ML20155H355
| ML20155H355 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/12/1988 |
| From: | Frye J Atomic Safety and Licensing Board Panel |
| To: | LONG ISLAND LIGHTING CO., NEW YORK, STATE OF, NRC OFFICE OF THE GENERAL COUNSEL (OGC), SUFFOLK COUNTY, NY |
| References | |
| CON-#488-7266 89-581-01-OL-5R, 89-581-1-OL-5R, LBP-88-24, OL-5, NUDOCS 8810200044 | |
| Download: ML20155H355 (8) | |
Text
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- 0CKiiCC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
U.'.i:
John H Frye, III, Chairman Dr. Oscar H. Paris Frederick J.
Shon T5IVED OCT 131968
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In the Matter of
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Docket No. 50-322-OL-5R
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(EP Exercise)
LONG ISLAND LIGHTING COMPANY
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ASLBP No. 89-581-01-OL-5R*
(Shoreham Nuclear Power
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Station, Unit 1)
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October 12, 1988 MEMORANDUM \\ND ORDER on September 22, we established a schedule for the filing of contentions related to the June 1988 exercise of the Shoreham energency plan.
On October 4, Intervenors moved for a postponement of that schedule or, in the alter-n?tive, for an extension of time.
In a M.ecorandum and Order of October 6, we indicated that, in light of the fact that 1
LBP-38-k4 had dismissed Intervenors from this proceeding on the day fo.' lowing the establishment of the schedule, Inter-venors were no longer entitled to file contentions.
- Parties please note changed docket number.
1 28 NRC
, September 23, 1988.
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- Consequently, we would not consider Intervenors' motion unless the Appeal Board then considering the matter reversed l
L3P-88-24's dismissal of Intervenors from this proceeding.
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On October 7, the Appeal Board issued ALAB-902 which f
reversed this aspect of LBP-88-24.
LILCO and Staff filed their responr.es to Intervenors' notion as se had directed in our October 6 Memorandum and Order.*
Consequently we now i
i address the merits of Intervenors' motion.
Intervenors assert three reasons to support their t
motions first, that their resources have been substantially l
i diverted following the issuance of LBP-08-;.; second, that i
our jurisdiction over and their participation in exercise i
issues is in question; and third, that LILCO and FEMA have failed to provide them with documentation necessary to draft i
t contentions.
We address each of thess arguments in turn.
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diverPion of Intervenors' Resources i
j Intervenors recite the following chronology to support l
a
]j this argument:
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Sept. 22 OL-5 schedule issued i
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Sept. 23 LBP-88-24 issued Sept. 27 Intervenors file:
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2 28 NRC
, October 7, 1988.
3These responses were "faxed" to the Board on October 11.
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- c e
- 1. Notices of Appeal
- 2. Motion to bifurcate appeel of OL-3 Board's jurisdic-tion to dismiss Intervanors from OL-5 proceeding 3.
Brief on jurisdiction Appeal Board grants 2. above Sept. 28 LILCO moves for an extension of l
time to brief 2. above Sept. 29 Intervenors oppose LILCO's motion Oct. 3 Intervenors file comments on imme-diate effectiveness of LBP-88-24 l
Oct. 11 Motion to stay LBP-88-24 due Oct. 14 Response to LILCO's motion to Chief I
Judge Cotter to reconstitute the i
OL-5 Board due Oct. 17 Exercise contentions due Oct. 27 Brief on appeal of LBP-88-24 due I
j Unknown Response to LILCO's petitions for Commission review of various Appeal i
t Board decisions LILCO asserts that neither conflicting obligations of a party, nor its lack of resources justifies relief, citing General Public Utilities Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 558-59 i
(1986) and the Commission's Statement of Policy on the 1
Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
LILCO also notes the direction to us to conduct this proceeding "as expeditiously as possible consistent with fairness to all parties," ALAB-901, slip cp. at 6-7, and the fact that the OL-3 Doard dismissed Intervenors for
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_4 obstructing the Commission's adjudicatory process in bad faith.
Staff agrees with LILCO that, because Intervenors were dismissed from the OL-3 proceeding for their bad faith, their efforts to overturn the consequences of that decision do not constitute good cause for an extension of time, i
Moreover, Staff points out that Intervenors have the re-e sources to abide by the schedule previously set.
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It is true, as LILCO and Staff point out, that the OL-3 f
Board dismissed Intervenors for their bad faith, and that in
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j part Intervenors' need for more time stems from their efforts to avoid the consequences of that action.
It is l
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also true, however, that in part Intervenors have been l
L presented with a need to protect their interests in the face of hurried attempts to take full advantage of that dismiss-
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al.4 Thus we find it difficult to fully embrace LILCO's and i
Staff's argument in this respect.
Here the issue which we I
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are called on to decide is a simple onet should a brief extension of time be granted for the filing of contentions.
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In these circumstances we believe that it is better to save I
l 4 LILCO's October 3 motion to Chief Judge Cotter to I
reconstitute this Board with the members of the OL-3 Board i
is an example.
No matter what its other merits may be, it t
seems little more than a blatant attempt at forum shopping.
That motion was denied on October 6.
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. issues of that bad faith and its consequences for this proceeding until such time as we are called on to decide whether Intervenors should also be excluded from this proceeding.5 LILCO is correct in its assertions that conflicting i
obligations and an asserted lack of resources do not neces-i j
sarily provide justification for an extension of time.
However, it is also important to consider whether that I
extension would work a hardship on the other parties.
I Finally, we note that some of the events which Interve-r nors put forward as justification for their request have fallen by the wayside since their motion was filed.
- Thus, j
it became unnecessary for them to request a stay of LBP-88-24 in light of the fact that ALAB-902 vacated the former's authorization of a full-power license or to respond i
to LILCO's motion to reconstitute this Board in light of the denial of that motion.6 i
l In sum, our analysis of these arguments leads us to the a
conclusion that a brief extension of time will not be l
i i
1 SSee ALAB-902, slip op. at 8-9; Staff's October 11 response, fn.
8, p.
6, in which Staff indicates that it is i
considering filing a motion seeking to terminate this j
proceeding on the basis of the conclusions reached in LDP-88-24.
i 6See footnote 4,
- suora, i
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1 prejudicial to the other parties and is warranted in these circumstances.
Questionc Recardina This Board's Jurisdiction Intervenors argue that it would be an enormous waste of I
time and resources should we proceed with this litigation f
only to find that Intervenors were properly dismissed from it.
Staff, while recognizing that subsequent to Interve-(
nors' motion ALAB-902 confirmed our jurisdiction, nonethe-l i
4 less takes a similar position, staff urges that the dead-i line for filing contentions remain in place, but that no action be taken on those contentions until Intervenors status is finally determined by the Commission and the Appeal Board.
l We decline to accept Staff's position.
ALAD-902 is now i
the law of this case and, unless it is overturned, we intend to proceed with this litigation.
We believe that the i
j two-year window during which the June exercise may serve as a basis for licensing compels this result.7 To delay this j
proceeding while awaiting final Commission resolution of 4
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See 10 CFR Part 50, App.
E, Par. IV.
F.
1.
Unlike l
the litigation of the 1986 exercise, which too.Y place
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against the backdrop of many cther issues which remained I
unresolved until the issuance of LBP-88-24, the litigation l
of the 1988 exercice is presently the only matter which must be resolved prior to the authorization of full-power i
operation.
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3 this issue could well jeopardize our ability to complete the proceeding within the time allotted.8 Lack of Adecuate Discovery Intervenors argue that LILCO and FEMA have failed to provide them with the documents necessary to draft conten-tions.
LILCO and Staff note that Intervenors are not entitled to discovery in advance of the filing of conten-l tions, citing 10 CFR 2.740(b) (1); Wisconsin Electric Power Cg. (Point Beach Nuclear Power Plant), ALAB-696, 16 NRC l
1243, 1263 (1982}; Northern States Power Company (Prairie 4
i Island Nuclear Generating Plant), ALAB-107, 6 AEC 188, 192, a
reconsid. d3IL., ALAB-110, 6 AEC 247, aff'd CLI-73-12, 6 AEC 4
241 (1973).
LILCO and Staff are clearly correct.
.nterve-a j
nors are not entitled to discovery to aid them in formulat-ing contentions, j
Conclusion We conclude that the events following the issuance of I
LBP-88-24 justify a brief extension of time to file conten-(
tions and that such an extension will not prejudice the other parties or interfere with the Board's obligation to i
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j our conclusion in this regard in no way precludes Staff or LILCO, should they see fit, from seeking to exclude i
Intervenors from this proceeding by me.rus of the procedure I
suggested by the Appeal Board.
See fi.
5, gynra.
Any such motion will be considered on its merits.
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complete this proceeding in a timely fashion.
Consequently, the deadlines set in our September 22 Memorandum and Order are each extended by one week.
The new schedule is set out below.
Noon, October 24 Contentions are to be in the hands of the Board, LILCO, and Staff.
l Noon, November 3 LILCO's response is to be in the hands of the Board, Intervenors, and Staff.
Noon, November 8 Staff's response to be in the hands of the Board, LILCO, and I
4 i
Intervenors.
i Noon, Novem-Intervenors' reply to be in the ber 15 hands of the Board, LILCO, and Staff.
10:00 AM, No-Conference of Counsel, NRC Hearing l
vember 23 Room, fifth floor, 4350 East-West Highway, Bethesda, Maryland.
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It is so ORDERED.
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For the ATOMIC SAFETY AND LICENSING BOARD i
JohnIH F ye, III, Chairman i
ADMINIS ATIVE JUDGE
(
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d Bothesda, Maryland i
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October 12, 1988 1
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