ML20238D109

NRC Staff Expedited Response to Whether Certain Issues Decided in LBP-87-32 Should Be Certified to Commission or Heard by Aslab on Expedited Schedule.* Util 871222 Motion Should Be Denied.Certificate of Svc Encl

ML20238D109
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/22/1987
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5250 ALAB-211, ALAB-421, ALAB-500, ALAB-681, ALAB-769, LBP-87-32, OL-5, NUDOCS 8801040102
Download: ML20238D109 (11)

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V In the Matter of )

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! LO N G ISL A N T; LIG HTIN G COMP A N Y ) Docket No'. 50-?h2-UL 4

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I N R C. S T A F F E XE DIT E D R ES P O N S E !T Ot'i BE T H E R C E R T Alt! '

/ ISSUES D E CIDE D IN L'd P-87-37 S H O UL D B E ,

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING A PEAL BOARD /^

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In the Matter of ) <

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, 7 LONG ISLAND LIGHTING COMPANY ) Docket Bo. 60-322-OL-3

) (EP Exercise)

(Shoreham Nuclear Power Station, ) t (Unit 1) )

't NRCSTAFF;EXPEDITEDRESPONSETOWHETHERCERTkkNISSUES DECIDED IN 1)BP-87-32 SHOULD BE CERTIFIED TO THF'y COMMISSION OR BE HEARQ_EX 2 E APPEAL BOARD OD AN Jl.XPEDITEM SCHEDUI,E I. IMTRODUClMlt{

The Chairman of tue Appeal Board has requested (by-l telephone, December 21, 1987) the Staf f to address, by 3 p.m., Tuesday, December 22, 1987, two questions. The questions.are whether the December 19, 1987 Motion filed by Applicant 1/ meets the standards for certification by the Appeal Board of questions to,f.he Commission, or, if not, whether the Appeal Bsard should nevertheless' expedite the ,

s 1 schedule for consideration of the CLILCO Appeal of the I \

December 7, 1987 Partial Init.lal Cecisian'of the OL-5 J.

Licensing Board (LB7-87-32). LILCOhasnotpresentedbaded varranting the granting of its recinst for immediate certification of issues to the Commission or, i

1/ LILCO's Motion for Immediate C(. ratification to the Commission of Issues Presented by LBP-87-32 or for Expedited > Briefing, Argument and Decision by the Appeal Board, dated December 19, 1987 (" Motion").

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.) 'I alternatively, for expedited briefing, argument and decision cS, by the Appeal Board of LILCO's Appeal from LBP-87-32.

h II. DISCUSSION A. LILCO Has Not Met the Standard for Certification.to the Commission As LILCO correctly notes, 10 C. F. R. Section 2.785(d) authorizes the Appeal Board to " certify to the Commission for its determination major or novel questions of policy, law or procedure." Motion at 22. However, LILCO fails to g cite a leading case applying that provision, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power

, Station), Public Service Comnany gf New Hamoshire, et al.

(Seabrook Station, Units 1 and 2) ALAB-421, 6 NRC 25 (1977),

where the Appeal Board observed that the authority under

,y Section 2.785(d) to certify matters to the Commission

' "'should be exercised sparingly.'" Id., at 27. Nor does it reference the citation therein to its earlier decision in Vermont Yankee, that "[a]bsent compelling reason, we will decline to certify a question to the Commission." ALAB-211, 7 AEC 982, at 984.

Instead, LILCO relies heavily on the Commission's Statement 91 Policy QD Conduct 21 Licensina Proceedings, CLI-81-8, 13 NRC 452 (1981), which applies in the main to the conduct of proceedings by Atomic Safety and Licensing Boards. Motion at 22-23. LILCO also relies on several T.

6 inapposite cases involving the standards for interlocutory x.m . __ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ . _ _ _ _ _ _ . . _ - _ _ . .

• review, (United States Enerav Research and Development Administration Proiect Manaaement Corporation Tennessee Vallev Authority (Clinch River Breeder Reactor), CLI-76-13, 4 NRC 67 (1976); Offshore Eower Systems (Floating Nuclear Power Plants), ALAB-500, 8 NRC 323 (1978)), as well as one case involving whether the Appeal Board had jurisdiction to entertain an appeal (Pacific Gas add Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-681, 16 NRC l 146 (1982)).

Finally, LILCO cites a previous decision in this proceeding, ALAB-763, 19 NRC 996 (1984), which involved certification of questions to the Commission only after the Appeal Board had determined, based on full briefing, that decision on the "important-to-safety / safety-related" issue should be left to the Commission for determination. Motion at 22-24.

Employing these precedents, LILCO suggests that it is the Commission's policy to encourage certification of questions in the circumstances here presented. This is clearly incorrect. As noted above, even where a major or novel question of policy, law or procedure is presented, certification of questions to the Commission is employed sparingly, and only upon a showing of a compelling reason.

Vermont Yankee, suora. Thus it is up to LILCO to demon-strate that a compelling reason for certification exists.

While LILCO does not address this standard, par sg, i,t does attempt to show that it will suffer avoidable harm as a

result of a failure to certify the matter, and that the decision of the Licensing Board below effects not only Shoreham, but all near term operating license applications, and will " radically restructure [ FEMA-NRC) interagency relationships." Motion at 25.

LILCO argues that immediate certification is necessary to avoid subjecting Shoreham to "a potentially infinite series of two-year cycles" to the licensing process, and to avoid frustration of the Commission policy of expedition of licensing proceedings. Id. Assuming for th( sake of argument that such a showing might constitut2 " compelling reasons," it is simply not true that immediate certification will avoid the harm which LILCO foresees - being required to conduct another full-participation exercise prior to licens-ing of Shoreham.

First, even if the question were certified, and the Commission were to reverse the Licensing Board, such rever-sal would not support licensing of Shoreham for full power operation. The OL-5 Licensing Board has not decided the other contentions relating to the whether the results of the February 13, 1986 exercise reveal " fundamental flaws" in the LILCO Emergency Plan. That decision, and any appeals thereof must be resolved before the emergency exercise may be found to have been adequate for purposes of licensing.

Second, even were all emergency exercise issues to be l

! resolved in time for licensing of Shoreham prior to February 13, 1988, an exceedingly unlikely scenario at this point,

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given the evidence supporting a contrary result, a full power license could not be issued before the remaining issues pending before the Licensing Board were resolved.

Those issues include the impact of the " realism doctrine" on the legal authority contentions, the adequacy of reception centers, the timeliness of school evacuation, adequacy of the Shoreham emergency broadcast system, and the adequacy of evacuation' planning for hospitals.

LILCO has filed eight motions for summary disposition of the legal authority contentions and another contention on December 18, 1987. The motions and the attached documents supporting the motions are almost 500 pages in length.

Replies to these motions would be due on January 11, 1987, if no extentions of time to answer these prolix motions were granted. In any event it is unrealistic to think they could be acted upon by February 13, 1988, so as to obviate another exercise. Should any portion of these motions be denied, hearings on the issues encompassed in the motions could not realistically be predicted even to begin prior to February 13, 1988.

In short, there are numerous emergency planning issues pending in addition to the adequacy of the emergency exer-cise which must be resolved for full-power licensing of Shoreham. Any one of these issues could result in further l evidentiary hearings. Thus, LILCO's position that expedi-tion of the relatively narrow questions decided by LBP-87-32 will avoid the need for another full-participation exercise

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is contrary to any reasonable expection of future events in this case.

Finally, though the recent Licensing Board Partial Initial Decision, if upheld, could have a profound impact on future NTOL exercises, and on the NRC/ FEMA approach to the conduct of emergeny planning exercises, this fact alone does not warrant immediate certification. On the contrary, the potential importance of the issue suggests that the matters presented -- involving interpretation of Commission regulations and prior agency interpretations and administrative practice -- receive the benefit of the Appeal Board's consideration, prior to treatment of the issue by the Commission.

Thus, there is no compelling reason to speed up and truncate consideration of the important issues raised by LILCO's appeal. Even assuming that LILCO will prevail on the merits of its appeal, LILCO has not demonstrated that the harm it asserts will occur would be avoided by immediate certification. As a result, LILCO's request therefor should be denied.

B. LILCO's Request for Expedited Appeal Board Review Should be Denied In support of its request for expedited Appeal Board review, LILCO argues that, without such review, it is nossible that LILCO will be forced to prepare for and undertake another full-participation exercise for Shoreham.

Motion at 27. This, it is argued, could entail another two years' delay in the licensing of Shoreham, with profound economic implications for LILCo. Id. at 27-28. LILCO ac-knowledges, however, that there are several other avenues which may be open to it, even it is are unsuccessful in overturning the recent PID. Id. Among these avenues are the possibility of correcting deficiencies in the exercise by a-partial remedial exercise, and pursuit of an extension of the requirement that the initial full-participation exercise be held within two years of licensing. Id.

As argued above, however, the likelihood that LILCO will secure the necessary adjudicative rulings to obtain a full power license prior to February '.3. 1988 is very low.

The harm LILCO asserts will befall it will not be avoided by an expedited review of LILCO's appeal by the Appeal Board.

In the absence of any real likelihood that Shoreham can be 1

licensed before February 13, 1988, expedition of the appeal as requested is not only unnecessary, but is undesirable.

The parties and the Appeal Board should have adequate time.to consider the merits of the appeal, so that all appropriate legal and factual considerations are taken into account. The importance of the questions presented, both to Shoreham, and to other pending operating license applica-tions and the NRC-FEMA review functions, requires a full opportunity for briefing of the merits of the appeal. Thus, l the request for expedition should be denied.

III. CONCLUSION LILCO's Motion should be denied.

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l Respectfully submitted, 1

e eorge . Jo n n Counse for C Staff Dated at Bethesda, Maryland this 22d day of Deceraber, 1987

D$sh t-UNITED ST ATES OF AMERIC A '6'l N NUCLEA R REGUL ATOR Y C OMMISSION y l ct hE Nti CB C

BEFORE THE ATOMIC S AFETY AND LICENSING APPE LR D In the Matter of I

)

LONG ISL AND LIGHTING COMP ANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFIC ATE OF SERVICE I hereby certify that copies of "NRC STAFF EXPEDITED RESPONSE TO WHETHER CE RT AIN ISSUES DECIDED IN L B P-87-32 SHOULD BE C E R TIFIE D TO THE C O MMISSIO N OR BE HEARD BY THE APPEAL BOARD ON AN EXPEDITED S C H E D ULE" . in the above-captioned proceedin g have been served on the following by deposit in the U nited 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 dou ble asterisks, hand delivery, this 2Pst day of December 1987.

John H. Frye III, Chairman ** Joel Riau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensino Suite 1020 Board 99 Washington Avenue U.S. Nuclear Regulatory Commission Albany, N Y 12210 Washington, D C 20555 Oscar H. Paris ** Fabian G. Palomino,- Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensina Executive Chamber Board State Capitol U.S. Nuclear Regulatory Commission Albany, N Y 12224 Washinoton, D C 20555 Frederick J. Shon** Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Public Service Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, N Y I?223 Washington, D C 20555 Philip McIntire W. Taylor Revelev III, Esa.

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street -

Room 1349 P.O. Box 1535 New York, N Y 10278 Richmond, V A 73219

[

- Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Twomey, Latham & Shea Lawrence Coe Lanpher, Eso.

Attorneys at Law Karla J. Letsche, Esq.

33 Vest Second Street Kirkpatrick & Lockhart Riverhead, N Y 11901 South Lobby - 9th Floor 1800 M Street, N W Atomic Safety and Licensing Washington, D C 20036-5891 Board Panel

• U.S. Nuclear Peculatory Commission Jay Dunkleberger Washington, D C 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensina Empire State Plaza A ppeal Board Panel ** Albany, N Y 12223 U.S. Nuclear Reaulatory Commission Washinaton, D C 20555 Spence W. Perry, Esc.

Martin Bradley Ashare, Esq. General- Cou nsel Suffolk County Attorney Federal Emeroency Manacement H. Lee Dennison Buildina Acency Veteran's Memorial Highway 500 C Street, SW Hauppauce, NY 11788 Washington, D C 20472 Dr. Monroe Schneider Robert Abrams, Esq.

North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, N Y 11792 Attn : Peter Bienstock, Esa.

Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, N Y 11787 New York, NY 10047 Anthony F. Earley, Jr. William R . C u m min g , E sq.

General Counsel OfEce of General Counsel Long Island Lighting Company Federal Emergency Manaaement 175 East Old Country Road Aaency Hicksville, N Y 11801 500 C Street, SW Washinoton, DC 20472 Dr. Robert Hoffman Lono Island Coalition for Safe Docketina and Service Section*

Livin a Office of the Secretary P.O. Box 1355 U.S. Nuclear Reculatory C om mission Massapecua, N Y 11758 Washington, D C 20555 Mary M. Gundrum, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Livina 3rd Floor, Room 3-116 Box 944 New York, N Y 10271 Huntington, New York 11743 5 Q

~ George E./00hnsdq/

Counsel for N R C Staff

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