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| {{#Wiki_filter:l | | {{#Wiki_filter:}} |
| > =i UNITED STATES OF AMERICA i NUCLEAR - REGULATORY COMMISSION ,
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| Before the Commissioners -
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| t Kenneth M. Carr, Chairman j Kenneth C. Rogers -l James R. Curtiss !
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| Forrest J. Remick
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| )
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| In the Matter of ) Docket No. 50-322-OLA
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| )
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| LONG ISLAND LIGHTING COMPANY ) ASLBP Ho, 91- 621-01-O LA
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| )
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| .(Material License No. ) December 5, 1990 35-17178-01, EA No. 89-223) ) (Notice of Appeal) ,
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| SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT AND SCIENTISTS AND ENGINEERS FOR SECURE ENERGY, INC.
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| BRIEF IN SUPPORT OF I THE APPEAL OF THE ASLBP MEMORANDUM AND ORDER OF NOVEMBER 19. 1990
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| 'The Shorham-Wading River Central School District and Scientists'and Engineers for Secure Energy, Inc. (" Appellants")
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| hereby provide the Commission with their brief in support of the above-captioned appeal, setting out th basis of the Commission's 4 jurisdiction,-a summary of argument, argument supplemental to the-motion itself addressing the Order at issue, and a conclusion.
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| JURISDICTION The: commission has jurisdictionLto review the Atomic 'I Safety and-Licensing Board Panel's ("ASLBP") order _of November 19, 1990 in the above-captioned matter (" Order") pursuant to 10 C.F.R.- 5 2.714a(a) as "an order of the presiding officer-or the L 9012310188 901205 t
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| PDR ADOCK 05000322 0 PDR-
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| i
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| ~1 l
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| : atomic' safety and'11 censing board designated to rule on petitions ;
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| for leave to intervene and/or requests for hearing." Egg 55 Fed.
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| Reg. 42944, 42945 col.-2 (October 24, 1990) (redirecting appellate jurisdiction from-the Atomic Safety and Licensing !
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| Appeal Board to the Commission itself) .
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| ==SUMMARY==
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| OF ARGUMENT Appellants argue that the Restraining Order and other Relief requested in their motion is both appropriate and i necessary for the reasons stated in that motion (incorporated by l
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| reference herein) and that the refusal of such relief by the ASLDP constitutes arbitrary and capricious action which is also an abuse of discretion. For al1~of these reasons, the Commission should vacate the Order and remand to the Atomic Safety and i
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| Licensing Board with instructions to issue the Orders -j requested.I' i
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| 1/ -Appellants also suggest.that insofar as their motion requested orders that would have prevented the visit by
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| . Commissioner Curtiss and his meetings with officials'of the Long Island Lighting Company ("LILCO"), the Long Island Power Authority ("LIPA") and others on November 13,.1990, that issue is now moot,-because the visit occurred. However, orders restricting theLlicensee and related persons (e.g., LIPA) from further contacts with the U.S. Nuclear Regulatory Commission
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| ("NRC"): adjudicatory personnel after the date'of issuance of such order:are still vital matters at issue.
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| ARGUMENT In its Order, the ASLBP held thatt it is apparent to the Board that all of the relief requested by the Petitioners-in the motion is beyond the jurisdiction of the Board, the motion being misdirected.
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| The Board rejects the motion at this time because of the patent-lack of
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| -jurisdiction of the subject matter. It is done now without awaiting responses to the motion by the others parties to avoid undue delay should Petitioners seek to refile within the Commission.
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| Order at 8. The Board. explained that: "These issues raised by Petitioners go far beyond the authority delegated by the
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| : Commission to the Board which was to review and resolve the six petitions to-intervene and to hold hearings in regard to the subject amendments to the Shoreham operating license." Order at 9.
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| Recognizing that it in within the Board's jurisdiction "to afford due process to parties appearing before it," the Board alleged that the issues raised by Appellants "are of another sort" saying-that Appellants were raising "the question whether the Licensee as well as the Commission and its staff are acting inLaccordance-with the law and whether they should be enjoined to comply." Order at 9-10. The Board.found that in order to answer l
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| that question "an inquiry of a primary nature would have to.be ;
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| conducted to determine-whether there was a failure to follow-the s law and that relier was warranted."
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| ~ . _ . _ . ._ , _
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| l Appellants take strong issue with this analysis. There is no need to conduct "an inquiry of a primary nature" as to whether the licensee, and the Commission and/or its staff were acting in accordance with law. Such an orders are justified as a merely prophylactic measures to protect Appellants, regardless of whether wrongdoing has previously occurred. Thus, the inquiry posited by the Board is not necessary and the Board's conclusion that: "The Commission has not delegated to the Board any authority to conduct an independent inquiry of the type necessary to satisfy Petitioners' request" is irrelevant.2/ Order at 10.
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| The request by Appellants was not an expansion of the
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| -" subject matter" committed to the Board's decision, but rather was a motion for relief of a nrocedural nature. Therefore, the ASLDP's reliance Duke Power Comoany, gt al. (Catawba Nuclear Station, Units 1 and 2), A LA B-8 2 5, 22 NRC 785, 790 is misplaced.
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| Order at 10.
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| In their motion, Appellants also requested that LILCO, LIPA and the Power Authority of the State of New York ("NYPA")
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| should be required to serve copies of all written communications 2/ Even if the Commission should find that an independent inquiry would be necessary to satisfy Petitioners' request, the presiding officer has the requisite authority to conduct such a proceeding. The Commission's regulations grant the presiding officer "all powers necessary" to fulfill his " duty to conduct a fair and impartial hearing according to law" including the power to " regulate . . . the conduct of the participants," to " dispose of procedural requests or similar matters," and to "take any other actions consistent with the Act, this Chapter, and Sections 551-558 of Title 5 of the United States Code." 10 C.F.R. S
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| : 2. 718 (e) , ( f) & (m) (1990).
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| -4 -
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| with the NRC with respect-to any all aspects of the overall p proposal to decommission Shoreham on Appellants' counsel. Motion at 11. And Appellants requested that the order require LILCO, LIPA and NYPA also to give Appellants not less than 14 days notice advance of any meeting to be held between those persons and any NRC personnel relating to Docket No. 50-322. The Licensing Board's Order makes no findings of fact and offers no conclusions of law for not granting that relief in particular.
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| Insofar as that relief was denied without the requisite findings and conclusions, the decision must be set aside as unlawful since it is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and without observance of procedures required by law. 5 U.S.C. S 706 (2) ( A) & (D) .
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| Finally, if the Commission upholds the ASLBP determination that: "Being a subordinate adjudicatory body without plenary jurisdiction, the relief Petitioners seek is beyond the scope of our-authority" (Order at 11) and that the relief should have been requested from the Commission itself,F the Commission should then determine that the. presiding officer's
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| -failure to certify the question to the Commission for its determination pursuant'to 10 C.F.R. 5 2.718(i) constituted an abuse of discrellon. 5 U.S.C. S 706(2) ( A) ; Statement of Policy 2/. The Order's involved discussion of various matters before the Commission and matters before the ASLBP itself may support a finding that both bodies have concurrent jurisdiction to grant the requested orders. Order at 11. But that discussion does D21 support the ASLBP's conclusion that it lacks jurisdiction.
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| -on Conduct of=Licensina'Proceedinas, at Para III.F. (46 Fed. Reg. ;
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| 28533', Mayl27,;1981)
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| (" board should promptly refer or certify the matter").
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| CONCLUSION WHEREFORE, the Commission should vacate the ASLBP Memorandum and Order of November 19, 1990 in the above-captioned matter and remand-to the Licensing Board with instructions to grant the relief. requested.
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| Respectfully submitted, l D ',h h)
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| December 5, 1990 k}_- A // i '4 James P.-McGranery, Jr; Dos, Lohnes & Albertson i Suite 500 1255 Twenty-Third Street, N.W.
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| Washington,' O.C. 20037-(202) 857-2929
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| . Counsel for the Petitioners
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| 'Shoreham-Wading River Central School District and Scientists and Engineers-for Secure Energy, Inc.
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| a t UNITED STATES OF AMERICA. I v3sse M itn NUCLEAR REGULATORY COMMISSION
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| )
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| In the Matter of )
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| '90 DEC 10 /18:53
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| )
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| LONG ISLAND LIGHTING COMPANY ) Docket No.bacR(Q 50 322 OLA, Qylgv
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| ) BRAN (;8 -
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| (Shoreham Nuclear Power Station, )
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| Unit 1) . ) ASLBP No.- 9162101 OLA
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| )
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| CERTIFICATE OF SERVICE l 1 herebyJeertify that copies of the Notice of Appeal and accompanying Brief in support of the Appeal from the ASLBP Memorandum and Order of November 19,1990 were '
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| served upon the following _by first class mail, postage prepaid on this 5th day of December,1990: 1 Atomic Safety and Licensing Appeal Board Morton B. Margulies, Chairman . ,
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| U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 ' Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
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| -Jerry R. Kline Washington, D.C. 20555 Administrative Judge
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| . : Atomic Safety and Licensing Board George A. Ferguson U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 5307 Al Jones Drive !
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| Edwin J. Reis', Esq.
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| Deputy Assistant General CounselL Carl R..Schenker, Jr., Esq, .
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| for Reactor Licensing l Counsel, Long Island Power Authority Mitzi A.~ Young, Esq. O'Melveny & Myers
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| .- Senior; Supervisory Trial = Attorne -
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| 55513th Street, N.W.
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| Office of the General Counsel- . Washington, D.C. 20004 U.S. Nuclear Regulatory Commission -
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| --Washington, D.C. 20555 Donald P.-Irwin, Esq.
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| Hunton & Williams
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| ! Charles M. Pratt, Esq.- P.O. Box 1535 -
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| ; Senior Vice President and General Counsel Richmond, Virginia 23212 22nd Floor. - ,~
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| -Power Authority of-the State of New York
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| .16331 Broadway
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| -New York,-New York 10019
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| v.. .
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| 2-Samuel A. Cherniak, Esq.
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| NYS Department of Law Bureau of Consumer Frauds and Protection 120 Broadway New York, New York 10271 q u
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| ('
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| December 5,1990 _ . _ _
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| _ 'f~q') k / - :h u James'P. McGranery, Jr. ////
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| Cottn'sel for Petitioner Interven6rs Shoreham Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.}}
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