ML20211K200
| ML20211K200 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1986 |
| From: | Pirfo O NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1496 OL-5, NUDOCS 8611170097 | |
| Download: ML20211K200 (6) | |
Text
a ff76 00thETET:
UNC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 NOV 13 A11 :30 BEFORE THE ATOMir' SAFETY AND LICENSING DOdEdOp In the Matter of
)
)
LONG ISLAND LIGIITING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO FEfiiA YOTION FOR RECONSIDERATION OF TITE LICENSING BOARD'S PREllEARING CONFERENCE ORDER 4
I.
INTRODUCTION On October 3, 1986, the Licensing Board issued its Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule) in this proceeding. II The Federal Emergency Management Agency (FEhiA), on October 27, 1986, -
moved for reconsideration of that Order with respect to the standards adopted for the admission of contentions on FEMA evaluations of utility emergency plan exercises.
Applicant LILCO requested leave to respond in support of FEMA's motion
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The intervenors had filed their proposed EP E::crcise contentions on August 1,1986.
Applicant opposed these contentions by its filing of August 15, 1986.
See "LIL CO's Objections to Intervenors'
' Emergency Planning Contentions Relating to the February 13, 198G Exercise. '"
The NRC Staff filed its response to the proposed contentions that same date.
See "NRC Staff Response to Proposed Emergency Plenning Contentions Relating to the February 13, 1986 Exercise" (filed August 15, 1986).
On August 25, 1906, the Intervenors filed a reply to the aforementioned objections.
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See NRC Staff Motion for Extension of Time Within Which to File Objections, filed October 15, 1986, granted by Board Order of October 16, 1986.
8611170097 861110 PDR ADOCK 05000322 O
PDR 3 307
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for reconsideration by its filing of October 30, 1986.
See "LILCO's Motion for Leave to Respond to Motion for Reconsideration of October 3, 1986 Prehearing Conference Order."
By its Order of October 31, 1986, the I.icensing Board granted LILCO's request for leave to respond to FEMA's motion and requested a response from all parties by November 10, 1986.
The NRC Staff hereby responds to FEMA's motion for reconsideretion of the Prehearing Conference Order.
For the reasons set forth below, the Staff supports FEMA's motion.
II. DISCUSSION FEMA's motion for reconsideration is chiefly directed to the admission of Contentions EX. 15, 16 and 19.
The NRC Staff continues to oppose the admission of those contentions for the reasons cited in its original Augurit 15 response to the proposed contentions.
See Staff Response, at pp. 14-18.
Contentions EX. 15 and 16 do not go to demonstrating a fundamental flaw in the emergency plan; rather, they assert that the scope of the exercise was not proper.
As previously stated, even if the matters pleaded by the contentions were proved true, a " fundamental flaw" in the plan itself would not be demonstrated.
Staff Response, at 15.
Morcover, in that Contention EX. 19 has been admitted for legal argument only, the Staff agrees with FEMA's assertion that the legal argument on this issue will not " illuminate further the exercise evaluation process" and would do nothing to reveal a fundamental flaw in the plan.
Pursuit of the latter inquiry, whether such a flaw exists, should be the purpose of the admitted contentions, given the limited scope established by the Commission for this proceeding.
With respect to the assertions of the motion for reconsideration and its attached affidavit of Robert S. Wilkerson as to the effect the litigation of the contentions will have on the programmatic activity of FEMA, the NRC Staff defers to FEMA's stated position.
Similarly, the Board should defer to FEMA's administrative expertise as to how the Prehearing Conference Order would affect the way in which FEMA conducts its evaluations. 3,/
Finally, in the event the Licensing Board denies the motion or declines the request to reverse its prior admission of these contentions, the Staff would likewise defer to FEMA's request for certification of the natter to the Appeal Board. $
-3/
The FEMA motion (at p.16) also cites the uncertainty surrounding the status of the " denied" contentions that have been in some way
" subsumed" under other contentions admitted by the Prehearing Conference Order.
The Board's Order of November 4, 1986, has asked for the parties' views on this matter with respect to the intervenors' filing of objections to the Prehearing Conference Order.
The Staff position on this question is set out in its " Response to Suffolk County, State of New York, and Town of Southampton Objections to Prehearing Conference Order," filed this date.
d/
The motion suggests certification to either the Appeal Board or the Commission.
However, neither certification nor referral should be made directly to the Commission by the Licensing Board, absent strong reasons or exceptional circumstances for bypassing the Appeal Board.
See Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2),CLI-80-17,11 NRC 678, G79 (1980);
Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 3 and 3) LBP-81-36,14 NRC 691, 701 (1981).
III.
CONCLUSION For the reasons stated herein, the NRC Staff supports FEMA's motion for reconsideration of the October 3, 1986 Prehearing Conference Order and respectfully requests that the Board reconsider said Order and deny admission of Contentions EX.15,16, and 19.
Respectfully submitted, Oreste Russ Pirfo Counsci for NRC S ff Dated.ft Dethesda, Maryland this g day of November,1986 1
i i
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00LH T U 5NK UNITED STATES OF AMERICA
'86 NOV 13 A11 :30 NUCLEAR REGULATORY COMMISSION 0FFIL L.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00CKLi In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO FEMA MOTION FOR RECONSIDERATION OF TIIE LICENSING BOARD'S PREHEARING CONFERENCE ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system or, as indicated by double anterisks, hand delivered or, as indicated by triple asterisks, by express mail, this loth day of November,1986.
John II. Frye, III, Chairman" Fabian G. Palomino, Esq.*
Administrative Judge Special Cconsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C.
20555 Albany, NY 12224 Oscar H. Paris" Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, D.C.
20555 Albany, NY 12223 Frederick J. Shon" W. Taylor Reveley III, Esq.*
Administrative Judge Donald P. Irwin, Esq.
Atomic Safety and Licensing Board Hunton & Williams l
U.S. Nuclear Regulatory Commission 707 East Main Street Washington, D.C.
20555 P.O. Box 1535 Richmond, VA 23212 Ftr. Jay Dunkleberger Joel Blau, Esq.
New York State Energy Director, Utility Intervention Office NYS Consumer Protection Board Agency Building 2 Suite 1020 Empire State Plaza 99 Washington Avenue Albany, New York 12223 Albany, New York 12210 l
Herbert H. Brown, Esq.**
Stephen B. Latham, Esq.***
Lawrence Coe Lanpher, Esq
':'womey, Latham & Shea Karla J. Letsche, Esq.
Attorneys at Law Kirkpatrick a Lockhart 33 West Second Street 1000 M Street, N.W.
i Riverhead, NY 11901 8th Floor Washington, D.C.
20036 Atomic Safety and Licensing Dr. Monroe Schneider Board Panel
- North Shore Committee U.S. Nuclear Regulatory Commission P.O. Box 231 Washington, D.C.
20555 Wading River, NY 11792 Atomic Safety and Licensing Appeal Board Panel
- Mr. Philip McIntire l
U.S. Nuc! car Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 26 Federal Plaza, Room 1349 Spence W. Perry, Esq.
New York, NY 10278 General Counsel Federal Emergency Mana[rement Docketing and Service Section*
Agency Office of the Secretary 500 C Street, SW, Room 840 U.S. Nuclear Regulatory Commission Washington, DC 20472 Washington, D.C.
20555 Anthony F. Earley, Jr., Eso.
Robert Abrams, Esq.
General Counsel Attorney General of the State Long Island Lighting Company of New York 175 East Old Country Road Attn: Peter Bienstock, Esq.
l'icksville, NY 11801 Department of Law State of New York Ms. Nors Dredes Two World Trade Center Shoreham Opponents Coalition Room 46-14
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195 East Main Street New York, NY 10047 Smithtown, NY 11787 William R. Cumming, Esq.
Martin Bradley Ashare, Esq.
Office of General Counsel Suffolk County Attorney Federal Emergency Management II. Lee Dennisen Building Agency Veteran's Memorial I!ighway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Lhing P.O. Dox 1355 Massapequa, NY 11758
)
V' hernard'M. Byr/lenick Oreste R. Pirfd Counsel for NRC Staff