ML20149L968
| ML20149L968 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/19/1988 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5665 OL-5, NUDOCS 8802250196 | |
| Download: ML20149L968 (6) | |
Text
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f0&5 2/19/88 00CKETED USNHC UNITED STATES OF AVERICA NUCLEAR REGULATORY COMMISSION
'88 FEB 23 P3 50 BEFORE THE ATOMIC SAFETY AND LICENSING SQARD;r 3.:ca ne 00CKL HM A SE n'ici.
BR A NC'i in the Mattcr of
)
}
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Short. ham Nuclear Power Statico,
)
Unit 11
)
i NRC STAFF RESPONSE TO POARD REQUEST FOR VIEY!S OF PARTIES ON WHETHER THE BOARD SHOULD RETAIN JUPISDICTION OVER LILCO COPRECTIVE ACTIONS l.
INTRODUCTION 1
At the conclusion of its initial Decision on the results of the Shorcharr emergency exercise, L P P-08-2, February 1, 198P, slip op, at j
252-?53, the Licensing Boarc: csked for the parties' views on whether the Board should retain jurisdiction over the emergency planning proceeding, pending completion of such corrective treasures as LILCO undertakes in response to the Board's findings of fundamental flaws in the LILCO Plan.
T he Staf f, in its proposed findings, at 187, proposed such retentior, of jurisdiction.
I in addressing this request for party views, the Board noted that the Staff had not addressed whether retention of juriscilction was consistent j
with the Corrmission's mandate in CLl-86-11, to conduct proceedings on t
contentions based on the Shoreham exercise.
LBP-88-2, at 252.
The Staff below responds to the Board's request, addressing CLl-86-11 and j
uther considerations, i
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Ap CK O p';
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ll.
DISCUSSION As impfled in the Licensing Board's above statements, the i
jurisdiction of this Poard over the exercise proceeding is derived from f
CLl-86-11, in which the Commission "direct [ed]... immediate initiation of tho exercise hearing to consider evidence which Intervenors might wish to offer to show that there is a fundarrental flaw in the LILCO emergency pla n. "
23 NRC at 579.
The order of the Atomic Safety and Licensing Board Fanel Chairman, Establishment of Atomic Safety and Licensing Board, June 10, 1986, and the Change of Docket Number, July 24, 1986, also issued by the ASLBP Chairman, estab!!shing the Board to hear the exercite issues, and establishing a separate docket for the separate board, respectively, make it clear that the OL-5 Board's Jurisdiction is limited to the matters directed for hearing in CLl-86-11.
a Orce these matters have been fully adjudicated,
- however, jurisdiction passes from th( Board.
Thus, the Licensin0 Board, in Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.
1), LDP-82-86,16 NRC 1190,1193 (1982), noted:
As Section 2.717(a) provides, jurisdiction of the presiding officer continues until the Commission's final decision.
But the identity of the presiding officer changes as the proceeding rr. oves up the appellate i
ladder either as to an entire initial decision or as to particular issues.
Thus, the jurisdiction of the OL-5 Licensing Board over the issues in the f.
exercise proceeding terminates with the issuance of its initial decision disposing of all of the issues.
The Initial Decision of February 1,1988 purports to decide all remaining issues, and thus should serve to l
I i
J
t 6 terminate the Board's jurisdiction, which then ' passes to the Appeal Board. O Even if the Board could retain jurisdiction over corrective actions, this would result in a situation in which the OL-5 Licensing Board and the Appeal Board retained concurrent jurisdiction over at least some 4
]
exercise issucs, a practice likely to lead to confusion and delay.
See TMl-1 Restart, s upra, 16 NRC at 1193.
Notwithstanding the Staff's i
carlier proposed finding, the Staff, on reconsideration of the matter, like the TMI-1 Restart Licensing Board, views the better practice to be that "jurisdiction over the subject matter of a particular issue..
Ishould]
reside exclusively with one presiding oft'icer, l_d,.
d i
In fact, due to the fact that this Board's initial Decision directly impacts on the prior Partial initial Decision of the OL-3 Licensing Board, in effect reversing several of the OL-3 Board's findings on the adequacy 6
of the the LILCO Plan, additional confusion would be engendered, with the OL-3 Board having jurisdiction over any necessary changes in the LILCO Plan to accommodate the February 1, 1988 Decision, and the OL-5 Reard retaining jurisdiction over implementation of those changes as demonstrated in another exercise.
Such bifurcation of jurisdiction would add yet another complicating factor to an already complex case, j
1 1
1!
Were the Board to retain jurisdiction, it would have to do so based
~
on a determination that certain issues before it were unresolved, and that more evidence was required to be adduced.
See, e.
., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LB 24, 19 NRC 1418, 1585, 1586 (1984).
This is not the case here.
The Board has, in fact, decided all the issues derived from the i
d contentions presented to it, and its jurisdiction was limited to those
- matters, i
r
,em.
r-.
- ti g
In sum, there is no adjudicatory issue upon which retention of jurisdiction by the OL-5 Doard could be based, and there are important practical considerations militating against such a course of action.
As a result, the Staff reconimends that its proposal not be adopted.
Ill.
_CO NCLUSION The Licensing Board should not retain jurisdiction over corrective n.easures which may be undertaken by Applicant for the purpose of adjudicating, at a later date, _ the adequacy of such measures, as demonstrateo in cnother exercise, flespec fully subtritted,
/
e George E Johr in Ccunsel for NRC Staff Dated at Rockvilfe, Marylend thh.19th day of February,1900 i
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- _ -, _ _. _ _. _ _ ~
g DX e;CIE0 thNW UNITED STATES OF AMERICA NUCLEAR REGULATORY COMA 81SSION
'8B FG 23 P3 50 BEFORE THE ATOMIC SAFETY AND LICENSiljG BOARO7 g ga m t 00CKEimG A wmcl.
BRANCH i
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise) l (Shoreham Nuclear Power Station,
)
Unit 1)
)
l CERTIFI,CATE OF SERVICE l
1 herchy certify that copies of "NRC STAFF
RESPONSE
TO BOARD PEQUEST FOR VIEWS OF PARTIES ON WHETHER THE BOARD SHOULD RETAIN JURISDICTION OVER LILCO CORP.ECTIVE ACTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States
- mall, first class or, as indicated ty en asterisk, through deposit in the Nuclear Regulatory Commission's internal trail system, this 19th day of February,1988.
John H. Fryo lil., Chairman' Joel Blau, Esq.
Administrative Judge Director, Utility intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Corrmission 99 Washington Avenue Washington, I'C 20555 Albany, NY 12216 Oscar H. Paris
- Fablan C. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Peard Executive Chamber tl.S. Nuclear Regulatory Commission State Capitol Weshington, DC 20555 Albany, NY 1222h Frederick J. Shon*
Jonathan D. Feinberg, Esc.
Administrative Judge New York State Department of Atornic Safety and Licensing Peard Public Service U.S. Nuclear Regulatory Comrrission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley 111, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton t, Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 Douglas J. Hynes, Councilman i
Tcwr Peard of Oyster Bay Dr. W. Reed Johrscn Town Hch 115 Falcon Drive, Ccithurst Oyster Bay, New York 11771 Charlottesville, VA 22901 i
I l
r 4,
Stephen B. Latham, Esq.
Herbert H'. Brown, Esq.
Twomey, Latham & Shea Lawrcnce Coe Lanpher, Esq.
Attorneys at Law Karia J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1000 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleborger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 i
Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12723 Washington, DC 20555 Frence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorla! Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20477 Anthony F. Earley, Jr.
Dr. Monroe Schneider General Counst!
North Shore Committee Long Island Lighting Company P.O. Rox 231 175 East Old County Road Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes Dr. Robert Hoffman Shoreham Opponents Coalition Long Island Ccalition for Safe 195 East Main Street 1.lving Smithtown, NY 11787 P.O. Box 1355 Massepenua, NY 11758 William R. Cumming, Esq.
Office of General Counsel Alfred L. Nardelli, Esq.
Federal Emergency Management New York State Department of Law Agency 170 Broadway 500 C Street, SW Roorr 3-110 Washington, DC 20472 r
Docketing and Service Section*
Rarbara Newman Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living Washington, DC 20555 Box 9%
Huntington, New York 11743
[f V
George Ff Johyffon i
Counsel for N!9C Staff L
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