ML20151F009

Board Memorandum & Order (Ruling on Govt Motion for Reconsideration of Board Memorandum & Order on Section 50.47(c)(1)(i)(ii) Compliance).* Intervenor Motion Denied. Served on 880414

ML20151F009
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/13/1988
From:	Gleason J Atomic Safety and Licensing Board Panel
To:
References
CON-#288-6045 86-535-04-OLR, 86-535-4-OLR, OL-3, NUDOCS 8804180041
Download: ML20151F009 (3)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

ggf ,g Jahes P. Gleason, Chairman ^

Dr! Jerry R. Kline Mr. Frederick J. Shon 5bYffD APR I41933 In the Matter of Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, (ASLBPNo. 86-535-04-OLR) i Unit 1) h April 13, 1988

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4 BOARD MEMORANDUM AND ORDER (Ruling on Governments' Motion for Reconsideration of Board

"::arandum and Order on Section 50.47(c)(1)(1)(ii) Compliance) I The Governments' motion filed on March 15, 1988, in seeking reconsideration, alleges the Board ignored the dictates of NRC's regulation (10 C.F.R. 50.47(c)(1)(1)(ii)) which requires a "sustained, i

good faith effort to secure and retain the participation of . . .

governmental authorities" in emergency planning. In the Intervenors' view, the Board erred when it indicated that LILCO's conduct since February 1983 was not material; that it applied the wrong legal standard in claiming that LILCO's conduct in 1982 of was not evidence of bad faith, putting a burden on Intervenors of demonstrating that "bad faith" was shown, when the test is not bad but "good faith"; and that the Board was also wrong in makirg factual findings, ignoring the allegations of 8804100041 880413 DR ADOCK 0500 2

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affidavits submitted by Intervenors, when such determinations on the merits are prohibited under the NRC's sumary disposition rules.

Both the Applicant and the Staff oppose granting the Intervenors motion stating tha't the Roard applied the correct test to evaluate the regulations application and that LILCO's willingness to cooperate in planning with New York State and Suffolk County is still evident at the present time.

Board Decision The Intervenors motion here seemingly challenges some factual findings made by the Board as a part of its grant of LILCO's summary disposition motion but ignores the basic rationale we submitted to test whether the Applicant has shown that there was a genuine need to invoke the relief offered by 10 C.F.R. 50.47(c)(1)(ii) and that "no realistic opportunity remained to pursue a cooperative planning effort between the utility and the government." See Board Decision (March 3.1988) at 15.

That test of good faith, we stated, could be met by a finding that the Governments know and understand the provisions of section (b); that

' there has been a reasonable opportunity for the Governments to pursue 4

that course; and that the utility remains open to the possibility of l government cooperation and would accept participation in a joint emergency planning effort if the Governments agreed to do so. (We note from Intervenors' filing that, since it is not mentioned, they find no failure in the Board's ruling on Section 10 C.F.R. 50.47(c)(1)(1).

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The Board concluded the facts of the present case (and in meeting the threshold requirements of the good faith criteria of the regulation, i every case must be evaluated under its own circumstances) made clear that LILCO has not'made an unwarranted or premature abandonment of l cooperative (and the preferred) procedures for (emergency) planning, and f therefore had qualified for having its utility plan considered under Section(iii)oftheregulation. It seems clear to us, although ,

2 apparently not to the Intervenors, that "a sustained good faith effort" in the circumstances of one case may be different than those of another, i that the regulation in question does not necessarily require a utility to ' pursue the unpursuable.' that disclaimers by the Board that certain l actions show bad faith are merely evidence in the circumstances of this case that such conduct cannot be used to demonstrate the absence of good faith and that even though Intervenors' affidavits may contest factual matters, they do not necessarily, as in the case-at-hand, raise genuine issues of material fact.

The fundamental events in this case are obvious, that the Intervenors closed the door to cooperation with the Applicant when they P

stated in 1983 and 1984 that they would not cooperate with LILCO in any way on emergency plans and that LILCO stands ready to this day to cooperate with the State and County. The Intervenors' motion is denied.

FOR THE ATOMIC SAFETY AND NSING . D ,

mes P. Gleason, ChaTrman t ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 13th day of April, 1988.

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