ML20236E069
| ML20236E069 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/22/1987 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4669 OL-3, NUDOCS 8710290049 | |
| Download: ML20236E069 (6) | |
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.w BOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR P,EGULATORY COMMISSION
'87 OCT 23 - P3 59 BEFORE THE ATOMIC SAFETY AND LICENSING BOAl(QEb3bRbb f
DRANCH in the Metter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
NRC STAFF RESPONSE TO INTERVENERS' MOTION FOR LEAVE TO REPLY TO STAFF AND LILCO EXERCISE FINDINGS l.
INTRODUCTION Or. October 5, 1987, Interveners served Suffolk County, State of New York, and Town of Southampton iMotion for Leave to Reply td LILCO 1
and NRC Staff Exercise Findings (" Motion"). The Motion should be denied as unauthorized under the Rules of Practice and the Board's Order of September 15, 1987, and for failure to provide sufficient basis for deviation from the procedures applicable to party proposed findings.
II.
DISCUSSION A.
The Motion is in violation of the Board's Order of September 15, 1987 and is unauthorized by 10 C.F.R. Section 2.754(a).
Although Interveners' Motion seeks reflef from the provisions of the
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Rules of Practice, which do not authorize the filing of reply proposed i
findings except by the party with the burden of proof (Section 2.754(a)(3)), it cites no authority to support its position that such reply i
is warranted in the circumstances here presented.
Interveners refer to the the Board's September 15, 1987 Order (Motion at 2, n.3), implying 8710290049 871022
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that the subject Motion Is consistent with that Order simply because Interveners did not submit with their Motion a separate document styled
" proposed findings. "
However, the Board Order expressly stated 'that l
"any additional findings by a party or a participant other than LILCO may not be made absent' leave of the Board."
September 15,1987 Order at 1.
The subject Motion, 24 pages in length (including several lengthy single-spaced footnotes), with 39 pages of attachments, while professing j
compliance with that Order, is largely a substantive reply to the LILCO I
reply findings, and th'erefore contrary to the Board's express direction.
While a party may be reasonably entitled to provide a basis for a motion for leave to file an otherwise authorized pleading, Interveners' Motion goes beyond what is reasonable.
The lengthy " examples" of 3-asserted inadequacies in LILCO's rep,1y findings are not what one might have expected in a brief presentation of why a party should be permitted to reply to new matters not previously addressed. M As interveners virtually concede, the purpose. of their motion is not to reply. to new matters (see, eg., Motion at 4).
Rather, Interveners again argue that the positions presented by LILCO are wrong. Interveners' apparent belief that each LILCO argument with which they disagree requires still 1
another response is a formula for endless pleading.
See, eg., Motion at 3-5.
It is inconsistent with the language of the applicable regulations 1/
The Licensing Board has adopted a " compelling reason" standard
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where reply pleadings are expressly precluded by the rules.
Memorandum and Order, April 22, 1987.
Although there is no express preclusion of reply findings by a party not having the burden of proof, the cirection in 10 C.F.R. 6 2.718(e) to boards to regulate the course of the proceeding should be Interpreted as requiring good cause before departing from the Rules of Practice.
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and the clear intent of the Board's recent order. For this reason,. the p
Motion should 'not be accepted by the Board, h',
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B.
' Interveners.Have Not. Demonstrated that the Filing of Reply Findngsv is Warranted.
Even assuming, however,c the.t the Motion may be entertained, the I
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.l Motion. should be denied on similar. grounds. The numerous citations to j
4 the record provided by -the " examples" show that interveners have indeed
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a, had an opportunity to presen't their position, and have done so.
See, -
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ej., Motion at 16-17, 19-20.
In any event, the Board is' mandated to review the entire record bef6re reaching its decision, and. may be s
presumed to read the pro ed findings in light of that record.
Additional pleadings which would solely serve to ceal with " confusion,"
"misimpression," and the like appear to. suggest that the Board is unable
.I to itself evaluate the proposed findings against the record.
This cannot be a basis for leave to reply.
In-a recent ruligg, the Board in the OL-3 proceeding aptly noted that "we necd, no assistance in keeping the r2 cord 3
straight on the issues." Memorandum and Order, Septe'mber 17, 1987, at
- 9. Given the fact that Interveners have provided an extensive presenta-tion of their position, and have shown no new matters. requiring in fairness the opportunity for reply, the Rules of Practicd and the Commission Statement of Policy on the Conduct of Licensing Proceedings, 1
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43 NRC 452, 453, 458 (1981);" require denial of Interveners request to file 1,otherwise; unauthorized reply; findings. 2/
v Ill.
CONCLUSION i
,i Interyenors' Motion fallsj to comply with the spirit of the Board's September 15, 1987 Order and spcold not be accepted.
Should it be j
t accepted, however, Interveners have failed to show that either new matters have been raised requiring further reply, or any prejudice which i
'!i would warrant granting the Motion.
It should be denied.
P Respectfully submitted,
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eorge
. Jo nson i
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Counsel for NRC Staff t
Dated at Bethesd$, MatVin$
this 22th day of Octobbr,1987 j
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A 2/
Should the Board find that it needs clarification or further information on any matters under consideration, there is ample
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authority for the Board to request it from the parties.
10 C.F.R.,
Part 2, Appendix A, V.(g)(1).
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- Docket No. 150-322-O L- 03 i
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(Shoreham Nuc ear Power Station,
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CERTIFICATE'OF SERVICE i.
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reby cer ify. that - cop of "Nfid STAFF RESPONSE TO INTE VENORS'-
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,, MOTION u FOR LEAVE. T STAFF AND' EXERCISE I
the above-cay {REPl$ TO LILCO {'d
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tonad proceeding. have _been serve ori' the L,.,if., j Ff 4 DINGS" In f.hf g'
fowing by deposit in. the United States mall,. first., class or,.'as Indicats (1 '
b /aqjasterisk,.through deposit. In the Nhclea linternal' mall system, this 22th day < cf Octobert1987({qe' ufatoryL C
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Morton D. Margulies, Chairman
- p g{9 Joel. Blau, 'E 'q....,
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',jJ Directot, l!ti Ity Intervention
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' Administrative Judge-g03' Atomic Safety and Licensing Beards Suite 1020 ' ',
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-U.S. Nuclear f?4.gulatory Commissidi '
99 Washington Avenue Washington, DC' 2055'i Albany, NY' 12?to
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Fabian G. Palomino, Esq. n AdtrJnistrative Judge
,."> >.Speclat Counsel to the Governor j
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' Atomic Safety and Licensing Board
. Executive Chamber l State Capitol U;S. Nuclear Regulatory Commission y h'
bashington, DC 20555 j
Albany, NY 12224 j
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- Frederick J. Shon*
Jonathan D. Feinberg, Esq.
~r Administrative Judge New York State Department of
'PuMic Service Atomic-Safety and Licensing Board. j ~,
ij U.S. Nuclear Regulatory Commission '
ghrd Cmpire State Plaza
. Washington, DC 20555 Albaty, 'NY 12223
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y. Philip McIntird' t
- W. Tpy' lor Reveley 111, Esq.
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Federal Emergency Management Dc6ei,d P. Irwin, Esq.
Agency Hunton E, Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 h
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.t Douglas J. Hynes, Councilman 1
'N Town Board of Oyster Bay gl i
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I Cyster Bay, New York 11771 s
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Stephen B.~ Latham, Esq.
Herbert H. Brown, Esq.
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' Twomey,- Latham s' Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
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'33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby
.9th Floor T
1800 M Street, NW s Atomic. Safety and Licensing.
Washington, DC 20036-5891 c
Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC - 20555 New York State Energy Office
' Atom!c Safaty' and Licensing Agency Building 2 4't Appeal Board Panel
- Empire State Plaza 4
U.S. Nuclear Regulatory Commission Albany, NY 12223-Washington,.OC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counse!
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 Blenstock, lisq.
Department of Law Ms. Nora Bredes State of. New York 1
Shoreham Opponente Coalition
.Two World Trade Center l
195 East Main Street Room 46-14
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Smithtown, NY -11787 New York, NY 10047
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l 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 Hicksville, 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 i
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 1
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k ye E./Johnsorf Counsel for NRC Staff
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