ML20205N375

Govts Opposition to Lilco Petition for Review of ALAB-902.* Petition Should Be Denied Based on Lilco Arguments Against ALAB-902 Being Weak & Misguided

ML20205N375
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/31/1988
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)
Shared Package
ML20205N380	List: ML20205N375 ML20205N403
References
CON-#488-7418 ALAB-902, LBP-88-24, OL-3, OL-5, NUDOCS 8811040105
Download: ML20205N375 (10)

Text

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[ C f.* 3 I( 2 Octcber ~31.1988 t:"M

'63 ml -2 F12 :08 tJ!iITED STATT:S OF N1 ERICA

!OCIIAR RFI211ATORY COMISSICli Before the Ctmissien

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In the Mstter of

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IItG ISIRID UGfrDU CDtPNN

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tbcket !b. 50-322 CIe5

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(EP Exercise)

(Shorthva !bclear Power Station,

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thit 1)

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COVERit!I2fIS' OITOSITICtl 10 MIID'S ITTITICti IDF. FIVIDf OF__ AIAB-902 In AIAD-902, 28 10C (Oct. 7,1988), the Appeal Ibuti held ttut the Liocnsin] 1huti bearing ocrtain enttJen:y plannin] issues in the 50-322-CIr3 docket (the "Ote3 Licensin] thml*) did rot have jurisdicticn to dismiss suffolk county, the Stato of Ikw York, and the '1Wn of Shpton (the "Gwenrents') frm proccolinJs rentin] before another Licennin] Ihuti bearing issues in the 50-322-ole 5 driet (the "OIr5 Licensin] Icarti") arisin]

frm UIID's rmt recent exercise. UIID rru socks tuviw of AIAD-902.1/

UIID's Petition, hcwver, in so cbvicusly without support in law or Icgic as to to unworthy of Crmission reviov.

1/

See Irn) Island Lightin] Ctrpany's Petitico for Pcview of AIAB-902 (CM.

21, 1988) (the "Petitien').

8811040105 00103)

PDR ADOCK 0300037p vou y

1 I.

Backgrtund the events leadirn up to the 4 peal Ibard's decision have already been duonicled in AIA&-901, 28 NIC (Sept. 20,1988), MAB-902, ard a host of submissions to the Otruission by the parties.2/ In brief, the OIr3 Licensirn Board i==M a 2-1 decision on Septh 23, 1988, rulirg that it was disadasing the Governnants fran the entire Shoreham pn-r Hirg, including matters then perdity before the OIr5 Licensin; Iberd chaired by Jtege Mw, for an alleged pattern of abusive practices. IEP-88-24, 28 NIC (Sept. 23, 1988). The OIr3 Licensing Board did so in spite of the issuance of MAB-901 three days earlier which held that jurisdiction over issues arising fran UIID's June 1988 exercise residal in the OIr5 Licensity Board ard not with the OIr3 Licensing Board; ard despite the fact that on Septaber 22, the OIr5 Licensing Board had issued a Memorardta ard order setting an initial schedule for the exercise litigation.2/

The OIe3 Licenairy thud's ruliny raised an obvious issue of jurisdiction - shether that Board had the authority to dimiss parties or otherwise rule upon mtters which sere before another Licensity Board. The OIr3 Licensirn : ud's majority cpinico, however, empletely ignored this 2/

See Suffolk County, State of New York ard 7twn of Southamptcn 0:ments cenaamin; Imm11 ate Ef factiveness Review (Oct. 3,1988); Utro's Ctments en the Imadiate Effectiveness of IBP-88-24 (Oct. 3,1988); UICO's Petition for Review of MAB-901 ard Follow-cn orders (Oct. 5,1988): Govemnants' CgTosition to long Island Lighting Ocupany's Petition for Review of MAB-901 an! Follcw-on Orders (Oct. 17, 1988); UIID's Recpest to Romano Imediate Effectiveness Review or, in the Altermtive, for a Stay of MAB-902 (Oct. 21, 1988); Goverments' Cgposition to UIID's Request to Romano Imediate Effectiveness Review, or in the Altermtjve, for a Stay of AIAB-902 (Oct. 31, 1988).

2/

The Goverments minitted their contenticns to the OIr5 Licensing Board on 0. h 24.

Responses frus UltD ard the Staff aru due in early Noverter ard a cx:aference of ocunsel is cuzuntly scheduled for Noverber 23. - -

4 0

furdamental ia==, not to mention the fact that its decision as in direct conflict with AIAB-901.

I In light of the need to resolve their status in the OIr5 exercise L

2 prwirg, the Gwerments sought inediata Ageal Ebard review of the jurisdictiomi issue.M We parties briefed the mattar en an egedited basis,F and AIAB-902 was ia=M on Octcber 7.

We Appeal Board held unanimmaly that the CIr3 Licensing Board oculd not rule on matters pending beforu another Licensim Board.

i j

1hatever the extant a licensirq board's authority may be with respect to the imosition of sanctions against a party, ant l

l irrespective of shether the Goverments' contact in this pr*lrg l

warrants sanctions, there is no basis for extendin; that authority to matters within the purview of a different decisiornakar.

t i

I AIAB-902, slip cp. at 7.

Wus, the otr3 Licensing Board me its jurisdictional limits by atteptirg to dismiss the Govermants frm the OIr5 l

l exercise procealirg.F 1

i l

y We Governnents have also agealed the remainier of IBP-88-24, including the merits of the CIr3 Licensity Bcard's decision to dismiss the Goverments i

i frm the OIr3 procentirn, ard its rulin;s on the merits of a ruber of i

substantive issues. We Gwerments filai their brief on these matters with I

the Arpcal Ibard on Octcter 27.

)

i j

y

%e Appaal hrd set an emedited briefirg schedule en Septeeber 27 ani i

extend =1 at en Septeber 29, pursuant to UIID's motice for an extensico of I

the briefiry deuiline. Ses order (Sept. 27, 1988)

IJIID's Motion For I:nlatw R. of Briefirq Time (Sept. 28, 1988) Memoranka arti Order (Sept. 29, i

1 1988). UIID has cryplained to the Omnission about the Ageal Board's i

ehTedital briefing m:hmiale in UIID's Petition For Review of AIAS-901 ani Ib11cecn orders (Oct. 5,1988). M140's carplaints, howe.w, arv grouniless, as discussed in the Goverments' Cpposition to that Petitico, filed with the i

(traission en Septeter 17.

}

I y

In rulin) cn the jurisdictieral issue, the Ageal Board assmai amomb, as MILO hul urged, that the Govermants hd enrpged in the allenni imprrter tuhavior cn which the CIr3 Licenairq Board hst haw its decision an1 that I

disr11s. sal was the apprtpriate sarction for that behavior. We Goverments taka issue with the OIr3 Licensity Boani's finiings in this regard. As j

enlained in the Gwerments' Octcter 27 brief on arpaal frm IEP-88-24, the 1

i (ocntinxd... )

I

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'Ihe 4 peal Board also rejected LIIro's argument that such a rulity i

offactively eliminated dimissal as a sanction in licensirs proceedingx divided amcrq nultiple Licensing Ibards.

Irdeed, it recognized not only that a Licensing Board has the authority to dismiss a party from all aspects of the prr=*iing beforu it, but if the conduct allegedly warrantirq another party's ritmissal from the entire prr=~41ng is, in fact, so egregious and pervasive, the l

party requestirq that sarrtion abould have little difficulty in makirq its case before each board then presiding cNer ditforsnt facets of the prrmaiing.

M., slip cp. at 9.

M us, dismissal rvenins a viable sanction, even in f

premaiings before cultiple Licensiin Ibards. The 4 peal Ibard wot on to rule, however, that no Licensing Ibard is authorizmi to arrrysta to itself the power legitimately vestad in another Board, as the OIc3 Liesnsing Board majority attarpted to do. Rather, every party has a *right to be judged inkpen$ently and fairly by each board beforu which it appears.'

M., slip i

cp. at 9, 11.

The 4W1 Board further found that even if the CIr3 Licensing Board had l

hvi jurisdiction to disniss the Goverments frun its CIe5 docht, the Ibard's t

majority decisien was flawed in that it failed to *ruflect... any serious i

consideration of the relationship of its action to the prW.ing penlity t

before the otr5 Ibard."

M., slip cp. at 12. Irdeed, the otr3 Licensity 1

Board's failuru to prwide any bases shatsoever for this aspect of its action was in itself aufficient to twpiru twversal.

M., slip cp. at 13.2/

f/ (...continaed) i OIr3 Licensity ! bard's decision was gruniless. See Gosumments' Brief in SL4 port of 4 peal of Septarte.r 23, 1988 ccocluding Initial Decision (Oct. 27,

)

1988).

2/

'Ibe 4 peal Ibmi also distirguished a ruber of federal court m= shich (contiruai... ) -

i MICO now seeks ocmenission rwiew of AIAS-902. LIIIO's Petition, however, is rething more than a confused collection of petty ocuplaints, none of Wich even ocapsis ocamission rwiew, num less reversal, of AIAB-902.

UIID's real ocuplaint, of course, is that AIAD-902 allows litigation of the l

results of its June 1988 exercise to proceed. Given the dissaal reellts of UIID's 1986 exercise, in Wich LIICO's emergency plan was fourd to suffar j

i frta runerrus fundamental flaws, detailed examination of the sont roonnt exercise is apprtpriate.3/ UIID, however, is asking the ocanaission for a i

favor - h, to cuerlook the otr3 Licensirq Board's lack of jurisdiction, erd the shoreham litigation now, and give utn a license by default. We ocenission must decline this invitatica to cirunwant lawful precedure ard deny the GcnerTrents their right to due process.

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II.

DISCUSSICH i

me Arpaal Board's ruling in AIAB-902 is alennentary Wen issues in a l

licensing prwing are divided for separate Licensing Boards to hear, each j

Licensin; acard may rule only en those i=== which are before it. No Licensing Ibard can km "more equal" than othari. See AIAD-902, slip cp. at 9.

t

'Ib rule otherwise wculd invite chaos. Se OIe3 Licensing. ud was no more f

authorized to dimiss the GcnerTnents frun the OIr5 proonoding than the Ole 5 l

l 2/(... continued)

LIIID had offered as authority for the prrposition that one Licensing Bcard shculd tu able to disrniss parties frun pr-41ngs befort another Licenairy j

Bcard, fintirn all of thers inarposite. Id., slip cp. at 15-16. It is noteworthy that LIIID does ret raise these cases in its currint Petition.

B/

Indeed, the OIr3 Licensin7 Bcard itself has reocgnized that there can to rn reancewble assurance finlin7 until the fundssental flaws in MIID's Plan have been correcta$. Egg IBP-BS-9, 27 NRC 355, 379 (1988).

I i

t Lioerising Board would have been to merrule the otr3 Licensing Board's l

l decision and declare that the Gmertsments could not be dl==iamad frtaa the OIr3 g d ing. As the Appeal Ibard noted, if a Licenstrug Board can unilaterally l

d1==l== a rm:ty frtza all aspects of a satiti-Licensing Board r ing, there 1

j is no renerm why it could not impces other less severe manctions as well, such l

f I

as precluding a party frtsa presenting certain tastimmy before another Licensing beard, or recpiring another Ihansing Board to mesma certain facts i

adverse to the sanctioned party. See M., slip op. at 19 n.21.2/ '!he potential for jurimiletional disputas would be alacet boundless. No judicial i

i bcdy geratas this way and, until the otel Licensing Board's ruonnt attempted i

acticm, the NRC did not either.

Inhed, the decisien in AIAB-902 is so basic that it is difficult to urderstard anyone ocntasting it. Judging fztsa the absenom of coharunt j

t targunants in IJIID's Petition, it is wident that IJIID encountered, but i

failai to overtxne, that difficulty. Nevertheless, UIID proffers a number of ill-conceived artguments in the amarant hcpe that one of these will catch the Ctssaission's eye.

IJIID first attacks the Amtal Ibard's holding that a party to a t

V = tirug has a *right to km juiped indepardently ard fairly by each board beform Wich it apears* and thar

• Tisidering sanctiers that extend int <

g-----ILrups before arother Ibard constitutae 'an artogation by one Board of authority legitimately imeetmi in another." Betition at 3, getim AIAD-2/ '!hus, IJIID's argtsmant t%t tharu should be a distincticn made between pummairal atd mabstantive m*ters, with a Board parmitted to make prtoedaral (but not autetantive) rulings that interform with g(----Mngs beform another Board is untanable. E m Petition at 6-7.

As these exemples demonstrata, permitting one Ibard to unttrp another Ibard's authority on g-taral issues is just as inamrt:priate as permitting such usurpatien with respect to substantive issues.

4 902 at 9, 11. 'lhese prtpositions would seem self-evident to most people; l

l UI4D, however, braMs them as "spurious" and "stitched... of whole cloth."

Petition at 3, 10. UIID's main argument is that the ccanist'.4 Statment of Policy on Ccnduct of Licensirg Fr -:

iirgs, CU-81-8,13 NRC 452 (1981),

posits a Licensim Board ccrisidering sanctions to, amorg other things, disatiss a party from the pr*lrq and does not specifically stata that sanctions are restricted in their **fe:t to the 4===

before that Board.

Petition at 5.

UIID instand esp.m "holistic" approach to w iirgs htfore n11tiple Licensirn Scanis i' u *st one Licensing Board can intru$e on T

the authority of any other Liceneirg Board.12/ 1he 4 Seal Board aprtpriately rejected this artpnant.

As the 4 peal Board eglained, its rulirn is consistant with the ccanission's Policy Staterent. First, AIAB-902 does not preclude a Licensirn Board frta dismissirn a party with respect to all in== before that Ecard.

j see AIAB-902, slip cp. at 8-9.

Toceni, the 4 peal Board noted that a party l

seekim further sanctions could argue to a separata Licensiin Ecard hearirg othar issues th t tha unctioned party's corWet vna so egregious as to warrant dimnissal on those issues as well. Id.ll/ 'Ihird, the 4 peal Bonni IQ/

In making this argtrennt, UIID iFpely statas that the 4 peal Ehud "vrested* jurisdiction frtz the CIr3 Board.

Petition at 2-3.

The Nymal Ibard did no such thiM. At the time AIAD-901 was issued, jurisiiction wer the 198a exercise was vested in the OIe5 45 mal Board; that jurisdicticri was then rumanded to the Oir5 Licensim Ibard. See AIAD-901. '!he OIr3 Board has I

not had jurisiictict) war exercise matters sitos Juspo Cottar tzunsferred that jurimilction first to a differwnt drAet and then to a different Bonni in 1986, puriuant to his authority as 011ef A&sinistrative Jteps of tle Atcnic Safety aM Licensiig Ibazd Panal. Sag Qwge of Docket Raber (July 24, 1986): Notice of Reconstitution of Board (Oct. 7,1980).

11/

'1hus, Ulf0 could have reed the CIr5 Licensirq Ebazd to dismiss the GcNazments as well, but has failed to do so. Any such rupest would now be untinaly. UIIn argues in the abstract that the 4 peal Board's prrposed (contirued...)

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recognized that the Policy Statenent did not give special guidance on the jurisdictional limits of sanctions where nultiple Licensing Boards existed because, at that time (1981), the use of multiple Licensing Boards was rare.

Thus, one cannot infer from the ccmission's silence that it interded to allow the unprMnted jurisdictional overlap that UILD now advocates. Id., slip op. at 12, n.12.12/

The Appeal Board also criticized the OIc3 Licensing Board for failing to ocne to grips with the jurisdictional issue staring it in the face.

LIIco argues that the Appeal Board's criticism "impugns the substance of the Licensing Board's sanction detemination and prejudices review of it...."

Petition at 9 (egtasis in original). Just how AIAB-902 does so is unexplained, ard even LIIID is fort:ed to admit in the same sentence that AIAB-902 ^<uW that the dismissal sanction war.1 correct. Petition at 9.

LIILO also misleads the Ctmission by describing the Appeal Board's criticism as being focused on only one issue - the OIe3 Licensing Board's failure to consider that the sanction it imposed could lead directly to the temination of the entire prMing and the issuance of a license.

Petition at 9.

In 11/ (... continual) procedum would result in a "' crazy quilt' of conflicting decisions by difforent licensing boards on the ve2y same set of facts." Fetition at 6.

LIIm ignores, however, that the facts before any other Licensing Board would not be exactly the sane. The issue there would be whether the sanctioned party's conduct before the first Li nsing Board warranted di<:miestal frcn the proceeding before the other Licensing Board. That Board would have to ocruider, among other things, the sanctioned party's conduct before it ard the relationship of the miscxxduct to the issues it is hearing.

12/ In support of its argument, LIIID also cites to language frca AIAB-743, 18 NRC 387, 397 n.38 (1983), which affimed the denial of an untimely motion to intervene even though a new Licensing Board had been established to hear energercy planning issues. Ssg Petition at 6.

That ruling and the Appeal Board's language, however, do not address the issue of the jurisdictional i

limitaticos of cultiple Licensing Boards in a licensing prMirg.

' i m

_-i e--r

t fact, the Agpeal Board's criticism was nuch broader. 7te Appeal Board took the OIe3 Licensing Board to task for failig to recognize in any way that its jurisdiction might be limited, or to explain why it had determined that its sanctionig power could extend beyoM the issues before it. AIAB-902 at 12-14, 19. D The real reason behind UILD's Petition is found at page 10 of the Petition. 'Ihere, UIID explains that if AIAB-902 is upheld, there will be litigation of the results of its June 1988 exercise and it will not receive a license soon. Thus, UIID pleads with the h3= ion to ignore the Govemments' rights to a hearing or, the 1988 Exercise results,E abandon proper procedure, ard ignore fundamental jurisdictional principles, becauseg '

UILD does not want any inquiry into the adequacy of its performance in the June 1988 exercise - despite the fact that its previous exercise revealed fuMamental flaws in its energency plan and there has been no finding by any Licensing Board that those flaws have been renedied. 7 tat does not justify Ctruission review of this mtter.

As demonstrated above, LIIID's arguments against ALAB-902 are wak and micquided. They provide no evidence that the Appeal Board erred "with respect to an irportant question of fact, law, or policy." Sc 10 CFR S 2.786(b)(1).

Accordingly, LIIID's Petition is unworthy of Ctmission revicW.

W As part of that criticism, the Appeal Board stated that the need for the OIr3 Licensim Board to explain its reascnig was even more critical in light of the severity of the sanction it was attarpting to inpose but, as noted above, the A; peal Board's reasoning exterded much further.

W Eg Union of Concerned Scientists v.10C, 735 F.2d 1437 (D.C. Cir.1984).

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CONCIUSICH For the foregoirq reasons, LIIID's Petition should be denied.

Respectfully sabnitted, E. 'Itxxnas Boyle Suffolk County Attorney Building 158 North County Caplex Veterans Memorial Highway Hauppauge, New York 11788

[

IKwrence C. Ianpher

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Christcpher M. Mdtirray KIRKPAIRIOC & IDCMDRP 1800 M Street, N.W.

South Ichby - 9th Floor Washington, D.C.

20036-5891 Attorneys for Suffolk County L U d. M A k 4' -

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RichardJ.Zahnleu[ter Fabian G. Palpuino Special CoGrel to the Governor of the State of New York Executive Chauber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor,,of the State of New York k

St6 phen B(Iatham honey, Iatham & Shea P.O. Box 398 33 West Secord Strrr.t i

Riverhead, New York 11901 Attorney for the Town of