ML20206M820
| ML20206M820 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/21/1988 |
| From: | Gleason J, Kline J Atomic Safety and Licensing Board Panel |
| To: | LONG ISLAND LIGHTING CO., Office of Nuclear Reactor Regulation |
| References | |
| CON-#488-7545 LBP-88-24, OL-3, NUDOCS 8812020017 | |
| Download: ML20206M820 (12) | |
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- r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD y
Before Administrative Judges: sM;.
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James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon SEVED F!0'! 7.11986 In the Mattcr of Docket No. 50-322-OL-3 (Emergency Planning)
LONG ISLAND LIGHTING COMPANY
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i (Shoreham Nucloar Power Station, Unit 1)
November 21, 1988 i
MEMORANDUM AND ORDER (Granting In Part 4nd Denying In Part LILC0's Recuest For Imediate Authorization To Operate At 25% Power)
I Introduction On October 21, 1988 LILCO filed "LILCO's Request For Imediate Authorization To Operate At 25% Power." The NRC Staff responded in support of LILCO's tr.otion on October 31, 1988. The Intervenors filed a response opposing LILC0's request en October 31, 1988. On November 12, 1988 LILCO filed a Motion For Leave To File Answer To Intervenors October 31 Response.
LILCO's Answer To Intervenors October 31 Response accompanied its motion for leave to file.
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II.
Clarificatio.1 of the Procedural Status of the 25% Power Case We hold at the outset that Intervenors' response in this matter is an l
unauthorized filing because they have been previously dismissed from the t
Shoreham case. LBP-88-74, p. 130.
The Board holds this to be tile case even though one aspect of LBP-88-24 as it applied to the OL-5 phase of the case was reversed on jurisdictional grounds shortly after our decision was issued.
The Appeal Board held that we exceeded our authority in dismissing Intervenors from a part of the proceeding that was pending before different decisin makers. ALAB-902, pp. 6-7.
The OL-6 part of the Shoreham proceeding, I
however, pends before the same decision makers as the OL-3 proceeding and the Appeal Board acknowledged our jurisdiction to sanction Intervenors in that circumstance.
Further, the OL-6 proceeding is not a separate prcceeding within the meaning of ALAB-902 because it was not initiated by an order reconstituting the Board, 6nd this Board expressly retained jurisdiction to decide the issues in controversy surrounding LILCO's original reouest to us to authorize 25% power operation. Memorandum and Order (In Re: LILC0's Request For Authorization To Operate At 25% Power), January 7,1988 at 15. Order Appointing Alternate Board Member.
February 26, 1988 at 2.
The OL-6 designation was a management Jchanism to promote the orderly filing of papers since at the time of our orders on the matter we were simultaneously considering voluminous filings from all parties related to the full power application. Our authority to dismiss Intervenors from the OL-6 subdocket has not been reversed and our order in LBP-88-24 remains binding on the parties and former parties in this case pending appellate review, l
d The OL-6 subdocket is itself in an unusual procedural posture because of the complex events that unfolded in the days following the issuance of LBP-88-24 In that decision the Board ruled that the case before it pertaining to LILCO's application for a full power operating license was effectively resolved and authorization for full power operation was ordere.i.
That order, if affirmed, would necessarily have been applicable as well to operation at intermediate power levels short of full power and LILCO's separate request for authorization for 25% power operation would with equal necessity have been moot. As events unfolded, however, our order authorizing full power operation wac vacated. This had the effect of reviving LILC0's pending request for 25% power operation. Although LBP-88-24 resulted in dismissal of Intervenors from the Shoreham case (except as modified on appeal) and resolution of all contentions pending before us, it did not separately address the issue of authorization for 25% power.
That issue therefore remains before this Board until a separate decision is rendered.
To sumarize the current p*ocedural status we conclude that:
- 1) this Board has jurisdiction to decide LILCO's motion for 25% power operation, 2)
LBP-88-24 is binding on the parties and former parties on all matters that have not been reversed or vacated on appeal, 3) As a consequence, LILCO's motion lies before us unopposed, and there are no matters remaining in controversy related to 25% power except to the extent that there is disagreerrent between the NRC Staff and LILCO.
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. For the foregoing reasons Intervenors' response of October 31, 1988 is l
dismissed without further consideration-herein and LILCO's Motion for Leave to File a Response To Intervenors' Response is denied.
In our ruling here, the sanction of dismissal of Intervenors as parties in LBP-88-24 reaches to disqualify their participation in the 25% power request proceeding. However, even if it were to be concluded that the 25% proceecing was considered a separate proceeding with the necessity of making additional findings involving Intervenors' participation, this Board would conclude that their conduct in the original proceeding would have been so "cintamacious and prejudicial...as to warrant dismissal from (the 25% power) proceeding as well." (See ALAB-902 slip opinion at 9.)
Additionally, since we made manifest in LBP-88-24 that, except for the sanction, the Applicant was entitled to a decision on the merits authorizing an operating license at 100% power, we certainly would conclude that it was entitled to a license at a 25% power level.
III. LILCO's Request LILC0 urges the Board to irmediately grant authorization for 25% power operation on the grounos that:
- 1) Intervenors, being dismissed as parties, can no longer contest LILCPs 25% power motion, 2) there are no emergency 1Judges Gleason and Kline reviewed portions of Intervenor's response before rendering their decision on Intervenor's companion reauest that we be disqualified from participating in this decision.
See Order, November 21, 1988 (in which we deny Intervenors' motion for discualification of Judges Gleason and Kline).
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. planning contentions now pending before this Board and therefore they cannot have any substantive relevance to LILCO's request for 25% power, and 3) the Staff's technical review of LILCO's 25% power request confinns LILCO's position that any unresolved issues related to the full participation exercise of the LERO emergency plan conducted on June 7-9, 1988 are not significant for operation of Shoreham restricted to this power level. Therefore, according to LILC0 tne Board should find that LILCO has demonstrated compliance with 10 C.F.R. 50.47 (c)(1) 6nd en that basis the Board should rule under 50.57(a)(3)
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and in turn 50.57(c) that existing emergency planning for Shoreham provides reasonable assurance that public health and safety will be protected if Shoreham is permitted to operate at 25% power.
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IV. NRC Staff Position i
The NRC Staff agrees with LILCO that Intervenors can no longer contest the 25% power application and that this Board has jurisdiction to decide l
LILCO's motion for authorization for 25% power.
Staff response, pp. 6-7.
The Staff disagrees with LILCO's assertion that there are no remaining contentions relevant to LILC0's request to operate at 25% pcwer. The Staff correctly asserts that Intervenors remain as parties to the OL-5 portion of the case where contentions en the 1988 emergency exercise have been filed before the OL-5 Board. The Staff correctly perceives that we are faced again with an apparent situation of split jurisdiction between two Licensing Boards operating in different subdockets of the same case. On the one hand 4e OL-3/0L-6 Board has jurisdiction to decide LILCO's motion, and on the other the only possibly relevant contentions lie before the OL-5 Board.
The Staff
. argues trat if Intervenors were entitled to participate before the OL-3 Board they could raise objections based on contentions before the OL-5 Board and that this Board would be required to consider such matters in making the findings required by 50.57(c).
However, in Staff's' view, Intervenors are not pemitted to participate further before this Board and LILCO's motion is therefore unopposed before us.
The Staff therefore advises that we should grant LILCO's motion as unopposed without making findings on the matters specified.in50.57(a).
Such order should authorize the Director of Nuclear Reactor Regulation to issue a license authorizing operation et up to 25% power upon making findings that activities authorized can be conducted with reasonable assurance of the protection of the health and safety of the public and in ccepliance with the regulations.2 V.
Decision i
The Board agrecs with Staff and Applicant that we have jurisdiction to decide LILCO's motion and that Intervenors are prohibited by the tems of LBP-88-24 from participating in this aspect of the cabe. We also confirm that in the present posture of the case LILCO's application is unopposed. We disagree with LILCO, hewever, that we should rely upon the Staff technical assessment of LILCO's proposal to make a reasonable assurance finding on the 10 C.F.R. 50.57(c) states: "If no party opposes the motion, the presiding officer will issue an order... authorizing the Director of Nuclear Reactor Regulation to make appropriate findings...and to issue a license for the requested operation."
7 rerits because the Staff itself has made no such finding on 25% power operation in its technical assessment, i
The Boaro agrees with Staff that the provisions of Section 50.57(c) are controlling in these circumstances and that we are required by its provisJens to issue an order authorizing the Director of Nuclear Reactor Regulation to make appropriate findings on LILCO's application and to issue the license 1
requested. Such authorization must necessarily be without a reasonable
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assurance finding from this Board since under the circumstances of this case and the regulation (Section 50.57(c)) that is the Director's responsibility.
In reaching this conclusion we harbor no concern that any important matter pertaining to public health and safety will go unreviewed because the provision of the regulation requiring the Director to make appropriate findings in cases such as this is not a pro forma requirement. Where no such findings have been made by the Licensing Board having initial jurisdiction, we are confident that the Director's review will be substantive and thorough.
Even though we concluded in LBP-88-24 that there was no merit to any l
existing contentions, we are mindful that contentions that could be relevant to LILCO's request might subuquently be admitted before another Board. The controlling factors for our decision, however, are that LILC0's application is I
uncontested before us and Intervenors are not entitled to participate in any 1
l proceeding before us whether or not any possibly relevant contentions night be ddmitted before another Board.
1 The NRC Staff's Technical Review Of A Request From Long Island Lighting Compan/ For Authorization To Operate The Shoreham Nuclear Power (Footnote Continued)
. We are aware that the Commission has taken jurisdiction over the question of whether the sanction we ordered in LBP-88-24 was warranted. Commission Order, November 9,1988.
LILCO's request for expedited consideration, however, has been pending since 1987. This case has had a complex procedural history and no public benefit would follow if additional complexity were to develop.now.
It would clearly be in the public interest to assure that all issues related to sanctions are resolved in coordinated fashion by the a
l decision makers with jurisdiction to do so.
For these reasons we conclude that this is a case where prompt decision is necessary to prevent detriment to the public and to prevent unusual delay and expense. The Board therefore concludes that it should refer this decision to the Commission through the Appeal Board as provided in 10 C.F.R. 2.730(f) and 2.785(b)(1).
This is intended to provide an opportunity for the Commission to consider this decision in conjunction with its review of LBP-88-24 before it reaches any final disposition of the Shoreham case.
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ORDER 4
1 For all of the reasons considered herein it is hereby ORDERED:
1.
LILCO's motion for authorization to operate at 25% power is granted in part and denied in part.
The motion is granted insofar as it roouests the Board to find that its motion is unopposed and that there are no contentions (FootnoteContinued)
Station At A Power Level Up To Twenty-Five Percent Of Full Rated Power.
October 6, 1988.
See p. 2. Scope of Staff's Review.
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i relevant to its request before this Board. The motion is denied insofar as it requests this Board to find in its favor on the merits of its request.
2.
Pursuant to 10 C.F.R. 50.57(c), the Director of Nuclear Reactor Regulation is authorized to make appropriate findings en tratters specified in Section 50.57(a) as they relate to LILCO's motion and to issue a license for the requested operation.
3.
Pursuant to 10 C.F.R. 2.730(f) and to Section 2.785(b)(1), this decision is referred to the Commission through the Appeal Board because prompt decision is necesse,ry to prevent detrirrent to the public interest and unusual delay and expense 4 THE ATOMIC SAFETY AND LICENSING BOARD
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ames P. Gleason, Chairman ADMINISTRATIVE JUDGE M
f/r. Jerry R. 'Kline ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 21st day of November, 1988 4Judge Shon dissents from the majority opinion. His separate opinion is attached hereto.
Judge Shon. Dissenting I must, once more, respectfully differ with my colleagues.
In LBP-88-24, 28 NRC (1988), the Concluding Initial Decision on Emergency planning (CID), my colleagues dismissed the Governments as intervenors, and I dissented from that action. My reasons for dissenting here are fundamentally the same, and I shall not repeat the details of the logic supporting my dissent.
I feel, however, that I owe my colleagues, the Commission, and the public et large some clarification of tho way in which I think those reasons compel the same result in the present pnase of the case.
In the $rief apologia below, I l
set forth each of my reasons for not dismissing the Governments and describe the way in which each bears upon the issue of operation at 25%
of power.
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M; first reason for not dismissing the Governments was my unwillingness to extend the sanction of dismissal beyond the ambit of the contentions on which the Governments had resisted discovery.
I felt that their obduracy was neither so flagrant nor so pervasive as to 2
justify their dismissal from other aspects of the case. That reason applies with even greater force here, where the matters at issue have not even been precisely defined, let alone been the subject of centumacious behavior, My second reason was more complex:
I felt that the intergovernmental comity exemplified by Section 10 CFR 2.715(c) and the d3ference to local governments shown in our emergency planning L
regulations (10 CFR 50.47 and Appendix E thereto) combined to give a r
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2 special status to state and local governments.
I believed (and still believe) that we should be even nere reluctant to dismiss them than to dismiss other intervenors. The matter of'special expertise in emergency planning may not seem to bear immediately en the 25% power issue, but 11 i
is well established in this case that the request for that power level has been made under 10 CFR 50.57(c). That section of the regulations specifically mardates an opportunity for a party to be heard "to the extent that his cententions are relevant to the activity to be authorized", and the only contentions still extant (the potential l
contentions which may arise in the exercise hearing, OL-5) clearly involve emergency planning matters.
My third reason for limiting the dismissal to the contentions involved in the parties' misbehavior was my observance that matters still penced in which the Governments' participation might be beneficial.
I specifically mentioned the emergency planning exercist j
phase of the case, but this 25% power issue is obviously a matter in a similar posture.
I did not mention 25% power in my previous dissent since my colleagues had authorized full power in the CID and, as a matter of engineering necessity, full power subsumes quarter power.
Since the issuance of the Appeal Board Decision ALAB-902, which vachted my colleagues' authorization of full power, the matter of 25% power has f
been resurrected.
It is now surely one of the matters on which the Governments could make a contribution, and I think it unwise to ba them fitn doing so.
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I wholeheartedly agree with my colleagues, bewever, that, in view of the Commission's Order of November 10, 1988, we must refer any action here taken to the Comission forthwith, Mr. Frederick J. Shon,-
ADMINISTRATIVE JUDG V r
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