ML20106J816
| ML20106J816 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/14/1985 |
| From: | Irwin D LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#184-603, CON-#185-603 CLI-85-01, CLI-85-1, OL-4, NUDOCS 8502190138 | |
| Download: ML20106J816 (8) | |
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LILCO, Februtry 14, 1985' UNITED STA.'3 OF' AMERICA-NUCLEAR REGULA ORY COMMISSION cc s gg a;
Before the Commission
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322eOL-4
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(Low Power)
(3horeham Nuclear Power Station, )
Unit 1)
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M%~...i LILCO'S MOTION FOR CLARIFICATION OF CLI-85-01 The Commission's February 12 Memorandum and Order in this matter, CLI-85-01, allowed the Atomic Safety and Licensing Board's Initial Decision of October 29, 1984 to become effective.
Though cast in the limited terms of an immediate effectiveness review, that Memorandum and Order encompassed all of the major substantive areas of controversy in this exemption proceeding far more fully than in a typical immediate-effectiveness review.
The Memorandum and Order articulated Commission law'and p61 icy on various areas
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central to the low power exemption proceeding.
Nevertheless, the Memorandum and Order states, in the first paragraph of 1 6 that its " grant of the exemption, and authorization of Phases III and IV of low power testing, is entirely without prejudice to ongoing reviews and hearings related to low or full power authorization."
4 (id, at 6).
For the reasons outlined below, LILCO' respectfully 8502190138 850214 PDR ADOCK 05000322 0
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. urges that thr Commission clarify its Memorandum and Order so as to make clear that this statement was-intended to avoid fore-closing the Appeal Board's review of the Licensing Board'sEdeter-minations of fact and its application of Commission law and policy to them; but'that the Commission.did not intend that the Appeal Board's' review of these matters proceed.in artificial ignorance of actual expressions of Commission law-and policy in CLI-85-01.
The pertinent regulation presumes that commission immediate effectiveness determinations will be " entirely without prejudice" to subsequent reviews, either on motions for stay or appeals on the merits, by the Licensing Board and Appeal Board.
10 CFR 5 2.764(g).
Thus the Memorandum and Order merely followed this presumption.
However, that same regulation provides that the Com-mission may give any degree of effect it desires to its immediate-effectiveness decisions in subsequent reviews by lower Boards if 1
it " explicitly so directs in its immediate effectiveness determi-nation."
Id.1/
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The full text of 5 2.764(g) is as follows:
(g)
Unless the Commission otherwise ex-plicitly so directs in its immediate effectiveness determination, no comment made in the course of the opinion or statement re-flecting that determination is to be given any weight by the Atomic Safety and Licensing Board or Appeal Board in its consideration of either a stay motion pursuant to 5 2.788(e) or an appeal on the merits pursuant to SS 2.762 (footnote continued)
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. J-The Commission has in this case a far more substantial immediate-effectiveness record _than that presupposed by the regu-
~1ations even for full-power reviews:2/ those regulations authorize "brief comments" filed within 10 days of the Licensing Board's de-cision; the Commission may even omit comments; no mention at all is made of oral argument.
S 2.764(f)(2)(ii).
In this case, as the Commission well knows, two rounds of extensive written com-ments were tendered by the parties, on November 29, 1984 and January 7, 1985,2/ plus numerous extramural briefs and affida-vits.1/
The Commission also held over two hours of oral arguments (footnote continued) and 2.785, or in any subsequent formal adjudi-cation.
The Commission's effectiveness deter-mination is entirely without prejudice to such consideration in subsequent proceedings.
I 2/
The regulations do not even presume such review in decisions involving operation at 5% power or less.
10 CFR SS 2.764(a),
2764(f)(2)(i).
3/
Pursuant to the Commission's direction, LILCO and the NRC Staff each limited their papers to 15 pages in length.
Suffolk County and New York State combined their presentations in two fil-ings 31 and 29 pages in length.
4/
"New York State and Suffolk County Supplementary Affidavit in Support of Comments Filed November 29.
" December 5, 1984; "LILCO's Objections to Suffolk County and State of New York Sup-plementary Affidavit and Affidavit of Alan M. Madsen," December 12, 1984; "New York State and Suffolk County Motion for Leave to Reply.
" December 15, 1984; "Suffolk County and State of New York Motion for Commission Declaration that 10 CFR S 50.47(d) Does Not Apply.
" December 19, 1984; "LILCO's Preliminary Response to Intervenors' Unauthorized December 19 Motion," December 31, 1984.
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- f on February 8. '.These papers and arguments were not restricted to the' stay-typs' criteria-typifying immediate effectiveness reviews and set forth. in :S F.764(f)(2)(i).E/
Rather, the arguments encom-p passed the full rangelof substantive issues raised in this vigor-ously contested exemption' proceeding.
Thus the Commission.had specifically.before it a far more comprehensive record, and con-ducted a far more extensive process,'than-that described by the h
immediate-effectiveness regulat' ions'.
The. result is.that the Com-
. mission's1immediate-effectiveness decision, expressed in'CLI s
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01, is far more deeply. rooted in the essence of this case thar. the.
typical immediate-effectiveness decision.
i The intensity of the Commission's involvement in the Shoreham-i 5% power,immediate-effectiveness review is particularly important-i n
given the numerous case-specific aspects of Commission law and policy' initially set up by the Commission itself in May 1984 in CLI-84-8 (19 NRC 1154 (1984)), and interpreted and articulated in i
i 5/
Section 2.764(f)(2)(i) reads in pertinent part as follows:
l An operating license decision will be stayed by the Commission, insofar as it authorizes i
other than fuel-loading and low power testing, if it determines that.it is in the public.in-l terest to do so, based on a consideration of i
the.oravity of the substantive issue, the l'
likelihood that-it has been resolved incor-
.rectly below, the decree to which correct-res-olution of the issue would be oreiudiced by the operation pendina review, and other rele-
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vant oublic interest factors.
(emphasis
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supplied).
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this week's Memorandum and Order, CLI-85-01.
Particularly with respect to the "as safe as" and public interest / balancing-of-equities tests set up by CLI-84-8 as a gloss on the standard ex-emptions provision, 5 50.12(a), but in other respects also, the Commission's February 12 Memorandum and Order clarifies and illu-minates its earlier standards.
Lower Boards should not be artifi-cially deprived of the guidance given by the Commission on-these basic matters of law and policy.
In short, the predominant issues before the Appeal Board involve interpretation of the Commission's
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language in CLI-84-8 and the application of CLI-83-17 to the ex-emption proceeding.
The Appeal Board, charged with interpreting the Commission's intent as to these issues, should not have to proceed in ignorance of the Commission's recent expression of its intent and its interpretation of those decisions.
CONCLUSION For the reasons stated above, LILCO moves.that the Commission clarify the disclaimer in the first paragraph of 1 6 of CLI-85-01 (slip op.) to provide that-(1) its judgments on the application of Commission law and policy to the facts of the low power decision are intended to be without prejudice to the Appeal Board's pending review of the Licensing Board's October 29, 1984 Initial Decision, and (2) the declarations of agency law and policy in CLI-85-01 are intended to be given deference and precedentiel effect by lower Boards as are any other such expressions by the Commission.
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. ??s Since the-Licensing Board's October 29 Initial Decision has been fully briefed and was argued to the Appeal Board this past Monday, February 11, and the Appeal Board-has subsequently denied motions by Intervenors~for a stay (Attachments 1 and 2 hereto), it may be presumed to be working on its decision on the merits'at this point.
So that the Commission's decision may be of practical value to the Appeal Board, we request that the Commission act on this motion as expeditiously as possible.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY
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Donald P. Irwin / //
Robert M. Rolfe Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 DATED:
February 14, 1985 i
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UNITEC STATES OF AMERICA NUCLEAR EE30LATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD l
Administrative Judgest Alan S.
Rosenthal, Chairman February 12, 1985 Gary J. Edles Howard A. Wilber
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In the Matter of
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LONG ISLAND LIGHTING COMPAdY
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Docket No. 50-322-OL-4
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(Shoreham Nuclear Power Station, )
(Low Power)
Unit 1)-
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ORDER Intervanors Suffolk County and the State of New Ycrk filed today a motion for a stay pendente lite of the Licensing Board's October 29, 1964 initial decision in the low power phase of this operating license proceeding.1 The motion is summarily denied as untimely.
The Commission's regulations explicitly require that any request for a stay pendente lite of e Licensing Board decision be filed
"(wlithin ten (10) days after service of (that] decision 10 CFR 2.798(a).
There is no explanation in intervanors' submission respecting why the.present stay request was not filed within the period prescribed by Section 2.788(a).
Intervenors do note that earlier today 1
the Commission voted to accord immediate effectiveness to the October 29 initial decision.
There is nothing in LBP-84-45, 20 NRC 1343.
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2 Section 2.78B(a) to suggest, however, that that vote operated to start anew the running of ohe prescribed ten day period for filing a stay requesc.
Needless to say, the' denial of-intervenors' motion should not be taken as implying any views on the merits of the issues presented by their pending appeal from the October 29 initial decision (which appeal has now been fully briefed and argued orally).
It is so ORDERED, FOR THE APPEAL BOARD h. [ -- N b.. '
C. @jan Shoemaker Secretary to the Appeal Eoard 2
Although it has no bearing on our action here, we note the representation of the intervenors that they are also seeking stay relief from the comm.ission.
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o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATONIC SAFETY AND LICENSING APPEAL ECARD Administrative' Judges:
Alan S. Rosenthal, Chaizzan February 13, 1985 Gary J. Edles Eoward A. Wilber
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i In the Matter of
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LONG ISLAND LIGITING COMPANY
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Docket No. 50-322-OL-4 i
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(Shoreham muclear Power station, )
(Low Power) i Unit 1)
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ORDER In a telephone conference yesterday afternoon,1 1'
intervenors suffolk County and the State of New York sought reconsideration of our order entered earlier in the afternoon in which their motion for a stay Dondente lite of the Licensing Board's October 29, 1984 initial decision 2,,,
summarily denied as untimely.
Reconsideration is also denied.
Contrary to intervences' assertion, we find nothing in 3
CLI-84-8 that could have been reasonably taken by them to have rendered inoperative in this instance the plain mandate 1 Participating in the oeuference were counsel for suffolk County (also apparently representing the state of New York), the applicent and the NRC staff.
3 19 NRC 1154 (1984).
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1 of 10 CFR 2.788 (a) that any application to an appeal board for a stay of a licensing board initial decision be filed within ten days after, service of that decision.
Insofar as here relevant, CLI-84-8 stated simply that any Licensing Board decision authorising a grant to the applicant of an exemption frost the General Design Criterion 17 requirements would act become effective until the commission had conducted an innsdiate effectiveness review.4 As we esplicitly determined in ALAB-787,5 issued prior to the I
Licensing Board's decision here, in taking this step the i
commission had not affected to any extent the independent l
adjudicatory review authority conferred upon us by the Rules of Practice.
An integral part of that authority is the consideration and di position of M applications under 10 CFR 2.788 for stays of initial decisions.
In short, the fact that the Comatission will conduct its own inneediate effectiveness review of a particular Licensing Board decision has no bearing upon the ability of an appeal board to stay itself the effectiveness of that decision -- so long 4
effectivenessreviewsof$rocadureforimmediateicensing board initial decisions
- 3. at 1156.
The is detailed in 10 C.F.R. 2.764.
Normally, the ccanission does not undertake such a review in an operating license proceeding unless the initial decision authorises facility operation at greater than five percent of rated power.
5 20 NBC 1097, 1100 (1984).
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3 as the request for such relief is made within the period prescribed by section 2.788(a).
Nor do we see any basis for the intervonors' reliance on the fact that the October 29 initial decision was rendered on an exemption application rather than directly on an application for a low-power or full-power license.
Apart from the fact that the effect of the decision was to clear 4
the path for a low-power license, section 2.788(a) allows no such distinctions it applies in terms to,alj, initial i
decisions that have possible operative effect.
t Finally, Section 2.788 (a) cannot be read as providing that a new ten-day period for seeking star relief from an appeal board is triggered by a commission decision granting 1
issnediate effectiveness.
And, as is illustrated by the circumstances of this case, there is. good reason for not allowing a party to await commission immediate effectiveness action before seeking Section 2.798 stay relief.
Because the intervenors withheld their stay motion until after the Commission voted yesterday morning to grant immediate effectiveness to the October 29 decision, they were compelled to ask for action on the motion -- filed with us (and presumably served upon the other parties to the proceeding) at 3:00 p.m. - by no later than 11:00 this
4 morning.6 aven allowing for our familiarity with the case stemming frost the briefing and oral argument of the merits of intervenors' appeal from the October 29 decision, such a proposed decisional schedule scarcely left a decent interval for responees to the motion and then our own deliberations.
Although denying stay relief for the reasons assigned in this order and that entered yesterday, we are herewith directing the applicant to provide us (and the parties) with two business days advance notice of its intention to embark upon Phase III of its icw-i.cwor testing program.
It is so onDERED.
FOR TEE APPEAL SCARD
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A c.QJean Shoemaker Sedretary to the Appeal Board The, dissenting opinion of Mr. Edles follows.
6 According to intervenors, this request was necessitated by the fact that the Casatission had indicated that its determination would take effect at 5:00 p.m. today unless an emergency stay was sought from a federal court of appeals in the interim.
Intervenors indicated that they had filed the stay motion with us in an endeavor to obviate the need for seeking judicial stay relief.
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5 Coinien of Str, Edles, dissenting:
4 I would grant a stay pendente h of the Licensing soard's decision.
I agree with my colleagues that the intervenors' request is untimely.
In a more usual situation, I would join in their result.
But we have already received briefs and heard oral argument on the aerits of the intervonors' appeal.
On fuller reflection, I now believe that the Licensing Board has probably erred in at least some respects and that such error requires a reversal of the Board's decision.
I would not allow the decision to go into effect and the applicant to nove to Phases ZZZ and IV of its low power operation, with the attendant contamination of the plant, until the problems with the Board's decision have been remedied.
Irrispective of our ultimate collegial view of the merits of the appeal, we can promptly reach a decision and articulate at least a brief rationale.
That being so, it seems pointless to as to j
require the parties and the Court of Appeals to go through i
the time and expense of judicial stay proceedings at this time.
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4-LILCO,fFsbruary--14, 1985' Cr CERTIFICATE OF SERVICE' In.the Matter.of LONG. ISLAND LIGHTING COMPANY.
-.(Shoreham Nuclear l Power Station,' Unit 1)
Docket No. 50-322-OL-4 (Low Power)
I hereby; certify that copies of LILCO'S MOTION FOR:CLARIFI-CATION OF CLI-85-01' vere served this dateLupon the following by U.S. mail, first-class, postage prepaid or.by hand or telecopier (as indicated.by one asterisk) or by Federal Express (as.indi-cated by two asterisksi._
Chairman Nunzio'J. Palladino*-
_ Gary J. Edles*
United States Nuclear Atomic Safety and Licensing
. Regulatory Commission Appeal Board, United States 1717 H Street-Nuclear Regulatory.Commi'ssion:
' Washington, DC 20555 Fifth Floor (North Tower).
East West Towers Commissioner James'K. Asselstine*
4350 East-West Highway United States Nuclear Bethesda,~ Maryland-20814 e
Regulatory Commission 1717 H Street, N.W.
Howard A.'Wilber*
Washington, DC 20555 Atomic Safety and. Licensing Appeal Board,' United States-Commissioner Frederick M. Bernthal*
Nuclear Regulatory Commission 1
United States Nuclear Fifth Floor (North Tower)-
Regulatory Commission East West Towers 1717 H Street, N.W.
4350 East-West Highway Washington, DC 20555 Bethesda, Maryland 20814 Commissioner Thomas M. Roberts
- Judge Marshall E. Miller,*
United States Nuclear Chairman, Atomic Safety Regulatory Commission
.and Licensing Board 1717 H Street, N.W.
United States Nuclear Washington, DC 20555 Regulatory Commission Fourth Floor 4
Commissioner Lando W. Zech, Jr.*
East-West Towers (West Tower)
United States Nuclear 4350 East-West Highway Regulatory Commission Bethesda, Maryland 20814 1717 H Street, N.W.
Washington, DC 20555 Judge Glenn O. Bright
- Atomic Safety and Licensing-l Alan S. Rosenthal, Chairman
- Board, United States Atomic Safety and Licensing Nuclear Regulatory Commission Appeal Board, United States
_ Fourth Floor Nuclear Regulatory Commission East-West Towers-(West. Tower)
Fifth Floor (North Tower) 4350 East-West Highway East. West Towers Bethesda, Maryland 20814 4350 East-West-Highway Bethesda.. Maryland 20814-e
._,-2_
Judge Elizabeth B. Johnson **
Martin Bradley Ashare, Esq.
Oak Ridge National Laboratory Suffolk County Attorney Building 3500-H. Lee Dennison Building P.O. Box X Veterans Memorial Highway Oak Ridge, TN 37830 Hauppauge, NY 11788 Edwin J. Reis, Esq.*
Stephen B.
Latham, Esq.**
Bernard M.
Bordenick, Esq.
John F. Shea, Esq.
Office of the Executive Twomey, Latham & Shea Legal Director 33 West Second Street United States Nuclear Riverhead, NY 11901--
Regulatory Commission Maryland National Bank Building The Honorable Peter Cohalan 7735.Old Georgetown Road Suffolk County Executive Bethesda, MD 20814 County Executive /
Legislative Building Herbert H. Brown, Esq.*
Veterans Memorial Highway Alan R. Dynner, Esq.
Hauppauge, NY 11788 Lawrence Coe Lanpher, Esq.
Kirkpatrick & Lockhart Jay Dunkleberger, Esq.
8th Floor New York State Energy Office 1900 M Street, N.W.
Agency Building 2 Washington, DC 20036 Empire State Plaza Albany, NY 12223 Fabu" Palomino, Esq.**
Special Counsel to the Governor Mr.-Martin Suubert Executive Chamber, Room 229 c/o Congressman William Carney State Capitol 1113 Longworth House Office Albany, NY 12224 Building Washington, DC 20515 James B. Dougherty, Esq.**
3045 Porter Street Docketing and Service ^
Washington, DC 20008 Branch (3)
Office of the Secretary United States Nuclear Regulatory Commission Washington, DC 20555 Aufd/ 6 /'!
Donald P.
Irwin /
I Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
February 14, 1985 t
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