ML20154J407
| ML20154J407 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/16/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#388-7114 OL-3, OL-5, NUDOCS 8809230017 | |
| Download: ML20154J407 (11) | |
Text
F LILCO, Sept:mber 16,1944 5
DXH(fE0 t;* C l
UNITED STATES OF AMERICA !
NUCLEAR REGULATORY COMMISSION !
'88 SEP 21 P4 :32 l t
Before the Atomic SafetvA!)d Licensing Appeal Board b ,
In the Matter of ) l
) l LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 :
) (EP Exercise) !
(Shoreham Nuclear Power Station, ) i Unit 1) ) !
I LILCO'S RESPONSE TO INTERVENORS' MOTION FOR APPOINTMENT OF i MCENSING BOARD WITH JURISDICTION TO HEAR !$48 EXERC!SE ISSUES l
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I. INTRODUCTION !
On September 13,1988, Suffolk County, the State of New York, and the Town of t Southampton (hereinaf ter "Intervenors") filed a motion in this docket requesting this l t
l Appeal Board to appoint a Licensing Board with jurtsolction to hear issues related to f
r the June 7-9, 1988 exercise of the Shoreham Offsite Radiological Emergency Response
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Plan. Suffolk County, State of New York and Town of Southampton Motion for Ap-f pointment of Licensing Board with Jurisdiction to Hear Exercise issues (Sept.13,1988)
("Motion"). In a cover letter forwarding a copy of their motion to the Licensing Board, f Inte.'venors asserted that the existing "OL-3 docketa Licensing Board, which has gener-l al jurisdiction to hear all emergency planning matters, may not consider the NRC Staff's September 9,1988 Motion for Schedule for Litigation of the June 1988 Exercise
( Staff Motion") unless the Appeal Board specifically authorizes it to do so.
Intervenors' motion is invalid and should be summarily dismissed because it is filed in the wrong docket, filed before the wrong tribunal, and seeks the wrong relief. [
At bottom, the motion is flawed on jurisdictional grounds: it is wrongly premised on the assumption that when the OL-5 Licensing Board was constituted in 1986, jurisdiction 8809230017 000916 gDR ADOCK0500g2
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r 2-i over exerelle-related matters p3ssed for any and all exercises from the OL-3 Board to the OL-5 Board. In f act, when the OL-5 Licensing Board was created, its jurisdiction was expressly 11mited to issues raised in the 1986 Shoreha,n exercise. The OL-5 Board ackr.owledged that limitation on its jurisdiction when it declined to assume jurisdiction (
over post-1986 exercise-related matters. Eeg Long Island Lighting _ Co. (Shoreham Nu-c! car Power Station, Unit 1), LDP 88 7,27 NRC 289,291(1988). Even Intervenors, in a pleading before the OL-5 Board, have acknow!cdged the Board's limited jurisdiction.
!_eg Governments' Views on Whether the Licensing Board Should Retain Jurisdiction of 7 the Exercise Litigation at 3 (Feb. 23,1988). Thus the Appeal Board's jurisdiction in the OL-5 docket does not extend to issues related to the 1988 Shoreham exercise, and that docket car.not serve as a vehicle for Intervepors to try to place their request before the Appeal Board. In any event, ttte Appeal Board is not authorized to direct the appoint-ment of a new Licensing Board. Seg e 10 C.F.P. S 2.721(a). Therefore, the motion is it!cd in the wrong forum.
Even within the OL-3 docket,Intervenors 3hould have filed their rnotion with the Licensing Board requesting it, for good cause (to be but not) shown, to abstain from ruling on the Staf!'s September 9 motion to set a schedule for litigation of the 1988 ex- !
ercise. SE NRC Staff Stotion for Schedule for Litigat!on of the June 1998 Exercise (Sept. 9,1988).Il Because Intervenors f 2ll to seek such a remedy, and because the Sto- !
tion is it!cd in the wrong docket and with th:2 wrong tribunal, the Appeal Board should summarily dismiss it, f
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1/ A copy of LILCO's Response to the Staff's Stotion, which LILCO is filing today (
with the Licensing Board in the OL-3 docket, is also being lodged with the Appeal Board !
as a courtesy. '
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3 D.lif.CMOROUND Intervenors' Stotion recites a highly selective and largely inaccurate history of the appointment of licensing boards in the Shoreham offsite emergency planning pro- l cceding. At the outset, Intervenors f all to note that in Stay 1983 the Commission estab-11thed a separate Licensing Board :tuthorized to preside "over the proceeding on aj cmcrgency planning issues." 48 Fed. Reg. 22,235 (Stay 17,1983) (emphasis added). Itis c! car that this hearing notice made the OL-3" docket the presumptively general juris-diction emergency planning docket, subject only to specific exemption. EN Pacific Oas
& Electric Co- a(Stanislaus Nuc! car Project, Unit No.1), ALAB 400,5 NRC 1175,1177-78 (1977) (hearing notice issued by the Commission establishes the scope of a Licensing Board's jurisdiction).
Intervenors' stotion also misrepresents the extent to which the jurisdiction of the OL-3 docket was limited in 1986.2# On February 13, 1986, LlLCO conducted the first FEStA graded exercise of the Shorehara offsite emergency response plan. One month later, responding to a pleading by Intervenors and in the interest of expediting any exercise litigation on the 1986 exercise, LILCO filed a motion before the 2/ That LILCO has refrained from rebutting each factual inaccuracy in Intervenors' Stotion should not be understood to suggest that LILCO agrecs with Intervenors' ae-count. In p:rticular, with respect to creation of a new Licensing Board in 1986, it is important to otEerve that LILCO did not initiate petitions to the Commission on the subject of litigation of the 1986 exercise as Intervenors assert. Instead, Intervenors, af ter being rejec'ed by the Appeal Board, first petitioned the Commissitn for guidance.
Sg $1otion of Suffolk County the State of New York, and the Town of Southampton for Ruling Concerning Proceedings Related to the Shoreham Exercise (Starch 7,1986).
LILCO's filing with the Commission was in the form of a reply, in whleh, as described above, LlLCO asked the Commission to appoint the members of the existing OL-3 Board to hear the 1986 exercise litigation. In f act, the Board appointed to hear the exercisc litigation consisted of the same members who had heard the litigation on the plan.
Second. LILCO does not concur with Intevenors' assertion that the 1983 exercise was necessitated by "LILCO's deficient performance (in 1936) and the passage of time." S10 tion at 1. LILCO telieves that the 1936 exercise was adequate both in scope and substance, and that the bland phrase "passage of time" does not adequately charac-terize the inexcusably dilatory progress of !!!!gation before the OL-5 Board.
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Commission requesting the establishment of a Licensing Board and expedited pro >e-t dures for litigation of the 1986 Shoreham exercise, ggg Long Island Lighting Company's j Motion for Estabilshment of Lleensing Board and institution of Expedited Procedures l for Litigation of Shoreham Emergency Planning Exercise Issues, and Response to ' ' l
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venors' March 7,1986 "Motion Concerning Proceedings Relating to the Short A?-
- l cise* (March 13, 1986). LILCO requested the Commission to appoint a Boar + Ad f of members "who have participated in the earlier Shoreham emergency planning pro-ceedings and thus have knowledge of the LILCO Plan and the memmoth record in the I case." & at 11.
On June 6,1986, the Commission issu-4 an order, establishing a separate docket (docket 50-322 OL-5) for the 1986 exerelse and directing the Chairman of the Atomic Safety and Licensing Board Panel to "reappoint the members of the earlier BoaN! if they are available." Long Island L!Ehting Co, (Shoreham Nuclear Power Station, Ualt 1), CLI-86-11, 23 NRC 577, 582 (1986). On June 10, the Licensing Boar 6 Panet Chair-man, Chief Administrative Judge B. Paul Cotter, Jr., did just that, appointing the mem- >
I bers of the existing OL-3 docket Board -- Administrative Judges Margulies, K!!ne and (
Shon -- to preside over litigation on the 1986 exercise. Esg Establishment of Atomic Safety and Licensing Board (unpublished order)(June 10, 1986). This appointment indi-catal the Commission's awareness of the obvious and important interrelationship of emergency planning and exercise issues.
On October 7,1986 Judgn Cotter sm sponte reconstituted the OL-5 Board by replacing Board Chairman Marguttes with Judge John H. Frye,!!!, and Judge Kline with j Judge Oscar H. Paris, (Judge Shon remained a member of both the OL-3 and OL-5 Boards.) Judge Cotter cited schedule conflicts as the basis for the Board reconstitution.E On October 17. 1986, Judge Cotter issued an order clarifying the I
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3/ On October 14, 1996, cour.sel for Intervenors wrote to the Licensing Board Panel Chairman demanding that the reconstitution order be rescinded. Leg Letter from (footnote continued)
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5-s scopo of the October 7 Order. gg Notice of Reconstitution of Board: Clarification (unpublished order) (Oct. 17, 1986).
The OL-5 Board issued decisions on the 1986 exercise on December 7,1987, and February 1,1988. Egg LDP-87-32, 26 NRC 479 (1987); LBP-88 2, 27 NRC 85 (1988).
LILCO sought appeal from 'hese deelstons on December 17, 1987, and February 12, 1988, respectively.
On Starch 9,1988, af ter so11 citing the views of the parties,M the OL-5 Board is-sued a Stemorandum and Order in which it declined to retain jurisdiction over Shoreham exercise-related matters. $g LBP-38 7, 27 NRC 289 (1978). The Board's decision, which was never appealed from, had been opposed by LILCO and Intervencrs, who both asked the Frye lioard to retain jurisdiction over any remedial aspects of the 1986 exer-cise.
RI. DISCUSSION A, Intervenors' Motion _Is_Filn! !n the Wrong DockcLand in_the Wrong Forun}
Intervenors' 51otion is invalid becaute it is filed in the wrc.;I docket and with the wrong tribunal. Intervenors filed their 51otion with the Appeal Board on the stated as-sumption that the OL-5 Board has jurisdiction over all exercise-related issues, which passed to the Appeal Board on LILCO's appeal of the Licensing Board's decisions on the (tootnote continued) lierbert }{. Brown to B. Paul Cotter, Jr. (Oct. 14, 1986). Responding to a subsequent motion filed by Intervenors, the Panci Chairman declined to rescind the reconstitution order. gg Luffolk County and State _of New York Motion to Rescind Reconstitution of IV>ard by Chiehdministrative Judge Cotter (Shoreham Sucicar Power Station Unit 1),
LDP-86 37 A,24 NRC 726 (1986).
4/ Lee L!LCO's Views on Continuing Board Jurisdiction (Feb. 17, 1988); NRC Staff Resporse to Board Request for Views of Parties on Whether the Board Should Retain Ju-ristletion Over LILCO Corrective Actions (Feb. 19, 1988); Governments' Views on Whether the Licensing Board Should Retain Jurisdiction of the Exercise Litigation (Feb. 23,198 8).
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1 1986 exercise. Motion at 1. 2,7-S. As described below, Intervenors have misidentified l
1 the jurisdiction of the OL-5 Licensing Board and therefore have misfiled their Motion, l
l Intervenors have also f ailed to show that the Appeal Board has independent authority to direct the appointment of a new Licensing Board.
- 1. The OL-5 Board's Jurisdiction Was Limited to the 1986 Shoreham Exercise Intervenors assert, without supporting evidence, that the "plain effect and in-tent" of the creation of the OL-5 docket in 1986 was M "divest the OL 3 Licensing l Board of jurisdiction over exercise-related matters." h 2 at 4. This assertion is plainly wrong. It is clear that whet. the Commission c.wted the OL-5 docket it con-templated that the new Board's jurisdiction would be limited to litigation of the 1986 exercise. The Commission referred to "litigation of emergency planning exercise r*
Sults," CLI-86-11, 23 NRC at 579, "the exercise proceeding," Ld; at 582, and directd that the Board should "expedite the hearing to the maximum extent consistent with the f airness to the parties, and to issue its decision ppon the egnmpletion of the_ proceeding."
Ld (emphasis added.)
3 Judge Cotter's June 10, 1986 order appo... ting the OL-5 Board was explie!tly is-sued in the context of the 1986 exercise and indleated that the new Board's jurisdiction was to te limited to issues "concerning litigation of emergency planning exercise re-suits." June 10 Order at 1. Judge Cotter's clarification of the order reconstituting the l OL-5 Board stated even more explicitly the OL-5 Board's limited jurisdiction. That order provided that the OL-5 Board would preside "only in the proceedings related to the emergency planning exercise." Recortstitution Order at 1. That order further pro-vided that the OL-3 Board "will continue to preside in_all other_proceedints pertaining to emergency plant.ing for the shoreham Nuclear Power Station." Id. at 1-2 (emphasis added).
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The OL-5 Licensing Board itself has acknowledged the limits of its jurisdictional grant. In a March 9,1988 Memorandum and Order, the Board decided that it did not have jurisdiction to review corrective actions that might be taken following the 1986 exercise. LBP-88-7, 27 NRC 289, 291 (1988). The Board recalled that CLI-86-11 had authorized the Board to conduct a proceeding on the 1986 exercise, to issue a decision upon completion of the proceeding, but not to make a finding of reasonal'le assurance.
Declining to retain jurisd.etion over remedial exercise matters, the Board concluded that "we have discharged the responsibilities delegated to us by the Commission." Id2 Even Intervenors, in a previous pleading, have recognized that the jurisdiction of OL-5 Board was limited to the 1986 exercise. In response to the OL-5 Board's requests for the parties' views on whether the Board should refrain jurisdiction over exercise re-lated issued, utervenors advised the Board that "only a strained reading of CLI-86-11
- could locate a ' mandate
- in (CLI-80-11] that the present Licensing Board is required to l retain jurisdiction over the next exercise, if and when it occurs." Governments' Views on Whether the Licensing Board Should Retain Jurisdiction of the Exercise Litigation at 3 (Feb. 23,1988).EI l
Since the OL-5 Doard had jurisdiction over only 1986 exercise issues, the Appeal l Board's jurisdiction in that docket is similarly limited. Since the OL-5 docket does not extend to issues raised by the 1988 exercise, it does not confer jurisdiction on the Ap-peal Board to consider Intervenors' Motion.
1/ Intervenors proceeded to conclude, however, that while there was no "mandate" requiring the Board to retain jurisdiction, such jurisdiction could be retained on the grounds of "judleial economy" and "common sense." Governmenis' Views at 3, 4. This l conclusion defles hornbook law: a Licensing Board cannot acquire or manuf acture ju-risdiction which is not expressly granted. SE, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825,22 NRC 785, 790 (1985) (Licensing Boards "are dele-gates of the Commission and, on such, they may exercise authority over only those matters that the Commtssion commits to them.") In any event, this position is at odds with their present position.
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- 2. The Appeal Board Does Not Have Authority to Entertain Intervenors' Motion Section 2.721(a' of the Commission's regulations provides that only the Commis-sion or the Chairman of the Atomic Safety and Licensing Board Panel may establish Li-censing Boards. Intervenors provide no justification for their request to the Appeal Board to appoint a Licensing Board. Therefore, tnelr Motion is filed in the wrong forum, totally apart from the limitations of the OL-5 docket.
B. Intervenors' Motion Seeks the Wrong Relief Intervenors' Motion seeks relief which is unavailable. Since the OL-3 Board hes jurisdiction over the 1988 exercise, intervenors' only available remedy is to move the Licensing Board in the OL-3 docket, for good cause shown, to abstain from ruling on the Staff's September 9 motion to set a schedule for litigation of the 1988 exercise. Of course, the good cause showing would have to be addressed to the Board's sound discre-tion. Whether the litigable issues (if any) growing out of the 1988 exercise should be heard by the existing memoers of the OL-3 Board or by some other aggregation from the ASLB Panciis a matter to be determined by the exigencies of the situation ar.d the sound discretion of the decision-maker. These exigencies include any remaining and anticipated commitments still facing the OL-3 Board; the expected or necessary pace for the 1988 exercise litigation; the relationship between plan issues and 1988 exercise issues; the relationship (if any) between 1986 exercise issues and 1988 exercise issues; and any other f actors affecting the availability of OL-3 Board members.5/
g/ In the event Intervenors were to file such a motion with the OL-3 Board, LILCO would file a p"ompt response. For present purposes, it is adequate to note that LILCO vehemently disagrees that the previous existence of two boards whh overlapping mem-bership, one of them with jurisdiction over the 1986 exercise (the OL-5 Board) and one of them with jurisdiction over the Plan (the OL-3 Board), contributed materially to the efficiency of litigation of either matter. In fact, the pace of litigation was limited by the availability of common member (s); any other anticipated efficiencies were largely (footnote continued)
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1 CONCLUSION For the foregoing reasons, the Appeal Board should summarily dismiss Interve-nors' September 13 Motion urging the Appeal Board to appoint a Licensing Board to pre-side over any litigation of the 1988 Shoreham exercise.
Respectfully submitted, Donald P. Irwin e -
Kathy E. B. McCleskey Charles L. Ingebretson Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 16, 1988 (footnote continued) diluted by the duplication and confusion inherent in keeping two boards continuously educated and informed about delicately intertwined matters. Further, LILCO emphat-leally disagrees with Intervenors' characterization of the current OL-3 Board's ability to process work. Even a cursory review of the record over the past nine months reveals that that Board has been highly productive.
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LILCO, Sept:mber 16,1988
- QL q n r.
Uwc CERTIFICATE OF SERVICE in the Matter of LONG ISLAND LIGHTING COMPANY cn t .) ,
(Shoreham Nuclear Power Station, Unit 1) Occgrigg;;;,3,:,'y Docket No. 50-322-OL-5 ?RA M i hereby certify that copies of LILCO'S RESPONSE TO INTERVENORS' MOTION FOR APPOINTMENT OF LICENSING BOARD WITH JURI8 DICTION TO HEAR 1988 EXERCISE ISSUES were served this date upon the following by Telecopy as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-c' ass mall, postage prepaid.
Christine N. Kohl, Chairman
- Mr. Frederick J. Shon
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor (North Tower) East-West Towers, Rm. 430 East-West Towers 4350 East-West Hwy.
4350 East-West !!!ghway Bethesda, MD 20814 Bethesda, MD 20814 Secretary of the Commission Alan S. Rosenthal
- Attention Docketing and Service Atomic Safety and Licensing Section Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Fif th Floor (North Tower) Washington, D.C. 20555 East-West Towera 4350 East-West Highway Atomic Safety and Licensing Bethesda, MD 20814 Appeal Board Panel U.S. Nuclear Regulatory Commission Dr. W. Reed Johnson
- Nashington, D.C. 20555 Atomic Safety and Licensing Appeal Board Adjudicatory File U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 115 Falcon Drive, Colthurst Board Panel Docket Charlottesville, VA 22901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James P. Gleason, Chairman *,**
Atomic Safety and Licensing Board Edwin J. Reis. Esq.
- S13 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 One White Flint North 11555 Rockville Pike Dr. Jerry R. Kline
- Rockville, MD 20852 Atomic Safety and Licensing Board U.S. nuclear Regulatory Commission East-West Towers, Rm. 427 i 4350 East-West Hwy.
Bethesda, MD 20814
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7 Herbert H. Brown, Esq.
- Jonathan D. Feinberg, Esq.
Lawrence Coe Lanpher, Esq. New York State Department of Karla J. Letsche, Esq. Public Service, Staff Counsel Kirkpatrick & Lockhart Three Rockefeller Plaza South Lobby - 9th Floor Albany, New York 12223 1800 M Street, N.W.
Washington, D.C. 20036-5891 Ms. Nora Bredes Executive Coordinator Fabian G. Palomino, Esq.
- Shoreham Opponents' Coalition Richard J. Zahnleuter, Esq. 195 East Main Street Special Counsel to the Governor Smithtown, New York 11787 Executive Chamber Room 229 Evan A. Davis, Esq.
State Capitol Counsel to the Governor Albany, New York 12224 Executive Chamber State Capitol Alfred L. Nardelli, Esq. Albany, New York 12224 Assistant Attorney General 120 Broadway E. Thomas Boyle, Esq.
Room 3-118 Suffolk County Attorney New York, New York 10271 Building 158 North County Complex Veterans Memorial Highway George W. Watson, Esq.
- Hauppauge, New York 11788 William R. Cumming, Esq.
Federal Emergency Management Dr. Monroe Schneider Agency North Shore Committee 500 C Street, S.W., Room 840 P.O. Box 231 Washington, D.C. 20472 Wading River, NY 11792 Mr. Jay Dunkleberger COURTESY SERVICE:
New York State Energy Office Agency Building 2 John H. Frye, III, Chairman "
Empire State Plaza Atomic Safety and Licensing Board Albany, New York 12223 U.S. Nuclear Regulatory Commission East-West Tower Stephen B. Latham, Esq. ** 4350 East-West Highway Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O. Box 298 Dr. Osc r H. Paris "
Riverhead, New York 11901 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mr. Philip McIntire East-West Tower Federal Emergency Management 4350 East-West Highway Agency Bethesda, MD 20814 26 Federal Plaza New York, New York 10278 L...
$F & . ma w.asm Charle5 L. Ingebre n Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 16, 1988
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