ML20028H291
| ML20028H291 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/19/1990 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| References | |
| CON-#490-11081 91-621-01-OLA, 91-621-1-OLA, CLI-90-08, CLI-90-8, OLA, NUDOCS 9011300082 | |
| Download: ML20028H291 (14) | |
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UNITED STATES OF AMERICA Nnc NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD % NOV 20 A9 :48 Before Administrative Judgen:
.y Ndi m;Z
- 4 vit.I Morton B.
Margulies, Chairman
- R t,NL.H Dr. George G.
Ferguson Dr. Jerry R.
Kline 53RVEO NM/ 2,I'1990
)
In the Matter of
)
Docket No. 50-322-OLA
)
LONG, ISLAND LIGHTING COMPANY
)
ASLBP No. 91-621-01-OLA
)
(Material License No.
)
November 19, 1990 35-17178-01, EA No.89-223) )
).
1 MEMORANDUM AND ORDER (Rejacting Petitioners
- Motion of November 9, 1990-for Restraining Order and Other Relief)
A.
The Motion Petitioners shoreham-Wading River Central School District
- And-Scientists And-Engineers-For Secure Energy, Inc. filed a
> motion in the captioned; proceeding titled " Motion For Restraining order And Other Relief By Petitioner-Intervenors Shoreham-Wading River Cantral School District And Scientists'And Engineers-For Secure Energy, Inc._" with~a certificate of_ service dated
-November 9, 1990.
In'tho' motion, Petitioners seek an order (1) restraining Long Island Lighting Company (LILCO) and alleged interested persons not. party to the proceeding from meeting and communicating with any adjudicatory employees; (2) restraining the. restrained persons from allowing any visits by any Commission 9011300002 901119 I
PDR ADOCK 05000322' l
0 pon f
4
-2 adjudicatory employees to the Shoreham Nuclear Power Station site; (3) requiring the restrained persons to submit memoranda describing contacts had with adjudicatory employees relating to Docket No. 50-322 since July 14, 1989; and (4) requiring the restrained persons to serve Petitioners with copies of certain papers submitted to the Commission after July 14, 1989 relating to particular types of meetings and notice of particular meetings.
Petitioners alleged that an immediately effective order was necessary to. secure adherence to the Commission's ex carte rules-and the Government in the Sunshine Act; to protect Petitioners due process rights; and to avoid the appearance of giving preferential treatment and: losing independence or impartiality.
Petitioners asserted that parts (1) and (2) of the requested order need immediate implementation, even on an ex carte basis, due to an impending violation of the ex carte rules on November 13, 1990.
The alleged need for the order results from an October 24, 1990. memorandum from the Executive Legal Assistant to Commissioner James R. Curtis to Petitioners and others.
It advised that commissioner Curtis would visit the Shoreham site on November 13, 1990 during which he would tour the facility and meet with LIL'CO management and operating personnel "to review the general status of activities at the facility."
Another instance alleged as a ground for issuance of the requested order was a " Drop-in Visit" from a LILCO vice president
{
4
-3 to the Chief Reactor Project Branch No.
2, Division of Reactor Projects in NRC Region I, on September 1, 1990.
Petitioners requested the Board to exercise its power to regulate the course of the hearing and the conduct of the participants by issuing an immediate effective order granting the relief requested.
B.
The Response LILCO filed a response to the motion titled "LILCO's Opposition To Emergency Aspects of Motion For Restraining Order And Other Relief By Petitioners For Intervention" dated November 12, 1990.
Licensee asserted that Petitioners filed their motion after the close of business on November 9, 1990 without prior notice.
LILCO considered the motion to have two distinct elements:
first, a request that the' Board enjoin a visit by Commissioner Curtis to the Shoreham site scheduled for the following day, November 13 and second, a longer-term request for relief relating to both formal and informal Commission processes concerning the Shoreham plant.
LILCO only responded to that portion of the motion seeking immediate relief and would respond, absent further instruction from the Board, to the second, longer-term aspect of the motion under the normal timetable in the Rules of Practice.
LILCO requested that the Board summarily deny Petitioners' emergency request that the Board enjoin the intended site visit
. of Commissioner Curtis on November 13, 1990.
It presented four arguments for the requested denial.
1.
The site visit by commissioner curtis is not within the scope of issues remanded to the Board by the-Commission in CLI-90-08.
2.
Petitioners have no standing to request the Board to enjoin the site visit.
3.
Petitioners have failed to exhaust their remedies-as evidenced by their failure to allege that they had requested permission to accompany the Commissioner on the site visit.
4.
Petitioners have created the emergency, the proposed site visit having been made public on October 24, 1990.
C..
The Board's Delegated Authority The Board was appointed to review and to resolve six petitions filed by Petitioners requesting to intervene and to hold hearings regarding amendments to'the Shoreham full power-t operating license held by LILCO.
The' amendments involve:
prohibiting ~the licensee from placing any nuclear. fuel in the reactor. vessel without prior approval from the commission;
. allowing changes in: the physical security plan for the plant and a reduction in the security forces; and allowing changes in s
offsite emergency preparedness plans and activities.
4 9.-- The Commission, in Memorandum and Order, CLI-90-08 (October 17, 1990), had considered the petitions and determined that the Staff need not file an Environmental Assessment or an Environmental Impact Statement reviewing and analyzing resumed operation of Shoreham Nuclear Power Station as a nuclear plant, as an alternative under the National Environmental Policy Act.
The six petitions were forwarded to the Licensing Board with directions to " review and resolve all other aspects of these hearing requests in a manner consistent with this opis. ion."
Petitioners, by joint petition to the Commission, dated October 29, 1990, requested that CLI-90-08 be reconsidered and vacated insofar as that order precludes-the consideration of the alternative of renewed operations of Shoreham in the context of the proposal to decommission the plant.
D.
The Request For Urgent Relief The-Chairman of the Licensing Board first became aware of-
.the contents of the subject motion when he was telephoned by Petitioners' attorney at home at 10.55 a.m. on Monday,
- November 12.
November 12 was Veterans Day, a Federal holiday..
The attorney described the request for urgent relief which would have restrained LILCO from receiving Commissioner Curtis, the next day, at the Shoreham site.
He advised that the motion was faxed to the Secretary's office (White Flint) and the Board's I
.=
6 office (Bethesda) at about 5:00 p.m. on Friday, November 9,1 and that LILCO had filed a response at 9:30 a.m. the day he was making the call.
The sequence of events regarding the filing of the motion was as follows.
The notice of the proposed visit was first made public on October 24.
On Wednesday, November 7, in the morning, Petitioners' attorney telephoned the Chief Judge's secretary advising that he would be faxing a motion that would require immediate attention and inquired about service on the Board member not located at the Board's office.
That afternoon, the Board Chairman's secretary telephoned the attorney's secretary with the address of the Board member.
Shortly thereafter, Petitioners' attorney telephoned the Board Chairman's secretary and advised that the motion was not being sent at that time, however, he would notify the secretary on when the motion would be faxed.
No faxed motion was received that day nor on Thursday or on
-Friday during business hours.
The Chairman's secretary was never alerted as to any fax to be sent on Friday, November 9 after business hours.
The above time sequence was discussed with Petitioners' attorney by. telephone on Monday when-he was told by the Chairman
' Copies of the faxes of the motion showed they were received on November 9 at the Secretary's office from 5:08 p.m. to 5:18 p.m. and at the Board's office from 5:21 p.m. to 5:55 p.m.,
albeit after-the close of business.
j
t that the motion was untimely and that it would not be reviewed on its merit.
The motion had been filed more than two weeks after the primary cause for its filing arose.
The Board was alerted on Wednesday morning that a motion was to be filed yet it was not until after the close of business on Friday that the motion was faxed to the Board's unattended office.
Absent alerting anyone to the filing, it could not reasonably be expected that there-would-be a response during the three day weekend that followed.-
It was not until the third day after the filing that Petitioner's attorney notified the Board Chairman of the need for action.
The-Chairman, without any of the motion papers or knowledge of.the whereabouts of the other Board members, could not take any meaningful action on the unreasonably tardy.
submission.
The Chairman would not accept in justification a claim that the attorney needed-additional time for filing because.
/of the need to do research.
Delays by the. filer-of-the motion t
-helped create any urgency that existed.
'All' Board members 1 concur that the request for urgent relief was untimely and that the request was properly denied.
E.
The Request For Additional Relief 4
The Board now'having had the opportunity to read the motion finds in addition to Petitioners' request for urgent relief related to the site visit by Commissioner Curtis it also seeks additional relief that is not of the same urgency.
It consists i
. of (a) requiring the restrained persons to submit memoranda under oath or affirmation describing on any or all contacts which they have had with Commission adjudicatory employees relating to Docket No. 50-322 since July 14, 1989 and (b) further requiring the restrained persons to serve Petitioners (1) with copies of papers submitted to NRC after July 14, 1989 relating to the
_ proposal to decommission the Shoreham facility and (2) with notice not less than 14' days in advance of any meeting to be held between those persons and any NRC personnel relating to Docket No. 50-322 with a full description of the meetings.
The Board considers this request for additional relief because it is without a time constraint.
However, upon review it is apparent to the Board that all of the relief requested by the Petitioners in the motion is beyond the jurisdiction of the Board, the motion being misdirected.
The Board rejects the motion at this time because of the patent lack of jurisdiction of the subject matter.
It is done now-without awaiting responses to the motion by the other parties to avoid undue delay should Petitioners seek to refile within the Commission.
f F.
Lack Of Board Jurisdiction Of Subject Matter Of The Motion Petitioners' motion requests that the Board restrain the ex parto communication of the Licensee and other non parties.
However, the actions complained of were the scheduling of a visit
e to Shoreham by a Commissioner and a meeting between senior staff and LILCO officials in an NRC regional office.
In essence, therefore, Petitioners' motion inextricably involves behavior of HRC officials with that of_the Licensee.
Stripped to its essentials, Petitioners contend that the Commission and its staff engages in ex carte communications with the Licensee that are prohibited by the Commission's rules governing ex carte communications, 10 CFR 2.780 and 2.781 and the Government in the Sunshine Act, Pub.
L.94-409; 90 Stat. 264.
They seek enforcement of the statute and regulations prohibiting ex carte communications:to assure Petitdoners a fair hearing.
As a consequence,-Petitioners seek to restrain any future violations and to obtain reports of contacts that may evidence any violations.
These issues raised'by Petitioners go far beyond the
- authority _ delegated'by the Commission to the Board which was to review and resolve the six petitions to intervene and to hold hearings in regard to the subject amendments to the Shoreham operating license.
The amendments cover prohibiting the licensee
- from placing any fuel in the reactor vessel without prior approval from the Commission; allowing changes in the physical security plan for the plant and a reduction in the security forces; and allowing changes in offsite emergency preparedness
-plans and activities.
The matter of assuring a fair hearing is a requisite of all adjudicatory hearings, and it is within this Board's jurisdiction
..------a..
.- to afford due process to parties appearing before it.-
It is generally of an ancillary nature rather than a principal issuo.
However, those issues that Petitioners raise are of another sort.
They raise the question of whether the Licensee as well as the Commission and its str.if are acting in accordance with the law and whether they should be enjoined to comply.
To answer the question, an inquiry of a primary nature would have to be conducted to determine whether there was a failure to follow the law and that relief was warranted.
The Commission and its staff communicate with licensees in more than the single role as adjudicators.
The Commission is responsible for the agency's technical program in addition to adjudication.
The Commission has not delegated to the Board any authority to conduct an independent inquiry of a type necessary to satisfy Petitioners' request.
A licensing board has only the jurisdiction and power which the Commission delegates to it.
This was clearly set.forth in Duke Power Comoany, et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790.
Adjudicatory boards do not have plenary subject matter jurisdiction in Commission proceedings.
Under the Atomic Energy,Act, the Nuclear Regulatory Commission is empowered to administer the licensing provisions of the Act and-use licensing boards "to conduct such hearings as the Commission may direct."
The boards, therefore, are delegates of the Commission and, as such, they may exercise authority over only those matters that the Commission commits to them.
The various hearings notices are the means by which the Commission identifies the subject matters of the hearings and delegates to the boards the authority to conduct proceedings.
(Footnote references omitted.)
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11 -
Being a subordinate adjudicatory body without plenary jurisdiction, the relief Petitioners seek is beyond the scope of our authority.
The petition must therefore be rejected.
An unanswered question is why Petitioners filed its petition for relief with this Board and not with the Commission, the holder of plenary authority.
Just as Petitioners seek intervention and to hold hearings in the license amendment applications before this Board, they presently appear _directly before the Commission in Docket No. 50-322 in_which they seek to intervene and request a hearing in the LILCO license' amendment application to remove from the license LILCO's authority to operate Shoreham and to amend the license to that of a "defueled operating license."
Petitioners are also Lbefore the Commission under the same docket number in their
-request-for reconsideration and to partially vacate CLI-90-08.
It would not appear that the conduct of the Commission and staff complained of by-Petitioners would affect the proceedings before the' Commission any differently than that before this Board, yet that forum was never chosen.
Whatever the reason for Petitioners' choice for filing the motion with the Board and not the Commission, it was erroneous to make the filing with'the Board because it-lacks jurisdiction of the issues.
The Board therefore rejects the motion.
12 -
ORDER Petitioners motion of November 9, 1990 for a restraining order and other relief is hereby rejected.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
~
e-aw Morton B. Ma'rgulies
' Chairman A3MINISTRATIVE LAW JDGE I
Bethesda, Maryland November 19, 1990 r
r K
M M
_.musimmuuni.-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS$10N in tne Matter of i
i LONG ISLAND LIGHTING COMPANY l
Docket No.(s) 50-322-OLA I
(Shorenam Nuclear Power Station) i l
i CERTIFICATE OF SERVICE
! hersey certify that cooles of the forsootna LB MEMO. AND ORDER DATED 11/19 have been served upon'the followino persons by U.S. mail, first class, except as otherwise noted and in accordance with the recuirements of 10 CFR Sec. 2.712.
Atomic-Safety and Licensino Acceal-Administrative Judoe Boaro Morton B. Maroulies. Chairman
-U.S. Nuclear Raoulaterv Commission Atomic Safety and Licer.sino Board Washinoton. DC 20555 U.S. Nuclear Raoulatory Commissten Washinoten. DC 20555 Administrative Judge Administrative Judge Jerry R. Kline-Georce A. Ferguson Atcaic Safety and Licensino Board ASLBP
- U.S. Nuclear Reculatory Consission.
5307 Al Jones Drive
-Washinoton. DC 20555 Columb,la Beach. MD 20764
-Mitzi-A.-Youno.-Eso.
Edwin J. Reis. Esc.
Office-of the General Counsel Office of the General Counsel
~ U.S. Nuclear Reculatory Conaission U.S. Nuclear-Regulatory Commission Washincton..DC 20555-Washinoten.-DC 20555 Donald P. Irwin. Eso.
James P. McGranerv. Jr.. Esc.
-Hunton & Williams Dow. Lohnes k Albertson P.O. Box'1535 1255 23rd St..
N.W., Suite 500 Richmond, VA 23212 Washinoten. DC 20037
,I Michael R..Deland. Chairman Stechen A..Wakefield Council on Environmental' Quality General Counsel Executive Office'of'the President Decartment of Eneroy Washinoton'. DC 20500 Washinoten. DC 205B5 l
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- Docket No.(s)50-323-OLA LB MEMO. AND ORDER DATED'11/19 Car.1 R.-Schneker. Jr.. Eso.
, Counsel. L.
l.- Power Authert v 0'Melvenv L Myers
$55 13th Street. N.W.
Wasninaton. DC 20004 Dated at Rockville. Md. this 20-cay of November 1990 Office of the See tary of the Commissten i
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