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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20093G4541995-10-18018 October 1995 Comment Supporting Proposed Rules 10CFR2,50 & 51 Re Decommissioning Procedures for Nuclear Power Reactors ML20058K7381993-12-0303 December 1993 Memorandum & Order CLI-93-25.* Commission Denies State of Nj Petition for Leave to Intervene & Request for Adjudicatory Hearing Filed on 931008.W/Certificate of Svc.Served on 931203 ML20058E0151993-11-14014 November 1993 Comment Opposing Proposed Rule 10CFR50 Re Exemptions in Accident Insurance for Nuclear Power Plants Prematurely Shut Down ML20059B0301993-10-22022 October 1993 NRC Staff Response to Commission Questions Posed W/Respect to State of New Jersey Petition for Leave to Intervene & Request for Hearing.* Denies Petition to Intervene & Request for Hearing.W/Certificate of Svc & Notice of Appearance ML20059B1111993-10-20020 October 1993 Philadelphia Electric Co Response to NRC 931014 Order.* State Failed to Demonstrate Entitlement to Hearing to Challenge Util Amend to Permit Util to Receive Shoreham Fuel ML20059B0621993-10-20020 October 1993 Long Island Power Authority Response to Nuclear Regulatory Commission Order of 931014.* Requests That NRC Reject State of Nj Filing.W/Certificate of Svc ML20057G2141993-10-14014 October 1993 Order.* Requests for Simultaneous Responses,Not to Exceed 10 Pages to Be Filed by State,Peco & Lipa & Served on Other Specified Responders by 931020.NRC May File by 931022. W/Certificate of Svc.Served on 931014 ML20059A4581993-10-14014 October 1993 Order Requesting Answers to Two Questions Re State of Nj Request for Immediate Action by NRC or Alternatively, Petition for Leave to Intervene & Request for Hearing. Operations Plans for Marine Transportation Withheld ML20059F0191993-10-0808 October 1993 Long Island Power Authority Reply to New Jersey Filing of 931020.* Licensee Requests That NRC Deny State of Nj Intervention Petition.W/Certificate of Svc ML20057F2191993-09-30030 September 1993 Exemption from Requirements of 10CFR50.54(q) Eliminating Licensee Requirement to Follow & Maintain in Effect Emergency Plans ML20059B1291993-09-14014 September 1993 Affidavit of Jh Freeman.* Discusses Transfer of Slightly Used Nuclear Fuel from Shoreham Nuclear Power Station to Limerick Generating Station.W/Certificate of Svc & Notice of Appearance ML20097C3241992-06-0303 June 1992 Petitioners Consented Motion to Dismiss Joint Opposition to Issuance of Decommissioning Order Prior to Hearing.* W/Certificate of Svc ML20097C2911992-06-0303 June 1992 Petitioner Consented Motion to Dismiss Appeal.* Dismisses 911203 Notice of Appeal W/Prejudice & W/Each Party Bearing Own Costs & Atty Fees Due to Encl Settlement Agreement. W/Certificate of Svc ML20097C2891992-06-0303 June 1992 Petitioner Consented Motion to Dismiss Appeals.* Appeals Being Dismissed Due to Encl Settlement Agreement.Nrc Should Dismiss Appeals W/Prejudice & W/Each Party Bearing Own Costs & Atty Fees.W/Certificate of Svc ML20097C1361992-06-0303 June 1992 Petitioners Consented Motion to Dismiss.* Petitioners by Counsel Move ASLB to Dismiss Petitioners as Petitioners for Leave to Intervene & Request for Hearing in Proceeding W/ Prejudice.W/Certificate of Svc ML20097C2631992-06-0303 June 1992 Petitioner Consented Motion to Dismiss.* NRC Should Issue Order Dismissing School District & Scientists & Engineers for Secure Energy,Inc as Petitioners in Proceeding.W/ Settlement Agreement & Certificate of Svc ML20097C1081992-06-0303 June 1992 Petitioners Consented Motion to Dismiss Appeal.* Petitioners Hereby Move to Dismiss 910628 Notice of Appeal in Matter W/Prejudice & W/Each Party to Bear Own Costs & Atty Fees.W/ Certificate of Svc ML20096A5921992-05-0707 May 1992 Motion to Withdraw Supplemental Filing.* Petitioners Urge NRC to Allow Withdrawal of Supplement for Good Cause Shown. W/Certificate of Svc ML20096A5311992-05-0606 May 1992 Long Island Power Authority Comments on SECY-92-140 & Response to Petitioner Joint Opposition to Decommissioning Order.* Util Urges NRC to Adopt Recommendation in SECY-92-140 & Approve Order.W/Certificate of Svc ML20096A5071992-05-0505 May 1992 Suppl to Joint Opposition to NRC Staff Recommendation for Issuance of Decommissioning Order Prior to Hearing & Contingent Motion for Stay.* Supplements Joint Opposition Prior to Hearing.W/Certificate of Svc ML20095K8991992-04-29029 April 1992 Joint Opposition to NRC Staff Recommendation for Issuance of Decommissioning Order Prior to Hearing & Contingent Motion for Stay.* Petitioners Urge Commission to Reject NRC Staff Proposal in SECY-92-140.W/Certificate of Svc ML20095H5611992-04-28028 April 1992 Affidavit of Lm Hill.* Affidavit of Lm Hill Supporting Util Position That Circumstances Exist Warranting Prompt NRC Action on NRC Recommendation That Immediately Effective Order Be Issued Approving Decommissioning Plan ML20094G3971992-02-26026 February 1992 Notice of State Taxpayer Complaint & Correction.* NRC Should Stay Hand in Approving Application for License Transfer as Matter of Comity Pending Resolution of Question as Util Continued Existence in Ny State Courts.W/Certificate of Svc ML20094G2261992-02-25025 February 1992 Petitioner Notice of Lilco/Long Island Power Authority Exaggeration & of Commencement of State Court Action.* NRC Should Await Ny State Decision Re Matter within Special Jurisdiction.W/Certificate of Svc ML20092K9021992-02-24024 February 1992 Petitioner Opposition to Ltr Request for Dismissal of Pages.* Suggests That Transfer of License Inappropriate at Present Time.W/Certificate of Svc ML20092K9511992-02-21021 February 1992 Response of Lilco & Long Island Power Authority to Petitioner Opposition to NRC Staff Recommendation for License Transfer Approval.* W/Certificate of Svc ML20092K8701992-02-20020 February 1992 Petitioners Opposition to NRC Staff Recommendation for Approval of License Transfer.* Urges Commission to Reject NRC Recommendation in SECY-92-041 & Remand Matter for Consideration in Normal Proceeding.W/Certificate of Svc ML20091E2661992-02-20020 February 1992 Petitioner Opposition to NRC Staff Motion to Dismiss.* Petitioners Urge NRC to Deny Staff Motion or Defer Action Until Petitioners Have Fully Developed Petitions & Supplied Detailed Contentions.W/Certificate of Svc ML20091E4011992-02-18018 February 1992 Answer of Long Island Power Authority to NRC Staff Motion to Dismiss Intervention Petitions.* Util Urges NRC to Grant Motion & Dismiss Intervention Petitions.W/Certificate of Svc ML20091E3161992-02-13013 February 1992 Lilco Response to NRC Staff Motion to Dismiss Intervention Petitions on Decommissioning Plan.* Requests That Petitions Be Struck & Petitioners Be Instructed of Possible Dismissal.W/Certificate of Svc ML20092D2931992-02-0606 February 1992 Answer Denying Petitions for Leave to Intervene & Request for Prior Hearing Re Decommissioning ML20091E2741992-02-0606 February 1992 Answer of Long Island Power Authority to Intervention Petitions Concerning Shoreham Decommissioning Plan.* Requests That Petitions for Leave & Requests for Hearing Be Denied.W/Certificate of Svc & Notice of Appearance ML20091E2941992-02-0606 February 1992 Lilco Opposition to Petitioner Request for Hearing on Shoreham Decommissioning Plan.* Informs That Util Opposes Both Requests for Hearing.W/Certificate of Svc ML20091E2831992-01-22022 January 1992 Shoreham-Wading River Central School District Petition for Leave to Intervene & Request for Prior Hearing.* Requests That Petition for Leave Be Granted & Hearing Held. W/Certificate of Svc & Notice of Appearance ML20091E2811992-01-22022 January 1992 Scientists & Engineers for Secure Energy,Inc Petition for Leave to Intervene & Request for Prior Hearing.* Requests That Petition Be Granted & Hearing Be Held.W/Certificate of Svc & Notice of Appearance ML20086T7231992-01-0303 January 1992 Motion of Long Island Power Authority for Leave to File Supplemental Matls.* Requests That Supplemental Memorandum & Supplemental Legislative History Matls Be Filed. W/Certificate of Svc ML20086T7541992-01-0303 January 1992 Memorandum of Long Island Power Authority Concerning Supplemental Legislative History Matls.* Supports Legislative History & Argues That License Not Subj to Termination Under Section 2828.W/Certificate of Svc ML20086Q9171991-12-30030 December 1991 Lilco Opposition to Petitioners Request for Stay & Suggestion of Mootness.* Suggests That Stay Request & Suggestion of Mootness Be Denied.W/Certificate of Svc ML20086Q9281991-12-30030 December 1991 Opposition of Util to Motion for Stay of License Transfer & to Suggestion of Mootness.* Concluded That Relief Sought in Petitioner Motion & Suggestion Should Be Denied. W/Certificate of Svc ML20091H8261991-12-19019 December 1991 Suggestion of Mootness Due to Long Island Power Authority Imminent Demise.* Concludes That If Commission Were to Transfer Shoreham Licenses to Lipa,Nrc Could Find Itself W/Class 103 Facility W/O Licensee.W/Certificate of Svc ML20091H8661991-12-18018 December 1991 Lilco Opposition to SE2 Appeal from LBP-91-26 & LBP-91-39. Concludes That Appeal Should Be Summarily Rejected or Be Denied on Merits.W/Certificate of Svc ML20086N1661991-12-17017 December 1991 Motion for Stay of License Transfer Pending Final Order on Petition to Intervene & Request for Hearing & for Addl or Alternative Stay.W/Certificate of Svc ML20086M0791991-12-16016 December 1991 Certificate of Svc.* Certifies Svc of Petitioner Notice of Appeal & Brief in Support of Appeal in Proceeding to Listed Individuals ML20086J6351991-12-0909 December 1991 Lilco Opposition to Petitioners Contentions on License Transfer Amend.* Concludes That License Transfer Amend Contentions Be Rejected & Petitioner Request to Intervene Denied.W/Certificate of Svc ML20086J3521991-12-0909 December 1991 Response of Long Island Power Authority to Petitioners Joint Supplemental Petition.* Board Should Dismiss Petitions to Intervene for Lack of Standing & Reject All Contentions Proffered by Petitioners.W/Certificate of Svc ML20094E1041991-12-0909 December 1991 Response to Long Island Power Authority to Petitioners Joint Supplemental Petition ML20091G2051991-12-0303 December 1991 Brief in Support of Appeal.* Commission Should Consider Appeal on Basis That Findings of Matl of Facts Clearly Erroneous.W/Certificate of Svc ML20091G1971991-12-0303 December 1991 Notice of Appeal.* Informs of Appeal of LBP-91-26 & LBP-91-39 in Facility possession-only License Proceeding ML20086C5381991-11-18018 November 1991 Petitioner Joint Supplemental Petition.* Petition Includes List of Contentions to Be Litigated in Hearing Re License Transfer Application.W/Certificate of Svc ML20086C5471991-11-18018 November 1991 App to Joint Supplemental Petition of Shoreham-Wading River Central School District & Scientists/Engineers for Secure Energy,Inc.* 1995-10-18
[Table view] Category:PLEADINGS
MONTHYEARML20059B0301993-10-22022 October 1993 NRC Staff Response to Commission Questions Posed W/Respect to State of New Jersey Petition for Leave to Intervene & Request for Hearing.* Denies Petition to Intervene & Request for Hearing.W/Certificate of Svc & Notice of Appearance ML20059B0621993-10-20020 October 1993 Long Island Power Authority Response to Nuclear Regulatory Commission Order of 931014.* Requests That NRC Reject State of Nj Filing.W/Certificate of Svc ML20059B1111993-10-20020 October 1993 Philadelphia Electric Co Response to NRC 931014 Order.* State Failed to Demonstrate Entitlement to Hearing to Challenge Util Amend to Permit Util to Receive Shoreham Fuel ML20059F0191993-10-0808 October 1993 Long Island Power Authority Reply to New Jersey Filing of 931020.* Licensee Requests That NRC Deny State of Nj Intervention Petition.W/Certificate of Svc ML20097C2631992-06-0303 June 1992 Petitioner Consented Motion to Dismiss.* NRC Should Issue Order Dismissing School District & Scientists & Engineers for Secure Energy,Inc as Petitioners in Proceeding.W/ Settlement Agreement & Certificate of Svc ML20097C2911992-06-0303 June 1992 Petitioner Consented Motion to Dismiss Appeal.* Dismisses 911203 Notice of Appeal W/Prejudice & W/Each Party Bearing Own Costs & Atty Fees Due to Encl Settlement Agreement. W/Certificate of Svc ML20097C1361992-06-0303 June 1992 Petitioners Consented Motion to Dismiss.* Petitioners by Counsel Move ASLB to Dismiss Petitioners as Petitioners for Leave to Intervene & Request for Hearing in Proceeding W/ Prejudice.W/Certificate of Svc ML20097C1081992-06-0303 June 1992 Petitioners Consented Motion to Dismiss Appeal.* Petitioners Hereby Move to Dismiss 910628 Notice of Appeal in Matter W/Prejudice & W/Each Party to Bear Own Costs & Atty Fees.W/ Certificate of Svc ML20097C2891992-06-0303 June 1992 Petitioner Consented Motion to Dismiss Appeals.* Appeals Being Dismissed Due to Encl Settlement Agreement.Nrc Should Dismiss Appeals W/Prejudice & W/Each Party Bearing Own Costs & Atty Fees.W/Certificate of Svc ML20097C3241992-06-0303 June 1992 Petitioners Consented Motion to Dismiss Joint Opposition to Issuance of Decommissioning Order Prior to Hearing.* W/Certificate of Svc ML20096A5921992-05-0707 May 1992 Motion to Withdraw Supplemental Filing.* Petitioners Urge NRC to Allow Withdrawal of Supplement for Good Cause Shown. W/Certificate of Svc ML20096A5311992-05-0606 May 1992 Long Island Power Authority Comments on SECY-92-140 & Response to Petitioner Joint Opposition to Decommissioning Order.* Util Urges NRC to Adopt Recommendation in SECY-92-140 & Approve Order.W/Certificate of Svc ML20096A5071992-05-0505 May 1992 Suppl to Joint Opposition to NRC Staff Recommendation for Issuance of Decommissioning Order Prior to Hearing & Contingent Motion for Stay.* Supplements Joint Opposition Prior to Hearing.W/Certificate of Svc ML20095K8991992-04-29029 April 1992 Joint Opposition to NRC Staff Recommendation for Issuance of Decommissioning Order Prior to Hearing & Contingent Motion for Stay.* Petitioners Urge Commission to Reject NRC Staff Proposal in SECY-92-140.W/Certificate of Svc ML20094G2261992-02-25025 February 1992 Petitioner Notice of Lilco/Long Island Power Authority Exaggeration & of Commencement of State Court Action.* NRC Should Await Ny State Decision Re Matter within Special Jurisdiction.W/Certificate of Svc ML20092K9021992-02-24024 February 1992 Petitioner Opposition to Ltr Request for Dismissal of Pages.* Suggests That Transfer of License Inappropriate at Present Time.W/Certificate of Svc ML20092K9511992-02-21021 February 1992 Response of Lilco & Long Island Power Authority to Petitioner Opposition to NRC Staff Recommendation for License Transfer Approval.* W/Certificate of Svc ML20092K8701992-02-20020 February 1992 Petitioners Opposition to NRC Staff Recommendation for Approval of License Transfer.* Urges Commission to Reject NRC Recommendation in SECY-92-041 & Remand Matter for Consideration in Normal Proceeding.W/Certificate of Svc ML20091E2661992-02-20020 February 1992 Petitioner Opposition to NRC Staff Motion to Dismiss.* Petitioners Urge NRC to Deny Staff Motion or Defer Action Until Petitioners Have Fully Developed Petitions & Supplied Detailed Contentions.W/Certificate of Svc ML20091E4011992-02-18018 February 1992 Answer of Long Island Power Authority to NRC Staff Motion to Dismiss Intervention Petitions.* Util Urges NRC to Grant Motion & Dismiss Intervention Petitions.W/Certificate of Svc ML20091E3161992-02-13013 February 1992 Lilco Response to NRC Staff Motion to Dismiss Intervention Petitions on Decommissioning Plan.* Requests That Petitions Be Struck & Petitioners Be Instructed of Possible Dismissal.W/Certificate of Svc ML20091E2941992-02-0606 February 1992 Lilco Opposition to Petitioner Request for Hearing on Shoreham Decommissioning Plan.* Informs That Util Opposes Both Requests for Hearing.W/Certificate of Svc ML20091E2741992-02-0606 February 1992 Answer of Long Island Power Authority to Intervention Petitions Concerning Shoreham Decommissioning Plan.* Requests That Petitions for Leave & Requests for Hearing Be Denied.W/Certificate of Svc & Notice of Appearance ML20091E2811992-01-22022 January 1992 Scientists & Engineers for Secure Energy,Inc Petition for Leave to Intervene & Request for Prior Hearing.* Requests That Petition Be Granted & Hearing Be Held.W/Certificate of Svc & Notice of Appearance ML20091E2831992-01-22022 January 1992 Shoreham-Wading River Central School District Petition for Leave to Intervene & Request for Prior Hearing.* Requests That Petition for Leave Be Granted & Hearing Held. W/Certificate of Svc & Notice of Appearance ML20086T7231992-01-0303 January 1992 Motion of Long Island Power Authority for Leave to File Supplemental Matls.* Requests That Supplemental Memorandum & Supplemental Legislative History Matls Be Filed. W/Certificate of Svc ML20086Q9281991-12-30030 December 1991 Opposition of Util to Motion for Stay of License Transfer & to Suggestion of Mootness.* Concluded That Relief Sought in Petitioner Motion & Suggestion Should Be Denied. W/Certificate of Svc ML20086Q9171991-12-30030 December 1991 Lilco Opposition to Petitioners Request for Stay & Suggestion of Mootness.* Suggests That Stay Request & Suggestion of Mootness Be Denied.W/Certificate of Svc ML20091H8261991-12-19019 December 1991 Suggestion of Mootness Due to Long Island Power Authority Imminent Demise.* Concludes That If Commission Were to Transfer Shoreham Licenses to Lipa,Nrc Could Find Itself W/Class 103 Facility W/O Licensee.W/Certificate of Svc ML20091H8661991-12-18018 December 1991 Lilco Opposition to SE2 Appeal from LBP-91-26 & LBP-91-39. Concludes That Appeal Should Be Summarily Rejected or Be Denied on Merits.W/Certificate of Svc ML20086N1661991-12-17017 December 1991 Motion for Stay of License Transfer Pending Final Order on Petition to Intervene & Request for Hearing & for Addl or Alternative Stay.W/Certificate of Svc ML20086J3521991-12-0909 December 1991 Response of Long Island Power Authority to Petitioners Joint Supplemental Petition.* Board Should Dismiss Petitions to Intervene for Lack of Standing & Reject All Contentions Proffered by Petitioners.W/Certificate of Svc ML20086J6351991-12-0909 December 1991 Lilco Opposition to Petitioners Contentions on License Transfer Amend.* Concludes That License Transfer Amend Contentions Be Rejected & Petitioner Request to Intervene Denied.W/Certificate of Svc ML20091G2051991-12-0303 December 1991 Brief in Support of Appeal.* Commission Should Consider Appeal on Basis That Findings of Matl of Facts Clearly Erroneous.W/Certificate of Svc ML20086C5381991-11-18018 November 1991 Petitioner Joint Supplemental Petition.* Petition Includes List of Contentions to Be Litigated in Hearing Re License Transfer Application.W/Certificate of Svc ML20086C5471991-11-18018 November 1991 App to Joint Supplemental Petition of Shoreham-Wading River Central School District & Scientists/Engineers for Secure Energy,Inc.* ML20082G8971991-08-0909 August 1991 Lilco Responses to Petitioner Filings of 910805 & 06.* W/Certificate of Svc ML20082G8441991-08-0707 August 1991 Motion for Offical Notice to Correct Representation.* Moves Board to Take Official Notice of Encl NRC Records to Correct Representation Made at Prehearing Conference. W/Certificate of Svc ML20082G8571991-08-0707 August 1991 Petitioners Response to Lilco Re Physical Security Plan.* Petitioners Suggest That Util post-hearing Filing Does Not Dispose of Any Issue as to Util Compliance W/Settlement Agreement.W/Certificate of Svc ML20076D0721991-07-22022 July 1991 Petitioners First Emergency Motion for Stay.* Movants Urge Commission,In Interest of Justice,To Enjoin Lilco from Taking Any Actions Under possession-only License Which Might Moot Renewed Application for Stay.W/Certificate of Svc ML20076D1541991-07-22022 July 1991 Lilco Response to Petitioner Emergency Motions.* Believes Petitioner Emergency Motions Should Be Denied to End Frivolous Pleadings & Burdens of Time & Resources of Nrc. W/Certificate of Svc ML20076D0841991-07-21021 July 1991 Petitioners Second Emergency Motion for Stay.* Petitioners Urge Commission,Ex Parte,To Enjoin Lilco,From Any & All Acts W/Respect to Shoreham Which Would Be Inconsistent W/Nrc Representation in Court.W/Certificate of Svc ML20076D2071991-07-15015 July 1991 Lilco Opposition to Shoreham-Wading River Central School District (Swrcsd) Appeal from LBP-91-26.* Appeal Should Be Denied Due to Listed Reasons.W/Certificate of Svc ML20082D4051991-07-12012 July 1991 Lilco Opposition to SE-2s Contentions on Possession Only License Amend.* Concludes That Contentions Should Be Rejected & Request for Hearing on Possession Only License Amend Should Be Denied.W/Certificate of Svc ML20082D4001991-07-12012 July 1991 Movant-intervenors Motion for Change of Venue of Prehearing Conference.* Intervenors Request Change of Venue of 910730 Prehearing Conference from Hauppauge,Ny to Washington DC Area.W/Certificate of Svc ML20082D3891991-07-10010 July 1991 Lilco Support of NRC Staff Motion for Reconsideration of LBP-91-26.* for Reasons Listed,Nrc 910625 Motion Should Be Granted & Request for Hearing & Petition to Intervene in Amend Proceeding Should Be Denied.W/Certificate of Svc ML20082B4311991-07-0303 July 1991 Lilco Opposition to Petitioner Contentions on Confirmatory Order,Physical Security Plan & Emergency Preparedeness License Amends.* Petitioner Contentions Should Be Rejected & License Amends Denied.W/Certificate of Svc ML20082B3531991-07-0202 July 1991 Unopposed Motion for Variance in Svc Requirements.* Informs That Filing & Svc Requirements Presents No Obstacle to Filing W/Aslb or Svc Upon Any Parties.W/Certificate of Svc. Served on 910702.Granted for Licensing Board on 910702 ML20082B2461991-06-28028 June 1991 Movant-Intervenor Brief in Support Accompany Notice of Appeal.* School District Urges Commission to Reverse & Remand Dismissal Order W/Appropriate Guidance.W/Ceritifcate of Svc ML20082B2571991-06-28028 June 1991 Unopposed Motion for Variance in Svc Requirements.* Petitioners Urge ASLB to Grant Variance in Svc Procedures Requested to Allow Svc of Judge Ferguson.W/Certificate of Svc 1993-10-08
[Table view] |
Text
_ _ _ _ _ _ - _ _ ___-__ _ _ _
. 01/15/88
[ DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 Al 21 N0:55 BEFORE THE ATOMIC SAFETY AND LICENSING BOARDhh[b[.f.('y ;
Eiuc.:H in the Matter of )
i
) i LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-O L-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) :
Unit 1) ) l NRC STAFF POSITIONS ON MATTERS RAISED IN DECEMBER 23, 1987 CONF!RMATORY ORDER ;
- l. INTRODUCTION In its Confirmatory Memorandum and Order of December 23, 1987
("Order"), the Licensing Board sought the parties' views on (1) the ,
I proper interpretation of the word "may" in the phrase "It may be presumed that in the event of an actual radiological emergency state and ;
local officials would generally follow the utility plan" (10 C.F.R.
650.ti7(c)(1)); and (2) the applicability of the new rule to Appendix E of 1
$50.47(c)(1) and whether compliance with the new rule is tantamount to compliance with Appendix E. Order at 3. The Staff's views are provided herein. II i
s l !
, 1/ The NRC Staff previously noted its position that notwithstanding the
! use of "may," the above cited language has the effect of creating a !
! mandatory presumption, except where the presumption is rebutted by l "a good faith and timely proffer of an adequate and feasible state and/or local emergency plan that would in fact be relied upon in a :
i radiological emergency" as provided for In the rule, or a showing of a similar nature. NRC Staff Reply to LILCO and Intervenors Views i i on Realism issues and the impact of the New Rule on the Realism !
Remand, dated November 30, 1987, at n.6. l l
8801250331 890115 PDR ADOCK 05000322 !
J567 l l ,
J 4 4 .
i
- 11. DISCUSSION A. Whether the Licensing Board Has Discretion to Apply the i Section 50.47(c)(1)(lli) Presumption
- 1. General Considerations Governing Interpretation ofthe Word "May" l Implicit in the Board's first inquiry is the question whether, in using "may" in the 10 C.F.R. Section 50.47(c)(1)(lii) phrase "It may be 4
presumed that in the event of an actual radiological emergency State and ;
local officials would generally follow the util.cy plan", the Commission i
I intended to leave it to the discretion of Licensing Boards whether to i
employ the p asamption in cases involving non-participation of State and j i
local officials in emergency response planning.
Federal cases make clear that the word "may", when used in legislative or regulatory provisions, must be interpreted in light of the
- legislative intent. Ser. , United Hospital Center, Inc. v. Richardson, 757 i
F.2d 1445, 1453 (4th Cir.1985), and cases cited therein. U As there held, "may", in the context of a regulation and the facts leading to its l i promulgation, can be a mandatory command, and not an Invitation for the ;
I exercise of discretion. I d,. I An examination of the language of the regulation, the origin of the l presumption in CLI-86-13, and the Commission's Statement of J
f 7
I i
2/ Webster's Third Interr,1llonal Dictionary of English La nguage, !
Unabridged,1961, CT,C Merriam Co., sets out two definitions where j the word "may" can denote either a command or an expec*ation: i i
". . . 4 used in auxillary function expressing purpose or l l expectatlon [I laugh that I [may] not weep]. . . [
l 5 SHALL, MUST - used esp. In deeds, contracts, and ;
l statutes."
l I
i l'
-. .. . - - ~ , - , . , - - . ..,..n.- _, ._.-,,.- , _ _ . - n, , _ , . , , . - . . _ Q--.. ,- ~ . . - , - . - -
i i
1
< o 7
i Consideration upon its promul0 ation, all demonstrate that the word "may" In the subject phrase in 10 C.F.R. 50.47(c)(1) was a mandatory !
Instruction and not a call for the exercise of discretion. .
- 2. The Regulatory Text .
The text of Section 50.47(c)(1)(iii) describes a typical evidentiary presumption in which tho existence of the presumed fact - that state and local officiels will generally foUow the utility plan in the event of an i J
actual radiological emergency - is required to be assumed when the basic ;
e fact - that an applicant is unabic to comply with the offsite emergency 1
3 planning regulations because of non-participation in planning on the part :
I of offsite authorities - is established. See, Weinstein s Evidence, United j 1
States Rules, 5300[01], at 300-1. The procedural consequence of such a presumption is to shift the burden of proof - here, the burden of goinD !
I forward with evidence - to avoid the effect of the presumption. See,
- id., at 300-2, 301-1. The question raised by the L! censing Board is ;
- whether a Licensing Board has discretion in whether to apply this I
f presumption by virtue of the use of the word "may."
i First, the regulation is structured so as to establish two specific j conditions precedent for application of the presumption that officials who i
l3 had not participated in emergency planning would, in an actual !
emergency, respond by following the utility plan: (1) a showing that
! non-compliance with Section 50.47(b) was wholly or substantially the
- result of offsite officials not participating in planning (Section 50.47(c)(1)(l)), and (2) a showing of good faith utility efforts to secure [
i
) offsite authorities' participation in planning (Section 50.47(c)(1)(ll)). l Thus, the regulatic, expressly provides the crite6a for application of the
. f h
i
._.s.__- . . - _ _ .
t l
- presumption, and provides that boards will examine the utility plan once 4
those criteria are satisfied. It makes little sense to requ!re spending :
resources on a determination of the adequacy of a utility plan if the ,
{
regulation does not also contain the presumption the plan will be followed
- by state and local officials in an emergency.
Second, the text refers to the presumption as "guldance" as to the manner in which "the NRC will recognize the reality that in an actual l emergency, state and local government officials will exercise their best ;
efforts to protect the health and safety of the public. 52 Fed. RS . at :
42086 (emphasis added). Such Commission "guidance" contained in the regulations is in essence a procedural rule of the Commission, which is .
binding on the Commission's adjudicatory boards, Compare, petropolitan, 3
- Edison Co. (Three Mlle Island Nuclear Station, Unit 1), LB P-85-15, 12 NRC 1409, 1506 (1905); Cleveland Electric I!!uminating Company (Perry I 5
4 Nuclear Power Plant, Units 1 and 2), LBP-81-24,14 NRC 175,176 (1981).
1 i The further provision for a means of rebutting presumption -- by a
j the showing of another plan that would be relled upon in an actual I
j emergency -- Indicates that in the absence of such showing, it is the utility offsite plan which would b relled upon. Thus, the structure of
) regulation demonstrates that both the application of the presumption (that [,
]
I the utility plan will be followed) and its non-application are expressly I provided for . Use of "may" in the context of this structure indicates ;
application or non-application of the presumption only as indicated.
- 3. CLi-86-13 5
4 In adopting Section 50.47(c)(1)(lli), the Commission noted that the j rule "amplifies and clarifles" the realism doctrine set out in its decision in i, i
1 ,
1 .
l i i
.l_, _... - _- -.,. , _ ._ _,
e i
CLI-86-13. 52 Fed. RS. 42084, col. 3. In that decision the Commission
- stated that based on the obligation of State and local authorities to !
i 1 protect their citizens, the Commission may "reasonably assume some 'best -
effort' State and County response in the event of an accident" and that ,
such "'best effort' would utilize the LILCO plan as the best source of information and options." 24 NRC at 31. Important for our purposes here, the Commission directed the Licensing Board to assume that the l State and County would use the LlLCO plan. d l_d at 33. No discretion !
was expressed or implied. Given the Commission's intent in the recent l rulemaking to amplify and clarify, rather than to modify, the basic i
approach taken a CLi-86-13, the restatement of the CLl-86-13 "assumption" as a "presumption" in Section 50.47(c)(1)(lil) should be read as a direction to licensin0 boards to employ the presumption where it is shown to be applicable (i.e., where the inability to comply with Section i i
! 50.47(b) "is wholly or substantially the result of non-participation of l state and local governments"), and where good faith efforts to secure }
l participation are shown. 10 C.F.R. Section 50.47(c)(1)(1),(li) (52 Fed. {
\
j Reg. at 42086) .
4 The Commission's Statement of Consideration on the New Rule !
l The Commission's Statement of Consideration accompanying the new i J
rule clearly states that "[t]he rule change is designed to l establish procedures and criteria governing the case-by-case adjudicatory 1 i
, evaluation. . . of the adequacy of emergency planning is situations in
) which state and/or local authorities decline to participate further in ;
emergency planning." 52 Fed. RS . 42084, col. 2 (emphasis added).
As outlined in the rulemaking, the revisions to Section 50.47(c)(1) were i i
^
L I I I !
J ;
. j
deslaned to provide specific procedures for evaluation of a utility-only offsite emergency response plan as authorized by Section 109 of the NRC Authorization Act of 1980. M. One of the principal features of these "specific procedures" is the creation of the pres imption of a best efforts government response generally following the utility plan. To read the provision for this presumption as a matter to be applied or not a,t, the discretton of a licensing board would be inconsistent with the Commission's intention to establish procedures for pov'er reactor licensing cases involving government non-participation in emergency planning.
Finally, the Commission expressly found that its rulemaking findings supported the approach it has taken in CLI-86-13. It found:
The rulemaking record strongly supports the proposition that state and local governments believe that a planned response is preferable to an ad hoc one. Therefore it is only reasonable to suppose that in the event of a radiological emer0ency state and local officials, in the absence of a state or local radiological emergency plan approved by state and local governments, will l either look to the utility and its plan for guidance or will follow some offsite plan that exists. Thus, the presiding Licensing Board may presume that state and local government authorltles i will look to the utility for guidance and generally follow its plan !
In an actual emergency; however, this presumption may be !
rebutted. . .
52 Fed. M. at 42085, col.1. As stated, the Commission rule is based 5
on findings justifying the presumption established in the rule. With these ;
i findings in mind, the Commission stated, "[t]he rule establishes the ,
framework" for judging the adequecy of emergency planning such cases.
L I d, . at col. 2. Having engaged in generic rulemaking to reach this l r
conclusion, it would be contrary to the Commission's stated intent if i i
app!! cation of the presumption were left to the discretion of adjudicatory t
boards sitting in specific cases, j I
i
In sum, the text of the new rule, its origins in CLI-86-13, and the Commission's statements explaining the basis and purpose of the new rule all demonstrate that once the facts enumerated in subparagraph (i) and (ii) of the new Section 50.47(c)(1) are established, use of the presumption in subparagraph (iii) is not discretionary, but mandatory, unless appropriately rebutted.
B. Whether Compliance with 10 C.F.R. 650.47(c)(1)(l)-(lii),
Constitutes Compliance wi_t,ht Appendix E.
By its terms, 10 C.F.R. Section 50.47(c)(1) applies only to circumstances in which an applicant falls to satisfy the requirements of Section 50.47(b), or attempts to demonstrate compilance with Section 50.47(b), where allowance is made for state and/or local non-participation and the utility's measures to compensate for such non-participation. It does not expressly address the requirements of Appendix E to Part 50, or failure to meet them.
Powever, to the extent the Appendix E supplements and implements the standards found in Section 50.47(b), Appendix E provisions of this nature must be read in light of the recent amendment to Section 50.47(c)(1), which provides, in pertinent part, that:
A utility plan will be evaluated against the same planning standards app!Icable to a state or local pla n , as listed in paragraph (b) of this section, with due allowance made both fc-(A) those elements for which staH and/or local non-participation makes compliance infeasible and (B) the utility's measures designed to compensate for any deficiencies resulting from s tate and/or local non-participation 52 Fed. Reg. 42086, col.1.
For example, Appendix E, Paragraph IV, "Contents of Emergency Plans," states that the emergency response plans submitted by an applicant for a nuclear power reactor operating license shall contain information needed to demonstrate compliance with the standards described in f 50.47(b), and they will be evaluated against those s tanda rds, insofar as Section 50.47(c)(1) provides for "due allowance" for non-participation of state or local authorities in emergency response planning, the contents and information to be included in the applicant's emergency plans must be read in light of such "due allowance." Thus, provisions such as Par. IV, A.7, and 8, which provide for identification of State and/or local agencies and/or officials need not be supplied whera "due allowance" for their non-participation requires recognition of the infeasibility of providing such information and where "due allowance" for compensatory measures may call for identification of other information instead. See, eg, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654/ FEMA-REP-1, Rev. 1, Supp. 1 (November 1987),Section II. A.2.
Similarly, Par. IV.B. provides that "emergency action levels shall be discussed and agreed on by the applicant and state and local government ,
authorities. . .
and Par. IV.D. provides for identification of "appropriate officials, by title and agency, of the state and local governments" for purposes of emergency notification. Thesa and other ,
similar provisions must be read in light of the new Section 50.47(c)(1).
In short, whjle "due allowance" for infeasibility of compliance with Appendix E is not expressly incorporated into the new rule, the express
e relationship between Appendix E and Section 50.47(b) standards requires Appendix E provisions relating to the contents of plan to be read so as to be consistent with the Section 50.47(c)(1) provision for compliance with Section 50.47(b) with "due allowance" for non-participation in planning of State and/or local officials and agencies, and the utility's compensating measures.
With specific re<,pect to exercise requirements in Appendix E, paract raph I V . F .1 does, of course, require that a "full participation exercise. . .[ testing] as much of the licensee, State and local emergency plans as is reasonably achievable in that mandatory public participation. .
. . shall be conducted within two years before issuance of the first operating license for full power (one authorizing above 5% of rated power). . . [ including ] participation by each State and local government within the plume exposure pathway EPZ and each State within the ingestion pathway EPZ." 10 C.F.R. , Part 50, Appendix E, Par. IV.F.1.
l (52 Fed. RS.16829 (May 6,1987) .
However, while the new Section 50.47(c)(1) does not address l
! Appendix E, the Commission's October 29, 1987 amendments to Part 50 l also added the following paragraph 6 to Section IV.F of Appendix E:
- 6. The participation of state and local governments in an emergency exercise is not required to the extent that the l
applicant has Idr ntified those governments as refusing to l participate further in 9mergency planning activities pursuant to
! 10 CFR 50.47(c)(1). In such cases, an exercise shall be held l with the appilcant or licensee and such governmental entitles as elect to participate in the emergency planning process.
As a result of this express relief from the requirement that state and
!ocal governments within the two EPZ's participate in emergency exercises
~
under Apper1 dix E, where such governments refuse to participate, there l
l
e is no need to imply such relief in the "due allowance" portion of Section 50.47(c)(1),
in sum, Appendix E is to be read in. light of the recent rule change and the intent of the Commission change in regulation to provide standards for the consideration of a utility plan where there is no State or local cooperation in the planning process.
Ill. CONCLUSION The Licensing Board should adopt the Staff positions as set forth above.
Res ' tfully submitted,
/
A George Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of January 1988.
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