ML20236H431
| ML20236H431 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/29/1987 |
| From: | Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel |
| To: | LONG ISLAND LIGHTING CO. |
| References | |
| CON-#487-4717 86-540-08-OL, 86-540-8-OL, CLI-86-13, LBP-87-29, OL-3, NUDOCS 8711040117 | |
| Download: ML20236H431 (21) | |
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4 f 00LKETED LBP-87-29 UdNHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 (ET 30 A9:39 ATOMIC SAFETY AND LICENSING BOARD orrict op ggc;q,wy 00CKETING & SEhVICf, J Before Administrative Judges: BRANCH l Morton B. Margulies, Chainnan Dr. Jerry R. Kline l Mr. Frederick J. Shan SERVED OCT 3 01987 1
In the Matter of Docket No. 50-322-OL-3 (Emergency Planning)
LONG ISLAND LIGHTING COMPANY l
) (ASLBPNo. 86-540-08-OL)
(Shoreham Nuclear Power Station, Unit 1) October 29, 1987 MEMORANDUM AND ORDER l (Ruling on Applicant's Motion of October 5,1987 for Reconsideration and Other Relief)
Introduction On October 5, 1987 LILC0 filed a motion requesting that the Board-1 reconsider and revise the decision contained in its Memorandum and Order l of September 17, 1987, denying Applicant's motion for summary disposition of the legal authority issues. In the alternative, LILCO l
asks that should the request be denied, the Board refer the matter to the Commission. Further, regardless of the disposition of the motion, LILC0 asks that the Board immediately set a schedule for holding further proceedings of the remanded CLI-86-13 issues and give this motion ,
expedited consideration.
Interveners, in a response of October 15, 1987, requested that LILCO's motion for reconsideration as well as its alternative plea that gla2%8aMSu8Sjja 0' 33
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the matter be referred to the Commission be denied as meritless. They did not address the request for expedited consideration and the setting of a schedule.
Staff, in a response of October 20, 1987, argued that the reconsideration of the Board's Sep.tember 17, 1987 decision and the alternative request for referral is not warranted. It too did not consider LILC0's request for expedited consideration and the setting of a schedule.
In this Memorandum and Order the Board denies Applicant's motion for reconsideration and in the alternative to refer the matter to the Commission because of a failure to make the required showings.
Expedited consideration is given to this motion.as requested because of !
its effect on the further processing of the proceeding. As to the request to the Board that it immediately set a schedule for further proceedings on remanded CLI-86-13, that process was underway when the subject motion was received and is superseded by the Licensing Bcard's action as set forth in its Memorandum To The Parties of October 8,1987.
The Request to Reconsider and to Grant Motion for Suninary Disposition LILC0 asserts that the Board erred in denying its motion for sunnary disposition because it misinterpreted the Commission's decision 4
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in CLI-86-131 remanding the realism argument, and incorrectly relied upon Cuomo v. LILCO.2 l
Applicant claims CLI-86-13 requires that any remand should focus on l
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the capabilities of State and local governments to participate in an i actual response and not on specula.tive predictions of a State and local 1
I response.
LILCO states CLI-86-13 requires the Board not to attempt to e determine the precise intentions of presently hostile State and local governments for an undetermined point in the future. Rather the Board is said to have been directed to attempt to determine the potential range of effects of a best effort, but essentially ad_ hoc, contribution by those governments to implement LILCO's existing plan with existing q i
resources. Applicant states that the decision focuses on governmental capabilities and presumes definitively that those capabilities will be I l
harnessed with good faith, rather than on present predictions of future I intentions to be gleaned from the testimony of the litigation-wise leaders of the political opposition to Shoreham. LILCO fears that focus on present statements of future intentions from hostile officials, by contrast, both is inherently speculative and, in the context of q l
I CLI-86-13,24NRC22(1986).
2 Consol. Index No. 84-4615 (N.Y. Sup. Ct. Feb. 20,1985),aff'd,511 N.Y.S. 2d 867 (1987).
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4 Shoreham, runs the risk of revealing little information of value.
(Motionat4).
LILC0 argues that' productive evidentiary hearings cannot have as their core issue the present determination of the actual . future response of the State and County. It clafms this is to be particularly true (1) if the response is to be measured by present intent, (2) if the evidence of that intent is to be the testimony of officials of those governments, and (3) if LILCO has the burden of establishing what that response will be. (Motionat6-7.)
In a footnote to its motion, footnote 10, Applicarit propounds two other areas which it states should be reconsidered. One of those is said to be the Board's conclusion that a feature of the plan, such as providing iNel to stranded motorists, must be litigated because it is a safety feature even though it is not required by NRC regulations. This !
is stated to be a far reaching conclusion that has significant legal and J I
policy implications.
l LILC0 states the other is the Board's determination that. activities taken in the aftennath of an accident, when there is plenty of time to provide legal authority, nevertheless raise litigable issues. Applicant says it cannot imagine any plausible scenario in which legal authority would prevent water supplies from being monitored, food from being interdicted, or people from being advised when to return home. )
Interveners assert that LILC0's claim that once certain State and County capabilities have been established the best effort assumption in i
CLI-86-13 compels the conclusion that these capabilities'will be l
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5 employed in such a way that the LILC0 plan would be implemented and achieve an adequate response, is a claim that is without foundation and has already been rejected by the Board.
Interveners state that the Board found in regard to the legal authority contentions that the adequacy of a best efforts response cannot be determined without knowing, among other things, how, when, by whom, and whether governmental capabilities would be used. They further state the Board determined as provided for in CLI-86-13 that only when such inquiries are resolved could it detennine whether a best efforts response would be adequate. (Interveners'Responseat6.) l The Governments do not look upon the matters LILC0 raised in the footnote to be seriously sought to be reconsidered because they state no l argument was offered in support of the request. As to the Board's conclusion that summary disposition cannot be granted on a feature of the LILC0 plan not required by regulation, Interveners argue the Board previously considered and rejected Applicant's argument and that it is a l material element of the LILC0 plan about which genuine issues of fact remain as to an important safety feature.
As to LILC0's argument that the Board should reconsider its decision to deny summary disposition on Contention 7 (ingestion pathway) and 8 (recovery and reentry) because there is less time pressure involved in making decisions and implementing protective actions, Interveners assert that the Board has already properly decided that timing has no bearing on the requirements that the regulations impose.
They further contend that even in the absence of time pressure there are l
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material questions about the nature'and adequacy of a governmental response that nevertheless remain.
Staff's position is that reconsideration of the Board's September ]
17, 1987 decision is not warranted. It states that of the issues )
enumerated in CLI-86-13 only one involving the question of the familiarity of State and County officials with the LILCO plan is essentially an issue of capabilities. The other issues enumerated cannot be meaningfully addressed without exploring what the Governments would do. Staff states the Board was correct that it could not answer u
the questions posed by CLI-86-13 based only on the immediate record before it. (Staff's Response at 3-4).
As to the LILC0 claim that the Intervenor Governments will not be~
forthcoming with infonnation concerning what they might do and the proceeding "will prove an exercise in frustration," Staff posits that -
this does not go to the Board's reading of the Commission's instructions but goes to the conduct of the proceeding and does not support the !
subject motion. (Staff's Response at 4).
Staff asserts that the issues appropriate for hearing are to be set 1 l
out in response to the Board's October 8,1987 Memorandum To The Parties-and rather than again considering the motion for sunnary disposition, expedition could be better achieved by designating issues to be heard and proceeding to a hearing on those issues.- l As to LILCO seeking reconsideration on Contention EP-7 (ingestion pathway) the Staff relies on its response to the LILC0 motion for sunnary disposition of Contention 92, yet to be decided, that because L
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7 the Board had already found elsewhere that LILC0 has the ability to take necessary interdiction measures without mandatory authority, summary disposition of Contention EP-7 is warranted. (Staff's Response at 5 and
- n. 2).
Applicant further alleges tha.t the Board has improperly applied Cuomo v. LILCO, asserting that the Board made-it determinative of the l summary disposition motion, whereas it only provides that.the State cannot delegate its police power. LILC0 states it has never argued that the State would simply hand over an emergency response to LILC0 in the manner of a contractor subcontracting a job to another party. It contends the State and County would be involved to the maximum extent possible given the timing and other circumstances of a particular accident. This would help overcome the legal authority disability based en realism. LILC0 claims it cannot be seriously argued that any State or local government is prohibited by law from directing a private party to take actions that the government lachs the ability to perform and that are necessary to protect the public health and safety. (Motionat 7-8.) j Interveners argue that the Board has properly considered Cuomo v.
LILCO. They note that the Governments' involvement (which must be consistent with Cuomo v. LILCO) and whether such involvement would provide an adequate response are matters that the Board found are unknown and must be detennined through further proceeding. Interveners state that the Board previously interpreted Cuomo v. LILCO, which_the ,
Commission did not dispute in CLI-86-13. Rather the Commission in t
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CLI-86-13 accepts Cuomo, but calls for further fact finding on the nature and adequacy of a best efforts governmental response.
(Interveners' Response at 7.) l Staff's position on the Board's interpretation of Cuomo v. LILCO, l as well as on the matters of the availability of fuel for stranded 1
motorists, and on alteration of plant-generated emergency classification (to be discussed below), is that they do not provide the answers to the Commission's questions concerning an ad hoc response and do not warrant j the granting of the motion. Staff believes these matters can be further 1
addressed by LILC0 in response to the Board's October 8 Memorandum I requesting that the parties state their views on what issues are to be l heard. (Staff's Response at 5, n. 3).
Applicant also argues for reconsideration on the basis of a letter j i
of May 28,1987, to LILC0 from the Chief, Emergency Preparedness and Radiological Protection Branch, Division of Radiation Safety and Safeguards, NRC, Region I. The letter is quoted as stating that "[t]he l
licensee's declared emergency classification cannot be changed by offsite officials." LILC0 claims that since, particularly in a fast breaking emergency, protective action recommendations are determined by 1
plant conditions, the NRC position makes it all the more implausible that the State or County would act independent of the utility in a '
destructive manner. (Motion at 8). l Interveners contend the letter to LILC0 from the NRC provides no basis for reconsideration. LILC0 was said to have failed to quote the letter in context. They state the sentence following that quoted is one
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that states the response of offsite emergency officials "may include actions beyond that indicated by the emergency classification if they feel it is appropriate." Interveners state the language makes it plain that even the NRC Staff recognizes that the response of offsite officials is not bound by LILC0's emergency classifications and it does not state as LILCO claims that offsite officials are restricted to a particular response by a licensee's emergency classification.
Interveners dispute that the letter supports the conclusion that the Governments would accept and implement LILCO's plan. (Interveners' Response at 11.)
The Board Decision
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on the Request to Reconsider and to Grant the Motion for Sumary Disposition The Licensing Board finds that Applicant has not provided sufficient grounds for it to reconsider and reverse the decision denying LILC0's motion for sumary disposition of the legal authority issues based on the realism argument.
CLI-86-13 requires that certain questions be answered based on any shortcomings found in the LILC0 plan in terms of lesser dose savings and foreclosed protective actions, assuming a best effort State and County response using the LILC0 plan as the source of emergency planning information and options. In denying the motion for sumary disposition on September 17, 1987, we explained in detail and at length why inquiry is required into what the Governments will do in an emergency and why the questions posed by the Commission cannot be answered based only on
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the capabilities of the State and County and the assumptions contained in CLI-86-13. We explained as to how the needed facts necessary to ;
answer the Commission's inquiry are not currently of record and that they must be obtained in order to satisfy the requirements of the-remand. .
Applicant in its current motion has presented nothing to the Board that provides a basis that would cause us to alter our prior 1
interpretation of the remand in CLI-86-13. As we previously found the-best effort assumption in CLI-86-13 does not establish, even knowing the- I capabilities of the State and County, how they will respond so that a determination can be made as to the adequacy of the LILCO plan. Because of this, Applicant's motion for summary disposition could not be granted. A hearing is required to obtain the facts upon which a i decision can be based.
Applicant's current position on CLI-86-13 bears a resemblance to the new emergency planning rule that the Commission proposed on March 6, 1987 (52 Fed. Reg.6980)thathasnotbeenacted.uponasyet. The rule would permit the issuance of a full power operating license, notwithstanding noncompliance by the Applicant with specified regulatory requirements, where it arises from a lack of participation in the development or implementation of offsite emergency planning by a State or local government, and if the Applicant demonstrates to the Commission's satisfaction, among other things, that the noncompliance can be remedied, or adequately compensated for, by reasonable State or local government cooperation. The proposed rule is different from the
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11 law of the case laid down in CLI-86-13 and cannot be relied upon in support of Applicant's motion.
LILCO's argument that productive evidentiary hearings cannot have as their core issue the present determination of the actual future )
i response of the State and County is not a meritorious legal argument for reconsideration and granting summary disposition. It is more a statement of dissatisfaction with what LILC0 is faced with in litigating this issue in the proceeding.
The argument provides no grounds for the Board to reconsider its decision and to grant sumary disposition. The fact that the inquiry l involves a matter than can only occur in the future of necessity makes the finding predictive in nature. It is nothing anyone can alter. One I l can appreciate LILCO's unhappiness to have the undecided remanded issue-of what the Governments' response will be so dependent on what its hostile adversary does, but that does not permit changing the requirements laid down by the Commission. At this juncture, the Board has not ruled on the burden of proof on this matter. If LILC0 wants to raise the point it can do so as Staff suggests as part of discussing the issues for the upcoming proceeding as called for in the-Board's Memorandum To the Parties of October 8,1987. However, it is not an argument for reconsideration and granting Applicant's motion for sumary disposition.
As to the footnote request for reconsideration of the Board's conclusion that elements such as providing fuel to stranded motorists must be litigated, it is only asserted, without any support, that it is
12 a far reaching conclusion that has significant legal and policy implications. That alone provides no basis for reconsideration. We have previously stated the reasons why we had come to the conclusion we did on the irsue. No ground were provided by Applicant for reconsideration. Furthermore, the, argument for sununary disposition of the matter is misplaced. Applicants March 20, 1987 motion for summary l disposition of the legal authority issues was based on the realism argument. The argument LILCO makes in regard to dispensing fuel to motorists is based on insnateriality, something not presently under consideration.
LILCO's other footnote request seeking reconsideration of the L
Board's determination that activities taken in the' aftermath of an 1
accident, where time may not be a factor, may nevertheless raise litigable issues, is without merit.
Applicant says it cannot imagine any plausible scenario in which-legal authority would prevent water supplies from being monitored, food from being interdicted, or people from being advised when to return home. We understand LILC0's commendable intent for these things to take place in a manner that would be satisfactory under the regulations.
However, it is not difficult to. envision, based on the prior. record, that there could be a significant disagreement between the State and'the Applicant on what is required for adequate emergency planning and response in the ingestion pathway EPZ' . We'are aware of course that -
LILC0 has repeatedly asserted that it would defer. decision making to the-State if requested to do so. This does not help LILCO however since we ,
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13 do not know from the record what the State will do. LILCO's intent invites the Board to approve an unplanned response. We have been instructed in CLI-86-13 to determine the adequacy of governmental response under the Comission's best efforts assumption. Nothing LILC0 has submitted on this issue enables us to make that determination at this stage. The granting of sumary disposition on this issue is not warranted.
The Board did not improperly apply Cuomo v. LILC0 and make it determinative of the sumary disposition motion as Applicant claims.
The Licensing Board first applied Cuomo v. LILCO as part of its partial initial decision in ruling on the legal authority issues.3 The Commission in CLI-86-13 never faulted the Licensing Board in its interpretation and application of Cuomo. The remand action the Commission took in CLI-86-13 was not inconsistent with how the Board applied Cuomo. For purposes of the remand, the Comission assumed that ;
l LILC0 is prohibited from performing the State or County roles in the areas specified in Contentions 1-10.4 In applying Cuomo to Applicant's motion for sumary disposition, we did not change our prior interpretation of it. We again stated, inter alia, it prohibits the government from delegating its police power. The Board considered that stricture along with how LILCO said it expected i
3 LBP-85-12, 21 NRC at 895-919.
4 CLI-86-13, 24 NRC at 30.
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14 Interveners will operate in an emergency. Further, we took into account the evidentiary record in which the Governments stated that they would not implement the LILC0 plan, would not respond to a Shoreham emergency in concert or in partnership with LILCO, would not rely upon LILC0 recommendations or advice, and wou.ld not authorize LILC0 to perform the functions in Contentions 1-10. Considering the best effort assumptions and the foregoing led the Board to the conclusion that it remained an open question as to how the Governments would respond in an emergency l and whether their response will be adequate in fulfilling regulatory requirements. Material facts remained in dispute and on that basis we denied the motion for summary disposition.
LILC0 incorrectly viewed our handling of Cuomo and Applicant presents no basis for reconsideration and granting the motion for summary disposition in its favor.
As to the letter from the Chief, Emergency Preparedness and Radiological Protection Branch to the Applicant, even accepting LILC0's j wording which is contested by Interveners, there is nothing to establish I
that the statement in it that the licensee's declared emergency classification cannot be changed by offsite officials is binding on the Governments. Nothing convincing is provided to conclude that the i Governments would not act independently. The letter provides no basis i
for reconsideration.
For the reasons expressed above the request to reconsider and to grant the motion for summary disposition is denied. ]
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The Request to Refer the daard's_ Ruling to_t]hy;Cor.inission !
ApplicantaskedtheBoard,shoulditdecidecpaiEsttherequestfor reconsideration, that it refer'its ruling to the Comis fon.5 LILCO, for authority, principally relies upon the 1981 Statement of Policy on Conduct of Licensing Proceedings, ,CLI-61-8,13 NRC 452, 456, where the Comission stated: ,
1 If a significant legal 'or policy question is presented op which Conrnission guidance is ,;
needed, a board should promptly refer or {
certify the matter to the Atomic Safety and e Licensing Appeal Board or the Consnission. ,Jl LILC0 believes the Board's denial of sumary disposition does ;, J present significant legal or policy questions. In describing them LILC0
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I said, "One is what is the burden of proof that must be borne by the
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sponsor of a ' utility plan.' Another is the important threshold issue j of the constructionrof the realism doctrine outlined in CLI-86-13."
Citing the Appeal Board in Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, &iits 1 and 2), ALAB-405, 5 NRC 1190, I
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5 Therequestwashhtedtobemadepursuantto10C.F.R.2.785(b)(1) .
which deals withl:tse Appeal Board exercising authority and performing functions which would have otherwise been done by- the Comission. More appropriately 10 C.F.R. 2.718(1) provides that the presiding officer has the power to' certify questionsi to the y.<
Comission either in his discretion or on direction of the Comission. 10 C.F.R. 2.730(f) states that no interlocutory appedl 4 may be taken to the Comission-from a ruling by the presiding 1a officer. However, when;in the judgment of the presiding officer- y h ); .}.I
prompt decision is necessary to prevent detriment to the public S i i interest or unusual delay or expense, the presiding officer may refer the ruling promptly to the Comission.
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16 1192(1977) for the proposition that the Appeal Board has undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely by it with immediate and serious irreparable impact which as a practical matter could not be alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner, LILC0 believes both tests'are met in this case.
Applicant believes the public interest test in 10 C.F.R. 2.730(f) is met by the importance of a proper construction of the scope of the remand under CLI-86-13. It expects unusual delay and expense in litigating what the State and County would do in an emergency, considering the past performance of the Interveners. LILCO justifies )
the holding of interlocutory review on the bases of the novelty of the l '
question at issue and what it expects will be exceptional delay and expense. (Motionat9-11).
Interveners state that interlocutory review of licensing board ruling should be granted in only the most compelling circumstances, l
citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 i and2),ALAB-762,19NRC565,568(1984). It cites Marble Hill, supra, as the controlling case on the standards that must be met and denies ,
that LILCO meets the standards.
The Governments assert that LILCO's belief that the questions that it has raised are important goes only to the success of its case and does not satisfy the Marble Hill standards. They argue that the issues i
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17 involved are not generic nor do they bear on ongoing proceedings,. as-well might justify referral.
Further, Interveners state that an alleged error of a licensing )
board that may lead to additional litigation is not a controlling consideration in favor of interlocutory review, citing Virginia Electric ]
and Power Co. (North Anna Power Station,-Units 1 and 2), ALAB-747,18 NRC 3714 378 and n. 11. They assert that the fact that a party.may..be .
required to engage in additional litigation because of an adverse ruling does not result in irreparable harm or alter the basic structure of the proceeding in a pervasive or unusual manner so as to require interlocutory review. Interveners argue that Applicant's claim of unusual delay or expense is not persuasive. They do not view LILCO's claim as anything different than just being a losing party wanting further review of the matter. (Interveners Response.at 11-19.)
, Staff's position is that referral at this time,would be premature, 4 4 and therefore is unwarranted. It argues that~the Licensing Board did not, in denying suwary disposition.of Contentions 1-10, fully: consider the issues raised in Applicant's motion regarding the scope of the issues and burderof proof in the realism phase of this proceeding.- The Licensing Board has ask[d for fuller treat:nent of these matters in responses to the Board's October 8, 1987 Meworandum. Staff asserts that the public interest does not require referral, nor will unusual delay.
and expense follow Licensing Boardsdenial of the pending motion. (Staff
, Responseat7).
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i The Board Decision on the Request to Refer the Board's Ruling to the Comission ]
1 Applicant has not satisfied the regulatory requirements to refer j l
the Board's ruling denying the motion for sumary disposition to the Comission.
In effect, Applicant is seeking interlocutory appellate review of the Licensing Board's action. It is well settled that this is looked upon with disfavor by the Comission and it will be undertaken only under the most compelling circumstances. The grounds upon which LILC0 relies does not make for a minimal showing under the authorities.
The Licensing Board is not looking for Comission guidance.
Comission direction was given to us in CLI-86-13 and we have moved to implement the remand decision. The Board has no need to go back to the Comission for further instructions.
We have yet to hear from the parties in response to our October 8, 1987 Memorandum requesting their views on stating the issues involved.
It would be premature to seek the Comission's guidance on matters which have not been presented to us. Certainly at this stage they cannot be viewed as significant legal or policy questions. ,
Marble Hill, supra, requires that in order that interlocutory review be permitted the ruling below either (1) threaten the movant with imediate and serious impact which as a practical matter could not be alleviated by later appeal or (2) affect the basic structure of the proceeding in a pervasive or unusual manner.
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Clearly the Marble Hill standards are not met. Even if the Licensing Board were in error and it resulted in unnecessary delay and expense in litigating the issue, this does not meet the requirements of ,
l an immediate and serious impact which as a practical matter could not be
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alleviated by later appeal allowing interlocutory review. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-675, 15 NRC 1105, 1113 (1982). Similarly, if error were made, it j does not affect the basic structure of the proceeding in a pervasive or i unusual manner. Basically, the litigation on emergency planning has been completed except hearing issues on remand, of which this is one. ,
Any mishandling of this would not affect the basic structure of the.
proceeding in a pervasive or unusual manner so as to warrant referring the ruling to the Commission.
The Board recognizes that the adverse ruling to LILCO is of significant importance to it, but it has not been shown to be of general significance to warrant referral to the Comission. Merely stating that act is of general significance does not make it so. See North Anna, supra. ]
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The request to refer the Board's ruling to the Commission is denied l, because of a failure to make the necessary showing.
I The Request for the Board to Set a Schedule for Further Proceedings and to Decide the Motion on an Expedited Schedule j l
Applicant requests that, regardless of the disposition of its '
I motion to reconsider and request for referral to the Commission, the I \
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A 20 Board should promptly set a schedule for further proceedings and specify the issues to be hea-d. LILC0 asks that October 16, 1987 be set as the j date by which all the parties must state their views on the issues to be l heard and scheduling. LILCO asks for expedited treatment of the motion i to speed up the process. .
Interveners took no position as to these requests. Staff notes that LILC0's request that 'the parties address by October 16, 1987, the ;
issues to be heard and propose a schedule leading to hearing has been superseded by the directions in the Board's October 8, 1987 Memorandum To The Parties. ..
l The Board Decision on the Request to Set.a Schedule and to Decide the Motion on an Expedited Schedule LILC0's request for expedited treatment of the motion is granted to further timely handling of the proceeding. Effective case management requires the early disposition of this motion in order to'be able to proceeding with the remanded issues. Applicant's request that the Board promptly set a schedule for further proceedings and to specify the issues to be heard proved unnecessary because the Board already had the process underway when Applicant's request was made. The Board's Memorandum To The Parties of October 8,1987, renders LILCO's request moot.
ORDER Based upon all of the foregoing, it is hereby ordered:
, 1. That LILCO's motion of October 5, 1987 requesting that the ,
Board reconsider and reverse the decision denying Applicant's motion for
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sumary disposition of the legal authority issues is denied.
- 2. That the alternative request to refer the denial of the motions for sumary disposition to the Commission is denied.
- 3. That the request for expedited consideration of the motion is granted. -
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- 4. That the request to imediately set a schedule for further proceedings on the remand in CLI-86-13 is denied for mootness.
THE ATOMIC SAFETY nnu LICENSING BOARD Morton B. Ma'rgulies, @ airman ADMINISTRATIVE LAW JU$GE .
.M perry R. Kline' I ADMINISTRATIVE JUDGE !
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Frederick J. Shon ///
ADMINISTRATIVE JUDGE' l
Dated at Bethesda, Maryland this 29th day of October,1987
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