ML20206M882

Memorandum & Order.* Board 881121 Memorandum & Order Authorizing Issuance of 25% Power OL Considered Appealable, Per 10CFR2.762 & Govts Motion Seeking Disqualification of Judges Will Be Reviewed Promptly.Served on 881123

ML20206M882
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/22/1988
From:	Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	LONG ISLAND LIGHTING CO., NEW YORK, STATE OF, NRC OFFICE OF THE GENERAL COUNSEL (OGC), SOUTHAMPTON, NY
References
CON-#488-7549 OL-6, NUDOCS 8812020050
Download: ML20206M882 (4)

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ATOMIC SAFETY AND LICENSING APPEAL BO Administrative Judges:

4 Christine N. Kohl, Chairman November 22, 1988 Alan S. Rosenthal Dr. W. Reed Johnson SERVED NOV 2 31988 3

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6

) (25% Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

MEMORANDUM AND ORDER

1. Yesterday the Licensing Board issued a Memorandum and Order essentially granting (with a dissent) applicant Long Island Lighting Company's (LILCO) motion for authorization to operate at 25 percent power.I The Board majority concluded, among other things, that LILCO's motion was unopposed, inasmuch as the same Board majority had previously dismissed the intervening Governments (Su f folk County, the State of New York, and the Town of Southampton) from all proceed!ngs pending before it as a sanction for the 1

The caption of the Licensing Board's unpublished November 21, 1988, Memorandum and Order erroneously shows the Docket Number for this part of the proceeding as "OL-3".

As the Board appears to recognize at page 2 of its Memorandum and Order, papers (including Board orders) relating to LILCO's 25 percent power request have been captioned and filed, for case management purposes, in the "OL-6" docket since late 1987. See, e.g., Licensing Board Memorandum (October 6, 1987); 52 Fed. Reg. 44,502 (1987).

8812O20050 Beg 2b2 em awcx o em 1sm G

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Governments' assertedly improper conduct earlier in the proceeding. See LBP-88-24, 28 NRC 311, reversed and vacated in part, ALAB-902, 28 NRC 423 (1988), petition for review i pending. The Licensing Board also noted that the Commission has recently determined to review the 'Janction issue itself directly. The Board then went on to state (at 8):

It would clearly be in the public interest to assure that all issues related to sanctions are 1

resolved in coordinated fashien by the decision makers with jurisdiction to do so. For these i

i

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 i expense. The Board therefore concludes that it should refer this decision to the commission i through the Appeal Board as provided in 10 C.F.R. l 2

2. 730 (f) and 2.785 (b) (1) . This is intended to i

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.

]

We conclude, however, that it is in the public intarest j to comply with the Commission's existing Rules of Practice j and long established agency precedent. The Licens.ing I Board's November 21, 1988, Memorandum and Order authorizing .

1 s the issuance of a 25 percent power operating license to l I LILCO is not an interlocutory order under 10 C.F.R.  !

S 2.730 (f) , as the Board believes. Indeed, if ever there  ;

I was a "final order" as that concept is used in the law (at [

I the NRC and elsewhere), the November 21 order is it. See l

) generally Toledo Edison Co. (Davis-Besse Nuclear Power t Station), ALAB-300, 2 NRC 752, 758 (1975). Thus, the

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Licensing Board has issued an immediately appealable order entitled to full briefing, not an order that it may "refer" l as a matter of purported discretion to either the Appeal Board or the Commission.2 The Commission's Rules of I Practice direct that appeals from final orders are to be filed with the Appeal Board pursuant to 10 C.F.R. 3 f

SS 2.762 (a) , 2. 785 (a) . 3 Unless and until these rules are f

changed or overridden by specific Commission (as opposed to  !

Licensing Board 4 ) order, any appeals from the Licensing Board's November 21, 1988, Memorandum and Order on LILCO's  ;

25 percent power request are to be filed with us and briefed f in accordance with 10 C.F.R. S 2.762.

, e 2

The Licensing Board's statement that it is referring f i its ruling to the Commission "through the Appeal Board" -- i j read in isolation -- is ambiguous. There is no doubt, l however, from the full paragraph on page 8 of its memorandum i

! and order, as well as page 3 of the dissent, that the Board  !

j seeks to bypass Appeal Board review of its ruling. In that i i effort, the Board relies on 10 C.F.R. 52. 785 (b) (1) . That l l provision, however, is the very regulation that authorizes i j the Appeal Board to act for the Commission on referrals.

3 l Appeals from licensing board decisions authorizing i

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low-power operation (five percent or less) have always been j regarded as final orders appealable to us under 10 C.F.R. ,

l SS 2.762 (a) , 2. 78 5 (a) . See, e.g., Philadelphia Electric Co.

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I (Limerick Generating Station, Units I and 2), ALAB-819, 22 t NRC 681, 692 (1985), aff'd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986). Decisions

authorizing operation at a higher power level, like that ,

here, are certainly no less "final."

{ It would be extraordinary indeed for any lower-level [

l decisionmakir.g body to be able to dictate who will review i its decisions. [

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2. In a separate order also issued on November 21, 1988, two members of the Licensing Board denied the Governments' motion seeking their disqualification from presiding over the matter of LILCO's 25 percent power request.5 They correctly recognize (at 10) that 10 C.F.R.

S 2.704 (c) requires referral of that ruling to us. In accordance with our customary practice, we will review that matter as promptly as possible on the basis of the filings below. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-748, 18 NRC 1184, 1186-87 (1983); id., ALAB-749, 18 NRC 1195, 1198 (1983).

It is so ORDERED.

FOR THE APPEAL BOARD s  %>. h Eleanor E. Hagins Secretary to the Appeal Board Dr. Johnson concurs in this memorandum and order but was unavailable to review the final draft.

5 That order, as well, bears the technically incorrect "OL-3" docket number. See supra note 1.