ML20237E468

Memorandum & Order.* Util 871217 Notice of Appeal from ASLB 871207 Partial Initial Decision Re Util Offsite Radiological Response Plan Denied.Motion Devoid of Merit.Served on 871223

ML20237E468
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/23/1987
From:	Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	LONG ISLAND LIGHTING CO.
References
CON-#487-5114 OL-5, NUDOCS 8712290012
Download: ML20237E468 (7)

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y'i / E DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 mc 23 g9;gg ATOMIC SAFETY AND LICENSING APPEAL BOARD

• =r-Administrative Judges: CFFICE 00 CME 7mt; 0; U'O.$.

BHancy "

Alan S. Rosenthal, Chairman December 23, 1987 Howard A. Wilber

) ED&ED DEC 2 31987 In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 l

) j (Shoreham Nuclear Power ) (Emergency Planning j Station, Unit 1) ) Exercise) l

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MEMORANDUM AND ORDER On December 17, 1987, the applicant Long Island Lighting Company (LILCO) filed a notice of appeal from tne Licensing Board's December 7, 1987 partial initial decision, i in which the Board concluded that the February 13, 1986 exercise of LILCO's offsite radiological response plan for the Shoreham nuclear facility was deficient in several 1

material respects. Two days later, on December 19, LILCO moved for immediate certification to the Commission of certain issues that LILCO intends to raise on that appeal.

Alternatively, LILCO asks that we expedite the briefing, oral argument and disposition of the appeal. In that Prior to the oral argument of the appeal in this matter, a third member of the Appeal Panel will be assigned to the Board to replace Mr. Edles, who has resigned from the Panel.

LBP-87-32, 26 NRC ,

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2 connection, we are provided with a proposed schedule. Under it, LILCO would have its brief in the hands of the other parties by December 30, 1987. Those parties would then have a total of six business days -- i.e., until Friday, January 8 -- in which to complete and to serve in like fashion their responsive briefs. Oral argument would take place the following week, with our decision ("in summary form, if necessary") rendered by January 29, 1988.2 We agree with the interveners and the NRC staff that the motion is devoid of merit.3 Accordingly, it is denied in its entirety.

1. Each of the specific issues that LILCO would have us certify to the Commission without prior decision on our part calls for an interpretation of the provisions of LILCO'S Motion For Immediate Certification To The Commission of Issues Presented By LBP-87-32 Or For Expedited Briefing, Argument and Decisien By The Appeal Board (hereafter "LILCO Motion") atR28.

For its part, the Federal Emergency Management Agency (FEMA) supports the LILCO motion but has its own list of issues that it would like to see certified to the Commission or considered expeditiously by us. The FEMA filing is entirely devoid, however, of any reasoned explanation regarding why the relief sought is appropriate.

In addition, FEMA asks that it "be given an opportunity to brief its concerns should the Appeal Board retain jurisdiction." FEMA Petition For Leave To File Memorandum In Support Of LILCO's Motion For Immediate Certification To The Commission Of Issues Presented by LBP-87-32 Or For Expedited Briefing, Argument and Decision By The Appeal Board (December 22, 1987) at 3.

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Appendix E to 10 CFR Part 50.4 .In-the exercise of the appellate review functions delegated to us by the Commission,5 we: routinely pass upon challenges to the interpretation given by licen' sing boards to Commission regulations. Contrary to LILCO's-belief, there is no apparent good reason why we should shirk that responsibility in this instance.6

2. Underlying the alternative request for expeditious disposition of the appeal is LILCO's desire to obtain an appellate' decision prior to February '13, 1988 -- the second anniversary of.the date of the emergency planning exercise in question. On.this score, we are told:

I' i The effectiveness of the February 13, 1986 i

exercise for. licensing purposes expires presumptively on February 13, 1988. If a license has not issued by that time, and if an extension i LILCO Motion at 9-10.

5 See 10 CFR 2.785 (a) .

.The asserted gravity and novelty of the issues (see LILCO Motion at 21) assuredly provides insufficient cause for taking the extraordinary step LILCO urges -- more often than not, the regulation interpretation questions coming before us have.such ingredients. Nor.does LILCO's insistence that there is a need for rapid appellate review of the Licensing Board's decision support its certification request. Apart from the dubious factual substance to that insistence (see pp. 4-5, infra), in appropriate circumstances we both can and will provide as expeditious an

-appellate review as might reasonably be. expected of the Commission -- which, unlike the appeal boards, also has many non-adjudicatory obligations to fulfill. We thus have never considered claims of urgency, even if well-founded in fact, as justification per se for invoking our authority to certify a question to the Commission unaccompanied by an expression of our views on the merits of the question.

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4 of the exercise's effectiveness for licensing purposes is not obtained, LILCO will have to plan, conduct and secure post-exercise review and, as-permitted, litigation of that successor exercise before being able to receive a 7 1icense to exceed 5% of, rated power at Shoreham One might infer from that statement that solely issues pertaining to the emergency planning exercise stand in the way of the issuance of a full-power operating license for Shoreham by February 13. But nothing could be further removed from present reality. Among other things, the Licensing Board assigned to the litigation of the LILCO emergency response plan (as distinguished from the exercise) has many significant issues before it that have not as yet even reached the evidentiary hearing stage. Although we understand (albeit not from a reading of its motion papers) l l

that LILCO has been attempting to obtain a favorable l l

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LILCO Motion at 26. In an accompanying footnote, LILCO adds:

That contingent planning process is proceeding.

Within the next few days, LILCO will request the NRC to request FEMA to schedule a full participation exercise for Shoreham as promptly as possible. The request will note that the scope ,

and timing of that exercise may be af fected by the !

outcome of this litigation, 8

LILCO assumes that the Licensing Board assigned to the emergency planning exercise litigation will render an additional decision prior to that date, addressed to the exercise-performance issues not covered in the December 7 decision. Id. at 26. We will make the same assumption for present purposes.

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5 resolution of all of those issues by summary disposition, to date it seemingly has not met with notable success in that endeavor. Indeed, in a December 21, 1987 memorandum and order, that Licensing Board both denied LILCO's motion for ,

summary disposition of the reopened WALK radio issue and provided the interveners with an opportunity to submit 1

within 20 days new contentions with regard to LILCO's {

changes in its emergency broadcast notification system. In the totality of circumstances, there thus is simply no basis for any surmise at this juncture that a rapid disposition of its appeal from the December 7 decision would likely enhance LILCO's chances of having an operating license in hand by February 13.

But even had the need for expedition been established, the schedule proposed by LILCO would still have required I

summary rejection. As LILCO itself notes, the record was

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developed by the Licensing Board in "51 days of hearings and conferences" and includes "an evidentiary transcript of 8694 pages amassed between August 6, 1986 and the final j evidentiary session on June 18, 1987." We neither need nor do undertake to consider LILCO's apparent dissatisfaction i

with the length of the hearing and the interval that elapsed l between the June 6, 1986 Commission order initiating the 9

Id. at 1.

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litigation of the exercise 10 and the Licensing Board's December 7 decision. Be that as it may, we must take the proceeding as it comes to us. Given the relatively large size of the trial record, and the number of issues that J

LILCO proposes to present on its appeal,12 the abbreviated i period allotted by the proposed schedule for responsive briefs, oral argument and our decision is wholly beyond the bounds of reason. In initiating the exercise litigation, i the Commission directed that it be expedited "to the maximum extent consistent with fairness to the parties."13 The short of the matter is that to compress the entire appellate process -- from notice of appeal to Appeal Board decision --

into a period of six weeks (embracing the traditional holiday season as well as an additional federal holiday in mid-January) would work an extreme injustice upon the 10 CLI-86-11, 23 NRC 577.

11 Among other things, LILCO wryly observes that "there has been approximately a day of live proceedings for each 12 minutes of the exercise." LILCO Motion at 1-2.

12 We cannot exclude the possibility that the interveners will raise yet additional issues in defense of the Licensing Board's ultimate conclusion that the exercise did not comply with Commission regulations. See Suffolk County, State of New York, and Town of Southampton Summary Response to LILCO's Motion for Certification to the Commission or Expedited Appeal Board Review of LBP-87-32 (December 22, 1987) at 5-6.

I CLI-86-11, supra, 23 NRC at 582 (emphasis supplied) .

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7 interveners and the NRC staff. In addition, adoption of the proposed schedule might well raise legitimate questions respecting our commitment to a thorough and thoughtful consideration of the issues presented by the appeal and the portions of the record pertaining to those issues.:

LILCO's motion denied in all respects.14 The Federal Emergency Management Agency may, if it so desires, submit a brief amicus curiae.15 Any such brief must be filed and served by the time the applicant files and serves its brief or by January 15, 1988, whichever is later.

It is so ORDERED.

FOR THE APPEAL BOARD A% . M

' Eleanor E. Hagins{

Secretary to the Appeal Board i

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l 14 yf, -following the full' briefing of the appeal, LILCO believes the then posture of the Licensing Board proceedings on the emergency response plan no to dictate, it may seek expedition of the oral argument and decision.

15 See n. 3, supra.

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