ML20138M762

Order Deciding That Commission Will Review ALAB-818 & Issue Appropriate Scheduling Re Realism & Immateriality Issues.Separate Views of Palladino & Asselstine Disapproving Order Encl.Served on 851219

ML20138M762
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/19/1985
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	NRC COMMISSION (OCM)
References
CON-#485-536 ALAB-818, OL-3, NUDOCS 8512230150
Download: ML20138M762 (4)

Text

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cgt{T UNITED SIATES OF AMERICA mcIrAR mioRY mSSh 8DEC 19 P1:09 COM4ISSIONERS: , . ..

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Nunzio J. PallaMno, Chairman . 3aMICH Thomas M. Roberts James K. Asselstine Frederick M. Berntha Iando W. Zech, Jr. SERED DEC191985

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In the Matter of )

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IONG ISIAND LIGfI'ING CWPANY ) Docket No. 50-322 OL-3

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(Shoreham Nuclear Power Station) )

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ORDER The Camission has decided that it will take review of AIAB-818

• (October 18, 1985).1 ,Ihe Cmmission expects that it will review the

> preenption, " realism" and "inmateriality" issues specifically addressed in AIAB-818, and will also address whether Suffolk County Resolution 111-1983, dated February 23, 1983, and related resolutions not to participate in emergency planning, are preenpted by federal law. r. Tim did not raise the due process issues with the Appeal Board, and under 10 C.F.R. 2.786(b) (4) (iii), the Camission will not review issues "that could have been but were not raised" before the Appeal Board.

While taking review at this time, a detailed specification of issues, briefs and, if useful, oral argument, will be ' deferred at least 8512230150 851219 2 DR ADOCK 050 I

The Omnission also grants licensee's motion for an extension of the page limit of 10 C.F.R. S 2.786(b)(2) and accepts the pleading

opposing review jointly filed by Intervenors.

nob .-_ .__

until the Appeal Board's-resolution of intervenors' pending appeal on other emergency planning questions. At that time the Commission will issue appropriate scheduling and other orders.

Chairman Palladino and Commissioner Asselstine disapproved this order and provided the attached separate views.

It is ORDERED.

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.'. f} Q? Fog the Commission *

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.. ,- / Shmuel J.'Chilk'

' ' C< Secretary o1[ 'the Commission Dated at Washington, D.C.

this !7 day of December, 1985

• Commissioner Bernthal was not present for the' affirmation of this order. He had previously indicated his approval of it and if he had been present, he would have affirmed his vote.

Commissioner Asselstine did not participate in the formal vote of the Commission in order to allow the will of the majority to prevail.

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SEPARATE VIEWS OF CHAIRMAN PALLADIN0 I do not agree with the Commission's decision insofar as it defers the specification of issues for review and the filing of briefs. The deferral ordered by the Commission is open-ended and will delay the Commission's determination of what appear, at this time, to be the key emergency planning issues in this proceeding.

The better course, in my view, is to begin the process for specification and briefing of issues now. In addition, the Commission could request the parties' views on the need to await the Appeal Board's decision on other emergency planning issues and, thus, gain broader-based information on the need for deferral.

6 SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I agree with -the Commission's decision to take review of ALAB-818. That decision raises important issues of law and policy which the Commission itself should decide.

However, I do not agree with the Commission's decision to delay briefing, oral argument and resolution of these issues until the Appeal Board completes ~ its review of other emergency planning issues. The Commission should decide whatever issues it can decide as early in the process as is possible. The issues presented in ALAB-818 are for the most part legal, they are separable from the issues still to be reviewed by the Appeal Board, and they are central to the whole emergency planning controversy at Shoreham. Declining to even begin consideration of these issues will only further delay a final decision in this case.

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