ML20196J018
| ML20196J018 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/09/1988 |
| From: | Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#188-5786 86-534-01-OL, 86-534-1-OL, LBP-88-7, OL-5, NUDOCS 8803140129 | |
| Download: ML20196J018 (6) | |
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's t%R 10 A1031 LBP-88-7 UNITED STATESCp hAMERICArts,v 00CKEhNG A SEi".vt NUCLEAR REGULATORY d6MMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
John H Frye, III, Chairman Dr. Oscar H.
Paris Frederick J.
Shon
)
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
)
Station, Unit 1)
)
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March 9, 1988 MEMORANDUM AND ORDER (Concerning Retention of Jurisdiction)
In our Initial Decision,1 we noted that Staff, in its proposed findings, had suggested that we should retain jurisdiction in this proceeding to determine whether, following another FEMA-graded exercise, LILCO had adequately corrected the flaws found in its emergency plan in the February 13, 1986, exercise.
Because Staff did not I LBP-88-2, 27 NRC (February 1, 1988).
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\\ elaborate on this suggestion and no other party addressed it, we called for the views of all parties.2
-Those views have now been received.3 Staff no longer suggests that we retain jurisdiction.
After reconsidera-tion, Staff points out that were we to retain jurisdiction, we would have to do so on the basis that certain issues pending before us were unresolved.
Staff new takes the view that we have carried out the Commission's directive in CLI-86-11, 23 NRC 577, 579,
...to consider evidence which intervenors might wish to offer to show that there is a fundamental flaw in the LILCO emergency plan," so that there are no such issues.
Thus in Staff's view, our jurisdiction terminated on issuance of our Initial Decision, LBP-88-2, 27 NRC (1988).4 LILCO believes that we should retain jurisdiction.
In support of this view, LILCO points out that its motion upon 2 Id.,
slip op. at 252.
3See LILCO's Views on Continuing Board Jurisdiction dated February 17, 1988; NRC Staff Response to Board Request dated February 19, 1988; and Intervenors' Views on Whether the Licensing Board Should Retain Jurisdiction dated February 23, 1988.
4 Staff also points out that LBP-88-2 in effect reverses several of the OL-3 Board's findings on the adequacy of the LILCO plan.
Thus, a practical problem would be presented by our retention of jurisdiction over the exercise results on the "fixes" to these inadepacies because the OL-3 Board i
l continues to have jurisdiction over any necessary changes to the LILCO plan.
In Staff's view, this adds confusion and I
l complication to an already complex case.
% which the Commission acted in deciding CLI-86-11 viewed the February 13 exercise as the full participation exercise which would support licensing of the Shoreham plant.
- Thus, in LILCO's view, we should retain jurisdiction to determine, following an exercise, whether the flaws which we found have been remedied so as to permit a reasonable assurance find-ing.
In this regard, LILCO appears to view our mandate as similar to that of a board with jurisdiction over an operat-ing license proceeding where such a course is clearly appropriate.
See Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 & 2), ALAB-770, 19 NRC 1163, 1168-70; Cincinnati Gas and Electric Co., et al. (Wm. H.
Zimmer Nuclear Power Station, Unit 1), LBP-82-48, 15 NFC 1549; modified and affirmed, ALAB-727, 17 NRC 760.
Intervenors appear to take the position that, while we probably lack the authority to retain jurisdiction, it might be a good idea for us to do so.
Initially, they point out 5
that our Partial Initial Decision holding that the February 13 exercise was not a full participation exercise, the flaws found in LBP-88-2, and the expiration of the two-year period in which the February 13 exercise might have been used to support licensing combine to make it unlikely that there l
could be any corrective measures with respect to the 5LBP-87-32, 26 NRC December 7, 1987.
1
-4 February 13 exercise results over which we might preside.
Intervenors believe that while this situation could be interpreted in such a way as to present issues raised by the February 13 exercise, such an interpretation involves a strained reading of CLI-86-11.
While noting that there is no guarantee that the members of this Board would be avail-able to preside over the litigation of the results of a future exercise,6 Inter /enors believe that the stronger argument for our retention of jurisdiction lies in consid-erations of "judicial" economy.
They correctly point out that, having found flaws revealed by the February 13 exer-cise, it makes sense for us to review the efforts to correct those flaws.
Licensing boards "...are delegates of the Commission and, as such, may exercise authority over only those matters that the Commission commits to them."7 We agree with Staff that, with the issuance of LBP-88-2, we have discharged the responsibilities delegated to us by the Commission.
The Commission has not indicated that our authority extends beyond "...expedit[ing) the hearing to the maximum extent consistent with fairness to the parties, and issu[ing) (our) decision upon completion of the 6 LILCO also noted this problem in its response.
7 Duke Power Company, et al. (Catawba Nuclear Station, Units 1 & 2), A LA B-8 2 5, 22 NRC 785, 790 (1985).
d proceeding;"8 consequently we have no authority to review any corrective measures which might be taken.
We note that, in its delegation to us, the Commission has not included the authority to make a finding of reason-able assurance, but rather has limited us to considering evidence that fundamental flaws exist.9 We presume that this omission was intentional, and that the Commission intended to leave the authority to make such a finding exclusively with the board having jurisdiction over the operating license application in general.
Had the Commis-sion given us such authority, LILCO's position would be well taken.
Moreover, we also agree with Staff that for us to retain jurisdiction in this procedural situation would only add confusion and complication to an already excessively complex proceeding.
Intervenors have alluded to the possi-bility that it may not be possible to further consider the February 13 exercise as a basis for licensing.
Whether it is possible or not, it may not be desirable.
As things now stand, another exercise must be held.
That being the case, it may be more expeditious to design that exercise as a full participation exercise which will support licensing in and 8CLI-86-11, 23 NRC at 582.
9 Id.,
at 579.
.i-
,. of itself.
At a minimum, such a course would seem to provide the opportunity to cut off further litigation over the results of the February 13 exercise except to the extent that the Commission may wish to review those results in order to provide guidance.
In this situation, we believe the Commission may wish to provide direction.
Our retention of jurisdiction to determine whether the fundamental flaws which we have found have been shown by a subsequent exercise to have been corrected only serves to further complicate this situation without providing any corresponding benefit.
If, after reviewing this situation, the commission wishes to delegate further authority to this Board it can, of course, do so.
In light of the foregoing, we have concluded that we lack the authority to retain jurisdiction to determine whether the fundamental flaws revealed by the February 13, 1986 exercise have been corrected.
It is so ORDERED, ATOMIC FETY AND LICENS NG BOARD (2
u O A cc$N,'auMINISTRATIVE J RICK J
\\W Paxb OSCAR H.
PARIS, ADMINISTRATIVE JUDGE Nf' JOHN H FRYE, III, CHAIRMAN ADMI ISTRATIVE JUDGE Bethesda, Maryland March 9, 1988