ML20204G315
| ML20204G315 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/11/1988 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7305 LBP-88-24, OL-5, NUDOCS 8810240091 | |
| Download: ML20204G315 (9) | |
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% g g.5 10/11/88 i". Lir-
.7-UNITED STATES OF AMERICA i.TCLEAR REGULATORY COMMISSION
'63 OCT 19 P3 :56 EEFORE Thf ATOYic, SAFETY AND LICENSING B_0 ADD In the Petter of LONC ISLAND LIGHTIN3 COMPANY Docket No. 50-322-OL-0
)
(EPExercise)
(Shoreher fluclear Pcwer Statien, i
Unit 1)
)
Nf,C STAFF RESPONSE TO INTERVENORS' POTION FOR POSTPO!:EMENT OF CONTENTION FILING DEADLINF CP Ff R EXTENS!Ct' 0F TIME; NFC STAFF FEQUEST To #LD PROClEDING IN ABEYAP:CF
- 1. INTRODUCTIO,N Gr. October 4,10PE, Suffolk County, the State of New Ycrk and Town o' Trutherpter ("Intervenors') filed c notion requesting a pettponement of the October 17 deadliric for filing cententior s en issues related to the June 19PF rr erqency cxercise for Shcreham, or in the alternative, a twc-week extersion of the deadline.
Suffolk Courty State of f'ew Yor),
end T wr of Scuthamptcn f'otion for Pestponenert of Deadlire for Filir.g of Contenticr! Pelated to June 1980 E>ercise or, in the Alternetive, fer ExtensierefTine(*Fotion").1/ As grounds 'er their rnotier, Interverors ttete that tFc requested relief is werranted as a result of ouestions 1/
Cn Octcber 6,
1980 the Licensire Peard de c i t r.e c to act on the
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request Lut irdirated trat if the Arpeal Feard should reverse the OL-3 Board's disnissal c' Intervenors, the Staff should deliver its response to intervenors' rotien within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
Crder at ?.
On October 7,19??, the Arseal Boarc issued ALAC-902, 28 NRC which reversed LBP-85-:4 *insefar 75 it purpurts to ditriss' l'nTe,veners r
frer this OL-5 preceeding.
Slip op, at 00 The Staff files its reply today consistent with the Board's October 6 Order.
0010240091 001011 i
DR ADOCK 050 2
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2 raised about the Aard's jurisdiction, the diversion of Intervenors' resources to furisdictional
- matters, including the OL-3 Board's Septettber 23, 1988 Concluding Initial Decision, E/ and their inability to obtain docurents needed to frame "cceprehensive contentior,s."
Hotion at 1-2.
Specifically, Intervenors request that the contention filing l
t
{
deadline be pestponed until such tine es: (1) this Board's jurisdiction i
and !ntervenors' status as intervenors in this proceeding are clarified; 1
(2) litigetion of other issues has subsided; and (3) Interveners have had the opportunity to obtcin and review critical FEPA and LILCO decurentation I
which has not teen available.
Id. at 2.
l For tbc reasons stated below, the Staff cpposes the requested I
postper.enent or extension of +ha October 17, 1988 deadline.
However, the i
l Ste" concurs, albeit on different qrcunds, with Interverers' assessrent that the tactence of this proceedire should be pestponed perding resolution j
)
j of the Intervenors' ttatus ano questions cor.cerning jurisdiction.
- Thus, tFe Staff requests that, ef ter exercise contentiers are filed, the Board bold the procetding in abeyance pending the final resolution of the nerits l
ofthesarctionsirpetedinLBP-80-24.2/
j I
f l
Concluding Initial recision on Erre-aency Plenning,)LBF-SE 24, 28 NFC i
2/
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(September 23, 1900)
("C!p" or LBP-88-24 > rev'd in part, 13 B 902, 28 NRC (October 7, 19S8).
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3/
Although the Appeal Board decided whetbcr the CL-3 Boerd had the j
jurisdiction te dismiss Intervenors from a separate proceeding, the
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l apprcpriatenest nf the dismissal sanction will be considered er part i
of the Appeal Frerd's review of the appeal of the substartive issues
]
vtcided in LEP-88-24 jeeALAS-9CT,Slipop,at 3, 6-7.
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- 77. DISCUSSION Pursuant to 10 C.F.R. I 2.711, the tino periods piescribed in the regulations or by the presiding officer may be extended based upon a shewing of good causc.
In light of the recent findirp that the dismissal i
t j
ef Intervencrs as necessary to rnaintain the integrity of NRC preceedings, the circumstances which led to the instant reouest for an extension de not f
l' corttitute goed cause.
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It is citar that the !cptember 23,1988 "disnissal" of Intervenors f
l f rcr> the Shorehen proceedirg S/ has led to a flurry of filings to l
f deterr, ire the full reach of the OL-3 Board's decision and the status of See Motien at 4-8,10-11.E/
In the last Interver ors in this proceeding.
e few days, LiL00 has sought Cerar*is s ier review of various Appeal Leard rulings $/ and the Appeal Board has reversed LBP 88-?a, insofar as it l
dismisses Intervenert from this proceeding, and vacated the authorization i
j i
to issue a full-power license, ALAB-902, slip ep. at 20.
Thus, it does
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not apptir that questions as tc Intervene-s' ability to participate in j
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t
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3/
CID at 140.
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As the Board is aware, LILCO's October 3, 1 "O request for the
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reconstitution of this Beard was denied on October 6,1985 and, thus, resperses to LILCO's r.otion are not necessary.
See Long Island t
i Lichting Co. Potion to Reconstitute Licensine Peard ($hfreham Kuclear Pcwe r $ tit i e r., BET '.1), ARBDo.' W5E0 01 MHe'.~ (October C,198t '
i
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i (urrublished).
j 1/
Long Island Lighting Corepany's Petitiott fcr Review of ALAB 901 and Follow-on Crders. Octcber 5,198P. While this filing addresses three l
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1ppeal Board rulings corcerning jurisdictiori, LlLCO has also sought review of the Arpeal Be*rd's decision on the scere of 9.c 1986 1
exercish Set LILCO's Petitier for Review of ALAB 000, October 5 l
I 19?P.
i i
I i
4 this proceeding will be resolved absent additional filings before the Appeal Board and the Comnission.
Yet, the recent stream of filings and the increased litigation burden on Intervenors stems primarily from the finding that Intervenors have been guilty of misconduct f ri ancther proceeding.
Under such circumstances, Interverors should not be relieved from their duty to timely identify certentions they would raise concerning the 1980 exerciso.
Sec Statement _of Policy on Condu,ct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454-55 (1981); 10 C.F.R. I 2.714(a)(1).
Intervenors are represented, in
- part, by a
large law firm which has repeatedly taken lead respcnsibility for filings en Intervenors' behalf in the Shoreham proceeding ard those filings have been signed by numerous counsel.
Intervenors have a duty to examine publicly available documents and to tender their contentions
- promptly, Duk,e Power Co.
(Catakba Nuclear
- Station, Units 1
ard 2),
ALAB-687, 16 NRC
- 460, 460-69 (1900),
rev'd in part on other grounds, CLI-P3-19, 17 NRC 1041 (1983), and it would appear that they possess the resources to do so.
3 Intervenors' request fcr an extersion of the centention deadline until they receive certain documents fron FEMA and LILC0 shculd also be rejected, b Intervention petiticnars are not entitled te discovery to help thtr> frame contentions, f{o,r,thern States Power Cn. (Prairie Island Nuclear Generating Plant, tinits 1 and 2), ALAB-107, 6 AEC 188, 192, 7/
These documents include FEMA and LILCO documents generated on the day of the exercise (i.e., FEMA controller logs, FEMA free play messages, and LILCO player legs) and LILCO "training docurrents."
Potion at 13-15.
reconsid.
denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973).
Discovery in NRC licensing proceedings may be obtain9d on admitted issues only.
10 C.F.R. 6 2.740(b)(1); Catawba, ALAB-687, 16 hRC at 467 n.1?.
But ef. Comonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 633-36 (1965) (intervenor permitted to conduct discovery to amend late-filed contention), rev'd and remanded on other gr_cunds, CLI-86-8, 23 NRC 241 (1986).
The Comission's Rules of Practice should be followed in this proceeding.
Wisconsin Electric Co. (Pcint Beach Nuclear Power Plant), ALAB-696, 16 NRC 1245, JP63(1982).
Thus, the allegeo need for discovery prior to the admission of contention? is not gooc cause for the relief sought.
Interverors should not be allowed to participate in any portion of the Shorebem oroceeding while the r.erits of their dismisse.1 by the OL-3 Licensing Boerd for wi.!ful misconduct before that Board is pending before 1
the Appeal Board (or the Comission).
The Staff has indicated to the l
Appeal Board that should the Appeal Peard, which has unquestioned jurisdiction over the entire proceeding, sustain the OL-3 Board's l
findings, the Appeal Board should dismiss Intervenors from the proceeding.
I flRC Staff Pcsponse to Intervanor.t' f!otion for Bifurcation of Appeal and Expedition [0L-3], October 4,1980, at 7-8.
As the Staff stated to the Appeal Board:
In order to properly execute the Comission's statutory responsibilities, it is essential that the Comission's regulatory process possess a high degreo of integrity.
In this case, Intervenors have been found guilty of trounting a concerted assault on the integrity of the Comission's regulatory process.
Thus, even if the Appeal Board determines that the OL-3 Board did not have jurisdiction to affect ratters remanded to the OL-5 Peard, the Staff would cppose Intervenors participation in those proceedings while the appeal on the substantive issue of sanctions was pending, even if this meant stay of those
proceedings.
The desire for expedition should not be permitted to impugn the integrity of the Comission's regulatory process.
,ld, at 9.
In ALAB-902, the Appeal Board indicated that dismissal of Intervenors e
from a separate proceeding could be obtained by seeking such relief from the Board.
Slip op. at 8-9. 8/ Thus, while the merits of the sanction to be imposed on Intervenors is before the Appeal Board (or the Commission),
r the Staff oppcses Intervenors' participation in any portion of this proceeding since they have been found by the OL-3 Licensing Board to be guilty cf "a sustained willful stratogy of disobedience and disrespect for the Cemission's adjudicatory processes" and actions which were ' willful, taken in bad faith and... prejudicial to LILCO and the integrity of the Corrission's adjudicatory process."
CID at 129, 130.
By the sate token, Intervenors' miscerduct and the resulting cloud on the integrity of NRC proceedings should not result ir cdditional time for Intervenors to frane contentions which must be timely raised based on publicly available documents such as the FEPA Post-Eyercise Assessment, dated September 7, 1900.
See Ca tawba, s_upra, at 468-69.
u The Staff, therefore, requests that contentions be filed according to the current hadline and the Licensing Board, thereafter, hold all activitier in the OL-5 docket in abeyance until the Appeal Board and the Ceririission have resolved the f esue of the merits of tho sancticn imposed 1
8/
The.Maff views the OL-3 Board's factual finaings on Intervenors'
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willfull misconduct as bindirg on this Board, and is censidering filing a motion to dismiss this phase of the proceeding on the batis of that determination.
See Public Service Co. of New Hampshire (Seabrook Statinn, Units 1 arTC), CLI-78-1, 7 NRC 1. P.7 (1978)Tsee"
,a_1.jLo AL AS 00?, s l i p op. a t 0-10.
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,. l on Intervenors.
This will reduce (1) the potential for conflicting I
holdings and unnecessary adjudication, including appeals, and (2)will maintain the integrity of the proceeding in the interim by precluding Intervenors' participation on the merits of 1988 exercise issues pending a final resolution of their status as intervenors.
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III. CONCLUSION The Staff opposes the Intervenors' request for a postponement or an i
extension of the October 17 deadline.
In addition, once the contentions i
1 cre filed, the Board should hold the proceeding in abeyance pending a resolution cf the merits of the disnissal sanction imposed in LBP-88-?4 Respectfully submitted, Mi i.. Yo g Counsel for NRC Staff l
Dated at Reckville, Naryland this lith day of October 1988 f
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1 i
UNI " STATES OF AMERICA
]' M' ' '
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '88 OCT 19 P3 :56 In the Matter of
)
i LONG ISLAND LIGHTING COMPANY
)
Occket No. 50-3kN6{.k.C,'f "' '
(EPExercise)
(ShorehamPeclearPowerStr'. ion, Unit 1)
)
CERTIFICATE _OF SERVICE r
I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR POS7PONEFENT OF CONTENT!0H FILING DEADLINE OR FOR EXTENSION OF TIME; NRC STAFF REQUEST TO HOLD PROCEEDING IN ABEYANCE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory i
Centiission't internal mail system, or by telecopier as indicated by dout,le asterist, this lith day of October,1988.
Jahr H. Frye III, C! airman **
Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. huclear Regulatory Comissinn 99 Washington Avenue Peshingten, DC 20555 Albany, NY 12724 Oscar H. Paris
- Fabian G. Palomino, Esq.**
Acninistrative Judge Special Counsel to the Governor Atomic Scfety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commissicr State Capitol j
Washington, DC 20555 Albery,ilY 12224 l
Frederick J. Shon*
Jonathan D. Fainberg, Esq.
j Administrative Judge New York State Deportr'ent of Atonnic Sefety and licensing Board Public Service U.S. Nuclear Regulatory Cornission Three Empire State Plaza Washington, LC 20555 Albany, NY 12223 Philip PcIntire W. Taylor Reveley, III, Esq.
Fedt.ral Emergency itanagement Donald P. Irwin, Esq.**
4 Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Roar 1?49 P.O. Box 1535 New York, NY 10278 Richirond, VA 23212 Barbara Newman, Director C. K. Hallory, III, Esq.
Environmental Health Ccelition Hunton & Williams for Safe Living 2000 Pennsylvania Ave., N.P.
1 Por 044 Suite 9000 j
Huntington, NY II7a3 Washington, DC 20000 i
O.
Stephen R. Latham, Esq.
Dr. itonroe Schneider Twomey, Latham & Shea North Shore Comittee Attorneys at Law P.O. Box 231 33 West Second Street Wading River, NY 11792 Riverhead, NY 11901 Hs. Ncra Bredes Martin Bradley Ashare, Esq.
Shoreham Opponents Coalition Suffolk County Attorney 195 East Main Street H. Lee Dennison Building Smithtown, NY 11787 Veteran's Memorial Highway Hauppauge, NY 11788 William R. Cumming, Esq.
Office of General Counsel Anthony F. Earley, Jr.
Federol Energency Management General Counsel Agency Lcr'C Tsland Lighting Company 500 C Street, SW 175 East Old County Road Washington, DC 20472 Hicksville, NY 11801 Atomic Safety and Licensing Appeal Dr. Robert Hoffr.ar Panel (5)
Long Islar.d Coalition for Safe U.S. Nuclear Regulatory Comission Livirg Washington, DC P0555 P.O. Box 1355 Massapequa, NY 11758 Atomic Safety and Licensing Board Panel (1)*
Alfred L. Nardelli, Esq.
U.S. Nuclear Regulatory Comission New York State Dept. of Law Washington, DC 20555 12C Broadway, Rcom 3-118 New York, hY 10271 Docketing and Service Section*
Office of the Secretary Herbert H. Brown, Esq.
U.S. Nuclear Regulatory Comission Lawrence Coe Lonpher, Esq.**
Washington, DC 20555 Karla J. Letsche Esq.
V,irkpatrick & Lockhart South Lcbby - 9th Floor 1800 f/ Street, NW Washington, DC 20036-5891 Jay Dunkleberger New York State Erergy Office Agency Puilding 2 Errrire State Pla:a Albany, NY 12223 W
Mitz A.
cung F
F Coun for NRC Staff
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