View source for CLI-88-09, Order CLI-88-09.* Commission Believes Prudent to Establish Procedures & Go Forward W/Any Necessary Proceedings on 1988 Exercise.Parties Encouraged to Negotiate to Reduce Actual Number of Issues to Be Litigated.Served on 881201

{{Adams
| number = ML20196F684
| issue date = 12/01/1988
| title = Order CLI-88-09.* Commission Believes Prudent to Establish Procedures & Go Forward W/Any Necessary Proceedings on 1988 Exercise.Parties Encouraged to Negotiate to Reduce Actual Number of Issues to Be Litigated.Served on 881201
| author name = Chilk S
| author affiliation = NRC OFFICE OF THE SECRETARY (SECY)
| addressee name = 
| addressee affiliation = LONG ISLAND LIGHTING CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), SUFFOLK COUNTY, NY
| docket = 05000322
| license number = 
| contact person = 
| case reference number = CON-#488-7596
| document report number = CLI-88-09, CLI-88-9, LBP-88-24, OL-5, NUDOCS 8812140067
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, ORDERS
| page count = 7
}}

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UNITED STATES OF AMERICA                                 DI NUCLEAR REGULATORY COMMISSION COMMISSIONERS:                                                                                                                                                       'E DEC -1 P4 :54 Lando W. Zech, Jr. , Chainnan Thomas M. Roberts                                                                                                                        .,
Kenneth M. Carr Kenneth C. Rogers James R. Curtiss                                                                                                                                    '
In the Matter of                                                                                                                                                      g:g. ,_       1_ig$g LONG ISLAND LIGHTING COMPANY                                                                                                                           Docket No. 50-322-OL-5                   ,
(Shoreham Nuclear Power Station, Unit 1)
ORDER CLI-88-2 This order addresses the future course 'I the proceeding on the 1988 emergency planning exercise for the Shoreham Nuclear Power Station.1 Although the Comission has under review the OL-3 Board's dismissal of the intervenors from the Shoreham proceeding in LBP-88-24, 28 NRC _,1988, the Comission t'clieves it is prudent to establish procedures and go forward with any necessary proceedings on the 1988 exercise, at least pending the Cornission's decision on its review of LBP-88-24.                                                                                                        For the reasons set forth below, the Comission has detennined that the circumstances surrounding litigation of emergency planning exercises in this case warrant Comission                                                                                                                        !
intervention to establish expedited procedures for the conduct of the l
proceeding.                                      This action is taken under the Comission's inherent supervisory                                                                                 ,
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Although this Order is issued under the OL-5 Docket and directed to that Presiding Board, we have not yet completed e Jr action on petitions for                                                                                                                     !
NRC                  1988 . This Order does not prejudice our                                  l review review of                                   ofthat ALABd2cis 901, Ton whicE w(e exp)ect to complete expeditiously.
oV 8812140067 09120' gDR                       ADOCK 0500                                    2

authority over the ccnduct of adjudicatory proceedings.
Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2),
CLI-77-8, 5 NRC 503, 516-17 (1977); Cleveland Electric Illuminatino Company (Perry Nuclear Pcwer Plant, Units 1 and 2), CLI-86-7, 23 NRC 233 (1986).
On February 13, 1986, the Federal Emergency Management Agency ("FEMA")                                                                             i conducted an exercise to test LILCO offsite emergency plans for Shoreham.                                                       In response to motions filed by Suffolk County, New York State and the Town of Southampton ("Intervenors") reouesting Ccmmission direction on the parties' procedural responsibilities concerning any hearings on that exercise, the Comission on June 6,1986, ordered "immediate initiation of the exercise hearing to consider evidence which Intervenors might wish to offer to show that there is a fundamental flaw in the LILC0 emergency plan." CLI-86-11, 23
!        NRC 577, 579. We also directed the Board appointed to conduct the exercise proceeding to "expedite the hearing to the n.aximum extent consistent with fairness to the parties".                    Ibid at 582.
l Notwithstanding that direction from the Comission, and the efforts by the Licensing Board to carry it out, litigation of the 1986 Shoreham exercise                                                                          '
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through the first level of administrative hearings consumed nearly two years.
Although contentions were filed on August 1,1986, rulings on contentions did not conclude until December 11, 1986.                                Following several months of discovery,                                        '
the hearings began on May 13, 1987 and concluded on June 18, 1987. The                                                                             :
4 Licensing Board issued a Partial Initial Decision on December 7,1987, LBP-87-32, 26 NRC 479, concluding that the scope of the February 13, 1986,                                                                         l
!                                                                                                                                                           r 3
exercise of the offsite emergency plan was insufficient to comply with NRC's                                                                       l 1
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emergency planning requirements. On February 1,1988, the Board isered its Initial Decision, LBP-88-2, 27 NRC 85, finding that the 1986 Exercise demonstrated fundamental flaws in the Emergency Plan. Before briefing on LILCO's appeal from that decision was even complete, the two-year window for a pre-license exercise required by 10 C.F.R. Part 50, Appendix E, 9 IV.F.1, had expired. Various appeals and petitions relating to the litigation of the 1986 exercise are still pending.
Another emergency planning exercise was scheduled and conducted on June 7-9, 1988. FEMA issued its Post Exercise Assessment of the June 7-9, 1988 exercise on September 2,1988. In ALAB-901, _ NRC _ (1988) the Atomic Safety and Licensing Appeal Board remanded litigation of issues associated with the 1988 exercise to the OL-5 Licensing Board for disposition as expeditiously as possible, consistent with fairness to all the carties. On September 22, 1988 the OL-5 Licensing Board issued an order scheduling further proceedings on the 1988 exercise. Intervenors filed about 100 pages of' contentions on October 21, 1988. Applicant and NRC staff duly responded.
l We now face the real prospect of another round of litigation on a pre-licensing exercise with the potential for consuming as much time as the I     earlier round, despite efforts to expedite the proceeding within the context of the Consnission's usual Rule of Practice in Subpart G of 10 CFR Part 2.                                 It has become apparent that if we are to avoid an endless loep of litigation brought about by the interplay of our exercise scheduling requirement and the need to offer an opportunity to contest the results of the exercise, more specific measures must be taken to accelerate this litigation. Accordingly,

to fulfill our obligation under the Administrative Procedure Act to decide cases within a reasonable time, and consistent with the suggestion in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), that expedited prvudures would be appropriate for exercise hearings, we are directing an approach which preserves the parties' rights under the Atomic Energy Act and the Administrative Procedure Act but which bypasses aspects of our usual procedures in 10 CFR Part 2, Subpart G which can contribute significant delay to a proceeding. The procedures set forth below reflect our consideration of several important facts in this case:     1) the real prospect of literally endless litigation noted above; 2) the extensive involvement of the Intervenors as observers during the 1988 exercise which must have given them substantial knowledge of the activities which took place2 ; and 3) FEMA's detailed findings on the results of the 1988 Exercise, described in the September 2,1988 Post-Exercise Assessment have been available to the parties now for about two tronths. Under our regulations these findings are entitled to presurptive validity.10 CFR $ 50.47(a)(2).
In consideration of the above, the following schedule for the proceedings on the 1988 exercise is established:
: 1. The Licensing Coard shall rule expeditiously on contentions filed in the proceeding. No requests to reconsider the Board's ruling on contentions 2
See exchange of correspondence concerning arrangements for representatives of the Intervenors to monitor the 1988 exercise, e.o.,
Letters dated May 31, 1988, and June 3,1988 from Michael S. Hiller on behalf of the Governrtents to Donald F. Irwin, Counsel for LILC0; Letter dated June (FootnoteContinued)

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shall be entertained. The Board, however, retains the authority to reconsider its ruling sua sponte.
: 2. There shall be no formal discovery, whether by deposition, document production, or otherwise. However, voluntary discovery among the     ,,
parties is encouraged.
: 3. Within 30 days of the date of the Board's Order on contentions, the proponents of admitted contentions shall file and serve testimony in support of their cententions. There will be no motions for summary disposition, but any contentions for which testimony is not filed will be considered in default by virtue of the presumption of 10 CFR 950.47(a)(2).
: 4. Within 20 days of the service of testimony in support of contentions, LILCO may file and serve rebuttal testimony.
: 5. Within 25 days of the service of testimony in support of contentions, the NRC Staff may file and serve rebuttal testimony on any of the contentions. At a minimum, the Staff shall sponsor into evidence relevant portions of the FEMA report.
(FootnoteContinued) 2,1988 from Lawrence Coe Lanpher on behalf of the Gov, enments to William R.
Cuming, Associate General Counsel for FEMA. The detail in many of the 100 or so pages of contentions also confirms intervenors' extensive knowledge of the exercise.

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: 6. Within 7 days after the last testimony is filed, the Licensing Board will hold a Prehearing Conference to consider the matters specified in 10 CFR 5 2.752 and set the order for conduct of the hearing.                                                                  The Board at this time should also entertain and hear argument on oral motions, if any, to strike irrelevant, innaterial, repetitive or cumulative testimony. Rulings on such motions shall be made within 7 days of the conclusion of the argument.
: 7. Within 14 days after conclusion of the Prehearing Conference, the evidentiary Hearing will begin.
: 8. Within 21 days of the start of the Hearing, the Hearing will end.
: 9. Within 20 days after the conclusion of the Hearing, the parties will file and serve any proposed findings of fact and conclusions of law.
Failure to file a proposed finding on a contention admitted for litigation will result in default on that contention. Reply to proposed findings may be filed within 10 days after service of proposed findings, if a party so desires.
: 10. While the proponent of a contention has the burden of going forward with evidence in support of that contention sufficient to rebut the presumption created by the FEMA findings on the June 1988 emergency exercise, once that burden is met LILCO bears the ultimate burden of persuasion.
: 11. Service shall be by hand delivery or express mail.
: 12. All provisions of 10 CFR Part 2 remain applicable in accordance with their tents except to the extent they are inconsistent with this Order.
Any aspect of these procedures may be changed and the schedule extended if the parties unanimously agree and the Board approves. Moreover, the Board retains the authority to extend or reduce any of the time periods if this becomes essential for the conduct of a fair hearing; provided however, that the Commission shall be notified of any schedule extensions of more than 15 days. The parties are encouraged to negotiate informally to reduce the actual number of issues which need to be litigated during the Hearing.
Corn 11ssioner Curtiss did not participate in this matter.
It is so ORDERED.
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or SAMUEL J.3CHILX Secretary of the Comission Dated at Rockville, Maryland this 1st day cf December,1988.
* Commissioner Curtiss was not present during the Affirmation of this Order}}