ML20236E072
| ML20236E072 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/21/1987 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4666 OL-3, NUDOCS 8710290051 | |
| Download: ML20236E072 (6) | |
Text
-
~
i
$6 (o;
'/
).,
20/21/87
- i x
.'t--
00CKETED l
USNRC j
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 OCT 23 P3 37 BEFORE THE ATOMIC SAFETY AND LICENSING BOARkOCki y
BRANCH in the Matter of-
)
4
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
4 Unit 1)
)
{
l J
.NRC STAFF RESPONSE TO INTERVENERS REQUEST TO RESPOND TO LILCO REPLY FINDINGS ON ZONING ISSUE I.
INTRODUCTION On October 1,1987, Interveners filed Suffolk County, State of New York and Town of Southampton Motion for Leave to Respond to LILCO
_l
.:.: ply Findings
(" Motion").
That $ lotion seeks permission to address i
i arguments relating to the effect of local zoning resolutions on the availability of the designated LILCO reception centers, contained in LILCO's Reply to interveners' Proposed Findings on Reception Centers, i
dated September 21,1987 (" Reply Findings"), which, in turn, addresses arguments on that subject presented by Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclu-l sions of Law on the Suitability of Reception Centers
(" Interveners' I
l Finding s"), filed September 14, 1987.
Specifically, Interveners seek j
permission to respond to LILCO's position (1) that the subject resolutions l
are not valid zoning ordinances, (2) that the resolutions are not valid enforcement actions, and (3) that the resolutions have no legal effect i
because they concern prospective zoning violations.
Motion at 3 - 4.
m=mu m%2 Y,
o J
['
1 g-1 As argued below, ' the Board should deny <the Motion, on the grounds
- that it' Is contrary to Sections 2.754(a)(3) and 2.754(c) of the Rules of
'l Practice,. and inconsistent with the rulings of this ' Board contained In -
Orders datedi February 4, 1987 and February 9, 1987, as well as the.
Board's statements In closing the record -in this proceeding (Tr.19243). -
i
{
ll.
DISCUSSION j
As is clear from the Motion, each party to thJs : proceeding has had 1
-an; opportunity. to _ propose findings of fact and conclusions of law, -as
.'provided for in the Commission's Rules of Practice.
10 C.F.R. Section -
i
-2.754(a).
Under those. rules, only the party with the burden of proof may file reply findings.
Section 2.754(a)(3).
Since replies by other parties are thus. not authorized, it is, appropriate for' interveners *to have sought permission to file a reply prior to doing so.
i This Board has had several recent occasions to address the question whether and under what circumstances responsive pleadings specifically precluded under the regulations governing motions for summary dispost-I i
tion might be entertained.
See Memorandum and Order, April 22, 1987, at 3-4; Memorandum and Order, September 17, 1987, at 3-9.
Although the procedures governing filing of proposed findings do not contain a
]
specific prohibition against additional responses not specifically authorized, as does Section 2.749(a), a party seeking to file a second responsive pleading, as it does here, should be required to make a substantial showing of good cause to justify pleadings not contemplated by the Rules of Practice.
r u.__o___.--
% 4-Interveners argue that they could not have anticipated the legal arguments proffered by LILCO in its reply findings.
Motion at 2.
The Board could very well decide the Motion based on a finding that interveners' September 14, 1987 proposed findings -- which devote 15 pages to' zoning issues -- evidences an adequate opportunity to cresent their legal arguments on the validity and applicabliity of the oning resolutions.
However, a more fundamental defect to the Motion is the inappropriateness of extended legal argumentation about a matter on which no evidence was adduced on the record.
Section 2.754(c) provides, in part:
Proposed findings of fact shall be clearly and concisely set forth in numbered paragraphs and shall be confined to the material issues of fact presented on the record....
No evidence concerning the validity or effect of the subject local resolutions was admitted into the record.
Nor was this a matter designated by the Board for briefing by the parties.
Thus, on February 4, 1987, the Board issued a Memorandum and Order, stating that the " alleged violations of local zoning ordinances... are properly matters to be determined by a state court. Until one or more of the parties obtain such a ruling, this Board will delay making a decision on this issue until it decides all other remaining issues before it."
Id. at 2.
See also, Memorandum and Order, February 9,1987 at 12-13.
When the Board closed the record of this proceeding, it noted that it would follow its cariler orders and would "take up the matter of the motion and any of the problems it presents at the time it's received. "
Tr.
19243 (Margulies).
Counsel for Suffolk County indicated that it contemplated treating the zoning matter in its findings or in another pleading (see Tr.
, 19238 (McViurray)), but the Board has consistently made it clear that it would defer dealing with these issues until they were definitively resolved in the New York State courts.
As a result, detalled treatment of the legal effect of the subject zoning resolutions is both inappropriate in a document to be devoted to the record evidence, and untimely, in view of the prior determinations that consideration of the issues was to be deferred.
No useful purpose is served by allowing further pleadings on the zoning issue.
There is, therefore, insufficient cause for permitting the requested reply finding, and it should not be permitted.
Ill.
CONCLUSION Interveners' Motion should be denied.
Respectfully submitted, 1C[L -
George Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of October,1987
l
{ j..-
{
00LKETED
,g USNRC i
Y UNITED STATES OF AMERICA i
L NUCLEAR REGULATORY COMMISSION
'87 OCT 23 P3 57 l
l BEFORE THE ATOMIC SAFETY AND LICENSING ENGI E I
]
~
BRANCH i
in the Matter of
)
)
1 LONG ISLAND LIGHTING COMPANY
)
Docket No.
50-322-O L-03 i
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
l Unit 1)
)
{
l l
CERTIFICATE OF SERVICE 1
I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENERS' i
REQUEST TO RESPOND TO LILCO REPLY FINDINGS ON ZONING j
ISSUE" In the above-captioned proceeding have been served on the l
following by deposit in the United States mall, first class or, as indicated by ~ an asterisk, through deposit in the Nuclear Regulatory. Commission's internal i
mall system, this. 21th day of October 1987.
a 1
I l
Morton B. Margulles, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue 1
Washington, DC 20555 Albany, NY 12210 I
Jerry R. Kline*
Fabian G. Palomino, Esq.
Administr tive Judge Special Counsel to the Governor
.l Atomic Safety and Licensing Board Executive Chamber
)
U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 e
Frederick J. Shon*
Jonathan D. Feinberg, Esq.
j Administrative Judge New York State Department of 1
Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza l
Washington, DC 20555 Albany, NY 12223 i
Philip McIntire W. Taylor Reveley lli, Esq.
3 Federal Emergency Management Donald P. Irwin, Esq.
l Agency Hunton S Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 l
Douglas J. Hynes, Councilman Town Board of Oyster Bay
. Town Hall Oyster Bay, New York 11771 i
s l
I l
' S Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor -
1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891
'1 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- E~lre State Plaza U.S. Nuclear Regulatory Commission A.,any, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel j
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.
l North Shore Committee Attorney General of the State P.O. Dox 231 of New York l
Wading River, NY 11792 Attn:
Peter Blenstock, Esq.
Department of Law l
Ms. Nora Bredes State of New York j
Shoreham Opponents _ Coalltion Two World Trade Center 195 East Main Street Room 46-14 I
Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
l General Counsel Office of General Counsel d
Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 1
Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Offico. 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 9
' George E[./Johrisph Counsel for NRC Staff
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ - _ _ _ _ _ _ -