ML20195E907
| ML20195E907 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/12/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20195E904 | List: |
| References | |
| LBP-88-24, OL-6, NUDOCS 8811160334 | |
| Download: ML20195E907 (3) | |
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LILCO, November 12,1988
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'68 hW 14 p4 :09 p;h DCC Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-6
) (25% Power)
(Shoreham Nuclear Power Station,
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Unit 1)
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LILCO'S MOTION FOR LEAVE TO FILE ANSWER TO INTERVENORS' OCTOBER 31 RESPONSE On October 31, 1988, Intervenors filed a pleading entitled Govcrnments' Re-sponse to LILCO's Request for Immediate Authorization to Operate at 25% Power (hereinaf ter "Intervenors' Response"). LILCO believes that Intervenors' opportunity to participate further in the 25% power phase of this proceeding has already been fore-closed by the Board's decision in LBP-88-24 to dismiss Intervenors entirely from the Shoreham proceeding for their sustained and willful strategy of disobedience and disro-spect for the Commission's adjudicatory process. See LILCO's Request for Immediate Authorization to Operate at 25% Power (October 21,1988) (hereinaf ter "LILCO's Re-quest") at 6-8.
Accordingly, LILCO submits that Intervenors' Response, and the at-tached affidavit of Steven C. Sholly, are unauthorized and should be stricken.II I
Nevertheless, in the event that the Board should choose to consider Intervenors' Response, LILCO hereby seeks leave to ille a brief answer, which is attached. LILCO believes that there is good cause to file an answer, for the following reasons:
1/
In a letter dated October 24,1988 from Lawrence Coe Lanpher to the Licensing Board, Intervenors stated that they "construe (d)" LILCO's Request "as being a motion under the NRC's rules," and that they "intend ('.d) to respond, as appropriate, in accor-dance with those rules." It goes without saytrg that if Intervenors are already dismisseu
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from the 25% power phase of the proceehg, they cannot unilaterally assert that they have a right of reply, no matter how t! ey choose to "construe" LILCO's Request.
D A
1.
Intervenors are fundamentally wrong in their assertion
- advanced for the first time in their Response - tnat this Board lacks jurisdiction to consider LILCO's Re-quest.
2.
Intervenors' claims as to why they should not be dis-missed from the OL-6 subdocket (assuming arguendo that they are not already dismissed) - advanced for the f!rst time in their Response - are based on a plain misinterpretation of ALAB-902.
3.
Intervenors' arguments concerning the Staff's technical evaluation of LILCO's 25% power request - advanced for the first time in their Response - Ignore com-pletely the arguments which LILCO has made based on the Staff evaluation.
In light of these pervasive errors, aJ well as others contained in Intervenors' Response, LILCO believes that Board consideration of LILCO's answer is appropriate and would facilitate an expeditious resolution of LILCO's 25% power request.
In particular, the novel allegation thrt this Board lacks jurisdiction to even con-
.c.ider LILCO's Request alone demonstrates the appropriateness of LILCO being allowed an opportunity to respond. LILCO could not have reasonably anticipated that Interve-nors would make such an argument, and thus it is fitting that LILCO's views on this threshold iss'.:e be considered. As LILCO explains in its answer, this Board retains juris-diction to decide LILCO's Request because the findings that the Board must make under l
10 C.F.R. S 50.47(c)(1) and, in turn, S 50.57(a)(3) and S 50.57(c) in order to authorize
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25% power operation are different from the findh.gs that the Board made in authorizing l
full power operation in LBP-88-24. Intervenors' spurious "jurisdiction" argument is by and large a reflection of their apparent refusal to accept LILCO's right to pursue its 25% power request through the provisions of S 50.57(c) and of their own unwillingness to recognize that LILCO's 25% power request rests in a unique (but proper) procedural posture in this phase of the Shoreham proceeding.
Similarly, the Board should consider LILCO's answer to Intervenors' mischaract-j erization of ALAB-902, as Intervenors' interpretation of that decision not only distorts
i ALAB-902's meaning, but would add further complexity to an already ambiguous and un-certain area of Commission law if that erroneous interpretation were to be adopted.
Moreover, how the rationale of ALAB-902 should apply to the issue of Intervenors' dis-missal from the OL-6 subdocket is a question of first impression, and one that should not be addressed by this Board without the benefit of LILCO's reply to Intervenors' de-monstrably incorrect views.
For the foregoing reasons, LILCO asks that the Board grant leave to file LILCO's answer, which is attached.
Respectfully submitted, Donald P. Ifwin David S. Harlow t
Counsel for Long Island Lighting Company l
Hunton & Williams 707 East Main Street P.O. Box 1535 t
Richmond, Virginia 23212 DATED: November 12,1988
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