ML20236E063

NRC Staff Response to Intervenors Motion for Leave to Reply to Staff & Lilco Exercise Findings.* Motion Fails to Comply W/Spirit of Board 870915 Order & Should Not Be Accepted. Certificate of Svc Encl

ML20236E063
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
Shared Package
ML20236E062	List: ML20236E059 ML20236E063
References
OL-5, NUDOCS 8710290048
Download: ML20236E063 (6)

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10/22/87.-

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UNITED STATES -OF AMERICA -

NUCLEAR REGULATORY COMMISSION

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BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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LONG ISLAND LIGHTING COMPANY.

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Docket No. 50-322-OL-5.

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(EP Exercise)

(Shoreham Nuclear Power Station,

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. Unit 1)

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NRC: STAFF RESPONSE TO' INTERVENERS' MOTION FOR LEAVE TO REPLY TO STAFF AND LILCO EXERCISE FINDINGS 1.

INTRODUCTION j

On October 5, 1987, interveners served Suffolk County, State of New York, and Town of Southampton Motion for Leave to Reply to LILCO

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i and NRC Staff Exercise Findings (" Motion"). The Motion should be denled as ' unauthorized under the Rules of Practice and the Board's Order of 1

September 15, 1987', and for failure to provide sufficient basis for deviation from the procedures applicable to party proposed finoings.

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 relief from the provisions of the Rules of Practice, which do not authorize the filing of reply proposed 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 is warranted in the circumstances here presented.

Interveners refer to the the Board's September 15, 1987 Order (Motion at 2, n.3), implying 8710290048 871022' l

ADOCK 0500 2

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' e that.the subject Motion is consistent with. that Order simply because i

Interveners did not submit with their Motion a ' separate document styled l

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" proposed findings."

However, the Board Order expressly stated that

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"any additional findings by a party or a participant-other than LILCO

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September 15,1987 Order j

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The subject Motion, 24 pages in length (including several lengthy -

single-spaced footnotes), with 39 pages of attachments, while professing il l

cc,mpliance with that Order, is largely a substantive reply to the LILCO l

1 reply findings, and therefore contrary to the Board's express direction.

While a party may be reasonably entitled to provide a basis for a I

motion for leave to file an otherwise authorized pleading, Interveners' Motion goes beyond what is reasonable.

The lengthy " examples" of asserted inadequacies in LlLCO's rep,1y findings are not what ope might have expected in a brief presentation of why a party should be permitted to reply to new matters not previously addressed. O 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 another response is a formula for endless pleading.

See, eg., Motion at 3-5.

It is inconsistent with the language of the applicable regulations i

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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 alrection 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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,; t. and: the - clear intent of the Board's recent order. For this reason, the Motion should. not be accepted by the Board, B.

Interveners Have Not Demonstrated that the Filing of Reply Findngs

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Even assuming, however, that the Motion may be ' entertained, the Motion should be denied on similar grounds. The numerous citations to the record provided by the " examples" show that Interveners.have indeed had an _ opportunity. to present their position, and have done so.

See, ej., Motion at 16-17, 19-20.

In any event, the Board is mandated to review the entire record before reaching its decision, and may be presumed ; to - read the proposed findings in light of that record.

Additional pleadings which would so,1cly serve to deal with " confusion,"

"misimpression," and the, like appear to suggest that the Board is unable to itself evaluate the proposed findings against the record.

This cannot be a basis for leave to reply.

In a recent ruling, the Board in the OL-3 proceeding aptly noted that "we need no assistance in keeping the record straight on the issues." Memorandum and Order, September 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 1

fairness the opportunity for reply, the Rules of Practice and the Commission Statement of Policy on the Conduct of Licensing Proceedings, i

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[- y 13 NRC 452, 453, 458 (1981), require denial of Interveners request to file otherwise unauthorized reply findings. 2,/

i Ill. CONCLUSION Interveners' V:otion falls to comply with the spirit of the Board's September 15, 1987 Order and should not be accepted.

Should it be accepted, however, Interveners have falled to show that either new matters -have been raised requiring further reply, or any prejudice which would warrant granting the Motion.

It should be denied..

Respectfully submitted, f(

eorge

. Jo nson l

Counsel for NRC Staff 4

Dated at Bethesda, Marylano this 22th day of October,1987 1

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Should the Board find that it needs clarification or further l

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information on any matters under consideration, there is ample authority for the Board to request it from the parties.

10 C.F.R.,

j Part 2, Appendix A, V. (g)(1).

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.s UNITED STATES OF AMERICA L

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

In -the Matter of

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LONG !SLAND LIGHTING COMPANY-

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Docket No'. 50-322-OL-5

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(EP Exercise)

(Shoreham Nuclear Power Station,

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Unit 1)

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CERTIFICATE OF SERVICE H

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I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENERS' MOTION FOR LEAVE TO REPLY TO STAFF AND LlLCO EXERCISE FINDINGS" l

In the above-captioned proceeding have been served on the 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 mall system, this 21st day of October 1987.

l John H. Frye lil, Chairman *'

Joel Blau, Esq.

l Administrative Judge Director, Utility Intervention I

Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 1

Oscar 11. Paris

• Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber la.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 W. Taylor Reveley fil, Esq.

i Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton 6 Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212

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Stephen B. Latham, Esq.

Herbert H. Brown, Esq.

Twomey, Latham & Shea Lawrence.Coe Lanpher, Esq.

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Attorneys. at Law-Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick. &. Lockhart

Riverhead, NY 11901 South Lobby - 9th Floor 31 1800 M Street, NW -

Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel *

' U.S. Nuclear. Regulatory Commission Jay Dunkleberger Washingicn, DC 20555 New York State Energy Office 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..

Martin Bradley Ashare,' Esq.

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 Shoro Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn:

Peter Blenstock, Esq.

Department of Law a

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 i

~ 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 1 "101 500 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 I

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l Ki,c.gpge E./Johnsorf c

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Counsel for NRC Staff e

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