ML20198S087
| ML20198S087 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/06/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | LONG ISLAND LIGHTING CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), SHOREHAM OPPONENTS COALITION |
| References | |
| CON-#286-473 ALAB-818, ALAB-832, CLI-86-11, OL-3, OL-5, NUDOCS 8606100321 | |
| Download: ML20198S087 (9) | |
Text
k y'k UNITED STATES OF AMERICA
..- gM NUCLEAR REGULATORY COMMISSION 4
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COMMISSIONERS:
g Y -J Nunzio J. Palladino, Chairman 5
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Thomas M. Roberts James K. Asselstine Q8Nc$n
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Frederick M. Bernthal Lando W. Zech, Jr.
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In the Matter of LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 OL-3 (ShorehamNuclearPowerStation,
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Unit 1)
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MEMORANDUM AND ORDER CLI 11 Now pending before us in the Shoreham emergency planning adjudication are three related matters:
(1) petitions for review of ALAB-832, a March 26, 1986 Appeal Board decision reversing and remanding on a number of issues, but directing the Licensing Board to delay remand proceedings; (2) motions from LILC0 and Intervenors concerning litigation of emergency planning exercise results; and (3) petitions for review of ALAB-818.
In sum, we direct continued deferral of the ALAB-832 remand, and imediate 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. Further, the Comission is now reviewing ALAB-818, and expects to issue shortly a decision on the realism and immateriality issues.
8606100321 860606 PDR ADOCK 05000322 SSOL O
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I.
ALAB-832 The Appeal Board in ALAB-832 reversed and remanded to the Licensing Board on a number of issues, but directed the Licensing Board to hold the remand in abeyance until the Comission provided instructions. No party has requested initiation of the remand pending Comission review of ALAB-832, and thus we direct the Licensing Board to continue to defer the remand proceedings until further order of the Comission. Pending petitions for review of ALAB-832 will be addressed by the Comission in the near future.
If the Comission decides that further hearings are required on any of the issues considered in ALAB-832, the Comission will so direct the Licensing Board.
II. Motions Concerning Litigation of Emergency Planning Exercise Results In a motion dated March 7, 1986, Suffolk County, New York State, and the Town of Southampton (the Governments or Intervenors) asked the Comission to advise the parties to this proceeding of their procedural responsibilities concerning further hearings on emergency planning issues.
Intervenors ask the Comission to make clear:
(1) that there should be no proceedings on the results of the February 13, 1986 Shoreham emergency exercise until after FEMA issues its evaluation of the exercise; (2) that the filing of contentions on the exercise should await the issuance of FEMA's report; and (3) that because the Shoreham Licensing and Appeal Boards have upheld the Governments' position by denying LILC0's application for an operating license on the '
ground that LILCO's emergency plan is fatally defective, the burden is upon LILCO, and not the Governments, to initiate further proceedings.
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3 In a pleading of March 13;1986, LILCO opposed the first two arguments by Intervenors, and further subnitted its own motion requesting the Commission to imediately appoint a Licensing Board to conduct proceedings on the exercise, preferably the Board which previously heard Shoreham emergency planning issues. Further, LILC0 asks the Comission to instruct the Board:
to admit only contentions which could not have been litigated at some earlier time, and which, as pleaded, do not demonstrate that the Shoreham plan is fundamentally flawed.1 to conduct an expedited proceeding.
to schedule an immediate Prehearing Conference whose purpose will be to detennine schedules for the filing of all contentions other than those which must await the issuance of the FEMA report, and to determine schedules for discovery requests.
to permit the filing of a second round of contentions which could not have been filed prior to issuance of t.he FEMA report, along with a corresponding second round of discovery.
I In support of this standard, LILC0 cites both the D.C. Circuit's decision in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.
1984), cert, denied, 105..S. Ct. 815 (1985), and a Licensing' Board decision in Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-49, 22 NRC 899 (1985).
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4 to bar discovery against FEMA personnel prior to the issuance of FEMA's exercise report so as to expedite the preparation of FEMA's report on the exercise.
On March 24, 1986, the NRC Staff responded both to the Governments' motion and to LILC0's motion, in substance opposing the former and supporting the latter. The Governments also submitted their response to LILCO's motion on March 24. While not objecting to the appointment of a Licensing Board, the Governments largely object to the other proposals on the ground that they are departures from the Commission's rules. We now address the proposals and the objections to them.
Since the motions and responses were filed, FEMA has issued its report, thus mooting some of the requests. We thus address only the remaining questions.
(1) The proposal to use " threshold pleading" and sumary disposition prior to discovery to exclude contentions which do not demonstrate, as pleaded, a fundamental defect in the emergency plan.
The Governments assert that this suggestion is defective on three counts:
first, that the Commission's contention pleading regulations require adequate specificity and basis, and the use of the fundamental flaw criterion is a departure from the regulations that can be implemented only by rulemaking; second, that by this proposal LILC0 is allegedly attempting to require merits decisions at the contention pleading stage, contrary to settled Comission precedent; and third, that the use of summary disposition prior to discovery is legally unsupported, based on an erroneous Licensing Board reading of UCS v. NRC, supra, note 1.
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5 We disagree with the proposition that restriction of any emergency planning exercise hearings requested by Intervenors to " fundamental flaws" requires rulemaking or is otherwise inappropriate.
In the preamble to the rule reviewed by the UCS court, and in our rule change responding to the court's decision, we emphasized the predictive nature of emergency planning findings. See 47 Fed. Reg. 30232 (July 13,1982); 50 Fed. Reg. 19323 (May 8, 1985). The Court never questioned this concept. The Court also observed that there was nothing to prevent the Commission from excluding from exercise litigation any issue which was not material to licensing decisions. See 735 F.2d at 1447-48. Under our regulations and practice, staff review of exercise results is consistent with the predictive nature of emergency planning, and is restricted to determining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan. Since only fundainental flaws are material licensing issues, the hearing may be restricted to those issues.
However, we agree with Intervenors' second point, that the wording of LILCO's proposal to exclude contentions which do not demonstrate fundamental flaws in the emergency plan, has the potential to require premature evidentiary decisions. We remedy that possible defect by directing the Board to admit only those Intervenor contentions which satisfy the specificity and other requirements of 10 CFR 2.714 by 1) pleading that the exercise demonstrated fundamental flaws in LILC0's plan, and 2) by providing bases for the contentions which, if shown to be true, would demonstrate a fundamental flaw in the plan.
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6 Intervenors' third point is that sumary disposition prior to discovery is legally defective. Our rules provide that summary disposition motions may be filed "within such time as may be fixed by the presiding officer." 10 CFR 2.749(a). The rules further provide that if essential facts are not available for response to the motion, the Board may deny it or make such other order as is appropriate.
10C.F.R.2.749(c). Thus, Intervenors are not necessarily entitled to discovery to oppose summary disposition of their contentions. First. they must convince the Board that discovery is necessary and likely to produce evidence supporting the existence of a genuine issue of material fact. These rules should be adequate for this proceeding.
(2) Other LILC0 Proposals LILC0 also proposes that the exercise proceeding be conducted by the Board which previously heard Shoreham emergency planning issues. We direct the Chainnan of the Atomic Safety and Licensing Board Panel to reappoint the members'of the earlier Board if they are available. Further, the Board is to expedite the hearing to the maximum extent consistent with fairness to the parties, and to issue its decision upon the completion of the proceeding.2 2The Board and the parties should keep in mind that the Comission's forthcoming decision on ALAB-818 may obviate the need for a hearing on the exercise results, or it might mandate more extensive evidentiary hearings.
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7 III. Review of ALAB-818 As noted above, we previously deferred review of ALAB-818. We now plan to proceed initially with review of the so-called " realism" and
" immateriality" issues in ALAB-818. We will take up the legal authority and preemption issues at some future date. The parties have already submitted extensive papers on the " realism" and " immateriality" issues addressed in ALAB-818, and we see no need for further written briefs.
IV.
Intervenors' Motion of June 3, 1986 The June 3,1986 Suffolk County, State of New York, and Town of Southampton Supplement to Motion for NRC to Establish Post-Exercise Procedures is denied. The motion asks NRC to find that FEMA's review of the February 13 exercise violated FEMA's procedural rules requiring a public meeting. The Commission defers to FEMA's interpretation of its own procedural rules. We perceive no harm to Intervenors from this denial of v
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their motion, as the issues raised by the exercise will be aired in the adjudication we initiate today.
Comissioner Asselstine approved in part and disapproved in part. His separate views are attached.
It is so OPDERED.
For the Comission 7
SAMUEL >MLK 3
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ecretary of he Comission
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Dated at Washington, D.C.
rc this
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T SEPARATE VIEWS OF COMNISSIONER ASSELSTINE I agree with that portion of this order which directs the initiation of a hearing on the results of the exercise of the emergency plan for Shoreham.
I-also agree with the decision to continue to defer review of the issues in ALAB-832. However, I do not agree with the procedural guidance provided to the Licensing Board in this order.
I see no reason to set any pleading requirements beyond those already existing in the Commission's regulations.
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