ML20149K887

Lilco Views on Continuing Board Jurisdiction.* Board Should Retain Jurisdiction to Decide After Next FEMA-graded Exercise Whether Any Remaining Fundamental Flaws Found in 860213 Exercise Have Been Resolved.Certificate of Svc Encl

ML20149K887
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/17/1988
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5652 CLI-86-11, LBP-88-02, LBP-88-2, OL-5, NUDOCS 8802240026
Download: ML20149K887 (5)

Text

$$ $2-LILCO, February 17,1988 DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Ta FEB 19. P3 '57 Before the Atomic Safety and Licensing Board gFfl SECft g

BRANCH In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S VIEWS ON CONTINUING BOARD JURISDICTION In its February 1,1988 Initial Decision, LBP-88-2, the Board requested the par-ties' views on whether the Commission's decision in CLI-86-11 required the Board to re-tain jurisdiction to rule on LILCO's efforts to correct the "fundamental flaws" found in its two decisions on the Shoreham exercise.1 _See Initial Decision at 252-53. LILCO understands that the Board does not intend that if it retains jurisdiction for this limited

,' purpose, LILCO's prosecution of appeals from either LBP-87-32 or LBP-88-2 will be tolled or otherwise affected in the meantime. For the reasons detailed below, LILCO agrees with the Staff, s_e_e Staff Proposed Findings at 187, that the Board should retain jurisdiction for the purpose of determining whether,in the next FEMA graded exercise l

of the Shoreham Plan, any "fundamental flaws" found by it and not reversed on appel-late review in the meantime have been corrected, so that a reasonable assurance find-

! Ing can be made urder S 50.47(a)(1).

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t 1/ Since only the areas identified by the Board as "fundamental flaws" stand in the way of licensing the Shoreham plant, LILCO assumes that the Board is considering re-taining jurisdiction only as to those areas.

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The Commission's decision in CLI-86-11 does not, on its face, provide definitive guidance on whether the Board should retain jurisdiction pending another exercise of the LILCO Plan. However, to understand fully CLI-86-11, one needs to read that deci-sion in light of the motion it was deciding - LILCO's motion to establish this Board to resolve the Shoreham exercise litigation.E In that context, CLI-86-11 supports the Board's retention of jurisdiction.

LILCO's Motion began by noting that the February 13, 1986 exercise of the Shoreham offsite emergency plan was intended to be the "full participation" exercise required by the NRC regulations to be conducted before the initial issuance of a full power operating license. LILCO Motion at 1-2. The motion then recognized that the U.S. Court of Appeals for the District of Columbia Circuit in Union of Concerned Sci-entists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), held that the results of exercises could not be routinely excluded from available prelicensing litigation under the Atomic Ener-gy Act S 189(a). See LILCO Motion at 5-9. As a result, the motion requested the Com-mission to establish a Licensing Board to try this final matter needed to serve as a basis for a reasonable assurance finding under S 50.47(a). See LILCO Motion at 10.

Thus, in creating this Board, the Commission clearly envisioned that the Board would resolve whether the results of the February 13 exercise permitted a finding of reasonable assurance under S 50.47(a). To the extent the Board found that "fundamen-tal flaws" precluded it from drawing that corclusion, it follows that the Commission expected the Board to retain jurisdiction to decide if such flaws were remedied at the 2/ Long Island Lighting Company's Motion for Establishment of Licensing Board and Institution of Expedited Procedures for Litigation of Shoreham Emergency Planning Ex-ercise Issues, and Response to Intervenors' March 7,1986 "Motion Concerning Proceed-ings Relating to the Shoreham Exercise," March 13,1986 (hereinaf ter "LILCO Motion").

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next FEMA graded exercise.3/ Given the extensive examination of the initial exercise, judicial efficiency suggests that this Board should retain jurisdiction to decide if the "fundamental flaws" identified in it have been remedied. Of course, if at the time the results of the next FEMA graded exercise become available for the Board's considera-tion, some or all of the Board members are unavailable, the addition of new Board members may need to be considered to ensure expedited review of those results.

On the terms outlined above, LILCO agrees that the Board should retain jurisdic-tion to decide af ter the next FEMA graded exercise whether any remaining "fundamen-tal flaw" found in the February 13,1986 exercise have been resolved.

Respectfully submitted, IYonAld P. Ir/()v h (/

Lee B. Zeugrn Kathy E. B. McCleskey Counsel for Long Island Lighting Company Hunton & William.1 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 I

DATED: February 17,1988 3/ NRC regulations contemplate that offsite response organizations would be given an opportunity to demonstrate that frilings in an earlier exercise had been corrected at a remedial exercise.10 CFR Part 50, App. E 1 IV.F.4.

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o LILCO, February 17,1988 o

CLKEIED USNRC CERTIFICATE OF SERVICE @ FE819 P3 57 In the Matter of yChE q [Cf LONG ISLAND LIGHTING COMPANY BRANCH (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-5 I hereby certify that copies of LILCO's Views on Continuing Board Jurisdiction were served this date upon the icllowing by Federal Express as indicated by one aster-isk*, or by first-class mail, postage prepaid.

John H. Frye, III, Chairman

• Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy. Edwin J. Reis, Esq.

Bethesda, MD 20814 C.S. Nuclear Regulatory Commission Office of the General Counsel Dr. Oscar H. Paris

• Washington, D.C. 20555 Atomic Safety and Licensing Board Herbert H. Brown, Esq.

U.S. Nuclear Regulatory Commission Lawrence Coe Lanpher, Esq.

East-West Towers Karla J. Letsche, Esq.

4350 East-West Hwy. Kirkpatrick & Lockhart Bethesda, MD 20814 South Lobby - 9th Floor 1800 M Street, N.W.

Mr. Frederick J. Shon

• Washington, D.C. 20036-5891 Atomic Safety and Licensing Board Fabian G. Palomino, Esq.

U.S. Nuclear Regulatory Commission Richard J. Zahnleuter, Esq.

East-West Towers, Rm. 430 Special Counsel to the Governor 4350 East-West Hwy. Executive Chamber Bethesda, MD 20814 Room 229 State Capitol Secretary of the Commission Albany, New York 12224 Attention Docketing and Service l Section Alfred L. Nardelli, Esq.

l U.S. Nuclear Regulatory Commission Assistant Attorney General 1717 H Street, N.W. 120 Broadway Washington. D.C. 20555 Room 3-118 l

New York, New York 10271 l Atomic Safety and Licensing l Appeal Board Panel Spence W. Perry, Esq.

U.S. Nuetear Regulatory Commission William R. Cumming, Esq.

! Washington, D.C. 20555 Federal Emergency Management l Agency l

500 C Street. S.W., Room 840 l Washington, D.C. 20472

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1 Mr. Jay Dunkleberger Ms. Nora Bredes  !

New York State Energy Office Executi%e Coordinator Agency Building 2 Shoreham Opponents' Coalition Empire State Plaza 195 East Main Street Albany, New York 12223 Smithtown, New York 11787 Stephen B. Latham, Esq. Evan A. Davis, Esq.

Twomey, Latham & Shea Counsel to the Governor 33 West Second Street Executive Chamber P.O. Box 298 State Capitol Riverhead, New York 11901 Albany, New York 12224 Mr. Philip McIntire E. Thomas Boyle, Esq.

Federal Emergency Management Suffolk County Attorney Agency Building 158 North County Complex 26 Federal Plaza Veterans Memorial Highway New York, New York 10278 Hauppauge, New York 11788 Jonathan D. Feinberg, Esq. Dr. Monroe Schneider New York State Department of North Shore Committee ,

Public Service, Staff Counsel P.O. Box 231 Three Rockefeller Plaza Wading River, NY 11792 Albany, New York 12223 IIelp.Zeu g (f Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 17, 1988

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