ML20210E416

Memorandum & Order (Ruling on Lilco Motion for Reconsideration of & Staff Motion for Clarification of 861119 Memorandum & Order).* Lilco Motion Denied.Staff Motion Granted.Served on 870206

ML20210E416
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/06/1987
From:	Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#187-2457 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8702100300
Download: ML20210E416 (5)

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L'NITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING 1561RfE0 -6 P3 M3 Before Administrative Judges John H Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon

%R'ED FES 061987

)

In the Matter of ) Docket No. 50-322-0L-5

) (EP Exercise)

LONG ISLAND LIGHTING COMPANY )

) (ASLBP No. 86-533-01-OL)

(Shareham Nuclear Power Station, )

Unit 1) ) February 6, 1987

)

MEMORANDUM AND ORDER (Ruling on LILC0's Motion for Reconsideration of and Staff's Motion for Clarification of November 19, 1986, Memorandum and Order)

On November 19, we issued a Memorandum and Order which granted substantially all the relief sought by Suffolk County in its November 10 motion for an order compelling FEMA to answer certain interrogatories.

This Memorandum and Order issued on the same day that LILC0 served its response in support of FEMA's opposition to Suffolk's motion, thus prompting a motion from LILC0 dated November 25 seeking expedited reconsideration. Intervenors responded to the latter motion on December 1. Additionally, on December 1 Staff moved to clarify the November 19 Memorandum and Order. Suffolk responded to this motion by 1

letter of January 7, 1987.

! LILC0's motion simply asserts that the arguments made in its l

l response in support of FEMA should be considered. These are:

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1. FEMA should not be required to indicate the subject matter of its witnesses' testimony until a ruling on its motion to reconsider the admission of Contentions Ex.15 and Ex.16 is made. That ruling was handed down on December 11.

2. FEMA should not be compelled to answer Interrogatories 9, 10, and 11 because:

a. they concern the resignation of Frank Petrone, a matter which is raised by Contention Ex.19 which was admitted for argument only; and

b. they seek privileged information.

LILC0's first argument is not persuasive. LILC0 clearly lacks standing to raise the second.

3. FEMA should not be required to respond to Interrogatories 17 and 18 on the ground that they are unduly burdensome. It is not clear how LILC0 is in a position to ascess the burden placed on FEMA by these interrogatcries or what standing it has to raise this argument. As pointed out in the November 19 Memorandum and Order (p. 7), FEMA should

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seek an acconmodation with counsel or move for a protective order.

The principal issue raised by both LILC0's and Staff's motion concerns FEMA's status in this proceeding. LILCO makes two points in LILC0 also supports FEMA's right to object to the disclosure to Suffolk of FEMA documents in LILC0's hands. This point is presently moot because no controversy regarding a specific document or documents has arisen. See Memorandum and Order, p. 4.

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this regard. The first is that FEMA is not a party'and has done nothing which dictates that it be treated as a party. While we find that this argument is not as compelling as Suffolk's argument to the contrary, we deal with it in more detail below. The second is that FEMA is entitled to benefit from the same restrictions on discovery against it that would apply to discovery against the NRC Staff. That may well be so. However, FEMA does not assert that right, and LILC0 clearly lacks standing to assert it on FEMA's behalf.

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! Staff's motion for clarification raises two points. First, Staff states its belief that "...if the ruling of the Board is that in performing certain acts--all of which were done at the discretion of the Board and without objection from any party--FEMA has in some way transformed itself from a witness into a 2.714 party or a 2.715(c) participant...," that ruling does not square with NRC case law or regulations. If the ruling is merely meant to assert that discovery is available from nonparties to NRC proceedings, Staff has no quarrel with it. Second, Staff notes that the Memorandum of Understanding between l

( NRC and FEMA was signed by the Executive Director for Operations at the Commission's direction and thus is binding on adjudicatory boards. We had expressed a question as to whether it was so applicable.

Staff's second point clears up the question as to the applicability of the Memorandum of Understanding. However, we are less satisfied with Staff's first point. First, we are surprised to read that FEMA's trotion for reconsideration, appeal, or motion to bifurcate this proceeding were filed "at our discretion." The Memorandum of Understanding makes no

mention of such motions,- referring only to cross-examination at the Board's discretion. Second, we must adhere to the view that, while not required to do so by the Memorandum of Understanding, FEMA is not prohibited by that document from taking on the role of a party. Just as applicants and the Staff have generic interests in NRC proceedings which permit their status as parties without a formal showing of standing, so does FEMA.

The Memorandum of Understanding rccites that FEMA participates in NRC proceedings as a part of the Staff's presentation. This provision would lead one to conclude that FEMA's role would, at a minimum, be consistent with the positions advocated by Staff. Further, one would assume that any particular concern of FEMA's with regard to the proceeding would be supported by Staff.

This is not the case in this proceeding. FEMA has advocated and continues to advocate positions independently of Staff's views. This Board necessarily regards FEMA's positions as its own which may or may not be concurred in by Staff. Indeed, FEMA's view of its status (a participant under 2.715(c) of the regulations) does not comport with the views of Staff set out in its motion, and we are not informed whether FEMA's view may have changed as. a result of Staff's position. While we see nothing wrong with this situation, the point is that in following this course FEMA is acting as a party, not as a part of Staff's presentation. The Memorandum of Understanding does not prohibit FEMA from taking on the role of a party, and FEMA is free to follow that course if it so chooses.

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Nonetheless, it is apparent that there is no need to consider, for purposes of this dispute, whether FEMA is in fact a party to this proceeding. Our conclusion that FEMA should be treated as a party was made in the context of a discovery dispute. There is no indication that FEMA is presently failing to respond to discovery requests directed to it. Consequently, we vacate our conclusion stated in our November 19 Memorandum and Order that FEMA is a party to this proceeding. However, FEMA should bear in mind that, should the question be presented again, it is likely that' FEMA's conduct to date would dictate the conclusion

,that it is a party to this proceeding, and if that conduct continues we shall expect FEMA to shoulder the full responsibilities of a party.

LILCO's motion for reconsideration is denied; Staff's motion for clarification is granted.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING

. BOARD

/ 4 .

Frederick J. 5 ADMINISTRATIVE DGE i s Dr. Oscar H. Paris '

ADMINISTRATIVE JUDGE oh H Er.ge, III, Chairman D ISTRATIVE JUDGE p Bethesda, Maryland n -_ _ -_______ -_______