ML20155G838
| ML20155G838 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/03/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7215 ALAB-901, OL-3, OL-5, NUDOCS 8810180009 | |
| Download: ML20155G838 (12) | |
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12/S utCO, October 3,1988 DOCKET NUMBER gyy [.-g-8 PROD, & UTIL FAC
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00CKETED UNITED STATES OF AMERICA NI' CLEAR REGULATORY COMMISSION
'88 OCT -5 P4 :04 Before the Chairman of the Atomic Safety and Licensing Board'Varieli In the Matter of
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LONG ISLAND LIGl{ TING COMPANY
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(Shoreham Nuclear Power Station.
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Unit 1)
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j ULCO'S MOTION TO RECONSTITUTE TI{E 50-322-OL-5 LICENSING BOARD in ALAB-901,28 NRC (Sept. 20,1988), the Appeal Board remanded proceed-ings in connection with the 1988 emergency exercise at the Shoreham facility "for ap-propriate action to the Licensing Board in Docket No. 30-322-OL-5...." Slip op, at
- 10. The Appeal Board added that this Licensing Board "may be reconstituted by the Chairman of the Atomic Safety and Licensing Board Panelin his discretion." Id.
By this motion LILCO asks the Chairman to exercise his discretion and M
reconstitute the OL-5 Licensing Board to consist of the following members:
James P. Gleason Jerry R. Kline Frederick J. Shon Alternatively, LILCO asks that the OL-3 Board be designated to proceed with this mat-ter.
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LILCO by no means believes that litigation of the 1988 exercise will be neces-sary, particularly in light of the decision in LBP-88-24 (Sept. 23,1988) dismissing the Intervenors from the proceeding. But LILCO thinks it important to proceed with the appointment of an OL-5 board to avoid any delay in case it turns out for any reason that the board has issues to decide. The same desire to avoid delay compels LILCO to re-frain from asking the Frye Board to stay its own proceedings pot. ding action on this mo-tion to reconstitute.
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LILCO's reasons are the following:
1.
The Board most knowledgeable about the emergency plan is the OL-3 Board consisting of the members listed above.
2.
There is no compelling need to retain the same members that heard the lit-Igation of the February 1986 exercise.
3.
The 1988 exercise is more clearly related to the current Shoreham Emer-gency Plan (reviewed through Revision 10) than it is to the 1986 exercise (which was based on Revision 5 of the Emergency Plan).
4 4.
The OL-3 Soard whose members are listed above has finished its work and, i
except for possible proceedings over the 25 percent license, has no more is-sues to hear.
5.
On September 9,1988, the NRC Staff filed a proposed schedule relating to the 1988 exercise with the OL-3 Board, which the Appea! Board did not l
l consider in its September 20th Order.
l I. History of the Case l
The practice of dividing the 50-322-OL proceeding into a variety of docket subnumbers and licensing board judges is, as the Appeal Board has said, a "case manage-l ment tool." There is one "proceeding" here, on LILCO's application for an operating !!-
l cense. All the operating license issues are under Docket Number 50-322-OL, which has included the "health and safety" issues, the "Phase 1"(onsite) emergency planning issues, the "Phase !!" (offsite) emergency planning issues, the issues remanded by the Appeal l
Board and the Commission, and the issues over the february 1986 and now the June i
j 1988 emergency planning exercises. Included at various times were issues involving the l
security plan and the emergency diesel generators.
I For most of this proceeding the issues have been decided under the undivided 50-322-OL docket number. For example, 50-322-OL was the docket number on the i
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Brenner Board's (Judges Brenner, Carpenter, and Morris) decision that the Intervenors were in default of a Board order (LBP-82-115,16 NRC 1923 (1982)), the same Board's decision that the proceeding should go forward notwithstanding the County's opposition to all emergency plans (LBP-83-22,17 NRC 608 (1983)), and the same Board's decision on the health and safety issues (LBP-83-57,18 NRC 445 (1983)).
In May 1983 the Chairman of the Licensing Board Panel established a separate licensing board authorized to preside "over the proceeding on all emergency planning issues." 48 Fed. Reg. 22,235 (May 17,1983). On February 13, 1986, LILCO conducted the first FEMA graded exercise of the Shoreham offsite emergency response plan. One i
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 Commis-
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sion requesting the establishment of a licensing board and expedited procedures for liti-
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gation of the 1986 Shoreham exercise. See Long Island Lighting Company's Motion for Establishment of Licensing Board and Institution of Expedited Procedures for Litigation 4
of Shoreham Emergency Planning Exercise Issues, and Response to Intervenors' March 7,1986 "Motion Concerning Proceedings Relating to the Shoreham Exercise"(March 13, 1986). LILCO asked the Commission to appoint a board composed of members "who have participated in the earlier Shoreham emergency planning proceedings and thus have knowledge of the LILCO Plan and the mammoth record in the case." !#, at 11.
On June 6,1986, the Commission issued an order to initiate a hearing on the re-l sults of the 1986 exercise and directing the Chairman of the Atomic Safety and Licens-ing Board Panel to "reappoint the members of the earlier Board if they are available."
L_or)r Island Lighting Co, (Shoreham Nuclear Power Station, Unit 1), CLI-86-11,23 NRC 577, 582 (1986). On June 10, the Licensing Board Panel Chairman, Chief Administrative I
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Judge B. Paul Cotter, Jr., did just that, appointing the members of the existing OL-3 l
docket Board - Admlautrative Judges Margulies, Kilne and Shon -- to preside over l
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litigation on the 1986 exercise. geg Establishment of Atomic Safety and Licensing Board (unpublished order) (June 10, 1986). This Commission direction to reappoint the members of the earlier board, if available, indicated the Commission's awareness of the obvious and important interrelationship of emergency planning and exercise issues.
The OL-5 designation for excrcise-related papers was made only several weeks later by Judge Cotter, "for more effective docket management." Change of Docket Number (July 24,1986).
On October 7,1986, Judge Cotter sua sponte reconstituted the OL-5 Board by replacing Board Chairman Margulies with Judge John H. Frye, Ill, and Judge Kline with 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 scope of the October 7 Order and af!!rming that the OL-3 Board remained responsible for all aspects of Shoreham emergency planning except for the litigation of the exer-cise. Seg Notice of Reconstitution of Board: Clarification (unpub!!shed order) (Oct.17, 1986).
The OL-5 Board issued decisions on the 1986 exercise on December 7,1987, and February 1,1988, almost two years af ter the exercise that was the subject of the litiga-tion.E Seg LBP-87-32,26 NRC 479 (1987); LBP-88-2,27 NRC 85 (1988). LILCO sought 2/
On October 14, 1986, counsel for Intervenors wrote to the Licensing Board Panel Chairman demanding that the reconstitution order be rescinded.
geg Letter from lierbert H. Brown to B. Paul Cotter, Jr., (Oct. 14, 1986). Responding to a subsequent motion filed by Intervenors the Panel Chairman declined to rescind the reconstitution order. See Suffolk County and State _of New York Motion to Rescind Reconstitution of
{loard by Chief Administrative Judge Cotter (Shoreham Nuclear Power Station, Unit 1),
LBP-86-37A,04 NRC 726 (1986).
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The exercise was held February 13, 1986. FEMA's post-exercise assessment was issued Aoril 17, 1986. On June 6,1986, the Commission ordered "immediate initiation" of the exercise hearing and directed that the proceeding be expedited. Long Island (footnoto continued)
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appeal from these decisions on December 17,1987, and February 12, 1988, respectively.
On March 9,1988, af ter soliciting the views of the parties,M the OL-5 Board is-sued a Memorandum and Order in which it declined to retain jurisdiction over Shoreham exercise-related matters. Sgg LBP-88-7, 27 NRC 289 (1988). The Board's decision, which was never appealed f rom, had been opposed by LILCO and Intervenors, who both I
asked the Frye Board to retain jurisdiction over any remedial aspects of the 1986 exer-else. The Frye Board noted two matters of significance in its decision. First,!! lacked authority to make ultimate licensing (ht, reasonable assurance) findings. Second, even if it theoretically had justification over remedial actions relating to the 1986 exercise, it thought that an independent exercise, itself sufficient for licensing, might be the more advisable course, and it noted that LILCO had chosen that course (in what became I
the June 7-9, 1988 exercise. Both of these matters cut against the OL-5 Board's reten-I tion of jurisdiction over the 1988 exercise. Almost seven months later, the Appeal Board has now held sua sponte that the OL-5 Board was incorrect in LBP-88-7. ALAB-901,28 NRC
, slip op. at 9 n.6 (Sept. 20,1988).
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L!zhtintCo. (Shoreham Nuclear Power Station, Unit 1), CLt-86-11, 23 NRC 577, 582 (1J86). On August 1,1986, the Intervenors submitted 162 pages of contentions. The hearings on the admitted contentions began March 10, 1987, nine months af ter the Commission's order in CLI-86-11 for expedited hearings, and lasted four months until June 18,1987, when the record was closed.
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See LILCO's Views on Continuing Board Jurisdiction (Feb. 17, 1988); NRC Staff Response to Board's Request for Views of Parties on Whether the Board Should Retain Jurisdiction Over LILCO Corrective Actions (Feb. 19, 1988): Governments' Views on Whether the Licensing Board Should Retain Jurisdiction of the Exercise Litigation (Feb.
23, 1988).
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6-i II. The OL-3 Board Should Be ADDOlnted A.
The Best-Qualified Board Is The -03 Board The purpose of the 1988 exercise, like that of any full participation exercise, is to illuminate the implementability of the Shoreham offsite emergency plan. Its basic frame of reference is thus the offsite plan, which has been within the jurisdiction of the current OL-3 Board. That Board, more than any other members of the ASLB panel, 1s knowledgeable about the offsite plan.EI Reconstitution of the OL-5 Board to consist l
of the current members of the OL-3 Board would be appropriate and conducive to econ-omy of administration of that Board. Alternatively, because the frame of reference is the offsite plan, litigation of any exercise issues should be before the OL-3 Board, which is most f amiliar with that plan.
4 B.
Reappointment of the OL-5 Board Confers No Advantage By contrast, reappointment of the members of the OL-5 Board who decided the 1986 exercise issues does not appear to confer any particular advantage and may have some disadvantages. That Board's reference point is the technically moot 1986 exer-cise, rather than the offsite plan Der se and its implementability. Since the 1988 exer-cise was a full participation exercise intended to show independently the imple-mentability of the Shoreham offsite emergency plan, rather than a remedial exercise hinged to a previous exercise,0I the significance of the 1986 exercise to the current 1/
Two of the OL-3 Board's members - Sir. Shon and Dr. Kline -- have heard all plan-related issues since the inception of the offsite emergency planning docket in 1982. Its Chairman, Sir. Gleason, has sat on a variety of issues going to the theo;y (re-alism) and f acts (reception centers, school bus driver role confilet, hospital ETEs, emergency broadcast system) of the Shoreham plan since his appointment 10 months ago.
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This view of the 1988 exercise appears to be shared by the Appeal Board, which has suggested that it is apparently subject to d_q novo litigation, and that the appeal of the 1986 exercise is at least technically moot. ALAB-900 (September 20,1988) (slip (footnote continued) i r,
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inquiry is secondary at best. As a result, the knowledge of the previous OL-5 panel members of the 1986 exercise does not confer any particular advantage.N Indeed, the plan has changed in numerous ways since the 1986 exercise. The OL-3 Board is more up-to-date on such changes.
The 1986 exercise, the Appeal Board has found, cannot form the basis for an op-erating license, if the 1988 exercise were merely a remedial exercise designed to cor-rect defects in the 1986 exercise, then it arguably would be more closely tied to the 1986 exercise and there might be a better case for appointing the OL-5 Board. But, as (footnote continued) op.) at 7. Intervenors' position appears similar (if internally inconsistent) that all the events of the 1988 exercise must be evaluated, not only on their own terms but also from the perspective of the 1986 exercise, as though the 1988 exercise were a remedial exercise; but that the 1986 exercise cannot serve in any fashion as a basis for licensing.
These matters, in any event, can be determined only by a Licensing Board.
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More important will be a licensing board's ability to put the 1986 exercise dispas-sionately into perspective in arriving at a present determination of emergency pre-paredness at Shoreham. This is underscored by the potentially prejudicial speculation of the OL-5 Board in its second partial initial decision on the 1986 exercise. There, that Board went beyond criticism of LERO's implementation of the communications el-ements of the Shoreham offsite plan (which had previously been found adequate by the OL-3 Board), to questioning the entire concept of utility plans. The OL-5 ASLB ven-tured:
It may be difficult for LILCO to cure this fundamental flaw because of the training and experience of the personnel used to implement the Plan. As emergency workers, LILCO per-sonnel are amateurs; this fact may be the root cause of the communication problems.... (!)t is questionable whether utility personnel can cyce achieve the level of performance that professional emerg'ancy workers, such as the police, dis-play.... Consequently, the LERO approach is generally and fundamentally unsatisf actory, and it may be inherently so.
LDP-88-2,27 NRC 85,120 (1988).
This expression of views by the OL-5 docket Licensing Board may not be suff t-cient in itself to indiccte a legally disqualifying bias. It and similar passages from LBP-88-2 do, however, illustrate the need for any Board with jurisdiction over the 1988 ex-ercise to be able to achieve sufficient detachment from the OL-5 Board's previous decisions on the 1986 exercise to judge the 1988 exercise f airly in its own terms.
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e s noted above, the 1988 exercise was not a remedial exercise but a separate, f ull partici-pation exercise designed to stand alone.
In short, the OL-5 Licensing Board, which is knowledgeable primarily about the 1986 exercise and not about the plan as it has developed since then,is not the most ap-propriate board to deJ1 with the 1988 exercise. The most appropriate board to resolve any issues involving the 1988 exercise is the one with the most knowledge about the fundamental issue: the emergency plan. The fundamental issue is whether there is a "fundamental flaw" in the emergency plan. The OL-3 Board has the most knowledge about the emergency plan and thus is most quallfled to decide that issue. To the extent experience with the 1986 exercise could be helpful, Judge Shon, who sits on both the OL-3 and OL-5 Boards, can provide it.E' C.
The OL-3 Board Appears to Be Available Although LILCO does not know what other commitments the OL-3 Board mem-bers might have, it appears that they have the time to resolve any remaining exercise issues.2/ With the issuance of its Concluding Initial Decision on Emergency Planning.
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Storeover, reappointment of the Ot.-S Board will, if there is any remand of issues resolved by LBP-88-24, result in two boards with overlapping memberships. Initially the OL-3 and OL-5 Boards were identicalt then, briefly, Str. Shon and Str. Stargulles were joint memberst for most of the time the only common member has been Str. Shon.
The history of this case shows that this loses multiple boards' principal practical advantage - the ability to work on multiple issues concurrently -- due to the impossi-bility of overlapping members' being in more than one place at any given time. In addi-tion, while overlapping membership doubtless equipped each board with some institu-tional knowledge of the companion docket, the results did not always display the consistency and economy of overall work product that typically characterize the ef-forts of a unitary Board.
2/
All the remanded issues before the OL-3 Board have been decided in LBP-88 24.
These are (1) hospital evacuation time and school bus driver role conflict issues, (2) re-alism/ integrity-of proceeding issues, and (3) EBS.
The OL-3 Board (plus an alternate Board member, Dr. l{etrick) is also responsi-ble, in the OL-6 docket, for any potential litigation on LILCO's 25% license motion.
!!owever, LILCO doubts that that contingency bears materially on the present situa-tion. LILCO's 25% power motion has been filed for nearly a year and a half by now, since Aprl! 15, 1987. There is no guarantee when the Staf f will issue its Safety Evalua-tion Report. Even then, the issue of the substantive relevance of pending contentions to operation at 25% power is being initially addressed by Dr. !{etrick.
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-S-LBP-88-24, on September 23,1988, the OL-3 Board finished its work on all the issues before it except the 25 percent license application. Given the apparent availability of the OL-3 Board, there is no good reason to have or resurrect a second board.
IU. Reconstituting The Board Would Not Present Any Substantial Problems This motion comes at a time when the original OL-5 Board has issued an order, on September 22, setting a schedule for initial further proceedings on the 1988 exercise (filing of contentions and responses, prehearing conference). All that has been issued so f ar is this single scheduling order, however, and so LILCO is not asking for a redoing of any substantive activities by the OL-5 Board.
Nor was there reasonable time to request reconstitution of the OL-5 Board be-fore its September 22 order. ALAB-901 was issued Tuesday, September 20. It appeared to call for the Chairman of the Licensing Board Panel to identify the members of the OL-5 Board for any 1988 exercise litigation. Instead, the OL-5 Board, which had earlier ruled (incorrectly, the Appeal Board has now held) that it had no more jurisdiction, is-sued its scheduling order on September 22. At the time the OL-3 Board had not issued LBP-88-24. and no one knew whether any board but the OL-5 Board would be available for proceedings on the 1988 exercise. The September 22 order was served Friday, September 23, by first-class mail without notice to the parties. It did not arrive offi-cially until Tuesday, September 27. Meanwhile, the OL-3 Board decision. LDP-88-24,
..o was issued on Friday, September 23 late in the day. Thus LILCO did not know and could not have known of the availability of the OL-3 Board in time to have requested its appointment before the previous OL-5 Board had acted.
In short, this motion for reconstitution is timely and makes sense from the stand-points of both officiency and board expertise. LILCO asks the Chairman to exercise his discretion and reconstitute the OL-5 Board as requested herein or to designate the OL-3 Board to proceed with this matter.
4 4 Respectfully submitted,
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nald P. Irwin T
James N. Christa an Counsel for Long Qland Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 3,1988 i
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4 LILCO, October 3,1988 i
CERTIFIC ATE OF SERVICE
,,g fnMc in the Matter of LONG ISLAND LIGHTING COMPANY '88 007 -5 P4 :04 (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL p g,,
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DOCHE ina; ; :,,,f BRAnn I hereby certify that copies of LILCO'S MOTION TO RECONSTITUTE THE 50-322-OL-5 LICENSING BOARD were served this date upon the following by Federal Express as indicated by one asterisk, or by first-class mail, postage prepaid.
B. Paul Cotter, Jr.
- John H. Frye, !!!, Chairman Chief Administrative Judge Atomic Safety and Licensing,
Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers East-West Towers
$350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Oscar H. Paris Christine N. Kohl, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers Fif th Floor 4350 East-West Highway East-West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Mr. Frederick J. Shon Atomic Safety and Licensing Alan S. Rosenthal, Esq.
Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway Fitth Floor Bethesda, MD 20814 East-West Towers 4350 East-West Highway James P. Gleason, Chairman Bethesda, MD 20814 Atomic Safety and Licensirq Board 513 Gilmoure Drive Mr. Howard A. Wilber Silver Spring, Maryland 20901 Atomic Safety and Licensing Appeal Board Dr. Jerry R. Kline U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Fif th Floor Board East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway East-West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Dr. W. Reed Johnson Atomic Safety and Licensing Secretary of the Commission Appeal Board Attention Docketing and Service U.S. Nuclear Regulatory Commission Section 115 Falcon Drive, Colhurst U.S. Nuclear Regulatory Commission Charlottesville, VA 22901 1717 H Street, N.W.
Washington, D.C. 20555 r,.
6 6 Atomic Safety and Licensing Mr. Jay Dunkleberger Appeal Board Panel New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building 2 Washington, D.C. 20555 Empire State Plaza Albany, New York 12223 Adjudicatory File Atomic Safety and Licensing Stephen B. Latham, Esq.
- Board Panet Docket Twomey, Latham & Shea U.S. Nuclear Regulatory Commission 33 West Second Street Washington, D.C. 20555 P.O. Box 298 Riverhead, New York 11901 Edwin J. Reis, Esq.
- U.S. Nuclear Regulatory Commission Mr. Philip McIntire One White Flint North Federal Emergency Management 11555 Rockville Pike Agency Rockville, MD 20852 26 Federal Plaza New York, New York 10278 Herbert H. Brown, Esq.
- Lawrence Coe Lanpher, Esq.
Jonathan D. Feinberg, Esq.
Karla J. Letsche, Esq.
New York State Department of Kirkpatrick & Lockhart Public Service, Staff Counsel South Lobby - 9th Floor Three Rockefeller Plaza 1800 M Street, N.W.
Albany, New York 12223 Washington, D.C. 20036-5891 Ms. Nora Bredes Fabian G. Palomino, Esq.
- Executive Coordinator Richard J. Zahnleuter, Esq.
Shoreham Opponents' Coalition Special Counsel to the Governor 195 East Main Street Executive Chamber Smithtown, New York 11787 Room 229 State Capitol Evan A. Davis, Esq.
Albany, New York 12224 Counsel to the Governor Executive Chamber Alfred L. Nardelli, Esq.
State Capitol j
Assistant Attorney General Albany, New York 12224 120 Broadway Room 3-118 E. Thomas Boyle, Esq.
New York, New York 10271 Suffolk County Attorney Building 158 North County Complex George W. Watson, Esq.
- Veterans Memorial Highway William R. Cumming Esq.
Hauppauge. New York 11788 Federal Emergency Management Agency Dr. Monroe Schneider 500 C Street, S.W., Room 840 North Shore Committee Washington, D.C. 20472 P.O. Box 231 l
Wading River, NY 11792
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James N. C t
Hunton & Williams 707 East Main Street i
P.O. Box 1535 j
Richmond. Virginia 23212 DATED: October 3,1988 i
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