ML20206M938
| ML20206M938 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/23/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7568 LBP-88-24, OL-6, NUDOCS 8812020083 | |
| Download: ML20206M938 (8) | |
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LILCO, Nov mber 23,1988
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s E 0( r.E T ED UNITED STATES OF AMERICA 2 '"I NUCLEAR REGULATORY COMMISSION
'88 L'0V 25 P 1 :04 Before the Atomic Safety and Licensing ADDeal Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-6
) (25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
IJLCO'S MOTION FOR CERTIFICATION OF THE LICENSING BOARD'S NOVEMBER 21 MEMORANDUM AND ORDER AND REQUEST FOR EXPEDITED DISPOSITION LILCO requests that the Appeal Board, pursuant to 10 C.F.R. S 2.785(d), certify to the Commission the Licensing Board's November 21, 1988 Memorandum and Order, which confirms that Intervenors are dismissed from the OL-6 subdocket and which au-thorizes the Director of Nuclear Reactor Regulation to issue a 25% power operating 11-cense for Shoreham. LILCO believes that certification of the November 21 Order is both appropriate and necessary in the circumstance where the Commission has previ-ously indicated, in an Order issued November 9,1988, that all appeals from the Licens-ing Board's decision in LBP-88-24, 28 NRC (1988), to dismiss Intervenors from the entire Shoreham proceeding (and including lesser sanctions issues) be directed to the l
Commission itself. Becausa of December 1 briefing deadlines before this Appeal Board and the Commission, LILCO requests expedited disposition of this motion.
l
1. Background
i On November 21, 1988, the Licensing Board sitting in the "OL-6" subdocket is-sued a memorandum and order in which it confirmed that its decision in LBP-88-24,28 NRC (1988), to dismiss Intervenors as parties "reache[d] to disqualify their partic-Ipation in the 25% power request proceeding." Memorandum and Order (Granting in 8812O20083 081123 PDR ADOCK 05000322 O
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Part and Denying in Part LILCO's Request for immediate Authorization to Operate at 25% Power)(November 21,1988) at 4.1/ The Board's November 21 Memorandum and Order was thus merely a reprise, in terms of facts, logic and results, of the course it followed in LBP-88-24 to dismiss Intervenors from the OL-3 proceeding. As a conse-quence of this determination, which lef t unopposed LILCO's pending request to operate Shoreham at 25% power,2 the Board authorized the Director of Nuclear Reactor Regu-lation to "make appropriate findings on matters specified in Section 50.57(a) as they re-late to LILCO's motion and to issue a license for the requested operation." M. at 9.
The Board, in making this determination, stated that it was "aware that the Commission has taken jurisdiction over the question of whether the sanction (the Board) ordered in LBP-88-24 was warranted. Commission Order, November 9,1988."
M. at 8. Concluding 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 ordered hat its decision be referred "to the Commission through the Appeal Board as provided in 10 C.F.R. S 2.730(f) and 2.785(b)(1)." M. The Board stated that its action was "in-tended to provide an opportunity for the Commission to consider this decision in con-junction with its review of LBP 88-24 before it reaches any final disposition of the Shoreham case." M.
Thus, the Board's position was that, given the Commission's November 9 Order, it was incumbent on the Board to refer its November 21 decision 1/
The Board noted that the "OL-6 proceeding... pends before the same decision makers as the OL-3 proceeding" and that the Appeal Board in ALAB-902, 28 NRC (1988), "acknowledged ( the Board's) jurisdiction to sanction Intervenors in that circum-stance." Memorandum and Order at 2. The Board. pointing out the "OL-6" designation was only a "management mechanism to promoto the orderly filing of papers," further noted that "the OL-6 proceeding is 1.ot a separate proceeding within the meaning of ALAB-902 because it was not initiated by an order reconstituting the Board, and this Board expressly retained jurisdiction to decide the issues in controversy surrounding LILCO's original request to us to authorize 25% power operation." M.
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LILCO's Request for immediate Authorization to Operate at 25% Power (October 21, 1988).
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directly to the Commission. This is made plain in t!), separate opin'on of Judge Shon, who, while dissenting from the majority's action, stated that he "wholeheartedly agree [d] with (his) colleagues... that, in viuw of tue Commission's Order of November (9),1988, (the Board) must refer any action here taken to the Commission forthwith." November 21 Order, dissenting opinion Et 3.
The Appeal Board, by a gLa sponte memorandum and order issued November 22, ruled that the Licensing Board's Order of the previous day, to the extent it authorizes the issuance of a 25% power operating lleense, "is llot an interlocutory order under 10 C.F.R. S 2.730(f)." Appeal Board Order at 2 (emphasis in original). Instead, the Appeal Board stated, the "Licensing Board has issued an immediately appealable order entitled to full briefing, not an order it may ' refer' as a matter of purported discretion to either the App,eal Board or the Commission." id, at 3 (footnote omitted). The Appeal Board, noting that the Commission's Rules of Practice direct that appeals from final orders are to be filed with the Appeal Board pursuant to 10 C.F.R. SS 2.762(a),2.785(a)," went on to rule that (ulnless and until these rules are changed or overridden by specific Commission (as opposed to Licensing Board) order, any appeals from the Licensng Board's November 21, 1988 Memorandum and Order on LILCO's 25 percent power request are to be filed with us and briefed in accordance with 10 C.F.R. 5 2.762.
Ld. (emphasis in original)(footnotes omitted).
LILCO believes that the Commission, and not the Appeal Board, more appropri-ately should have jurisdiction in the first instance over any appeals taken from the Board's November 21 Order, for the reasons given below.
- 11. Discussion A.
The Issue Decided by the Licensing Board on November 21 is
_Qostnate to that Certified by the Commission on November 9 The Commission, in its November 9 Order, specifically directed that "the appeals of Suffolk County, the State of New York, and the town of Southampton
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("Governments") from the Atomic Safety and Licensing Board's decision dismissing them from the procwding, LBP-88-24,28 NRC (1988), be certified to the Commis-slon itself for decisicn." November 9 Order at 1.E The Commission further stated that it would decide, on appeal, "whether Governments' conduct was such as to warrant their dismissal f rom the entire proceeding...." Id. (emphasis added).
The Licensing Board's November 21 Order authorizing the issuance of a 25%
power licente was predicated solely on the Board's confirmation that Intervenors had, with the issuance of LBP-88-24, been dismissed from the OL-6 subdocket. The Board took no other affirmative action.SI The Board's authorization of a 25% power license was the necessary result of its determination that once LILCO's request was found to be unopposed, the Board was reoutred, pursuant to 10 C.F.R. S 50.57(c), to issue an order authorizing the 25% power license. In short, there is no issue here from which an ap-peal can be taken apart from the Board's determination, made pursuant to LBP-88-24, that Intervenors should be dismissed from the entire Shoreham proceeding.
In light of these circumstances, the Commission's directive in its November 9 Order that all appeals from the Licensing Board's sanctions decision in LBP-88-24 be certified to the Commission pursuant to 10 C.F.R. 5 2.785(d) indicates that the Com-mission - and not the Appeal Boaro properly has jurisdiction to review the sanctions-based 25% power decision issued by the Licensing Board on November 21. In other words, consistent with the Appeal Board's ruling in its November 22 Order, the 3/
The Commission directed that "(o]ther matters decided in LBP-88-24 (role con-flict of bus drivers, emergency broadcast system) remain before the Appeal Board."
November 9 Order at 2.
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Underscoring the f act that it was merely confirming Intervenors' previous dis-missal, the Board stated that "even if it were to be concluded that the 25% proceeding was censidered 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 ' contumacious and prejudicial... as to war-rant dismissal from (the 25% power) proceeding as well.'(See ALAB-902 slip op, at 9)."
November 21 Order at 4.
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usual course under Commission's Rules of Practice directing that the appeals from final orders be filed with the Appeal Board has, in this circumstance, already been "overridden by specific Commission.. order." LILCO believes that in order to avoid potentially duplicative and contradictory simultaneous review of this matter by both the Commission and the Appeal Board, the Appeal Board should certify the Licensing Board's decision in the November 21 Order to the Commission pursuant to 10 C.F.R.
S 2.785(d).
B.
Intervenors' Filings of Today Act to Concentrate the Sanctions lasue Before the Commission Today, November 23, Intervenors have filed two papers which make it all the clearer that the issue presented by the Board's November 21 Memorandum and Order l
belong before the Commission. The first, captioned "Governments' Motion for Stay of November 21, 1988 Licensing Board Order," filed with the Appeal Board, is premised heavily on assertions of error in the Licensing Board's sanctions logic in the OL-6 subdocket. See, eA Intervenors' Motiran for Stay at 3-4. Since, as noted above, the Li-eensing Board merely transported the record and logic from LBP-88-24 to the OL-6 context, the Intervenors' paper merely accentuates the need for this issue to be re-solved by the Commission.El Intervenors'second paper today, captioned "Governments' Motion for Reversal of Commission Order of November 9,1988," was filed with the Commission. In that paper, Intervenors claim that the sanctions issue certified by the Commission on November 9 deprived them of due process. This is so, they assert, because when they filed their October 27 sanctions brief with the Appeal Board, the issue of whether their conduct had been sufficiently culpable 'o warrant their dismissal from the entire Shoreham licensing proceeding had b.vn precluded from consideration by the Appeal 1/
LILCO does not agt o with Intervenors' stay motion, and will file a merits re-sponse to it in due course.
, l Board's holding in ALAB-902 that the OL-3 Board lacked jurisdiction to dismiss them from proceedings beyond the OL-3 subdocket. Therefore, according to Intervenors, 1
none of the briefs filed by them treats the matter of their dismissal from the entire l
licensing proceeding on the merits.0/ LILCO's petition to review ALAB-902 is itself L
pending before the Commission.2/
C.
Need for Expedition j
LILCO's briefs to the Commission on sanctions issues, and to 'his Appeal Board on the balance of issues arising out of Intervenors' appeal from LBP-88-24 are due to be I
filed on December 1.
LILCO accordingly respectfully requests that the Appeal Board request expedited responses and rule expeditiously on this motion, and promptly inform the parties of its decision.
I III. Conclusion For the reasons given above, LILCO respectfully requests that the Appeal Board, pursuant to 10 C.F.R. 5 2.785(d), certify to the Commission the Licensing Board's i
November 21 Order authorizing 25% power operation of Shoreham, LILCO further re-quests that the Appeal Board rule expeditiously on this motion.
Respectfully submit
'E c'
Donald P. Irwin David S. Harlow Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212
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DATED: November 23,1988 7
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LILCO disagrees with Intervenors' position, and will so indicate in a response to the Commission in due course, j
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On November 21, the Commission extended its deadline for deciding whetber to accept review until December 3.
LILCO, N;v;mber 23,1988 V
- epi?
y CERTIFICATE OF SERVICE g 25 P1 So In the Matter of j,y LONG ISLAND LIGHTING COMPANY
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(Shoreham Nuclear Power Station Unit 1)
Docket No,50-322-OL-6 I hereby certify that copies of LILCO'S MOTION FOR CERTIFICATION OF THE LICENSING BOARD'S NOVEMBER 21 MEMORANDUM AND ORDER AND REQUEST FOR EXPEDITED DISPOSITION were served this date upon the following by telecopter as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
Christine N. Kohl, Chairman
- Mr. Frederick J. Shon "
Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, Fourth Floor East-West Towers, Fif th Floor 4350 East-West Hwy.
4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. David L. Hetrick "
Alan S. Rosenthal
- Prof essor of Nuclear and Energy Atomic Safety and Licensing Engineering Appeal Board The University of Arizona U.S. Nuclear Regulatory Commission Tucson. Arizona 85721 East-West Towers, fif th Floor 4350 East-West Highway Secretary of the Commission Bethesda, MD 20814 Attention Docketing and Service Section Dr. W. Reed Johnson
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W.
Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission 115 Falcon Drive, Colthurst Atomic Safety and Licensing Charlottesville, VA 22901 Appeal Board Panel U.S. Nuclear Regulatory Commission James P. Gleason, Chairman "
Washington, DC 20555 Atomic Safety and Licensing Board 513 Gilmoure Drive Adjudicatory File Silver Spring, MD 20901 Atomic Safety and Licensing Board Panel Docket Dr. Jerry R. Kline "
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission East-West Towers. Fourth Floor 4350 East-West Hwy.
3ethesda, MD 20814
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- Edwin J. Reis, Esq.
- Stephen B. Latham, Esq. *
- U.S. Nuclear Regulatory Commission Twomey, Latham & Shea One White Flint North 33 West Second Street 11555 Rockville Pike P.O. Box 298 Rockville, MD 20852 Riverhead, NY 11901 Lawrence Coe Lanpher, Esq.
- Mr. Philip McIntire Karla J. Letsche, Esq.
Federal Emergency Management Kirkpatrick & Lockhart Agency South Lobby - 9th Floor 26 Federal Plaza 1800 M Street, N.W.
New York, NY 10278 Washington, DC 20036-5891 Jonathan D. Feinberg, Esq.
Fabian G. Palomino, Esq.
- New York State Department of Richard J. Zahnleuter, Esq.
Public Service, Staff Counsel Special Counsel to the Governor Three Rockefeller Plaza Executivo Chamber Albany, NY 12223 Room 229 State Capitol Ms. Nora Bredes Albany, NY 12224 Executive Coordinator Shoreham Opponents' Coalition Alt.'od L. Nardelli, Esq.
195 East Main Street Asshtant Attorney General Smithtown, NY 11787 120 E roadway Roorr 3-118 Evan A. Davis, Esq.
New ' fork, NY 10271 Counsel to the Governor Executive Chamber George W. Watson, Esq. "
State Capito' William R. Cumming, Esq.
Albany, NY 12224 Federal Emergency Management Agency E. Thomas Boyle, Esq.
500 C Street, S.W., Room 840 Suffolk County Attorney Washington, DC 20472 Building 158 North County Complex Veterans Memorial Highway Mr. Jay Dunkleberger Hauppauge, NY 11788 New York State Energy Office Agency Building 2 Dr. Monroe Schneider Empire State Plaza North Shore Committee Albany, NY 12223 P.O. Box 231 Wading River, NY 11792
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%vid 5'Harlow Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 23,1938