ML20206M930

NRC Staff Comments on Immediate Effectiveness of ASLB 881121 Memorandum & Order.* Recommends That Commission Initially Decide Merits of LBP-88-24.Certificate of Svc Encl

ML20206M930
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/30/1988
From:	Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#488-7582 LBP-88-24, OL-3, OL-6, NUDOCS 8812020079
Download: ML20206M930 (7)

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00CvIiED up;: c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'83 NOV 30 P3 :d6 BEFORE THE CCMMISSION

[j, In the Matter of Docket No. 50-322-OL-6 (0L-6/0L-3)

.o LONG ISLAND LIGHTING COMPANY (Emergency Planning /25% Power)

(ShorehamNuclearPowerStation.

Unit 1)

NRC STAFF COMMENTS ON THE IPPEDIATE EFFECTIVENESS OF ASLB NOVEMBER 21 MEMOPANDUM AND ORDER u

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i Mitzi A. Young Counsel for NRC Staff I

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a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

BEFORE THE COMMISSION In the Matter of Docket No. 50-322-OL-6 (0L-6/0L-3) l LONG ISLAND LIGHTING COMPANY (Emergency Planning /25% Power)

(Shoreham Nuclear Power Station, Unit 1) 4 i

4 NRC STAFF COMMENTS ON THE IMMEDIATE EFFECTIVENESS OF ASLB NOVEMBER 21 MEMORANDUM AND ORDER L

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Mitzi A. Young Counsel for NRC Staff November 30, 1988 i

UNITED STATES CF AMERICA NUCLEAR REGULATORY COPHISSION BEF0DE THE COMMISSION In the Matter of LONG ISLAND LIGHTING COMPANY DocketNo.50-322-OL5(OL-3/0L-6)

(Emergency Planning /25% Power)

(Shoreham Nuclear Power Station, Unit 1)

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NRC STAFF COMMENTS ON THE IPNEDIATE EFFECTIVENESS OF ASLB NOVEMBER 91 MEMORANDUM AND ORDER Pursuant to 10 C.F.R. ! 2.764(f), the Staff submits the following coments in connection with the Comission's review of the imediate effectiveness of the November 21, 1988 Memorandum and Order ("November 21 Order") of the Licensing Board which, pursuant to 10 C.F.R. I 50.57(ci, authorized the Director of Nuclear Reactor Regulation to make the necessary findings to issue a 25% power license for Shoreham.

As a result of the Comission's November 9,1988 Order the Comission is currently considering the appeal from LBP-88-24, 28 NRC 311 (1988),

with respect to the merits of the dismissal of Intervenors from the entire Shoreham proceeding and what sanction, if any, would be appropriate.

That review necessarily entails resolution of one or more of the following questions:

(1) whether dismissal from the entire proceeding was warranted; (2) if not, whether dismissal from all matters before the OL-3 Licensing Board was warranted (including consideration of the 75% license

l 2-i intheOL-6subdocket);II or (3) if not, whether dismissal of only the f

realism contentions or some lesser sanction, if any, was warranted.

Under section 2.764(f)(?\\, the Comission is to conduct a review in order to determine whether to continue to stay the effectiveness of a board decision which authorizes operation in excess of 5% power in order to protect the public interest based on a consideration of the gravity of the substantive issue, the likelihood that the issue was resolved incorrectly below, the degree to which correct resolution would be prejudiced by operation pending review, and the public interest. The I

authorization for the Director of NRR to issue a 25% license, in this case, i:, directly related to the Commission's consideration of the merits of the dismissal sanction 'mposed in LBP-88-24 The Licensing Board did not reach any conclusions related to 25% power operation that were independent from the sanctions previously imposed in LBP-88-24 The Licensing Board concluded that since it had previously dismissed Intervenors from the proceeding before it, LILCO's motion was unopposed by the parties remaining in the proceeding. November 21 Order at 2-3, 7-8.

Thus, any decision by the Commission regarding whether the Licensing i

Board's November 21 Order should become effective is contingent upon the Comission's determination of what sanction, if any, is appropriate.

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The Comission previously referred LILCO's reouest to operate at 25%

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power to the OL-3 Licensing Board (the board that issued LBP-88-?4).

i Ccmission Order, August 12, 1987. The OL-6 subdocket was created by the OL-3 Licensing Board in late 1987 for the purpose of organizing filings on LILCO's motion to operate at 25% power.

See Appeal Board i

Menorandum and Order, November 22, 1988, at I n.1.

TFe OL-6 subdocket designation, however, was not a reconstitution of the Board as it did not result from a Federal Register notice constituting e Board distinct from the OL-3 Roard.

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Accordingly, the Staff recomends that the Comission initially decide the issue of the merits of the sanctions imposed in LBP-88-24.

If the Comission determines that dismissal from the entire proceeding was appropriate and sustains the Licensing Board's decision in LBP-88-24, the Comission may pemit the authorization to issue a full power license in LBP-88-24 to become effective (in the absence of a stay granted pursuant to10C.F.R.62.788).

If the Comission detemines that, although dismissal from the entire proceeding was not an appropriate sanction, dismissal of Intervenors as parties from all matters pending before the OL-3 Board (including those items pending in the OL-6 subdocket) is an appropriate sanction, the Comission may permit the Licensing Board's flovember 21 Order relating to 25% power operation to become effective.

Following Comission adjudicatory action in either of these cases, the Staff will report to the Comission, in accordance with its usual practice, on the overall Staff findings with respect to operation of the facility at the authorized power level (full power or 25%). 2/

pespectfully submitted, Mit.

A. Young Counsel for itRC Staff Dated at Rockville, Maryland this 30th day of flovember, lo88 2/

Because the Comission is in the adjudicatory rode with respect to the propriety of the dismissal sanctions, the Comission sheuld separately consider the technical readiness of the facility to operate at 25% power.

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~,C UNITrn STATES OF AMERICA NVCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION r

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In the Matter of DocketNo.50-322'-OLk6,(OL-3/0'L'-6)

LONG ISLAND LIGHTING COMPANY (Emergency Planning /25% Power)

(Shoreham Nuclear Pcwer Station, Unit 1)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF COMMENTS ON THE IMMEDIATE EFFECTIVE-NESS OF ASLB N0VFF3ER 21 met 10RANDUM AND 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 this 30th day of November,1988.

Samuel J. Chilk (15)*

Joel Blau, Director i

Office of the Secretary utility Intervention U.S. Nuclear Regulatory Comission Suite 1020 Washington, DC 20555 99 Washington Avenue i

Albany, NY 12210 sames P. Gleason, Esq., Chairman

• Administrative Judge Jonathan D. Feinberg, Esq.

Atomic Safety and Licensing Board flew York State Department of U.S. Nuclear Regulatory Comission Public Service Washington, DC 20555 Three Empire State Plaza Albany, NY 12223 l

Frederick J. Shon*

Administrative Judge James N. Christnan, Esq.

l Atomic Safety and Licensing Board Donald P. Irwin, Esq.

U.S. Nuclear Regulatory Comission Hunton & Williams Washington, DC 2055S 707 East Main Street P.O. Box 1535 r

Jerry R. Kline*

Richmond, VA 23212 Administrative Judge Atonic Safety and Licensing Board Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Comission Tweney, Latham & Shea Washington, DC 20555 Attorneys at Law 33 West Second Street Philip McIntire Riverhead, NY 11901 Federal Emergency Management Agency fiartin Bradley Ashare, Esq.

26 Federal Plaza Suffolk County Attorney Room 1349 H. Lee Dennison Building New York, NY 10278 Veteran's t'ernorial Highway Hauppauge NY 11788

. Anthony F. Earley, Jr.

Fabian G. Palomino, Esq.

General Counsel Richard J. Zahnleuter, Esq.

Long Island Lighting Company Special Counsel to the Governor 175 East Old Country Road Executive Chamber Hicksville, NY 11801 State Capitol Albany, NY 12224 Dr. Monroe Schneider North Shore Comittee Ms. Nora P, redes P.O. Box 231 Shoreham Opponents Malition Wading River, NY 11792 195 East Main Stru t Smithtown, NY ?.17f 7 William R. Cuming, Esq.

Office of General Counsel P,arbara Nes.. nan Federal Emergency Management Agency Director Envh-onmental Health 500 C Street, SW Coalition for Safe Living Washington, DC 20472 Box 944 Huntington, New York 11743 Dr. Robert Hoffman Long Islar.d Coalition for Safe Living Atomic Safety and Licensing P.O. Box 944 Appeal Panel (5)*

Huntington, NY 11743 U.S. Nuclear Regulatory Comission Washington, DC 20555 Herbert H. Brown, Esq.

Lawrence Coe Lanpher, Esq.

Atomic Sofety and Licensing Karla J. Letsche, Esq.

Board Panel (1)*

Kirkpatrick & Lockhart U.S. Nuclear Regulatory Comission South Lobby - 9th Floor Washington, DC 20555 1800 M Street, NW Vashington, DC 20036-5891 Docketing and Service Section*

Office of the Secretary C. K. Mallory, III,i q.

U.S. Nuclear Pegulatory Comission Hunton & Williams Washington, DC 20555 2000 Pennsylvania Ave., N.W.

Suite 9000 David L. Hetrick Washington, DC 20006 Professor of Nuclear and Energy Engineering i"

Alfred L. Nardelli, Esq.

The University of Arizona New York State Dept. of Law Tucson, AR 85721 120 8 roadway Room 3-118 New York, NY 10271 l

Jay Dunkleberger i

New York State Energy Office Agency Building 2 f

Eroire State Plaza o

Alsany NY 12223

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~ Mitzi

. Young f Cokosel for i:RC Staff f

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