ML20149F137

NRC Staff Response to Opposition to Govt Motion for Leave to File Interlocutory Appeal.* W/Certificate of Svc

ML20149F137
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/08/1988
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5568 OL-6, NUDOCS 8802120039
Download: ML20149F137 (13)

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~00LKCTED L'SNHC UNITED STATES OF AMERICA-

,, NUCLEAR REGULATORY COMMISSION '88 FEB 10 P2 :19

, DEFORE THE ATOMIC SAFETY AND LICENSING APPkkhh kh[ tIf ,

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LONG 'sLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6

). (25% Power)

(S'noreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE OPPOSITION TO GOVERNMENTS' MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL L t

I Edwin J. Reis Deputy Assistant  !

General Counsel February 8, 1988

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1. I NITGL CT I ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

11. FWXCRito . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 lll. ARG h eli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Review Is Sought on a Fallacious Premise ................................................ 4 B. The Standards For interlocutory Review Arc Not Met ............................................ 6 2

IV. C0tCLL5 10N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 k

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m w'. y q; UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6

) (25% Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE IN OPPOSITION TO COVERNMENTS' MOTION FOR LEAVE TO FIL E INTERLOCUTORY APPEAL INTRODUCTION On January 21, 1988, the State of New York, Suffolk County and the Town of Southampton (Intervenors), filed a motion for Interlocutory review by the Appeal Board of the Licensing Board's Memorandum and Order (in, Re: LILCO's Request For Authorization To Operate At 25% Of Full Power), dated January 7,1988. The NRC Staff opposes that motion.

RACKGROUND On April 14, 1987, LILCO filed with the Commission a "Request For i Authorization To increase Power To 25% And Motion For Expedited Commission Consideration." Other parties responded thereto. O in j

. CLl-87-04, 25 NRC 882, 883 (1987), the Commission denied the request, but stated "LILCO may refile its request under 1 50.57(c) with the 1/ Governments' Response in Opposition to LILCO's Motions for Expedited Commission Consideration ( April 27,1987)

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NRC Staff Response to LILCO Motion for Expedited Cons'ideration of Request to Authorize Operation at 25% of Full Power ( April 29,1987). -

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Licensing Board when and if it believes some useful purpose would be served thereby." On July 24, 1987, LlLCO filed a "Motion for Designation of Licensing Board and Setting Expected Schedule to Rule on LILCO's 25% Power Request" with the Commission. Other parties responded to that Motion. 2,/ In an unpublished Order of August 13, 1987, the Commission stated that in view of CLl-87-04, the motion appeared misdirected and referred the motion to the Licensing Board conducting Emergency Preparedness (O L-3 ) proceedings "to take appropriate action under the Commission's rules concerning the motion."

In a "Memorar.dum to the Partles" of October 8,1987, the Licensing Board requested the parties views on whether the motion had been properly filed under 10 C.F.R. 5 50.57(c) among other matters. The parties responded to that order. 3,/ On the basis of these submissions the

-2/ Suffolk County, State of New York and Town of Southampton Statement Concerning LILCO's July 14, 1987, Motion to increase Power to 25% (July 27,1987); Suffolk County, State New York, and Town of Southampton Response in Opposition to LlLCO Motion for Designation of Licensing Board and Setting Expedited Schedule to Rule on LI LCO's 25% Power Request (July 27, 1987); NRC Staff Response to LILCO Motion for Authorization to Increase Power to 25%

(July 29,1987).

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LILCO's Brief on 25% Power Questions (November 6,1987); Views of Suffolk County, The State of New York, and The Town of Northampton in Response to the Licensing Board's October 6,1987 Memorandum Concerning LILCO's Request to Operate at 25% Power (November 6, 1987); NRC Staff Response to Board Memorandum Requesting Partles' Views on Questions Raised by LILCO 25% Power

- Authorization Motion (November 6,1987); LlLCO's Reply Brief on 25%

Power Questions (November 16, 1987); Reply of Suffolk County, The

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State of New York, and The Town of Southampton to LILCO's Brief on 25% Power Questions (November 16,1987); and NRC Staff Reply to Other Party Views on Board Questions Concerning LILCO Motion for Authorization to Operate at 25% Power (December 15, 1987).

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f, e i Licensing Board Issued the Order for which review is sought. It there stated:

1. LlLCO is entitled to proceed with its request for 25% power operation under 10 C.F.R 50.57(c).

2. Intervenors are entitled to be heard on the reinvance of their contentions to LILCO's request.

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The Staff 25% power request is dpcted to proceed with a review of LlLCO's

4. The parties are directed to recommend to the Poard by January 22, 1988 on the appointment of a separate Board, a Special Master, an Alternate Board member, or a Technical Interrogator to consider LI LCO's 25% power request. (At 15-16]

intervenors' motion for interlocutory review argues that the Licensing Board's Memorandum and Order of January 7, 1987, has transformed this proceeding from one looking into whether the Appilcant is entitled to a license in accord with the emergency planning regulations, into one of whether the applicant is entitled to a license under 10 CFR 50.47(c)(!) and 50.57(d) without complying with emergency planning regulations. Motion at 5, 8. Thus, Intervenors contend that the basic

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4/ The Staff notes that this direction to the Staff is contrary to law.

Generally, licensing boards have no authority to order the preparation of Staff studies or analyses. See, Carolina Power &

Light Co. (Shearon Harris Nuclear Power Plant) CLI-80-12, 11 NRC 514, 516-17 (1980); Offshore Power Systems (Floating Nuclear Power Plants), A LA B-48 9, 8 NRC 19L, 206-07 (1978):

Arizona Pub!!c Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), LB P-83-36, 18 NRC 45, 48 (1983):

New England Power Co. , (NEP, Units 1 and 2) LDP-78-9, 7 NRC 271, 279 (1978). However. as the Staff does not oppose the resumption of Staff review of the LILCO technical proposal regarding the lower accident risks at 25% power operation, it is not seeking review of the subject order.

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4 structure of the proceeding has been affected in a perverse and unusual way.

ARGUMENT  ;

A. Review is Sought On A Fallacious Premise intervenor's central premise is false. The major thrust of this I proceeding continues to be whether the Applicant is entitled to a license under the Commission's emergency planning regulations. Memorandum and Order at 9. The Licensing Board has only designated as a ancillary issue I for consideration whether Applicant might be entitled to a license for 25%

of rated power under 10 CFR 50.57(a) and 50.47(c)(l) without fully l l

complying with other emergency planning regulations.

As the Board states:

1. i "The matter of the validity of the technical analysis supporting l LILCO's motion is a narrow one and constitutes only a small part of '

the total litigation." & at 9-10.

The fact that inquiry into Applicant's compilance with the emergency ,

l regulations continues to be the major thrust of this proceeding is most '

clearly seen by the Licensing Board's inquiry into whether issues pertaining to LlLCO's 25% power license request should be considered by an anelllary board, master or technical advisor. Id. at 10-11, 14-15.  !

Thus, contrary to Intervenors' assertions, the proceeding has not been transformed; only a new issue has been added which the Intervenors do I

not wish to have considered. -

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Intervenors' arguments at 13-15 of their Motion that the appeal would not materfally impact upon other aspects of the proceeding, Itself, demonstrates the Licensing Board's Order does not have the (FOOTNOTE CONTINUED ON NEXT PACE)

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f The addition of issues for consideration in a proceeding (even if legally wrong) does not form a basis for Interlocutory review. See e.g.,

Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-861, 25 NRC 179, 134 (1987); J1ouston Lighting & Power Co. (South Texas Project, Units 162), ALAB-637, 13 NRC 367, 372 (1981);

Cleveland Electric illuminatino Co. (Perry Nuclear Plant, Units 162),

ALA B-706, 16 NRC 1754, 1757 (1982); Pennsvivania Power & Light Co.

(Susquehanna Steam Electric Station, Units 162), ALAB-641,13 NRC 550, 552 (1981). 6,/

4 (FOOTNOTE CONTINUED FROV PREVIOUS PACE)

"unusual or pervasive" effect claimed in the first part of the motion.

The intervenors' detail matters being considered in the principal part of this litigation, and recognize that "litigation concerning LILCO's request will not hegin immediately". Staff review must be finished and preliminary matters (including who is to consider this ancillary matter) must be passed upon. Motion at 14 6/ Intervenors argue that they solely seek to raise a legal or generic

. Issue involvlag an interpretation of 10 CFR 50.47. Motion at 2-4.

However,10 CFR 5 50.47(c)(1) provides that while a failure to meet the standards in paragraph (b) of that section "may result in the Commission declining to issue an operating license; the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in plans are not significant for the plant in question. . ." Under 10 CFR 5 50.57(c) factual determinations are to be made as to "whether pending contentions in a proceeding are relevant" to low power operation. As the Licensing Board recognized these regulations called for a case-specific factual determination of whether the present regulations permitted the granting of the application. Memorandum and Order at 6-7 Any determination of whether a walver or exemption under 10 CFR I 2.758 or i 50.12(a) is required is better made after a record is developed concerning the risks to the public and measures necessary to protect the public. Id. The argument that an inquiry into whether a regulation is met, or an exception or waiver needed, "Is an Impermissable challenge to the regulations" is specious. Motion at

3. Plainly, the Doard can determine if regulations are met, i

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I B. The Standards For Interlocutory Review Are Not Met The intervenors' ask leave to file an interlocutory appeal on the Licensing Board's order providing for proceedings on LILCO's request under to C.F.R. I 50.57(c) for a 25% power license. Generally, 10 C.F.R. I 2.730(f) prohibits interlocutory appeals and Interlocutory review by way of directed certification under 10 C.F.R. I 2.718(1) is granted "In only the most extraordinary circumstances." Long Island Lighting Co.

(Shoreham Nuclear Power Station), ALAB-861, 25 NRC at 134; sec also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-271,1 NRC 478, 482-85 (1975).

Such review is only granted where it is shown that the Licensing Board's ruling either (1) threatens an affected party "with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal," or (2) affects "the basic structure of the proceeding in a pervasive or unusual manner." Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

A LA B-405, 5 NRC 1100, 1192 (1977); see also Shoreham, supra: Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 21, ALAB-864, 25 NRC 417, 420 (9187),

intervenors acknowledge at 10-11, n.11, of their Motion that they do not premise their request for review of the subject order on any claim of "innedlate and serious irreparable harm," but rather under the second l

test for certification in the Marble lilll, that the subject order "affects the basic structure of the proceedina in a pervasive manner." Motion at 5.

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Y h However, Intervenors fall to show that the subject order which provides for consideration of LILCO's application for a 25% license, as well

, as continuing litigation on the adeouncy of the LILCO emergency plan, changes the basic structure of the proceeding in a pervasive or unusual manner. In the cited Shoreham decision, ALAB-861, this Board stated:

Given that the injection of one or more additional issues into an ongoing case seldom has a pervasive or unusual effect on '

the basic structure of a proceeding, we have traditionally declined to review on an Interlocutory baels rulings that simply admit another contention. The basic structure of an ongoing adjudication is not changed simply because the admission of a contention results from a licensing board ruling that is important or novel, or may conflict with case law, policy, or Commission regulations. Similarly, the mere fact that additional issues must be litigated does not alter the basic structure of the proceeding in a pervasive or unusual way so as to justify interlocutory rev!ew of a licensing board decision,

& at 135 (Footnotes omitted).

In that proceeding FEMA sought interlocutory review of an order setting issues involving emergency plannin0 for hearing on the claim that the litigation of these issues would be contrary to both law and policy.

As emphasized there it does not matter that the failure to dismiss issues might have been error, the admission of additional issues for hearing does not raise issues for Interlocutory review, ld.; see also Seabrook, t

ALAB-838, supra.

The Intervenors seek to escape this rule by saying that the order in this case is different because "the parties to the Shoreham proceeding would no longer be litigating whether the LILCO offsite emergency plan complies with the emergency planning requirements," but whether those j regulations are "superfluous." Motion at 5-6. However, as we have j shown, the hearing is continuing on whether the'LILCO emergency plan conforms to the regulations. That part of the proceeding was not ended, l.

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i end is the major oart of this litigation. See p.4, supra. U Even where Boards have added substantial new issues for consideration or refocused Issues no interlocutory review has been granted. See e.g., ,

Perry Nuclear Plant, Units 1 and 2, ALA B-706, 16 NRC at 1757, ,

(Interlocutory review not granted on a claim that Licensing Board had misinterpreted regulations and admitted many new issues that changed the structure of the proceeding); South Texas Project, ALAB-637,13 NRC at 372 (interlocutory review not granted on claim that Licensing Board had so reformulated and broadened issues as to deny them a hearing on issues which the Commission stated should be heard);

1 Susquehanna Steam Electric Station , A L.A B-641, 13 NRC at 552 (1981)

(Interlocutory review not oranted on denist of summary disposition and interjection of new issues into the proceeding). In each of these t

proceedings it was determined that the addition of large new issues to a proceeding did not "affect the basic structure of the proceeding in a pervasive or unusual manner" so as to allow interlocutory review.

See also, Seabrook, ALAB-271, 1 NRC at 483-84 (Interlocutory review not granted on admission of emergency planning Isrues):

Loulslana Light & Power Co. (Waterford Steam Electric Generating Station, Unit 3), A LAB-220, 8 AEC 93, 94 (1974) (Interlocutory review not i

granted of denial of summary disposition of all anti-trust issues in proceeding). The subject Licensing Board order providing for the 7/

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Moreover, consideration of the 25% power license request based upon 10 C.F.R. 5 50.47(c)(1) does not proceed on any basis that I emergency planning regulations are "superfluous," but that in l certain factual situations compensating actions may permit variations in the means of meeting the intent of certain specific requirements. l i

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ancillary consideration of LILCO's 25% power application does not change the structure of this proceeding.

Similarly, Intervenors claim that the order below is contrary to Commission regulation and policy (Motion at 6-10) does not show that the basic structure of the proceeding is changed in a pervasive or unusual manner. As this Board ruled in Shoreham, ALAB-861, 25 NRC at 135 a ruling admitting issues for hearing may be novel and claimed to be in conflict with law, regulation and policy and still not present a ground for interlocutory review. See also Seabrook, A LAB-261 ;

Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 8,/

and 2), ALAD-675,15 NRC 1105,1113 (1982)

The Board's order providing for ancillary proceedings on LILCO's application for a license at a 25% power level does not affect "the basic structure of the proceeding in a pervasive or unusual manner" so as to permit interlocutory review, CONCLtJSION For the foregoing reasons, Intervenors' motion for leave to file an interlocutory appeal should be denied.

Respectfully Submitted, Edwin J. fels Deputy / Assistant General Counsel Dated at Rockville, Maryland this 8th day of February 1988 8/ Claim is also made that providing a hearing on the motion for a 25%

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power license has generic implications. Motion at 11-12 The "generic implications" of an order allowing consideration of an issue, prior to its determination, are not apparent. Further, it is noted that only two other litigated operating license applictions are pending, those involving the Seabrook and Comanche Peak facilities.

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. 00tKETED UshRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISgtg g p219 REFORE THE ATOMIC SAFETY AND LICENSINFFARPEAL ROA.RD wmg.g -

In the Matter of )

)

LONG ISLAND LICHTING COMPANY ) Docket No. 50-322-OL-6

) (25% Power)

(Shorehem Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copler of "NRC STAFF RESPONSE IN COVERNMENTS' MOTION FOR LEA .'E TO FILE INTERLOCUTORY APPEAL" in the above-captioned proceeding have been served on the folicwing by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system or, this 8th day of February 1988.

John H. Frye lil, Chairman

• Joel Blau, Esq.

Administrative Judge Director, Utility intervention Atomic Safety and Licensing Appeal Suite 1020 Board 99 Washington Avenue U.S. Nuclear Regulatory Commission Albany, NY 12210 Washington, DC 20555 Oscar H. Paris

• Fabian C. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Appeal Executive Chamber Doard State Capitol (l.S. Nuclear Regulatory Commission Albany, NY 12224 Washington, DC 20555 l Frederick J. Shon" Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of

. Atomic Safety and Licensing Appeal Public Service Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 l

+ Washington, DC 20555 Philip McIntire W. Taylor Reveley lil, Esq.

Federal Emergency Management Donald P. Irwin, Esq.

- Agency Hunton I, Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 9

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o - Stephen B. LathambEsry. ~^'d -

Herbert H. Brown, Esq.

Twomey, Latham S1h4a5 Attorneys at Law s

' (' Lawrence Coe Lanpher, Esq.

Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 ., South Lobby - 9th Floor 1800 M Street, NW

, Atomic Safety and Licensing ", Washingun, DC 20036-5891 Board' Panel U.S. Nuclear Regulatory Commission Jay Dunkleberger

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Washington, DC 20555 '

New York State Energy Office y .,

Agency Building 2 Atomic Safety and Licensing '

Empire State Plaza Appeal Board Panel Albany, NY 12223

! U.S. Nuclear Regulatory Co.[ minion Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highwtv 's 500 C Street, SW Hauppauge, NY 11788 -

Washington, DC 20472 Dr. Monroe Schneider ' Robert Abrams, Esq.

North Shde Commit &e -

Attorney General of the State P.O. Box 231 of New York i'

Wading River, NY 11792 '

Attn: Peter Blenstock, Esq.

, N Department of Law Ms. Nora Bredes s

' i s State of New Ycrk Shoreham Opponents Coalition s Two World Trade Center 195 East Main Street Room 46-14 o Smithtown, NY 11787 New York, NY 10047

i. Anthony F. Earley, Jr. William R. Cumming, Esq.

General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management 175 ' Fast Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472

, Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*

Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Alfred L. Narde!II, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living Room 3-118 Box 944 New York, NY 10271 Huntington, New York 11743 Edwin J. Is Deputy sistant General Counse!

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