ML20083J602

Motion to Strike Listed Ref in Suffolk County 831223 Brief. Incorporation by Ref Impermissible.Certificate of Svc Encl

ML20083J602
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/05/1984
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8401100206
Download: ML20083J602 (6)

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LILCO, January 5, 1984 003ETED USMC UNITED STATES OF AMERICA '84 JNi-9 /d0 :40 NUCLEAR REGULATORY COMMISSION 9FF:LE OF SEcatn oCC4Eim3&SEpVr..

3R A NCH Before the Atomic Safety and Licensing Appeal Board In the Matter of )

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

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(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S MOTION TO STRIKE CERTAIN REFERENCES IN SUFFOLK COUNTY'S BRIEF I. Impermissible Incorporation by Reference By Appeal Board Order of October 26, 1983, the page limit for Suffolk County's brief of December 23, 1983, was set at 140 pages. The County filed 131 pages of text. The County also, however, incorporated by reference almost 90 pages from its proposed findings of fact of January, April and May 1983, in order to develop certain of its appellate arguments and pro-vide record references for them. See Attachment 1 to this mo-tion for a list of.the pages so incorporated.1/ It is well 1/ Not all references in the County's brief to its proposed findings are included in Attachment 1. The list is limited to references that, in LILCO's judgment, constitute an attempt by the County to use its proposed findings to develop arguments in its brief and/or provide record references for them.

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established that such incorporation by reference is impermis-sible, both because it circumvents the pertinent page limit and because "[i]t is inappropriate to furnish record references in this fashion."2/

II. Remedy By this motion, LILCO asks that the references set out in Attachment 1 below be stricken from the County's brief. The remedy is appropriate because the County's lawyers are 2/ Kansas City Gas and Elec. Co. (Wolf Creek Generating Sta-tion, Unit No. 1), ALAB-424, 6 NRC 122, 127 (1977). As 'he Ap-peal Board said:

Insofar as the matter of citations to the record is concerned, the Coalition seeks to incorporate into its brief by reference a document which it filed with the Licensing Board last January.

Although not expressly stated, it would seem that the Coalition considers that that document furnishes the requisite citations.

It is inappropriate to furnish record ref-erences in this fashion; the plain contemplation of 10 CFR $2.762(a) is that all such references appear in the brief itself--thus making resort to other documents unnecessary.

Id. at 126-27. See also, e.g., Long Island Lighting Co.

(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 832-33 (1973); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-367, 5 NRC 92, 104 n.59 (1977);

Public Serv. Elec. and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769, 770 (1977); Tennessee Val-ley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B), ALAB-463, 7 NRC 341, 370 (1978); Toledo Edison Co.,

ALAB-560, 10 NRC 265, 371 (1979).

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experienced at the NRC bar; they know the rules governing briefs filed with this Board. People who know the rules and decline to follow them assume the risk of their enforcement.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY W. Tay]/or ele'y, III DATED: January 5, 1984

s Attachment 1 Page in SC Findings SC Brief Incorporated by Reference 6 County Findings, 5/9/83, at 37-49 14 Id. at 79-82 14 Id. at 80-82 17 County Findings, 1/31/83, Vol. I, at 121-26 26 Id. at '215-40 27 Id. at 245-49 50 County Findings, 4/7/83, Vol. I, at 33-39 56 Id. at 59-71 58 Ig. at 28-33 63 Id. at 67-68 103 Id. at 166 103 Id. at 168 104 Id. at 168-69 104 Id. at 167-68 111 County Findings, 1/51/83, Vol. II, at 21-24, 26-27 112 Id. at 22 112 Id. at 26 113 Id. at 23 115 Id. at 34-36 116 Id. at 34 L

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

Docket No. 50-322 (OL)

I hereby certify that copies of LILCO's Motion to Strike Certain References in Suffolk County's Brief were served today upon the following by Federal Express (as indicated by an asterisk) or by first-class mail, postage prepaid:

Alan S. Rosenthal, Chairman

• Lawrence Brenner, Esq.

Atomic Safety and Licensing Administrative Judge Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Fifth Floor Commission East-West Towers (North Tower) Fourth Floor 4350 East-West Highway East-West Towers (North Tower)

Bethesda, Maryland 20814 4350 East-West Highway Bethesda, Maryland 20814 Gary J. Edles, Esq.*

Atomic Safety and Licensing Dr. George A. Ferguson Appeal Board Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Fifth Floor U.S. Nuclear Regulatory East-West Towers (North Tower) Commission 4350 East-West Highway School of Engineering Bethesda, Maryland 20814 2300 6th Street, N.W.

Washington, D.C. 10059 Howard A. Wilber*

Atomic Safety and Licensing Dr. Peter A. Morris Appeal Board Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Fifth Floor U.S. Nuclear Regulatory East West Towers (North Tower) Commission 4350 East-West Highway Fourth Floor Bethesda, Maryland 20814 East-West Towers (North Tower) 4350 East-West Highway Bethesda, Maryland 20814

O Secretary of the Commission Mr. Marc W. Goldsmith U.S. Nuclear Regulatory Energy Research Group Commission 4001 Totten Pond Road Washington, D.C. 20555 Waltham, Massachu"etts 02154 Atomic Safety and Licensing MHB Technical Associates Board Panel 1723 Hamilton Avenue U.S. Nuclear Regulatory Suite K Commission San Jose, California 95125 Washington, D.C. 20555 Stephen B. Latham, Esq.

Atomic Safety and Licensing Twomey, Latham & Shea Appeal Board Panel 33 West Second Street U.S. Nuclear Regulatory P.O. Box 398 Commission Riverhead, New York 11901 Washington, D.C. 20555 Ralph Shapiro, Esq.

Bernard M. Bordenick, Esq. Cammer and Shapiro, P.C.

David M. Repka, Esq. 9 East 40th Street U.S. Nuclear Regulatory New York, New York 10016 Commission Washington, D.C. 20555 James B. Dougherty, Esq.

3045 Porter Street David J. Gilmartin, Esq. Washington, D.C. 20008 Attn: Patricia A. Dempsey, Esq.

County Attorney Howard L. Blau, Esq.

Suffolk County Department 217 Newbridge Road of Law Hicksville, New York 11801 Veterans Memorial Highway Hauppauge, New York 11787 Jonathan D. Feinberg, Esq.

New York State Herbert H. Brown, Esq.* Department of Public Service Lawrence Coe Lanpher, Esq. Three Empire State Plaza Karla J. Letsche, Esq. Albany, New York 12223 Kirkpatrick, Lockhart, Hill, Christopher & Phillips Mr. Jay Dunkleberger 8th Floor New York State Energy Office 1900 M Street, N.W. Agency Building 2 Washington, D.C. 20036 Empire State Plaza Albany, N w York 23 h 11 lb llAs /Ab s (W. }evd1'eW'[I Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: January 5, 1984

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