ML20154E680

Suffolk County,State of Ny & Town of Southampton Motion for Appointment of Board W/Jurisdiction to Hear Exercise Issues.* Appeal Board Should Order Designation of Licensing Board to Hear Issues.Certificate of Svc Encl

ML20154E680
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/13/1988
From:	Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20154E657	List: ML20154E653 ML20154E680
References
OL-5, NUDOCS 8809190094
Download: ML20154E680 (16)

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a 00CMETED U - *g r UNITED STATES OF AMERICA 'E3 SEP 15 fil :38 NUCLEAR REGULATORY COMMISSION Hofore the Atomic Safety and Licensino Acocal Board

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In the Matter of )

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I4NG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON MOTION FOR APPOINTMENT OF LICENSING BOARD WITH JURISDICTION TO HEAR EXERCISE ISSUES INTRODUCTION This Board currently has before it certain issues related to an exercise, held in February, 1986, of LILCO's of fsite radiological emergency plan for the Shoreham nuclear power plant.

Those issues were heard by a Licensing Board (the 'OL-5 Licensing Board") established for the express purpose of considering exercise-related matters. The creation of that Licensing Board had the effect of divesting the previously-existing Shoreham emergency planning Licensing Board (the 'AL-3 Licensing Board')

of jurisdiction over exercise-related matters.

Due to LILCO's deficient performance and the passage of time, LILCO was required to hold another exercise which took place in June of this year. FEMA released its evaluation of the Gjhho e!

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I June 1988 exercise on September 8, 1988. On the following day, the NRC Staff filed a notion with the OL-3 Licensing Board to '

establish a schedule for hearing issues related to the June 1988  !

exercise.1/ The OL-3 Board, however, has no jurisdiction over exercise matters and thus cannot take action on the staff Motion, except to decline jurisdiction.

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This Board now has jurisdiction over exercise-related 4

o matters by virtue of the appeals from the rulings of the OL-5 l Licensing Board now before it. Accordingly, Suffolk County, the State of New York and the Town of Southampton (the ' Governments")

i hereby move this Board to direct the Chairman of the Atomic '

a safety ar ' censing Board Panel to conve,1e a Licensing Board j with jurisdiction to hear istues related to LILCO's latest exercise. Preferably, the new Licensing Boeed should consist of the members of the previous OL-5 Licensing Board, as many of the j issues likely to arise in any hearings on LILCo's latest exercise i

may be similar to or relate to incues that Board has already I heard, rurther, the prior OL-5 Licensing Board is in the best i

i position to determine whether the deficiencies it found in LILCO's earlier exercise have now been corrected.

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1/ NRC Staff Motion For Schedule For Litigation of The June t 1988 Exercise (Sept. 9, 1988) ("Staff Motion *). A copy of the i Staff Motion is attached hereto.

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BACKGROUND Before an applicant can receive a license to operate above five percent of rated power, it must demonstrate the adequacy of its emergency planning through a full participation exercisc -t its emergency plan. 10 CFR 5 50.47 (b) (14) and Part 50, App. E, 5 IV.F.1. LILCO's first attempt to meet this requirement was its February 1986 exercise.

Following that exercise, L1'LCo moved the Commission to appoint a Licensing Board to hear irsues arising from the exercise.2/ The Commission granted LILCO's motion and, recognizing that a shoreham emergency planning Licensing Board already existed, directed the Chairman of the Atomic Safety and Licensing Board Panel to reappoint the members of that Board, if available. CLI-86-11, 23 NRC 577, 582 (1986). In accordance with those in,tructions, the chairman of the ASLB Panel, Judge Cotter, designated the members of the already-existing OL-3 Licensing Board to hear the exercise issues. Egg Establishment of Atomic Safety and Licensing Board (June 10, 1986).

However, after preliminary proceedings before tho OL-3 i Licensing Board, Judge Cotter created a separate Licensing I

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2/ Long /aland Lighting Company's Motion for Establishment of Licensing Board and Institution of Expedited Procedures for Litigation of Shoreham Emergency Planning Exercise Issues, And Response to Intervenor's March 7, 1986 "Motion Concerning Proceedings Relating to the Shoreham Exercise" (March 13, 1986).

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Boardl/ to hear exercise-related matters, which now had their own docket -- the OL-5 docket.d/ Egg Notice of Reconstitution of Board (oct. 7, 1986).

The plain effect and intent of the creation of the exercise Licensing Board was to divest the OL-3 Licensing Board of jurisdiction over exercise-related matters. Indeed, a clarification issued by Judge Cotter on october 17, 1986 mada that abundantly clear. As described by Judge Cotter, the OL-5 Board had jurisdiction over emergency planning exercise matters then existing under the OL-5 docket. The OL-3 Licensing Board retained jurisdiction over the remaining emergency planning issues including "issues remanded by the Commission in CLI-86-13

. and by the Atomic Safety and Licensing Appeal Board in ALAB-832 . . . . " Egg Notice of Reconstitution of Board:

Clarification (October 17, 1986).

A subsequent Memorandum and order issued by Judge Cotter on November 7, 1986 provided further detail regarding the OL-3 r Licensing Board's remaining jurisdiction:

' The (October 17, 1986) Clarification noted that the "5" docket concerned the emergency planning exercise proceeding instituted by tha Commission on June 6, 1986

. . . while the "3" docket concerned all other issues, namely: (1) the adequacy of the entire emergency plan i

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remanded by the Commission; (2) issues remanded by the Appeal Board; and (3) new motions to reopen the record on several other issues. The Clarification also noted i

that the two judges replaced in the "5" docket continue to serve on the larger body of issues under the "3" l 2/ One of the members of the new OL-5 Licensing Board was also a member of the OL-3 Licensing Board.

A/ Egg Change of Docket Number (July 24, 1986) (Judge Cotter) .

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docket number and that one judge would serve on both dockets.

Memorandum and Order, LBP-86-37A, 24 NRC 726, 727 (1986)

(emphasis in original).

The OL-5 Licensing Board conducted hearings on the exercise issues from early March through mid-June 1987 and issued opinions on December 7, 1987 and February 1, 1988, finding in favor of the Governments on several issues. LILCO subsequently appealed the OL-5 Licencing Board's rulings to this Board. With those appeals, jurisdiction over exercise issues passed to this Board.

Egg PhiladelDhia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501 (1986); 10 CFR 5 2.717 (a) .

In light of the negative findings by the OL-5 Licensing Board and the need to have an adequate full participation exercise within two years of receiving a license to operate above five percent of rated power, LILCO held a new exercise on June 7-9 of this year. FEMA evaluated the exercise and released a report on September 8. One day later, the NRC Staff filed its Motion with the OL-3 Licensing Board to set a schedule for hearing all matters related to the June 1988 exercise.

The OL-3 Licensing Board, however, has no iurisdiction over exercise matters, which are the subject of the OL-5 docket. The OL-5 Licensing Board had jurisdiction over those matters. That jurisdiction has now passed to this Board as a result of LILCO's appeals of the OL-5 Licensing Board's rulings.E/ Thus, the NRC 5/ The OL-5 Licensing Board did not retain jurisdiction to (continued...)

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Staff directed its motion to the wrong Board, as the OL-3 Licensing Board is without power to consider exercise matters.

The Governments have no quarrel with the NRC Staff that litigation of the results of the June 1988 exercise is warranted.

At this time, however, no Licensing Board exi.ts with jurisdiction over those issues. Therefore, the Governments hereby move this Board to order the Chief Judge of the ASLB Panel to appoint an appropriate Licensing Board to hear the issues arising from LILCO's latest exercise.

For reasons set forth in greater detail below, it is the Governments' view that the most appropriate Licensing Board to hear the June 1988 exercise issues is one consisting of the members of the previous OL-5 Licensing Board.5/

DISCUSSION A.

The OL-3 Licensino Board Has No Jurisdiction Over Exercise Issues.

Licensing Boards do not have plenary subject matter jurisdiction in NRC proceedings. Rather, Licensing Boards have jurisdiction over only those natters committed to them pursuant to appropriate NRC procedures. ERA Duke Power comoany (Catawba 1/ ( . . . continued) determine in the future whether LILCO has corrected the deficiencies which the Board found, but noted it was best suited to hear those issues. Egg Memorandum and Order (concerning Retention of Jurisdiction) (March 9, 1988).

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The i.e., Governments will address the merits of the Staff M? tion the proposed schedule -- in a separate filing after the Motion has jurisdiction.

been filed with a Licensing Board with appropriate

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Nuclear Station), ALAB-825, 22 NRC 785, 790 (1985) ; Consolidated Edison Connany of New York (Indian Point, Unit 2) , LBP-82-23, 15 NRC 647, 649 (1982). The OL-3 Licensing Board originally had jurisdiction over exercise issues pursuant to CLI-86-ll and Judge Cotter's initial designation of that Licensing Board to hear those issues. That Board's jurisdiction was narrowed, however, when Judge Cotter removed the exercise issues from it and placed that jurisdiction in the hands of a separate and distinct OL-5 Licensing Board.

In light of this transfer of jurisdiction, the OL-3 Licensing Board has lost its authority to hear exercise issues unless and until that authority is reconferred through proper NRC procedures. This Board now has jurisdiction over the exercise issues and would appear in view of that jurisdiction also to have the power to order that a Licensing Board be designated to hear issues relating to LILCO's latest exercise.2/ Such a Board must be convened before there can be any further proceedings on exercise matters, including consideration of the merits of the Staff's September 9 Motion.

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B.

The.0L-5 Licensino Board is Better Suited to Hear the Exercise Issues Than the OL-3 Licensina Board Assuming that this Board takes action to have an exercise Licensing Board appointed, the Governments suggest that the prior

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l 2/ Egg 10 CFR 5 2.785. If the Appeal Board determines it does not have such authority, the Governments move this Board to refer l the matter of convening a new exercise Licensing Board to the i

Commission.

OL-5 Licensing Board would be best suited to hear those issues.

The OL-5 Licensing Board is most familiar with the legal and factual issues surrounding the Shoreham exercise litigation to date, having dealt with those issues in detail during the course of extensive litigation in 1986-87. Many of those same issues are likely to resurface in any proceeding on the June 1988 exercise, and would be recognized and handled most expeditiously by the OL-5 Licensing Board.

Furthermore, the OL-5 Licensing Board has issued two opinions finding deficiencies in LILCO's 1986 exercise. That Board is thus in the best position to determine whether those deficiencies have been corrected.E/

The OL-3 Licensing Board, on the other hand, is not well-suited to hear the exercise issues. Obviously, the OL-3 Licensing Board does not have the familiarity with the exercise issues that the OL-5 Board has. In addition, the OL-3 Licensing Board already has several matters before it, including disposition of the "realism" issues, disposition of matters relating to discovery matters, a decision on the remanded school evacuation and hospital evacuation issues, and motions for summary disposition on emergency broadcast system ("EBS") matters (with a hearing on the EBS issues if LILCO's motion for sumaary disposition is denied). If the history of the last year is any indication, these issues are more than enough for the OL-3 A/

Board.Indeed, LILCO has argund as much before the OL-5 Licensing Egg LILCO's Views on Continuing Board Jurisdiction (Feb. 17, 1988) at 3.

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Licensing Board to handle. Indeed, during the last year, the OL-3 Licensing Board has often lagged in issuing detailed opinions. The several-month delay in the issuance of the reception center opinion, finally issued on May 9 of this year --

over nine months after the close of the ll-day hearing -- is only one such example. Thus, if nothing else, efficiency dictates that another Board handle any further exercise matters.

For the reasons stated above, the OL-5 Licensing Board would be the best suited for this task.

CONCLUSION For the foregoing reasons, the Appeal Board should order the designation of a Licensing Board to hear issues related to LILCO's latest exercise. That Board should consist of the members of the previous OL-5 Licensing Board if they are available.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney l

Building 158 North County Complex

' Veterans Memorial Highway

!!auppauge, New York 11788 i

Lawrenc C. Lanpher )

Christopher M. McMurray Kil* PATRICK & LOCKHART /

1800 M Street, N.W.

South Lobby - 9th Floor Washington e D.C. 20036-5891

?,ttorneys for Suffolk County Fabian G. Pal < inof /

Richard J. Za: nieAer Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York A/ A St'epher/B. Latfian /

Twomey, Latham & Shea P.O. Box 398 33 West Second Street September 13, 1988 Riverhead, New York 11901 Attorney for the Town of Southampton l

• ATTACHMENT 09/09/88 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Hatter of LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 (Emergency Planning)

(Shoreham Nuclear Power Station, Unit 1)

NRC STAFF MOTION 70R SCHEDULE FOR LITIGATION OF THE JUNE 1986 EXERCISE Pursuant to 10 C.F.R. 5 2.730, the NRC Staff hereby requests that the Board adopt the NRC Staff's proposed schedule for litigation of the results of the June 7-9, 1988 emergency planning exercise for Shoreham.

As grounds for the motion, the Staff states the following:

1. A full scale exercise of the LILCO Local Off-Site Radiological I

Emergency Response Plan for Shoreham was conducted on June 7-9, 1988. On i

September 9, 1988, FEMA, Region II issued a Post-Exercise Assessment, dated September 2,1988, and provided copies to Intervenors. On the same i day, FEMA also sent a letter from Grant C. Peterson to Victor Stello that indicated (at 2) that "FEMA has reached a finding of reasonable assurance."

2. In accordance with CLI-86-11, 23 NRC 577, 581 (1986),

intervenors may only litigate exercise results which they al'lege reveal fundamental flaws in an emergency plan. In addition, intervenors are l

obliged to examire publicly available information which could serve as a '

, foundation fgr a specific contention. Further, where a contention is j wholly dependent upon the content of a particular document, to tender the i

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contention with the requisite degree of promptness once the document is publicly available. Duke Power Co. (Catawba Nuclear Station. Units 1 and 2), ALAB-687, 16 NRC 460, 468-69 (1982), rev'd in part, CLI-83-19, 17 NRC 1041 (1983).

3. In view of the FEMA finding of reasonable assurance, the absence of any deficiencies in the FEMA report and the extensive background and interchange of information in this case relating to all aspects of emergency preparedness, the Sta ff requests the Board to establish a schedule which will expedite the resolution of this matter and bring the proceeding to a long awaited end.

Accordingly, the Staff requests that the Board establish the following schedule for any new contentions based on the FEMA exercise report:

NRC STAFF PROPOSED SCHEOULE October 13, 1988 Oeadline for contentions on June Exercise October 28 and LILCO and Staff responses to contentions November 2, 1988

, November 15, 1988 Prehearing Conference November 29, 1988 Ruling on Admission of Contentions; Discovery begins on admitted contentions, if any December 23, 1988 Discovery ends l January 6, 1989 Motions for sumary disposition I

i January 26, 1989 Responses to sumary disposition motions

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. February 7, 1989 Testimony filed Ruling on Motions for Sumary Disposition February 27, 1989 Evidentiary hearing comences, if needed Respectfully submitted.

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Miti iA oung Courbel for NRC Staff Dated at Rockville, Maryland this 9th day of September,1988

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DX e i. iil UMr Seotember 13,138B w af a ful :38 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p pq .

DOCr,ti M 4 9

• W 1 Before the Atomic Safety and Licensinc Acceal BoardAhe

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,

) (EP Exercise)

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Unit 1) )

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CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON MOTION FOR APPOINTMENT OF LICENSING BOARD WITH JURISDICTION TO HEAR ISSUES have been served on the following this 13th day of September, 1988 by U.S. mail, first class.

Christine N. Kohl, Chairman

• Dr. W. Reed Johnson ***

Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission 115 Falcon Drive, Colhurst Washington, D.C. 20555 Charlottesville, VA 22901 Alan S. Rosenthal

• John H. Frye, III, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Oscar H. Paris Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing William R. Cumming, Esq. **

Board Panel George W. Watson, Esq.

U.S. Nuclear Regulatory Commission Office of General Counse' Washington, D.C. 20555 Federal Emergency Managemes.c Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 i

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e Fabian G. Palomino, Esq. **

W. Taylor Reveley, III, Esq. **

Richard J. Zahnleuter, Esq. Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Room 229 707 East Main Street State Capitol Richmond, Virginia 23212

'.lbany, New York 12224 Anthony F. Earley, Jr., Esq. Edwin ' Reis, Esq. **

General Counsel George .. Johnson, Esq.

Long Island Lighting Company U.S. Nuclear Regulatory Comm.

175 East Old Country Road Hicksville, New York 11801 Office of General Counsel Washington, D.C. 20555 E. Thomas Boyle, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Stephen B. Latham, Esq. David A. Brownlee, Esq.

Twomey, Latham & Shea Kirkpatrick & Lockhart 33 West Second Street 1500 Oliver Building Riverhead, New York 11901 Pittsburgh, Pennsylvania 15222 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Hon. Patrick G. Halpin MHB Technical Associates Suffolk County Executive 1723 Hamilton Avenue H. Lee Dennison Building Suite K Veterans Memorial Highway San Jose, California 95125 Hauppauge, New York 11788 Joel Blau, Esq. Alfred L. Nardelli, Esq.

Director, Utility Intervention New York State Department of Law N.Y. Consumer Protection Board 120 Broadway, 3rd Floor Suite 1020 Room 3-118 Albany, New York 12210 New York, New York 10271 i

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F. . .

Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 10036

'l Christopher M. McMurray /

KIRKPATRICK & LOCKHART 1800 M Street, N.W. [

South Lobby - 9th Floor Washington, D.C. 20036-5891

• By Hand

• • By Telecopy

• • • By Federal Express i

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