ML20154P549
| ML20154P549 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/27/1988 |
| From: | Latham S, Letsche K, 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 | |
| ML20154P532 | List: |
| References | |
| LBP-88-24, OL-3, OL-5, NUDOCS 8810030099 | |
| Download: ML20154P549 (10) | |
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Sectember 27. 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Acceal Board
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In the Matter of
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LONG ISLA.ND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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GOVERNMENTS' MOTION FOR BIFURCATION OF APPEAL AND FOR EXPEDITED TREATMENT OF JURISDICTIONAL ISSUE Simultcneously herewith, the Governments (Suffolk County, the State of New York, and the Town of Southampton) each filed a Notice of Appeal of the OL-3 Licensing Board's September 23, 1988 Concluding Initial Decision on Emergency Planning.
Lona Island Lichtina Co.,
(Shoreham Nuclear Power Station, Unit 1), LBP 24, NRC (1988).
The Governments intend to challenge several significant errors of law and fact contained in LBP 24, and will do so in briefs filed within 30 days pursuant to 10 CFR 5 2.762.
By this Motion the Governments seek bifurcation and expedited treatment of their appeal of one basic jurisdictional issue raised by LBP-88-24:
whether the OL-3 Licensing Board has the power to dismiss the Governments as parties from the OL-5 proceeding, which is pending before a separate Licensing Board.
8910030099 000927 PDR ALOCK 05000322 O
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'o I.
The Facts In LBP-88-24, the OL-3 Licensing Board dismissed the Governments as parties from the Shoreham proceeding.
- Egg, e.Q.,
LBP-88-24, at 89, 130, 148.
This ruling was apparently intended to apply not only to the OL-3 proceeding over which that Board had jurisdiction, but also to other proceedings before other Boards, such as that involving the results of the June 1988 exercise of LILCO's Plan.
Egg idt at 130, n.39; LBP-88-24, dissenting opinion of Judge Shon, at 12.
Although dated September 23, 1988, the majority opinion in LBP-88-24 made no mention of the Appeal Board's September 20 ruling that the OL-3 Board does not have jurisdiction over matters involving the 1988 LILCO exercise, and its remand of such issues to the OL-5 Licensing Board.
Sag Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-901, NRC (Sept. 20, 1988).
On September 22, 1988, pursuant to ALAB-901, the OL-5 Licensing Board issued a Memorandum and Order setting a schedule for the filing of contentions and responses, and scheduling a conference of counsel, in the proceeding on the 1988 exercise.
A copy of that Memorandum and Order is attached.
Pursuant to the OL-5 Board's Order, the Governments must file contentions concerning the 1988 exercise by October 17.
T s
II.
The Issue to be Bifurcated The Governments seek to have the Nilowing issue bifurcated from their appeal of LBP-88-24:
whether the OL-3 Board has jurisdiction to dismirs the Governments as parties to the OL-5 proceeding.1/
This jurisdictional issue is straightforward and easily segregable from the other issues to be raised by the Governments' appeals of LBP-88-24.
That decision contains many errors involving a myriad of legal, procedural and factual issues.
The Governments will address them in their briefs to be filed within 30 days.
The specific jurisdictional question which the Governments seek to have bifurcated, however, involves no complicated or disputed facts.
Indeed, a ruling on the bifttrcated portion of the Governments' appeal would not involve the factual or legal marits of the OL-3 Board's. substantive rulings in LBP-88-24.
Rather, the ruling sought by this Motion would merely datormine whether the OL-3 Board had the jurisdiction to apply its OL-3-based rulings to oust the Governments as parties to a separato proceeding which is currently pending before the OL-5 Licensing Board.
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The Governments will address in their lator briefs other jurisdictional issues raised by LBP-88-24 such as, for examplo, the OL-3 Board's jurisdiction with respect to mattern liko LBP-88-2 now pending before the Appeal Board.
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Furthermore, the parties, and this Board in ALAB-901, have recently focused on the factual, legal and procedural issues involved in the question of which Board has jurisdiction over the results of the 1988 Shoreham Exercise.
In essence, a ruling on the jurisdictional issue would merely require the application of ALAB-901 and the analysis contained in it to the OL-3 Board's action in LBP-88-24.
Attached hereto is the Governments' Brief on the issue of whether the OL-3 Board has jurisdiction to dismiss the Governments from the OL-5 proceeding.
Its length is indicative of the straightforward nature of the issue presented.
It also demonstrates that expeditious treatment of the issue is both warranted and feasible.
III. The Issue to be Bifurcated Should Be Resolved Exceditiously Whether the OL-3 Licensing Board has jurisdiction to dismiss the Governments from the OL-5 proceeding requires expeditious resolution for several reasons.
First, the OL-5 Licensing Board, acting in reliance upon ALAB-901, has issued a schedule requiring the Governments to file contentions concerning the results of the 1988 exercise by October 17.
The OL-5 Board's Order acknowledges the Governments' l
status as active parties to the exercise proceeding, who intend to challenge thr results of the 1988 exercise in litigation before that Board.
The OL-5 Board has ordered the Governments 1 -
i l
s to take action, including the preparation and filing of contentions, in furtherance of that status.
The OL-5 Board's l
Order, however, is in apparent conflict with the OL-3 Board's decision in LBP-88-24, which purports to dismiss the Governments as parties from all Shoreham proceedings.
The Governments need to know, in a time frame which will allow them to properly allocate their resources, which Board's rulings are controlling with respect to the OL-5 exercise proceeding.
Second, the Governments' status in the OL-5 proceeding needs to be resolved expeditiously because that proceeding is of critical importance to the licensing of Shoreham.
The 1986 Shoreham exercise revealed fundamental flaws in LILco's emergency plan which precluded a finding of reasonable assurance that the public could be protected in the event of a Shoreham emergency.
Those flaws only came to light as a result of the Governments' challenge to the 1986 exercise results.
Indeed, the Governments' participation in the OL-5 litigation helped to reveal that the 1986 exercise itself was flawed and failed to meet the regulatory requirement for a full participation exercise. Tono Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-900, NRC (1988).
In light of these facts, the scope and results of the 1988 exercise must be carefully examined.
If the OL-3 Board's ruling that the Governments are disminsed as parties from the OL-5 proceeding were to stand, however, there would be no party l
in a position to protect the public's right to have the 1988 t
r l
I t
exercise and its results scrutinized and, as appropriate, challenged. Egg LBP-88-24, dissenting opinion of Judge Shon, at 12-13.
The Governments are prepared to participate fully in the proceeding which the OL-5 Board has begun by its September 22 Order.
An expeditious ruling that the OL-3 Board's decision it.
LBP-88-24 does not invalidate the OL-5 Board's ruling in the OL-5 proceeding is necessary to protect the public's right to challenge the results of the 1988 exercise.
Third, LBP-88-24 authorizes the Director of the Office of Nuclear Reactor Regulation to issue LILCO a license to operate Shoreham upon making any requisite findings with respect to uncontested issues.
Ec3 LBP-88-24 at 149.
According to information obtained on September 26 from the Office of General Counsel, NRR is likely to make license findings concerning the 1988 exercise within two to four weeks.
An expeditious ruling on the jurisdictional issue presented by the Governments' bifurcated appeal is necessary to prevent such findings from being made without any opportunity for the Governments to challenge thom on behalf of the affected public.
In order to enable the parties and the Appeal Board to address the jurisdictional issue expeditiously, the Governments' Brief on that issue is attached hereto.
The Governments have served LILCO and the NRC Staf f today, by hand or telecopier, with copics of this Motion, the Notices of Appeal, and the Governments' Brief.
The Governments are also available for a telephone conference or oral argument on the issue should the I'.
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Appeal Board wish to schedule one, although given the limited nature of the issue presented, the Governments expect that it can be decided on the papers.
IV.
Conclusion For the foregoing reasons, the question of whether the OL-3 Licensing Board has jurisdiction to dismiss the Governments from the OL-5 proceeding -- as set forth in the Governments' Brief submitted herewith -- should be bifurcated from the remainder of the Governments' appeal of LBP-88-24.
In addition, the Governments request that the Appeal Board require any parties wishing to respond to the Governments' Brief to do so by close of businesu Thursday, September 22, so that the Board can resolve this jurisdictional issue as soon as possible.
Finally, if the Appeal Board does not intend to grant this Motion and to decide the bifurcated jurisdictional issue by early in the week of October 3, the Governments respectfully request that the Appeal Board so inform the undersigned counsel so that the Governments can seek other relief or take additional actions that may be appropriate to protect their interests.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
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Lawrence Coe L6nphef Karla J.
Letsche Michael S. Miller KIRKPATRICK & LOCKMART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County
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Fab 4an G.
Palomir)6
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Richard J.
ZahnMute Special Counsel to t e 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
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[TwoMy,S'tephy'n B.
Latham
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Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attornoy for the Town of Southampton i
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Dated September 27, 1988 l _ _ - _ _ _ _ _. _ _ - _ _
O ATTACHMENT 5
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'88 97 23 P2 :2!
UNITED STATES OF AMERICA
,39....
50CXiCN: 4 evir NUCLEAR REGULATORY COMMISSION W hCH ATOMIC SAFETY AND LICENSING BOARD hgyggg{p2}198[
Before Administrative Judges:
John H Frye, III, Chairman Dr. Oscar H.
Paris Frederick J.
Shon
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In the Matter of
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Docket No. 50-322-OL-5
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(EP Exercise)
LONG ISLAND LIGHTING COMPANY
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ASLBP No. 86-534-01 OL (Shoreham Nuclear Power
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Station, Unit 1)
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September 22, 1988 MEMORANDUM AND ORDER on September 20, the Appeal Board sitting in this proceeding issued ALAB-901 remanding the proceeding in connection with the 1988 emergency exercise at the Shoreham facility to this Licensing Board sitting in the."OL-5" docket.
We have reviewed the Staff's motion of September 9 to set a schedule in this proceeding together with LILCO's and Intervenors ' responses of September 16 and 19, respectively, all of which were filed in the "OL-3" docket.
In order to promptly commence this proceeding, we are adopting a schedule for tba filing of contentions and
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responses thereto, and setting a date for a conference of counsel.
Further schedules and procedures for the comple-tion of this proceeding will be set following the conference of counsel.
Noon, October 17 Contentions are to be in the hands of the Board, LILCo, and Staff.
Noon, October 27 LILCO's response is to be in the hands of the Board, Intervenors, and Staff.
Noon, November 1 Staff *s response to be in the hands of the Board, LILCO, and Intervenors.
Noon, November 8 Intervenors' reply to be in the hands of the Board, LILCO, and Staff.
10:00 AM, Nov-Conference of Counsel, NRC Hearing ember 16 Room, fifth floor, 4350 East-West Highway, Bethesda, Maryland.
It is so ORDERED.
For the ATOMIC SAFETY AND LICENSING BOARD
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John \\P; Fr III, Chairman AD INISTRa IVE JUDGE Dethesda, Maryland September 22, 1988