ML20211H396

Responds to Brown & Motion to Reclamor 861007 Notice of Reconstitution,Expanding Composition of Board Dealing W/Emergency Planning Issues.Issues within Scope of Administering Agency.Certificate of Svc Encl

ML20211H396
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/30/1986
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Cotter B Atomic Safety and Licensing Board Panel
Shared Package
ML20211H366	List: ML20211H362 ML20211H381 ML20211H396
References
OL-3, OL-5, NUDOCS 8611050118
Download: ML20211H396 (7)

Text

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8357 Administrative Judge B. Paul Cotter, Jr., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland 20814 Long Island Lighting Company Shoreham Nuclear Power Station, Unit 1 (Docket No. 50-322-OL-5)(EP Exercise)

(Docket No. 50-322-OL-3)(Emergency Planning)

Dear Judge Cotter:

Mr. Brown's~ October 22 letter and motion seek again to reclamor the October 7 Notice of Reconstitution, which expands the composition of the Licensing Board panels dealing with emergency planning issues in two related dockets in the Shoreham case.II They raise issues that are inherently within the discretion of the administering agency, and not within the scope of issues available to conventional litigation. Nevertheless, since the relief they request would, if granted, affect LILCO's interests in the Shoreham emergency planning proceedings, LILCO responds here to them.

1/ Mr. Brown's letter and motion seek to rehash essentially the same. Issues raised earlier by him in an October 14 letter (except for his misapprehension about the com-

, position of the "-3" panel, which was resolved by the October 17 clarification Notice).

l There have been two distinct emergency planning dockets at Shoreham since the Com-mission's issuance of CLI-86-11 on June 6: the "-3" proceeding which encompasses all 1

emergency planning issues except those specifically related to the February 13, 1986-offsite emergency planning exercise, and the "-5" proceeding set up to hear issues spe-cifically relating to the exercise. The membership of the Boards hearing both sets of issues was, until the October 7 Notice of Reconstitution, identical (Morton Margulies, Esq., Chairman, and Dr. Jerry Kline and Mr. Frederick Shon, technical members). The sole effect of the Notice was to substitute into the "-5" Board two new members, Messrs. Frye and Paris, for two present members, Messrs. Margulies and Kline. Messrs.

Margulies and Kline remain on the general-jurisdiction "-3" Board, however, and Mr.

Shon, the third member of both Boards, remains on both.

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( Y' HUNTON & WILLIAMS 1

Administrative Judge B. Paul Cotter, Jr.

October 30,1986 Page 2 l

LILCO obviously has no information about the exact process or details leading to

the Notice of Reconstitution. Still, that Notice seems plainly intended to accomplish one important function

applying enough decisional manpower - Licensing Board re-sources - to avoid foreclosing the possibility of completing two proceedings, each of 1

them complex and one of them ordered by the Commission to be specially expedited, within a practical time frame. Action to fulfill this function is not only sensible in light of the agency's basic obligation to conduct proceedings within a reasonable time frame; it was practically compelled by a combination of the Commission's order to ex-pedite one of these proceedings (the "-5" docket), and the rapid accretion of issues, at .

-Intervenors' instance, in both of them.

The Notice of Reconstitution is also consistent with past practice in this case, which has involved both rotation of Board membership and simultaneous proceedings before different panels on related issues. In addition, it was taken at an appropriate time - early in the expedited proceeding - and done in a fashion which preserves con-tinuity of Board membership. These matters, which are treated more specifically im-mediately below, suggest that the Order of Reconstitution was soundly within the ambit of reasonable administrative discretion.

1. The Notice of Reconstitution, or its equivalent, would have been necessary in any event in order to keep the overall Shoreham emergency planning proceeding from bogging down interminably.

On June 6,1986, when the "-5" docket was opened by CLI-86-11 to hear exercise-related issues on a specially expedited basis, there were no issues actively pending before the general-jurisdiction "-3" panel. Given their general familiarity with emergency planning issues, it made good sense for the existing ."-3" Board to take on the related exercise issues.2/ In the months since, two sets of developments have made' 2/ LILCO initially proposed, in March 1986, that the "-3" Board's experience be har-nessed, if it were convenient, for the "-5" proceeding. However, Mr. Brown flatly mis-leads in attempting to couple LILCO with any particular configuration of licensing board or boards. His citation to LILCO's proposal that the "-3" Board preside over the exercise litigation omits material facts: (1) that LILCO's request was in the context of an overall request for expedited litigation of the exercise (in the course of which the Margulies-Kline-Shon Board was requested if available); (2) that LILCO made its request on March 13,1986, over 7 months ago;(3) that at that time neither the Chernobyl acci-c'ent nor Nassau County's subsequent reversal of position on the Coliseum nor WALK radio's subsequent reversal of position on EBS participation hau occurred; (4) that ALAB-832, with its various remand issues, had not yet been issued; and (5) that, as a re-sult, there was at that time no significant amount of further trial-level litigation inevi-table in the "-3" docket.

(footnote continued)

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9

( ' '

HUNTON 8e WILLIAMS Administrative Judge B. Paul Cotter, Jr.

October 30,1986 Page 3 that determination,' which was still practical at the time announced, considerably less so. First, a wide range of issues has been reopened or introduced for the first time be-fore the "-3" Board.3/ Second, Intervenors have filed an extremely broad gauged set of contentions in the "-5" dockett and the scope of issues admitted by the "-5" Board for litigation in its October 3,1986 Prehearing Conference Order includes most of the is-suas desired by Intervenors to be litigated. Thus, that proceeding shows prospects of taking the full time of a quorum of that Board.

The Notice of Reconstitution, issued only 4 days af ter the Prehearing Conference in the "-5" docket, responds vigorously and alertly to this obvious litigative logjam.

2. The manner in which the Board was expanded preserves continuity of expe-rience.

Notwithstanding Mr. Brown's suggestion, there remains obvious continuity among the Shoreham emergency planning Boards. The Margulies-Kline-Shon Board (the "-3" Board) retains jurisdiction over all emergency planning matters except those specifical-ly associated with the exercise. Judge Shon remains on both the "-3" Board and on the reconstituted "-5" Board.

~ (continued from previous page)

Intervening developments, outlined above, have significantly altered this pic-ture. By now, it is already clear that LILCO will':eed to obtain relief from Paragraph IV.F.I of Appendix E to 10 CFR Part 50, which requires that an emergency planning ex-ercise be held within one year before the initial granting of an operating license to ex- -

ceed 5% of rated power. This regulation, promulgated in 1981, iA, before the results of exercises became routinely thrown open to litigation by the UCS case,735 F.2d 1437 (D.C. Cir.1984), would otherwise condemn the parties to this proceeding to hold yet another full-scale exercise as a precondition to full power licensing since, notwith-standing the Commission's order in CLI-86-11 to expedite the "-5" proceeding, evidenti-ary hearings are not scheduled to begin on the February 13, 1986 exercise until early '

February 1987.

3/ Without attempting to be exhaustive, these issues include (1) legal-authority is-sues, the realism and materiality arguments (CLI-86-13, July 25,1986); (2) the replace-ment facilities for the Nassau Coliseum, which was withdrawn as a reception center by t

the Nassau County Board of Supervisors following the Chernobyl accident (LILCO Mo-tion to Reopen Record. September 30. 1986): (3) potential issues relating to radio sta-tion WALK, the Red Cross, and avaliability of congregate care centers (Intervenors' Motion to Reopen Record, October 15,1986); and (4) miscellaneous remand issues from .

A LAB-832.

7 .

i HUNTON Oc WILLIAMS Administrative Judge B. Paul Cotter, Jr.

October 30,1986 Page 4 l

Further, changes in the composition of Licensing Boards are nothing new: they have occurred throughout this case. Almost 30 members of the Atomic Safety and Li-censing Board panel have rotated through the Boards sitting in ~the Shoreham operating license case's four principal dockets over the years. In the general offsite emergency planning area alone (the "-3" proceeding), there have been three Board chairmen (Brenner, Laurenson, Margulies). Judge Brenner had rendered important threshold rulings, including one on a motion to terminate the entire proceeding in view of the op-pofition of Suffolk County, before turning over the proceeding to Judge Laurenson in the spring of 1983. See LBP-83-21,17 NRC 593 (1983). Judge Laurenson in turn con-ducted the hearings on all issues except the Nassau Coliseum and was on the Board dur-ing the first several months of its work 'on a Partial Initial Decision, LBP-85-12, 21 NRC 644 (1985), before being succeeded by Judge Margulies in the spring of 1985. Technical experts' membership on the Boards has similarly shif ted over time.

By the same token, more than one Board has' operated simultaneously in related areas during the course of this proceeding. The most notable example of.this was the appointment of a special additional Board to hear that subset of safety issues relating to the low power license (the "-4" Board, consisting of Judges Miller, Bright and Johnson) and the later succession of its Chairman (Judge James Kelley replaced Judge Miller) to hear security-related aspects of the low power license. Indeed, at one time during 1983-84, three different Boards - the general-safety-jurisdiction Board (the "-2" Board),

the general-jurisdiction emergency planning Board (the "-3" Board) and the low power license Board (the "-4" Board) - were all holding proceedings simultaneously. Nor is Shoreham the only case where multiple Bcards have been utilized.

3. The expansion of the Boards was done in a manner consistent with the pub-lic interest.

Mr. Brown's letter and motion suggest that the Margulies-Kline-Shon Board had acquired such unique and extensive knowledge in the "-5" exercise litigation that any change in its composition, for virtually any reason, would be unjustifiable. Such is not

-the case: the expansion of the Boards was taken at an early moment af ter the size of the impending litigation and the need for corrective action became plain, minimizes loss of institutional memory, and preserves continuity. Mr. Brown also neglects the ex-istence of the "-3" proceeding and blinks the fact that delay in either proceeding or both, which would have been inevitable with only one Board, would seriously prejudice LILCO, whose interests are s torthy of consideration as those of his clients.

The Margulies-Kline-Shon Board, which remains on the generai-jurisdiction emergency planning issues, has written two lengthy decisions on them, and is well suited to deal with remanded or reopened issues. By contrast, the exercise proceeding has only begun to take shape: contentions have just been admitted and a general sched-ule set, but formal discovery has just begun (and no disputes on it have yet been heard),

no summary disposition motions have been filed, no testimony has been submitted, and no evidentiary sessions have been held. All of the limitad appearance statements

. .-. _ .-- . _ _ - . - . . _ . ~ . _ _ _

4 k HUNTON & WILLIAMS Administrative Judge B. Paul Cotter, Jr.

October 30,1986 Page 5 presented to the Board have been made part of the record of the proceeding and are available to all Board members.

In short, had only one Board remained in place, substantial delays in the progress of both the "-3" and "-5" dockets would have been inevitable. LILCO, with its invest-ment of nearly five billion dollars in the completed and low power-tested Shoreham, is so obviously prejudiced by. delay that extended discussion is unnecessary. Thus, - the question facing the Licensing Board Panel realistically was not whether to modify the Licensing Board structure for the "-3" and "-5" proceedings, but how to do it with least disruption. The manner chosen, which modifies a still young docket and keeps continu-ity of Board membership, appears a reasonable means of minimizing prejudice to all parties.

It is a regrettable aspect of Commission proceedings that they can be made so long and so intricate that total continuity of Licensing Boards is apparently impractica-ble. However, there is inherent discretion in the process to harmonize the needs of lit-Igants and the overall administration of the agency's business. One operative fact is that the entire Board whose involvement in emergency planning proceedings forms the subject of Mr. Brown's letter is still involved in the general emergency planning pro-ceeding; and that one of its members still sits on _that portion related to the exercise itself. Another operative fact is that it is intervenors' historic insistence on litigating

.every available issue in the greatest possible detail which has created the need for a second Board. LILCO's concern is that the two Boards be~ able to use their common membership and other available means so as to coordinate their respective tasks effi-ciently, with the result that they willin fact be able to expedite the long-delayed com-pletion of the "-3" and "-5" emergency planning proceedings.

Respectfully sub itted, JM Donald P. Irwin Counsel for Long Island Lighting Company 91n30

. LILCO, October 30,1986 00LKETEP TNRC CERTIFICATE OF SERVICE '86 NOV -3 All :32 In the Matter of h0 5 /' j LONG ISLAND LIGHTING COMPANY SaAsce (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-5 (EP Exercise)

Docket No. 50-322-OL-3 (Emergency Planning)

I hereby certify that copies of LILCO'S OPPOSITION TO ." MOTION FOR RESCISSION . . . AND FOR EXPEDITED CONSIDERATION" and Letter, Donald P. Irwin to B. Paul Cotter, Jr., dated October 30,1986 were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.

B. Paul Cotter, Jr., Chairman

• Morton B. Margulies, Chairman **

Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 4350 East-West Highway East-West Towers, Rm. 407 Bethesda, MD 20814 4350 East-West Hwy.

Bethesda, MD 20814 John H. Frye, III, Chairman **

Atomic Safety and Licensing Dr. Jerry R. Kline **

Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Hwy. East-West Towers, Rm. 427 Bethesda, MD 20814 4350 East-West Hwy.

Bethesda, MD 20814 Dr. Oscar H. Paris **

Atomic Safety and Licensing Secretary of the Commission Board Attention Docketing and Service U.S. Nuclear Regulatory Commission Section East-West Towers U.S. Nuclear Regulatory Commission i 4350 East-West Hwy. 1717 H Street, N.W.

j Bethesda, MD 20814 Washington, D.C. 20555 Mr. Frederick J. Shon ** Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 430 4350 East-West Hwy. Atomic Safety and Licensing Bethesda, MD 20814 Board Panel i U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 l

l l

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Bernard M. Bordenick, Esq. ** Stephen B. Latham, Esq. **

Oreste Russ Pirfo, Esq. Twomey, Latham & Shea Edwin J. Reis, Esq. . 33 West Second Street U.S. Nuclear Regulatory Commission P.O. Box 298 7735 Old Georgetown Road Riverhead, New York 11901 (to mallroom)

Bethesda, MD 20814 Mr. Philip McIntire Federal Emergency Management Herbert H. Brown, Esq. ** Agency Lawrence Coe Lanpher, Esq. 26 Federal Plaza Karla J. Letsche, Esq. New York, New York 10278 Kirkpatrick & Lockhart Eighth Floor Jonathan D. Feinberg, Esq.

1900 M Street, N.W. New York State Department of Washington, D.C. 20036 Public Service, Staff Counsel Three Rockefeller Plaza Fabian G. Palomino, Esq. ** Albany, New York 12223 Special Counsel to the Governor Executive Chamber Ms. Nora Bredes Room 229 Executive Coordinator State Capitol Shoreham Opponents' Coalition Albany, New York 12224 195 East Main Street Smithtown, New York 11787 Mary Gundrum, Esq.

Assistant Attorney General Gerald C. Crotty, Esq.

120 Broadway Counsel to the Governor Third Floor, Room 3-116 Executive Chamber New York, New York 10271 State Capitol Albany, New York 12224 Spence W. Perry, Esq. **

William R. Cumming, Esq. Martin Bradley Ashare, Esq.

Federal Emergency Management Eugene R. Kelly, Esq.

Agency Suffolk County Attorney 500 C Street, S.W., Room 840 H. Lee Dennison Building Washington, D.C. 20472 Veterans Memorial Highway Hauppauge, New York 11787 Mr. Jay Dunkleberger New York State Energy Office Dr. Monroe Schneider Agency Building 2 North Shore Committee Empire State Plaza P.O. Box 231 Albany, New York 12223 Wading River, NY 11792 l

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Doiiald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 30,1986 1