ML20155H368
| ML20155H368 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/17/1988 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#488-7283 ALAB-901, OL-5, NUDOCS 8810200066 | |
| Download: ML20155H368 (13) | |
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i s 7:213 October 17, 1989 E EO g
'88 GCT 17 P5 43 UNITED STATES OF AMERICA IUCIEAR REGUIATORY CONISSION
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'D Before the Ocnnission
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In the Matter of
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LONG ISIAND LIGfI'DG CQtPAIN
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Ibcket No. 50-322-OIr5
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(EP Dcercise)
(Shoreham Nuclear Power Station,
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Unit 1)
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GOVDONENIS' OPEOSITICN 'IO IfNG ISIAND LIGfI'DG CDiPMN'S PETITION FOR REVIEW OF AIAB-901 mfd EDLifW-ON ORDERS Suffolk County, the State of New York, and the 'D:un of Southanpton (the "Goverments") hereby oppcse IIIID's October 5 Ntition for Review of AIAB-901 and Follow-On Orders (the "retiticn").M eACmamp the ccrplex nature of the Shoreham litigation has requircd the use of mitiple Licensing Ibards to hear different issues. hhile this practim
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usually has proved to be an effective caso m nagement tool, it m srily t
limits the jurisdiction of the Licensing Ibnds to the discrete issues they i
are given to resolve, and can scretims 1 cad to questions regarding which i
Ibani has jurisdiction over a puticular issue.
In the Shorchva case, the 6
litigation rigarding the adequacy of LIIID's omrgerry planning for Shoreham l
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'Ihe Petition is over 15 pages lory ard LIILO has acrordirgly roved to cxceed the 10 CIR $ 2.78610-pyJe limit. 29 Motion for Leave to Dcceed Page Limit (Cct. 5,1988). 'Iho Goverments do not oppose LIID0's motion, provided that the Ccanission accepts this Oryxeition which, because of the mny reints raised by LIIID, slightly exceeds the Ccmission's 10-page limit.
0010200066 001017 PDR ADOCd 05000322 t
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i idered has been divided since 1986 between the "0Ir3" docket, which has cons I S" docket, the adequacy of MIID's plan as it exists on paper, and the "0 r f t to handled by a separate Licensing Board, which has considered UIMt.
meet the NRC's exercise requirements.
d In AIAB-901,2/ the Appeal Ikxttd ruled that the OIr3 Board lacke UIID now jurisdiction to hear issues related to UIID's June 1988 exercise.
MILD also cxrplains of certain seeks ocunission review of thau decision.
follow-on orders in which the 4 peal Board took action to resolve the l
ttempted to procedural confusion which ari e when the OIr3 Deard subsequent y i
h dismiss the Governnents from tho entire Shoreham proceeding -inc MIID's exercise issues over khich the OIr3 Board had to jurisdiction.
Petition, however, is insupportable in both law and fact.
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In -nce, UIID ccrplains that the Appeal Board has issued var ous it is j
ptroedural rulings which UlrD does not like and that, therefore, Irplicit in MI.co's entitled to interlocutory review of thoco rulirgs.
in a mannor cocplaints is the assertion that the OIe3 Board kruld have ruled
$ss Ntition at 2 (the 45 cal Board rulings rore to UIID's liking.
But UIID's "drastically affect the licensity prtspects for Shorcha:n").
Pather, as blatant forum shcypirnl/ provides no basis for its Ntition. l within denonstrated below, the Appeal Boud's actions wure correct and we
'Iho mtters raised by UILO do not its jurisdiction and supervisory pcuers.
20, 1988).
Mcroranium and Order, AIAB-901, 28 Imc _ (Sept.
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3 to After issuanto of AIAB-901, UIIO moval the Chief Administrativo d which had replace the oIr5 Board chaired by Jtdje Fryo with the OIr3 Doar J/
After ruled, ir a 2-1 decision to dismiss the GoverTrents as intervenors.
i d UIID's Jt*17e Ct>:tv/ Njected UILD's rotion, Judge Fryo aptly descr be Memorardun rotict) as '.tttle more than a blatant atterpt at forum shcpping."
ard Order, (Oct. 12,1988) at 4, n.4.
4 reflect "important question (s) of fact, law, or policy" (10 CFR 5 2.786(b)(1)) and, accordingly, thezu is no reason to grant UIID's Petition.
Before d%iaing the merits of LIILD's Petition, a brief synopsis of the recent mtcedural history of the case is ncery. On September 8, 1988, FDR released its report on the results of LIILD's June 1988 exercise. The next day, the NRC Staff filed a prtposed exercise litigation schedule with the OIr3 Board.M Because the OIr3 Board lackcd jurisdiction to hear the exerciso issues, the Governments prorptly filed a motion with the Appeal Board, requestirg the appointment of a Licensiry Board with jurisdiction to hear i
those issues.M In addition, while not conecding the OIr3 Board's jurisdiction over the exercise issues, the Goverments filcd a response to the Staff's pr W schedule.M On Septernber 20, 1988, the Appeal Board issued ALAB-901, ruling that the oIr3 Board had no jurisdiction over exerciso issues (having lost any such jurisdiction in 1986 with the creation of the separate OIr5 Boatti ard decket),
and renanding thoce issues "for apprcpriato action to the Licensing Board in y
imC Staff's Motion for Schedule for Litigation of the June 1988 Exercise (Sept. 9, 1988), at 2.
F Suffolk County, State of flow York and Town of Southarpton Motion for Appointment of Licensing Board with Jurisdiction to Hear Exercise Issues (Sept. 13, 1988) ("Motion for Appointment"). As tho Motion for Appointment explains, the Chief Administrativo Jtxkgo of the Licensing Board Panol took certain actions which divestod the OIr3 Board of jurisdiction over exorcise-related mtters and placcd that jurisdiction with a different LicensinJ Board in the newly-created o!r5 docket. 'Iho Goverwents filed the Motion for Appointment with the Appeal Board because, followirn the OIr5 Dcard's decision in IBP-88-2 (firdirg that LIILD's Februuy 1986 cxcrcise revealed "fun 11 mental ficws" in LIIID's Plan), all jurisdiction over exercise mtters passed to the r
Appeal Board, pursuant to the appeals filed by LIIID. Ess Geornia Power Co.
(Vcgtle Electric Generatirn Plant, Units 1 ard 2), AIAB-859, 25 tiRC 23, 27 (1987).
y Suffolk county, State of :lew York ard ihn of Southarpton Reqxmse to imC i
Staff Motion for Schcdulo for Litigation of the Juno 1988 Exorcise (Sept.19, 1988) ("Governnents' Recronso").
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i (the OL-5 docket)."
AIAB-901, slip op, at 10.
Pursuant to AIAB-901, the OL-5 Board issued an initial exercise litigation schedule on September 22.2/ 'Ihe i
very next day, howerver, the OL-3 Board issued a Cbncluding Initial Decision which not only resolved all of the substantive issues pending before the OIe3 6
Board in IlIID's favor, but also parported to dismiss the Governments as parties frun the entire Shoreham licensing proceeding - including the i
exercise issues - and authorized the issuarce of a full power license for Shoreham.F An cbvious issue raised by the CID was khether the Ole 3 Board had the power to dismiss the Governnents frun proceedirg on issues that were not before that Board. khile the decision to dismist the Governnents implied a detemination that the OIr3 Board had such power (in apparent conflict with IJAB-901 which had been issued three days earlier), the CID's mjority opinion provided absolutely no rationale for that detemimtion. Only Judge Shon, who dissented frcan the decision to dismiss the Goverments frtrn the premvling, noted this jurisdictiomi conflict.F In order to resolve this jurisdictiomi issue and the proxdural legjan it caused as quickly as possible, the Govemnents imediately filed notices of appeal on Septanbar 27 ard, on the same date, filcd a motion with the Appeal Board to bifurcate the appeal into two parts: the first part addressing the jurisdictional issue (for which the Governnents requested expedited I
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Meerardum and Order (Sept. 22, 1988). 'Ihat erder called for the Goverments to file contentions no later than noon on Octcher 17.
'Ihat date has since been changed to Octcber 24.
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F Concluding Initial Decision on DTrgency Plarnirn, IBP-88-24, 28 NRC __
j (Sept. 23, 1988) ("CID"), Irv'd in m*t, AIAB-902, 28 !EC (Oct. 7, 1988).
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CID, Jtxkje Shon concurrity in part and dissenting in part, at 12, n.3.
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consideration); and the second part ococernirg the remainirg issues raised by the CID.W Agpended to the Govemments' Bifurcation Motion was a short, six-page appeal brief addressing the jurisdictional issue.W t
'Ibe A; peal Board granted the Governments' Bifurcation Motion on Septenber 27, 1988 aM set an expedited briefing schcdule on the jurisdictional issue, calling for UIID aM the Staff to st=rsi by Septerber 30.W In a filirg dated Septerter 28, however, UIID objectai to the 4 peal Board's expedited
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schedule ard requested an extension of tim to brief the rarrow jurisdictional issue raised by the Goverments' Brief.W UIID did not I
object, however, to the 4 peal Board's bifurcation of the jurisdictional issue. On Septater 29, the 4 peal Board rejected the reasoning behind UIID's extension request, but nevertheless granted UIID an extension of time until October 4 to brief the jurisdictional issue.W Followirg receip* of. the parties' briefs, the Ap1 Board issued AIAB-902W on October 7,1988, which held that the OIr3 Licensirg Board did not W
Gcverments' Motion for Bifurcation of Appeal and for Expcdited Treatment of Jurisdictional Issue (Sept. 27, 1988) ("Bifurcation Motion").
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Goverments' Brief on Bifurrated 4 peal Frcn the Septe:ber 23, 1988 concitriirg Initial Decision in IRP-88-24 (Sept. 27,1988) ("Goverments' Brief"). UIID has accused the Govemments of usirg "shell-game tactics" in 4'
seekirg a bifurcated arpoal.
Petition at 14. However, the Appeal Board has rejected this allegation. See oenerally AIAB-902: Menorandum ani Order (Sept.
l 29, 1988). Given its forun shcypirq activities (geg note 3 above), it ill-behooves MLCO to make such allegatiora.
W order (Sept. 27, 1988).
W UIID's Motion for Enlargenent of Briefiry Time (Sept. 28, 1988).
l W MercraMum ard Order (Sept. 29, 1988).
l W Decision, AIAD-902, 28 NRC (Oct. 7, 1988).
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i hwe iurisdiction to dismiss the Governnents frun the exercise issues (as va to the issues in the OIe3 docket which were properly before it).
DISCUSSICH UIID's Petition seeks review of AIAB-901 (OIe3 Board has no jurisdiction over exercise issuce), the Appeal Board's September 27 Order (granting bifurcation of appeal o'.' CID and expediting consideration of jurisdictional issue), aM the Appeal Doard's September 29 Hercrarrtum aM Order (granting in part LIIID's motion for extension of time). Because AIAB-902 was decided after the filin; of UIID's Petition, it is not at issue here.
UIID has failed to explain khy these rulings present "irportant question (s) of fact, law, or policy" worthy of review. UIID's difficulty is understandable; the Appeal Board has ruled correctly on matters that are well within its jurisdiction, knowledge, aM supervisory powers. In contrast, the issues which UIID has raisal are insupportable in law and, in mny cases, had on a distorted recitation of the facts.
A.
The Acceal Board Followed Arorceriate Procedures UIID first ccrplains that the Appeal Board erred in detemining the jurisdiction of the OIe3 Board with:ut first remnding the mtter to the OIe3 Board to the decide the matter in the first instance. Petition at 6-7.
Here UIID raises a red herring. The OIe1 Board did, in fact, take the c5portunity to determine and assert its jurisdiction over the exercise issues when it dismissed the Goverments as parties to thoce (and all other) issues.lf/
15/ As the Appeal Beard noted in AIAB-902:
i IEP-88-24 rust be read as reflecting the OIe3 Bcard's conclusion that it pwwl the jurisdiction to dismiss the Governnents frun (continued...)
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'Ihus, cxmtrary to UILD's otrplaint, the OIe3 Bc trd has had the opportun ty determine its own jurisdiction.12/
'Ihn Appeal Board's handling of the matter was not only prtper, but was i
l As the Appeal Board also ha i on ocaton sense aM good case managment.
noted, the jurisdictional issue artee largely frtra the use of mitiple In a case, such as the inst e t Licensing Boards in one licensity pruwviiny.
case, where there is an issue as to which of the mitiple Licensirg Boards has jurisdiction, the best procedure is to have a bcdy with appropriate authority over those Boards, such as the Appeal Bcard, rake the determ
'Ihe alternative is chaos, with the possibility of one Board atterpting to usurp the jurisdiction of another Board, or otherwise obtain jurisdictica does not have (as the OIe3 Board atterpted to do without any explanation why it considered itself to have the authority to do so).1B/
LIIID's argument that the Appeal Board errcd in justifyiry its determination of the jurisdictional issue tased on the nexas between the 1 i
15/ (... continued) the entire procoeiing.
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'Ihe Appeal Board also criticized the OIe3it had AIAB 902, slip op at 14 n.15. Board's utter failure to explain the basis for it such jurisdiction. AIAB-902, slip op, at 12-14, 20.
It therefore is similarly error for LIIID to allege that the Appeal Ibard "retroactively" redefined the OIe3 Board's jurisdiction (Petition at 1),
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l "strip [ ped) the OIe3 Licensirg Board of jurisdiction" (M. at 3), "radicalll restructured" the Shoreham proceedity (M. at 14) or "ousted" the OIe3 from its rightful jurisdiction (M. at 11, 14). 'Ihe Appeal Board simply applied the law ard pIwided clear ard well-reasoned tases for its decl In contrast, the OIe3 Bcard failed even to articulate its bases (if any) for l Ssg AIAB-902, slip cp. at 12-14.
telievity it had jurisdiction.
'Ihe procedural posture here also distirguishes this case fr.on the decision in Duke Pcuer Coi (Perkins Nuclear Station, Units 1, 2, and 3),
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on khich LIIfD relies so heavily. Multiple AIAB-591,11 NRC 741 (1980),Licensirq Bcards and the unigae procedu issue in Perkins, f l
i exercise issues before it on appeal from IEP-88-2 ard the 1988 exercise issues is also unavailirg.
Petition at 7-8.
While LIIID expends ruch energy attertptirg to build a wall betwen the two exercises, the nexus which the Appeal Board relied uptn is evident. Not only do both exercises represent LIIID's atterpt to meet the NRC's exercise requirenents, but the need for the 1988 exercise arcse directly frun LIIID's failure to moet those requirments in the 1986 exercise.D Cbviously, any evaluation of the 1988 exercise will require an inquiry into whether the fundanental flaws discovered in the first exercise have been correctal. !Bg AIAB-901, slip cp. at 6.
Indeed, FDR's 1988 exercise report, khich will be a focus of any exercise prWirg, is replete with references to mtters frcan the 1986 exercise.W B.
'Ibe Appeal Board Correctly Ruled 'Ihat the OIr3 Board Iacked Jurisdiction Cver Exercise-Related Irsues As noted above, the OIr3 Board lost jurisdiction over exercise issues as a result of the action of the Chief Administrative Judge of the Licensing l
l Board Fanel in establishirg a separate Licensirg Board to hear exerciso-i W Sgg IBP-88-2, 27 NRC 85 (1988). LIIID's sucygestion that the more apprtpriate nexus is between the exercise and the current revision of the plan is insupportable.
First, an exercise is a separate and irdependent regulatory rcquirwent. Egg 10 CFR Part 50, App. E, 9 IV.F.1.
SecoM, it has been the parties' practice, FD%'s practice, an1 the acknow.'odJed state of affairs in this pzwiry that while issues relato1 to the adequacy of the plan itself are unquestionably relatal to the exercice of the plan, the two mtters are ahmi separately.
In short, there is a "paper plan" review ard then an evaluation by way of an exercise.
'Ib say that the nexus totwen the issue of 1
l the adequacy of the current issue of the plan ard the exercise is a stronger nexus than the one outwen the two exercises - with the second exercise m'mrity because of funimental flaws fourd as a result of the first exercise
- ignores this reality and mkos it irpcssible for an exercise ever to be heard by a Licensing Bcard other than the one hearity the "paper plan" issues.
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W In any event, LIIID fails to address the point raised by the Appeal Scard in AIAB-901 that the Appeal Ebard cculd have brought the issue before itself l
anyway pursuant to its pckers to certify for Appeal Ihud review an issue that is before a Licensirq Board. Scg AIAB-901, slip cp. at 7, n.4; 10 CIR $
2.785 (b) (1).
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related issues in the newly-created OL-5 docket. W e pertinent facts behind the OIr3 Bcerd's loss of jurisdiction are explainM in AIAB-901 ard in the Goverments' Motion for Appointment (age note 5 above) and need no further illumination here. However, the Ocmission should be aware that in attacking i
AIAB-901, UIID has resorted to revisionist history to suit its current noods.
We gr-t exarple of this is UIID's statenent that the Arpeal Board's determination that the OIe-3 Board lacked jurisdiction ard that the exercise issues shcadd be heard in the OIe5 docket are "inconsistent with nearly six years of history in this prrceedirg." Petition at 9.
UIID noglects to infc'rm the Ctunission that earlier this year, after the issuance of IBP-88-2 in which the OIe5 Board found that the 1986 excrrire revealed fundmental flaws in UIID's Plan, UIID argued:
Given the extensive examination of the initial excIcise, judicial efficiency suggests tMt this (oIr5) Board should retain jurisdiction to decide if the "furdanental flaws" identified :.r} it have renedied (in a subocquent exercise).1/
24 7t the time that it becane clear that there sculd have to te another le, UtID took exac'_1v the etvosite position that it now advocates r a beform the Ocnnission.
Indeed, it never even rentioncd the OIr3 Board as a possibility for hearing the exercise issues.
In light of these facts, UIID's current position, and its representations to the Ccmission, are misleadirg.
C.
Se Appeal Board 'Ibok Arprtpriate Action to Avoid Prcoedural Chaos by Bifurratiry the Appeal Frcan the CID aid DTMiting the Jurisdicticml I s_*=_w UIID next corplains that the Appeal Board was sachow in error shen it took decisive action first to address the irportant procedural issue concemirq the appropriate forun for the excrrire issues ard then to address 21/ UIID's Views on Continuity Board Jurisdicticn (Feb. 17, 1988).
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the procedural quagmire %hich resultad frun the conflict between AIAB-901 aM the CID. petition at 11-12. The first part of the Appeal Board's actions 3
has already been ackirmaed. With respect to the scooni part, UIID scens rest upset by the Appeal Board's decision to deal with the ratter prcrptly by bifurcating the issues raised by the CID, and expediting a decision on the threshold jurisdictional question.
First, UIID cannot prtperly raise this bifurcation issue before the f
Ocnnission. After the Appeal Board's Septerber 27 Order, UILD scx.ght recxansideration of the Appeal Board's expedited briefirq schedule.22/ At that time, UIID failed to seek relief fran the Appeal Bcard's bifurcation order.
j UIID cannot be heard now to cbject when it failed to seek such relief below.
See 10 cm i :.786(b)(2)(ii). Thus, UIID's "due pr
" ccrplaint is baseless.22/
Second, in any event, the prtpriety of the Appeal Daard's actions hardly f
needs explainirg. As the Appeal Board itself noted in its Septenter 29 Memorandum and Order, it had a duty to clarify the confusion which existal i
after the CID. Septerter 29 Menorandum ard Order at 4.
Tb do any itss would have been to neglect its supervisory dutics and pemit prtcodural cxmfusion to reign at the Licensity Board level indefinitely.2S/ The Arpcal Dcard was tell i
22/ UIID's Motion for EnlartJment of Briu9.g Tire (Sept. 28, 1988).
I 23/ UIID's ocrplaint that the AFMsl Ibird errni khen it bifurcatal the Gcuerments' appeal without seekirn UIID's ard the Staff's views on the ratter is unfounded for the ackiiticnsi reason tMt the Appeal Daard has the inherent pczer to decide how ard in what order it will hear issues. AIAB-902, l
slip cp. at 3, n.2.
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Irdeed, the prcccdural disarray, and the necd for prtrpt action, are test illustrated by rulirgs frcra the OIe5 Irard and the 011ef Ad:ninistrative
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Jtrkje of the Licensirg Bcard Panel that they could take no action on rotions l
regardirn the OIe5 cxercise proceeding until the jurisdictioral issue was (contirued... )
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i within its authority to deal with the procedural disarray by structuring the mttar so that it could be resolved prcrptly. Sep 10 CFR li 2.711(a) aM i
l 2.785 (b) (1).
Dq)editious resolution of the matter was thus a@ropriate and, indeed, r='ammary.
Far frm atosing the legitimate tools of case mnagment, i
as U100 asserts, the Ameal Ibard used them wisely and decisively.25/
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D, cer-laalgnJaview is Not Acorrorlata
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In AIAB-901, the Appeal Board did hhat it is =w==4 to do and what it
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is well-qualified to do - deal prtsptly with jurisdictional questions i
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properly before it and supervise the Licensing Boards so as to mnage a case j
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as fairly and economically as possible. 'Ihe Appeal Board's prcrpt actions in 4
situations such as those that recently artse in the Shoreham prr<w=iing should L
i not be disocuraged, but rather encouraged. Second guessing by the Ctrmission I
j en case mnagment decisions is generally imppropriate, especially shere as e
j here, the Appeal Board was unquestiombly correct in taking the action it did.
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j Furthervori, while U14D claim tMt alleged "delay" resulting frm legitimte I
litigation of the 1988 excIcise issues would be "totally wastaibl and r
24/ (... continued) resolved. See MenoraMum and order (Oct. 6.1988) (oIr5 Daard): Mercrandum (Chief Mminit:trative Jui e, Licensity Board Panel).
aM Order (Oct. 6,1988) 3 25/ utro elso claim that the A; peal Beard erred in addressirn the i
jurisdicticnal issue rather than bypassity that issue aM reachirg the writs of the sanctions imposed on the Gwerments. Petition at 13-14.
Here LIlfD l
is confusing m tters. What vaa at issue after the issuancs of the CID, ard what requirid prcept Agpeal Ibard action, was whether a Licensing Board can dismiss a party frun prrrwailig on matters which are not before that Licensity Board and which, in fact, are peniing before another Licensing Board. 'Ihat is a straightforward jurisdictiomi question which has nothing to do with the i
prtpriety or imprtpriety of the Goverments' dismissal from the OIr3 i
proceeding ard which obviously had to be addressed before reachirg the merits of the OIr3 Board's rulin7 For the same reason, it would be premature for i
the Ocamission to reach the merits of the Goverments' dismissal at this tim, as LIlfD urtjes. Petition at 15-16. 'Ihe rrrits of the OIr3 Bcard's sanctions (as they pertain to the OIr3 proceedirg) are now before the Appeal Board ard will be briefed and considered in accordance with the Ccruission's rules.
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intensely damging to LIIctf (Petition at 15), that claim is supported by no explanation whatsoever.
In short, the decisions at issue are sinply not the kind of important questions with which the Ctrnission should e itself. Rather, in the interest of moving the prmaaiing alorg, the ccrrtission shculd encourage the parties ard the OIr5 Board to pimaai to litigation of the June 1988 exert:ise issues so that that phase of this pthing nay be heard prtzptly.
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OJNCIL1 SIGH For the foregoing reasons, LIIID's Petition should be denied, i
Respectfully sub:titted, 1
E. Thcras Boyle Suffolk Ctunty Attorney l
Buildirg 158 North County Ccrplex Veterans Memorial Higtray Hauppauge, New York 11788
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5 Iawrence C.Manpher Christc5 er M. !ttfurray l
h KIRKPATRICK & IOCKE\\RT 4
1800 M Street, N.W.
I South Irbby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffo k County
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Fabian'G. Palcrtino y
l Richard J. ZahnI'euter Special Counsel to the Governor of the State of New York Executive Charber, Rocri 229 Capitol Euildirg 1
Alhviy, New York 12224 Attorneys for M1rio M. Cucro, Govemor of the State of New York t
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l Stephen B. J.htham i
n wcmay, tatham & Shea e
P.O. Box 398 33 West Second Street.
Riverhead, New York 11901 Attomey for tlw 'IbWn of Southaigten t
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