q specifically reclamored by the " Motion for Leave" are typically narrow and tangential rather than basic or direct. At bottom, the " Motion for Leave" illustrates that Interve-nors' arguments would be merely restatements of what is already in the record in multi-ple forms before the Board. Sif ting through that record and assessing the parties' l

(footnote continued) mission's regulations, like most other judicial and administrative structures, allow all parties to file one round of proposed findings, but permit the party with the burden of a I

proof (here, the licensee, LILCO) - and only that party - to have the last word, with an opportunity for reply findings.10 CFR S 2.754(a). Unlike numerous other Commis- f sion regulations, this one makes no provision for the exercise of licensing board discre-tion. I_d. Further, the Commission intended that the post-hearing structure have a def-inite time framework. Time frames are set forth for the filing of findings, id. The Commission also expects that " ordinarily" a licensing board will issue its opinion within about 35 days af ter receipt of the parties' post-hearing submissions in a contested case.

10 CFR Part 2 Appendix A 1 VI(d). Thus a request to file reply findings by any party other than the one with the burden of proof amounts to an indirect attack on the prohl-bition of one of the Commission's regulation,10 CFR S 2.754(a), and any such request cannot appeal merely to exercise of Board discretion; it must satisfy the requirements for an exception to the Commission's regulations set out in 10 CFR S 2.758, which is the exclusive means for challenging regulations. Interveners have not even attempted such a demonstration here.

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interpretations of it are the essence of the Board's job, not that of Interveners or of any other party.

3. Permitting Interveners to file further proposed findings - presuming for the sake of argument that such a filing were otherwise justified - would substantially delay the completion of this proceeding. Under the Commission's regulations, the ap-plicant or licensee, who has the burden of proof in a proceeding, is entitled to the last word. 10 CFR S 2.754(a). While it would not be proper to reply here to the merits of the substantive arguments prematurely outlined in Interveners' " Motion for Leave,"

LILCO does not agree with those arguments. LILCO would be forced to seek, and would be entitled, to reply to those arguments. The Board would then be obligated to consider them amid the welter of existing filings. The inevitable result would be to add well

.over a month to the irreducible timetable for the Board to reach a decision in this pro-ceeding.

If Interveners had raised crucial issues in their " Motion for Leave," and if time were itself not a factor in the completion of this proceeding, then the additional delay might be worth contemplating as a matter of Board discretion. However, neither of these conditions obtains. The lack of substantiality of Interveners' motion has been i i

dealt with above. The importance of bringing this proceeding to a close is treated here, j Under the Commission's regulations, the exercise evaluated in this unprecedent-ed proceeding provides a basis for licensing through February 13,1988.10 CFR Part 50 Appendix E 1 IV.F.1, 52 Fed. Reg.16823 (May 6,1987). Beyond that date, a waiver or exception will be required. While LILCO believes that a sufficient basis exists for granting such a waiver or exception in the particular circumstances of this case, there 1 l

1s not absolute certainty to such a request. And the passage of time eventually (though not yet in this case) tends to make an exercise a stale basis for evaluation. The delay l

which Interveners' request would inevitably engender risks unnecessarily def aulting this exercise as a-licensing basis and completely wasting two years of hard work by this Board and various of the parties. Such a result would be highly unjust to LILCO, which has sought by every available means to keep this proceeding moving, and would be com-pletely contrary to the Commission's intent in establishing this proceeding as an expe-dited one. CLI-86-11,23 NRC 577 (June 6,1986).M i

1 CONCLUSION Interveners have not justified their request to disregard the structure of this i

Commission's regulations and burden this record with further argument. Indeed, their failure to demonstrate surprise or the need to adduce new material, or to make any showing that their arguments, if accepted, would be dispositive of any issue merely 11-lustrates that LILCO's proposed reply findings constituted an effective, and proper, re- j sponse to their own proposed findings. All Interveners attempt to do in the " Motion for i

4/ The diversion of resources which granting Interveners' request would create would also, according to their recent pleadings, prevent them from working on other pending matters and thus further delay them and damage LILCO unjustifiably. Interve-nors are already claiming in other aspects of this proceeding that they are insuffi-ciently staffed to work simultaneously on all of the matters now pending before various  ;

licensing boards. ' For instance, in opposing LILCO's request for consideration of its 25% l request before the OL-3 Board, Interveners asserted:

Like the Staff, the Governments' resources are finite. The central issue in this case is whether LILCO satisfies the re-quirements for a full power license. Any diversion of re-sources to LILCO's 25% power motion will necessarily cause i substantial delay in addressing that issue . . .. I "Suffolk County, State of New York and Town of Southampton Reply Regarding the Pri-ority of OL-3 Issues," (September 21,1987) at 4-5 (emphasis supplied'. Taking Interve- 1 nors at their word, it is inevitable that if this Board permits Interver. ors to file rebuttal l findings the diversion of their efforts into this essentially tangential matter will affect I their ability to meet other obligations. Thus not only this specific pr7ceeding, but oth-ers, will be delayed, to LILCO's prejudice.

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9 Leave," and apparently all they would do in the two weeks .they seek for further com- I mentary, is to recast specific aspects of their familiar arguments in yet more contoured forms that are specially tailored to LILCO's reply findings. But the material cited by Interveners is all before the Board already, usually in the form of proposed findings, and the task of distilling and interpreting which Interveners propose for themselves is one for the Board.

There is thus no discernible value to this Board's process from granting Interve-nors' motion. On the other hand, granting that motion would only further swell this prolix record and delay completion of this proceeding by over a month, to LILCO's se-vere and undeserved prejudice.

The Board should deny the " Motion for Leave" and do so promptly, in order to l avoid any confusion.

Respectfully submitted, i

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(.a m Donald P. Irwin Lee B. Zeugin Kathy E.B. McCleskey Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 8,1987 l

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x LILCO, October 8 1987 0 y;

c BOCgCy0 CERTIFICATE OF SERVICE 1 In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-5 I hereby: certify that copies of .' LILCO'S OPPOSITION .TO INTERVENERS' MOTION FOR LEAVE TO FILE FURTHER PROPOSED FINDINGS were served this date .I upon the following by telecopy as indicated by an asterisk, by Federal Express as indi-cated by two asterisks,' or by first-class mall, postage prepaid.

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John H. Frye, III, Chairman

• Atomic Safety and Licensing Atomic Safety and Licensing - Board Panel-1 L . Board . .

U.S. Nuclear Regulatory Commission j U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1

~ East-West Towers j

.4350 East-West Hwy. Edwin J. Reis, Esq. * ,

Bethesda, MD 20814 U.S. Nuclear Regulatory Commission 1 7735 Old Georgetown Road j Dr. Oscar H. Paris * (to mailroom) H Atomic Safety and Licensing Bethesda, MD 20814 i Board _.

U.S. Nuclear Regulatory Commission Herbert H. Brown, Esq. * ]

East-West Towers Lawrence Coe Lanpher, Esq.

4350 East-West Hwy. Karla J. Letsche, Esq.

Bethesda, MD 20814 Kirkpatrick & Lockhart South Lobby - 9th Floor L Mr. Frederick J.Shon

• 1800 M Street, N.W.

Atomic Safety and Licensing Washington, D.C. 20036-5891 Board U.S. Nuclear Regulatory Commission Fabian G. Palomino, Esq.

• East-West Towers, Rm. 430 - Richard J. Zahnleuter, Esq.

4350 East-West Hwy. Special Counsel to the Governor l Bethesda, MD 20814 Executive Chamber i Room 229 Secretary of the Commission. State Capitol Attention Docketing and Service Albany, New York 12224  ;

- Section j U.S. Nuclear Regulatory Commission Mary Gundrum, Esq. 1 1717 H Street, N.W. Assistant Attorney General Washington, D.C. 20555 120 Broadway Third Floor, Room 3-116 l Atomic Safety and Licensing New York, New York 10271 Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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ll Spence W. Perry, Esq.'* ' Ms. Nora Bredes I William R. Cumming, Esq. Executive Coordinator

Federal Emergency Management - ' Shoreham Opponents' Coalition Agencyg 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 f Washington, D.C. 20472- 1 Gerald C. Crotty, Esq.

Mr. Jay Dunkleberger ' Counsel to the Governor .

New York State Energy Office - Executive Chamber i

. Agency Building 2' State Capitol i Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.  ;

Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq. 1 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 York 12223 '

Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 8,1987

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