ML20197C855

Memorandum & Order Dismissing Suffolk County,State of Ny & Town of Southampton 861015 Motion to Reopen Evidentiary Record,Due to Lack of Jurisdiction.Motion Should Be Brought Before Commission.Served on 861106

ML20197C855
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/05/1986
From:	Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#486-1402 86-533-01-OL, 86-533-1-OL, OL-3, NUDOCS 8611070079
Download: ML20197C855 (6)

Text

I- /9'o 2 l

l UNITED STATES OF AMERICA 00LKETED MC NUCLEAR REGULATORY COMMISSION ATOMICSAFETYANDLICENSINGB0gD NOV -6 All :23 Before Administrative Judges:

OFFIC.. '

Morton B. Margulies, ChairmsgCM" . "

Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED NOV -61986

)

In the Matter of ) Docket No. 50-322-OL-3

.) (Emergency Planning)

LONG ISLAND LIGHTING COMPANY )

) (ASLBP No. 86-533-01-OL)

(Shoreham Nuclear Power Station, )

Unit 1) ) November 5, 1986

)

MEMORANDUM AND ORDER (Intervenors' Motion To Reopen Record)

Introduction By motion dated October 15, 1986 Suffolk County, the State of New York and the Town of Southampton (Intervenors), pursuant to 10 CFR 2.734, seek to reopen the evidentiary record in this proceeding for the purpose of considering alleged new evidence relating to three offsite emergency planning issues.

LILC0 filed an answer dated October 27, 1986, in which it asserts i

that the issues for which reopening is sought.have passed Appeal Board review and the Comission has declined to review them further, thereby placing the motion to ' reopen within the jurisdiction of the Comission.

It expects the Commission will be the body to act on the notion.

Applicant opposes reopening on two of the three issues.

8611070079 861105 PDR ADOCK 05000322 O PDR

) $0*2

$6 b

I 2

Staff, in its response of October 30, 1986, is also of the opinion that the Licensing Board lacks jurisdiction over the motion and that it should more properly ba before the Commission. Staff recommends that the motion be referred to the Commission for its consideration in the first instance. It asserts that the motion is substantively meritorious .

For the reasons stated below, we find that the Licensing Board lacks jurisdiction to entertain the motion and we therefore dismiss it.

Discussion Intervenors seek to reopen the record in this proceeding, pursuant to 10 CFR 2.734, contending that there is new evidence relating to three offsite emergency planning issues involving: (a) the withdrawal of WALK Radio as the primary emergency broadcast system station; (b) the lack of any agreement between the American Red Cross and LILC0 to provide essential services as called for in the LILC0 plan; and (c) the absence of congregate care facilities for use in a Shoreham emergency as provided for in the plan.

The above issues were the subject of contentions previously litigated that were decided by the Licensing Board in its initial decisions. The role and adequacy of WALK Radio as the primary energency broadcasting system station under the plan was contested in Contentions 20 and 57 and decided by the Licensing Board at LBP-85-12, 21 NRC 644, 759-60, 763-64 (1985). The matter of the adequacy of the agreement between the American Red Cross and LILCO, as provided for by the LILC0 plan was litigated in Contention 24.P and decided by Licensing Board at

e k

3 LBP-85-31, 22 NRC 410, 419-20 (1985). The issue of the availability of congregate care centers for use under the plan was the subject of Contention 75 and also decided by the Licensing Board. Id., at 420-23. 1 The Licensing Board's rulings on the contentions were in favor of the Applicant. Intervenors appealed from the Licensing Board's decisions in LBP-85-12 and LBP-85-31 to the Appeal Board. ALAB-832, 23 NRC 135 (1986). Although the appeals resulted in remands on several issues, i.e., plume EPZ size, role conflict, emergency planning for hospitals, and the Nassau Coliseum, none involve the subjects of the motion to reopen. Intervenors sought review of ALA83-832 and by order of the Comission dated September 19, 1986, it decided the only issues that merited its review were those pertaining to the plume EPZ size and emergency planning for hospitals. The Commission declined to review any of the Appeal Board's affirmances of the Licensing Board's findings in ALAB-832.

Other issues have been remanded to the Licensing Board, arising out of Applicant's appeals. None relate to the subjects of the motion for reopening.

The Appeal Board upheld the Licensing Board's decision holding inadequate as a matter of law LILC0's emergency plan for Shoreham.

l ALAB-818, 22 NRC 651 (1985). The Commission reversed and remanded to the Licensing Board for further evidentiary hearings the issues raised by LILCO's so-called realism and materiality arguments. CLI-8-13, 23 NRC (July 24, 1986).

i

't 4

In ALAB-847, 24 NRC (September 19,1986), the Appeal Board remanded to the Licensing Board for further clarification issues involving the monitoring of evacuees and the lack of a state emergency plan and reversed it on the matter of a conflict of interest.

Intervenors seek Commission review of the remand on the lack of a state emergency plan and the reversal on the issue of a conflict of interest and those matters are currently pending before the Commission. The Licensing Board responded to the Appeal Board's remand on the monitoring of evacuees in a Clarifying Decision on Remand (Monitoring of Evacuees) on October 29, 1986.

The Licensing Board rendered its decisions in 1985 and upon appeal they have been reviewed by the Appeal Board in ALAB-818, ALAB-832 and ALAB-847. Those decisions have since been reviewed by the Commission with segments still pending before it. The Licensing Board has no continuing jurisdiction to consider the motion. See 10 CFR 2.717. The matters remanded to the Licensing Board are not related in any material way to the subjects of the motion to reopen. Therefore, there is no

'i t

5 basis to consider the motion because of the remands to the Licensing Board. The Licensing Board is thus without jurisdiction to rule on the motion on its merits.1 The motion is one that should more properly have been brought before the Commission. The issues involved have passed Appeal Board review. See: Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), CLI-86-10, 23 NRC (Slip op. at 3-4, October.16,1986). We therefore dismiss the motion to reopen for lack of jurisdiction. Intervenors have the option of refiling in the appropriate forum.

1 A Licensing Board considering the emergency planning exercise, under Docket No. 50-322-0L-5, has admitted contentions that reference as bases the alleged lack of sufficient participation in the exercise by WALK Radio, congregate care centers and the American Red Cross. Prehearing Conference Order (Ruling on Contentions and Establishment of Discovery Schedule), (October 3, 1986, unpublished). -That Licensing Board does not provide an alternative forum for hearing the motion to reopen because the issues it is to hear are distinctively different from those in the contentions that underlie the motion.

I 6

ORDER Upon consideration of all~ of the foregoing, the motion to reopen is dismissed for want of jurisdiction.

FOR THE ATOMIC SAFETY AND ,

LICENSING BOARD Y

Mbrton.B.MarguliesfChairman ADMINISTRATIVE LAW JUDGE

%lllh derry R. KTirfe '

UDMINISTRATIVE JUDGE 8

Frederick .

M ADMINISTR E JUD t

Dated at Bethesda, Maryland this 5th day of November, 1986 l

l

. _.