ML20140D695
| ML20140D695 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/24/1986 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| CON-#186-536 OL-3, NUDOCS 8603260419 | |
| Download: ML20140D695 (15) | |
Text
g N -
/c UNITED STATES OF AMERICA [ -
~
NUCLEAR REGULATORY COMMISSION :i ,n o '
-4 l,i,a w " 3' , ' p;;
A vA *,_tocm:n&ma w== sg BEFORE Tile COMMISSION EICY-EPC g% ..
/
In the Matter of )
)
LONG ISLAND LIGIITING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF'S RESPONSE TO INTERVENORS' MOTION CONCERNING
' PROCEDURES RELATED TO TITF SilORE!!AM EXERCISE AND APPLICANT'S MOTION FOR ESTABLISilMENT OF LICENSING BOARD AND INSTITIITION OF EXPEDITED PP.CCEDURES FOR LITIGATION OF EMERGENCY PLANNING ISSUES Edwin J. Reis Assistant Chief Ilearing Counsel l March 24, 1986 l-i 8603260419 860324 PDR ADOCK 05000322 30 7 G PDR
4-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile COMMISSION In the Matter of )
-)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Eraergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
?UTC STAFF'S RESPONSE TO INTERVENORS' MOTION CONCERNING PROCEDURES RELATED TO TITE SIIOREI!AM EXERCISE AND APPLICANT'S MOTION FOR ESTABLISIIMENT OF LICENSING BOARD AND INSTITIITION OF EXPEDITED PROCEDURES FOR LITIGATION OF EMERGENCY PLANNING ISSUES Edwin J. Reis Assistant Chief Hearing Counsel March 24,198G
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMilISSION BEFORE TIIE COMMISSION In the Matter of )
)
LONG ISLAND LIGilTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
-(Shoreham Nuclear Pov'cr Station, )
Unit 1) )
NRC STAFF'S RESPONSE TO INTERVENORS' MOTION CONCERNING
, PROCEDURES RELATED TO Tile SilORE!!AM EXERCISE AND APPLICANT'S MOTION FOR ESTABLISilMENT OF LICENSING BOARD AND INSTITUTION OF EXPEDITED PROCEDURES FOR LITIGATION OF EMERGENCY PLANNING ISSUES The Intervenors and the Applicant _have moved this Commission to establish procedures for the litigation of any issues which may arise from the conduct _ of the February 13, 1986, emergency planning exercise for the Shoreh'am Nuclear Power Station. O The Intervenors in their motion essentially ask that the Commission rule that no party is required ta proceed with litigation on the exercise until after _the Federal Emerstency Management Agency's (FEMA'si report evaluating the exercise is issued, and that the Applicant, the Long Island Lighting Co. (LILCO), has the
-1/ " Motion of Suffolk County, the State of New York, and the Town of Southampton for Ruling Concerning Proceedings Related to the Shoreham Exercise" (Intervenors' Motion), dated March 7, 1986; "Long Island Lighting Company's Motion for Establishment of Licensing Board and Institution of Expedited Procedures for Litigation of Shoreham Energency Planning Exercise and Response to Intervenors' March 7, 1986, ' Motion Concerning Proceedings Related to Shoreham Exercise'" (LILCO Motion), dated March 13, 1986.
o burden of showing how it wishes to rely on the exercise to establish that the Shorehan Nuclear Plant should receive a full power license. 2_/
LILCO asks that.the Commission appoint a Licensing Board to hear issues l
related to the exercise and that the Commission set procedures to provide l for the expeditions consideration of any material contention which arises l
l from the conduct of the exercise. .The NRC Staff concurs with the views expressed by both the intervenors and the Applicant that it is l appropriate for the Commission to set procedures for the consideration of l.
contentions which might be raised as a result of the exercise. The Staff further believes , that in view of the long litigation her( ..' , such i
proceedings should be expedited by charging the same Licensh.7 Board which formerly considered emergency planning issues herein with embarking upon as expedited a proceeding as possible, consonant with due process, to resolve any issues resulting from the February 13, 1986, exercise.
l BACKGROUND The application for the Shoreham operating license was filed on March 18,1976. Hearings on LILCO's application for an operating license
-2/ Intervenors had previously requested the Appeal Board to grant similar relief. The / pneal Board denied this relief on April 24, 1986, stating:
l' At this juncture, each of the parties will have to make its own
! determination respecting (1) what procedural rights arise from l, the exercise and (2) when those rights must be pursued. As a general matter, we are disinclined to issue advisory opinions of
- the stripe requested by the intervenors and we perceive no special circumstances calling for such action in this matter, i
ALAB Order, at 1-2.
1
_,- . __ -~. ._
began on May 4, 1982. liearings on off-site emergency planning
. commenced on December 6. 1983. These hearings involved whether LILCO's off-site emergency response plan, developed because the state and local governments refused to cooperate in off-site emergency response planning, provides " reasonable assurance that adequate protective measures can and will be taken in the event .of a radiological emergency" at Shoreham. See 10 C.F.R. 9 50.47(c)(1). The Licensing Board issued decisions on aspects of this LILCO plan on April 17, 1985, and August 26, 1985. LB P-85-1 ? , 21 NRC 644; LBP-85-31, 22 NRC 410. It found that the plan, with the exception of minor defects which should be corrected before ~ plant operation, contains those elements which should be included in an emergency response plan. See 22 NRC 429-431. Ilowever, it " concluded that the LILCO plan is fatally defective . . . [in that] the Applicant does not have legal authority to implement the plan . . . [and]
the opposition of the State and County has created a situation where at eny priven time it is not known whether the plan would be workable."
22 NRC 431, see also 21 NRC 660-70, 884-85, 991; 22 NRC 426-31. On this basis the Board further concluded "that there is no reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at Shoreham, and therefore no operating license shall be issued for the nuclear power reactor, as is authorized by
, 10 C.F.R. F 50.47(a)(1)."
Both the Intervenors end LILCO appealed from the Licensing Board's
' determinations. The Appeal Board severed the legal authority issues for expedited review and in A L A B-818, 22 NRC 651 (1985), affirmed the Licensing' Board's conclusion that LILCO had not established that it had
, legal authority to carry out its off-site emerfrency response plan . -
3I LILCO sought Commission review of this determination. The Commission granted review by Order of December 19, 1985, stating:
The Commission has decided that it will take review of AL A B-818 (October 18, 1985. The Commission expects that it will review the preemption , " realism" and " immateriality" issues specifically addressed in ALAB-818, and will also address whether Suffolk County Resolution 111-1983, dated February ?3, 1983, and related resolutions .not to participate in emergency planning, are preempted by federal law. . . .
While taking review at this time , a detailed specification of issues , briefs and, if useful, oral argument , will be deferred at
,least 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.
[ Footnote omitted)
Appeals on other issues rela'ed to the LILCO emergency response plan were heard by the Appeal Board on February I?,1986, and a decision ir pending.
In addition to the matters considered in the completed hearings,10 C.F.R. 5 50.47(a) which sets specific standards for emergency preparedness plans, provides in part that:
(14) Periodic exercises are (will be) conducted to evaluate major portions of emergency response capabilities, periodic drills are (will be) conducted to develop and maintain key skills, and deficiencies identified as a result of exercises are (will be) corrected.
10 C.F.R. Part 50, Appendix E, Section F, provides in part that:
3/ This determination rejected LILCO's arguments that: (i) Federal law preempted local law and provided a basis for the utility to carry out its emergency plan even if prohibited from doing so by state law; (ii) that as a realistic matter State and local governments would cooperate to carry out LILCO's plan in an actual emergency; and (iii) that the lack of au+bority of LILCO to carry out the plan was immaterial since the public would be protected even if LILCO did not have legal authority to perform some of the tasks in its plan.
- 1. A full scale exercise which tests as much of the licensee, State and local [onsite and offsite] emergency plans as is reasonably achievable without mandatory public -participation shall be conducted . . . within one year before issuance of the first [ full power] operating license. [ Footnote omitted)
The _ pre-licensing exercise of the LILCO emergency response plan was conducted on February 13, 1986. Intervenors had observers present at this exercise and gained knowledge concerning the conduct of the exercisc at that time. Intervenors' Motion at 4, n. 5.
DISCUSSION I. THE PROCEDURES SUGGESTED IN Tile INTERVENORS' MOTION ARE CONTRARY TO COW 11SSION PRACTICE AND POLICY.
The Intervenors' motion asks that no proceedings involving the Shorehen emergency planning exercise start until FEf1A issues its evaluation of the exercise and that LILCO has the burden of initiating those proceedings. These suggestions are contrary to past Commission practice and policy.
'In Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
CLI-83-19, 17 NRC 1041, 1048 (1983), the Commission emphasized the public interest in officient and expeditious administrative proceedings, and stated that this " require [s] intervenors to diligently uncover and apply all publicly available information to the prompt formulation of contentions. " The Commission stated that these principles apply to the filing of contentions involving off-site emergency planning ~ and indicated that off-site emergency planning contentions should be filed
as early as possible on the basis of known information and need not await the issuance of specific licensing documents. ,Id . at 1049-50.
See also, Statement of Policy on Conduct of Licensing Proceedings ,
The Intervenors' suggestion that the start of proceedings on the exercise await the FEMA evaluation of the emergency planning exercise is contrary to the reasoning .in Catawba. The Interrenors have admitted that they had a number of observers at the exercise. Litigation should move forward on the basis of information known to parties at this time.
This, as we shall detail, includes the appointment of a Board to consider exercise related matters that could not be raised before, as well as the filing of contentions and the start of discovery. As indicated in 4
Catawba, if the subsequent issuance of documents evaluating the exercise changes the bases of contentions, the contentions can then be amended or disposed of. Catawba , at 1049.
Intervenors next maintain that LILCO should have the burden of
. initiating proceedings on the emergency planning exercise. Intervenors' Motion at 6-8. LILCO in its motion has sought to initiate those proceedings by asking for the specification of procedures and the appointment of a Licensing Board to consider exercise related matters.
LILCO , .as other applicants , has the burden of persuasion on substantive issues in NRC proceedings. See Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-763 19 NRC 571, 577 (1984), review declined, CLI-84-14, 20 NRC 285 (1984). However, an intervenor has the burden of raising any matter it wishes to have .
considered by a Licensing Board as a contention. 10 C.F.R. I 2.714(b) .
~
The Intervenors maintain thr4t the determination that LILCO does not have legal authority to carry out its emergency plan should shift the burden of formulating issues to LILCO. However, this determination does not affect the need for those who seek to raise contentions to set them out with ' specificity if they wish to have~ those matters considered by a Licensing Board. See 10 C.F.R. I 2.760a; see Consolidated Edison of
. New York ~(Indian Point, Units 1, 2 & 3), ALAB-310, 3 NRC 188,190 (1976);
se,c also Texas Utilitics Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-81-36,14 NRC 1111 (1981).
II. Till: PROCEDURES SUGGESTED IN LILCO's BIOTION SHOULD BE ADOPTED.
In Union of Concerned Scientists v. NRC, 735 F.2d 1437,1447 (D.C.
Cir. 1984), it was determined that Intervenors must be given an opportunity to litigate the results of emergency planning exercises in operating license proceedings. The court , in . recognizing the Commission's . concern that litigation of the results of these exercises not unduly delay licensing, particularly emphasized that hearings on an exercise could be structured "in the interests of speed and efficiency" and that they need only consider matters which would show "that the emergency preparedness plans are fundamentally flawed." d. at 1447-48.
The court stated that the Commission could provide for the summary dismissal of any claim that did not raise genuine issues of material fact f
.. _ . . _ . _ . . . _ __. _ . _ . _ _ , . _. _.___.._..___._.m__.___ _ _
about the adequacy of the emergency plans, and could provide for the
. testing of contentions on the exercisc by motions for summary disposition in order to require the parties to show that there is a basis to go forward with a hearing. ,Id. Similarly, the Court stated that a hearing could be expedited by focusing on key issues and limiting the 7 presentation of evidence and the examination of witnesses to relevant 'and non-repetitive material. Id.
LILCO su ggests procedures which would lead to. the expeditious consideration of issues. arising from the emergency planning exercise.
LILCO Motion at 11-12. First, LILCO suggests that the same Licensing Board which conducted the earlier emergency planning proceedings invoh-ing Shoreham be appointed to hear matters arising from the emergency planning exercise. LILCO Motion at 11. In view of the complex nature of these proceedings it makes ample sense to appoint the Board with knowledge of matters formerly developed in hearings to consider matters related to the exercise.
Next, LILCO suggests that the Board be instructed to limit and test contentions for hearing in the ways recognized as permissible in Union of Concerned Scientists v. nit C , supra at 1447-48. This includes instructing the Board to limit contentions to matters that could not have been litigated earlier; 4/ to require that contentions, as a predicate for
. hearing , have adequate specificity and basis , and show a fundamental 4
4_/ The Staff, as does LILCO, recognizes that further contentions might be appropriate after publication of the FEMA evaluation of the exercise if they arise solely from that evaluation. See Catawba, at 1050
+. , . . ,.-,-.,r-+ ----------,c ----w- -----+------.w g-,----- - - - , . - - - , - --w..
flaw in the Emergency Response Plan; 5_/ to provide for the summary disposition of contentions, as well as for discovery and for the filing of testimony, on an expedited basis; and to use its full power to conduct an expeditious . and focused hearing. LILCO Motion at 11-12. In Union of Concerned Scientists, the court indicated that these procedural tools could be used to avoid unneeded delays in licensing. In Shoreham ,
where the plant h'as completed its 5 percent power tests, these procedures are particularly appropriate.
Similarly , LILCO's suggestion that a prehearing conference be convened as rapidly as possibly to set schedules for litigation should be followed. See LILCO Motion at 12. As the Commission recognized in its
" Policy of Statement on Conduct of Licensing Proceeding," 13 NRC at 454, the.-Board should set and adhere to schedules so that hearings may be expeditiously and fairly conducted.
The public interest requires efficient and expeditious administrative proceedings. Catawba, supra; Statement of Policy on Conduct of Licensing Proceedings, supra. This proceeding has been pending a long time . There is no need to await the FEMA evaluation of the emergency planning exercise before the appointment of a Board to consider issues
~ -5/ In Carolina Light & Power Co. (Shearon Herris Nuclear Power Plant), LB P-85-49, 22 NRC 898, 909-12 (1985), the Licensing Board adopted this standard from Union of Concerned Scientists v. NRC and rejected a majority of the contentions related to the emergency planning exercise in that they did not relate to a " fundamental flaw" in the emergency response plan. The Board further determined that it cou?d exclude contentions which did not relate to a " fundamental flaw" in the plan without awaiting a motion for summary disposition.
Id., at-910, n. 1.
that may arise from the exercise. Further, issues or contentions can be formulated on the basis of present knowledge and discovery can begin.
In sum, LILCO's suggestions for defined procedures and expeditious proceedings to consider any issues that arose as a result of the Shoreham emergency planning exercise should be adopted.
CONCLUSION The NRC Staff opposes Intervenors' Motion to dela'y proceedings on f
the Shoreham emergency preparedness exercise until FEMA's evaluation is released. The Staff supports LILCO's suggestion that the same Licensing Boar'd which heard other Shoreham emergency planning matters be j appointed to consider matters relating to the exercise, and that the Board be instructed to conduct a focuced and expedited proceeding.
Respectfully . submitted.
Edwin J. eis
. Assitant Chief Hearing Counsel
- Dated at Bethesda, Maryland this 24th day of March,1986 i
1 4
4
.,-,...r,- -y----y----..--,,y-- - - -
w,- ,---,,w-r- y-s-- - - . - - --.-.,~~-m- - , , . , - - , - , , - - , - - - - - - - , -
- - - - -- r . ..--.y.
UNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-32?-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVENORS' MOTION CONCERNINC PROCEDURES RELATED TO THE SI!OREHAM EXERCISE AND APPLICANT'S MOTION FOR ESTABLISIIMENT OF LICENSING BOARD AND INSTITITTION OF EXPEDITED PROCEDURES FOR LITIGATION OF EMERGENCY PLANNING ISSUES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an esterisk, through deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated by double asterisk, by express mail, this 24th. day of March 1986.
Morton B. Margulics, Chairman
- Fabian G. Palomino, Fsq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing _ Board Executive Chamber U.S. Nuclear Regulatory Commiscion State Capitol Washington, D.C. 20555 Albany, NY 12224 Dr. Jerry R. Kline* W. Taylor Reveley III, Esq.**
Administrative Judge Hunton & Williams Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. 20555 Richmond, VA 23212 Mr. Frederick J. Shon* Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of
. Atomic Safety and Licensing Board Public Service U.S. Nucicar Regulatory Commission Three Empire State Plaza Washington, D.C. 20555 Albe.ny , NY 12223 Stephen B. Latham, Esq.
. John F. Shea, III, Esq. Herbert II. Brown, Esq.**
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
P.O. Box 398 Kirkpatrick & Lockhart 33 West Second Street 1900 M Street, N.W.
Riverhead, NY 11001 8th Floor Washington, D.C. 2003G
w 4
. Atomic Safety and Licensing Board Panel
- Donna D. Duer, Esq.*
U.S. Nuclear Regulatory Commission Attorney j
Washington, D.C. 20555 Atomic Safety and Licensing Board Panel 9
Atomic Safety and Licensing U.S. Nuclear Regulatory Commission
! Appeal Board Panel
- Washington, D.C. 20555 4
U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Monroe Schneider l North Shore Committee
' P.O. Box 231 Docketing and Service Fection* Wading River, NY 11792 Office of the Secretary U.S. Nuclear Regulatory Commission Stewart M. Glass, Esq.
Washington, D.C. 20555 Regional Counsel Federal Emergency Management Spen'ce Perry, Esq. Agency Associate General Counsel 26 Federal Plaza Federal Emergency Management Agency Room 1349 Room 840 New York, NY 10278 500 C Street, S.W.
Washington, D.C. 20472 Robert Abrams. Esq.
Attorney General of the State Gerald C. Crotty, Esq. of New York Ben Wiles, Esq. Attn: Peter Bienstock, Esq.
Counsel to the Governor Department of Law Executive Chamber State of New York State Capitol Two World Trade Center Albany, NY 12224- Room 46-14 New York, NY 10047 Edward M. Barrett, Esq. MHB Technical Associates General Counsel 1723 licmilton Avenue Long Island Lighting Company Suite K 250 Old County Road San Jose, CA 95125 Mineola, NY 11501 Hon. Peter Cohalan Martin Bradley Ashare, Esq.
Suffolk County Executive Suffolk County ~ Attorney County Executive / Legislative Bldg. H. Lee Dennison Building
' Veteran's Memorial Highway Veteran's Memorial Highway Hauppauge, NY 11788 Hauppauge, NY 11788
=- ,-s, , -- . v - -- , .,p, -._,.w ,,, - , , .--- ----,---mm- ,. -_.,,_,,,.,_,y.,
,-- -, 4-,.--%-
s f.fr. Jay Dunkleberger his. Nora Bredes New York State Energy Office Shoreham Opponents Coalition Agency Building 2 195 East Plain Street Empire State Plaza Smithtown, NY 11787 Albany, New York 12223 Chris Nolin alr. Robert Hoffman New York State Assembly his. Susan Rosenfeld Energy Committee his. Sharlene Sherwin 626 Legislative Office Building - P.O. Box 1355 Albany, NY 12248 ?.lassapequa, NY 11758 Drookhaven Town Attorney Herzel H.E. Plaine 475 E. Blain Street General Counsel Patchogue, NY 11772 U.S. Nuclear Regulatory
. Commission Washinton, DC 20555 Samuel J. Chilk Secrctary U.S. Nuclear Regulatory Cont ission Washington, DC 20555 Edwin J. s Assistan hief Hearing Coun 1 I