ML19263A958

Applicant'S Request for Summary Disposition of Suffolk County Contentions 4a(vii),(x),7a(ii)-(iii),(vi)-(vii), 12a(viii) & 14a.Disposition Sought Due to Concern Re Approaching Completion of Facility

ML19263A958
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/18/1978
From:	Reveley W LONG ISLAND LIGHTING CO.
To:
Shared Package
ML19263A941	List: ML19263A958 ML19263A964 ML19263A985 ML19263B002 ML19263B005 ML19263B022 ML19267A293 ML19267A306 ML19267A308
References
NUDOCS 7901040014
Download: ML19263A958 (11)

Text

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UNITED STATES OF AHERICA /s NUCLEAR REGULATORY CCMMISSION / f'. '

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Before the Atomic Safety and Licensing Board

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's .f LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322

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(Shoreham Nuclear Power Station, )

Unit 1)

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APPLICANT'S REQUEST FOR

SUMMARY

DISPOSITION OF SUFFOLK COUNTY CONTENTIONS 4a(vii), (x); 7a(ii)-(iii), (vi)-(vii); 12a(viii); and 14a I. Reasons for Seeking Summary Discosition Now The Applicant has become seriously concer- 2 that the Shoreham Station will be physically complete and _eady to load fuel before this proceeding has produced an initial decision, yea or nay, on the merits of Shoreham's application for an operating license. Our concern is rooted in the slow pace of the pro-ceeding to date, the time likely to be required to take the re-maining adjudicatory steps, in light of the numerous matters that Suffolk County (SC) still wants to litigate,,and past experience with protracted nuclear litigation on Long Island. Accordingly, this pleading is filed for three reasons: (1) to indicate, in detail, why we believe that the Shoreham proceeding is in sche-duling difficulty, (2) to urge that summary disposition of certain

" ripe contentions be used as a means to make progress, and (3) co invite other parties involved in the proceeding, should they not share the Applicant's sense of urgency, to explain why not, in meaningful detail.

79010400/Y

A. Slow Pace to Date It is useful to sketch the principal developments that have occurred in the Shoreham proceeding so far:

August 28, 1975 LILCO files OL Application, FSAR and ER March 18, 1976 NRC publishes notice of the Application's docketing and of the opportunity to request a hearing April 14, 1976 New York AEC seeks participation as an interested state agency April 15, 1976 OHILI and North Shore Committee file intervention petitions April 19, 1976 Intervention deadline April 21, 1976 Frysiak, Head and Shon named to Board May 7, 1976 Board rejects OHILI and North Shore Committee pu:itions but with opportunity to amend June 18, 1976 U.iILI and North Shore Committee file amended petitions November 10, 1976 Prehearing conference concerning OHILI and North Shore Committee's amended petitions December 10, 1976 OHILI and North Shore Committee file a consolidated amended-amended petitien February 22, 1977 Board admits NY Energy Office (succes-sor to NY AEC) and OHILI/ Committee

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as a consolidated party, and Board orders a hearing February 22, 1977 Head replaced on Board by Paris March 17. 1977 Suffolk County files intervention petition March 24, 1977 DES appears May 16, 1977 DES comment deadline

August 1, 1977 Board rejects SC petition but with opportunity to amen (

September 16, 1977 SC files amended petition October.ll, 1977 Second prehearing conference, focus-ing on contentions and the beginning of discovery October 25, 1977 FES appears November 10, 1977 SC files further argument on certain of its contentions, followed shortly thereaf ter by LILCO and Staff replies November 11, 1977 OHILI/ Committee file further argument on certain of their contentions, followed shortly thereafter by LII'.0 and Staff replies January 27, 1978 Board rules on disputed contentions February 6, 1978 Frysiak replaced on Board by Bowers February 28, 1978, Board rules on the timing and substance and March 2 of discovery March 8 April 4 April 19 April 25 June 14 June 19 July 7 July 17 -

July 24 August 23 October 12 March 8, 1978 Board rules on disputed contentions March 29, 1978 Staff requests dismissal of OHILI/Com-mittee contention 7(e) for systematic OHILI/ Committee refusal to respond to discovery concerning it April 19, 1978 Board dismisses OHILI/ Committee con-tention 7(e) and poses fish-return and chlorine questions

June 23, 1978 Applicant requests summary disposition of OHILI/ Committee contentions 7(a)(ii) and (iii), answers Board questions on fish-return and chlorine, and moves that there be no environmental hearings for lack of justiciable issues June 28, 1978 Staff seeks essentially the same relief July 25, 1978 Board grants summary disposition of OHILI/

Committee contentions 7(a)(ii) and (iii)

August 4, 1978 Board finds its fish-return and chlorine concerns to have been answered and orders that no environmental hearings be held August 18, 1978 Staff requests dismissal of OHILI/Com-mittee contention 7(g) for systematic OHILI/ Committee refusal to respond to discovery concerning it.

October 27, 1978 Board dismisses OHILI/ Committee conten-tion 7(g)

In short, LILCO filed its Shoreham FSAR and updated ER well over three years ago, in an effort to start early on the lengthy path toward an operating license. The OL adjudicatory process , in turn, began formally more than 2-1/2 years ago. A lot, though not enough, has taken place in the interim. The pace has almost invariably been slow.b!

B. Long Wav to Go As the events of July 25 and August 4, 1978 indicate, only health and safety issues remain in this proceeding.

They, however, are legion. See Part C below. As to them, the 21/The sequence of events sketched above so indicates. E.z.,

Suffolk County did not even bother to file its 80-page inter-vention papers until eleven months after the deadline for inter-vention had passed. Similarly, the first prehearing conference was initially set for August 11, 1976, rescheduled tor October 20, and finally held on November 10.

Board indicated in its Order of March 8, 1978 that discovery (which began in October 1977) will have its final phase after the Staff issues its Safety Evaluation Report. Such discovery will then be followed by final particularization of contentions (their particularization having begun several years previously).

The Board stated on March 8:

The discovery period for the SER will be as follows: (1) 30 days after its issuance, discovery requests must be filed, (2) 20 days thereafter responses must be filed, and (3) 20 days thereafter particularized contentions must be filed.

Id. at 5.

Predicting the likely progress of nuclear licensing cases is always something of a quixotic endeavor. Nonetheless, the time has come seriously to attempt it in this proceeding.

If the Board's March 8, 1978 Order continues unchanged, the fol-lowing sequence could well evolve:

SER is issued 0 day Discovery request deadline -

30 days Answers to discovery 50 days ACRS meeting 60 to 120 days Particularized contentions deadline 70 days Replies to same and summnry 85 days disposition motions Replies to summary disposition motionc 105 days Board ruling on issues to be licigated 120 days Testimony filed 140 days Hearings begin 155 days In other words, it is easy to envisage the passage of 155 days, or 5 months, between the appearance of the SER and the

A beginning of hearings. Skipping for the moment the likely extent of the hearings, it is also easy to foresee another three months for briefing and ASLB decision:

Record closes 0 day LILCO files findings 20 days Intervenors file 30 days Staff files 40 days LILCO replies 50 days Board issues decision 80 days.

Thus, this proceeding could easily consume 8 months after the SER appears, without counting the time required for the hear-ings themselves. These pre- and post-hearing sequences assume, moreover, that once the SER issues, the previously slow pace of the proceeding will quicken. If not, much more time could be required. The deadlines noted above are not generous.

How long are the hearings likely to be? Potentially quite long, as noted below.

C. SC Litization Desires SC has made known its litigation objectives on numerous occasions:

(1) in a March 17, 1977 intervention petition, (2) in a May 17, 1977 reply to other parties' responses to that petition, (3) in a September 16, 1977 amended intervention petition, (4) in an October 6, 1977 reply to other parties' responses to its amended petition,

(5) during oral argument at the October 11, 1977 prehearing conference, (6) in a November 10, 1977 supplement to its September 16 amended petition, and most recently, (7) in a 144-page document, dated November 30, 1978, that repeats and reargues all its health and safety contentions, including those previously rejected by the Board._2/

All told, these SC filings total more than 300 pages.

They advance well over 100 discrete issues. While the Applicant believes that most of these issues raise little or nothing of substance in the Shoreham proceeding, the fact that issues are frivolous often poses no bar to their lengthy discussion in nuclear licensing cases.

D. Past Experience The duration of prior nuclear proceedings on Long Island was described in " Applicant's Request that the Board Set a Sched-ule for Resolution of Environmental Issues" at 4-5 (Feb. 24, 1978).

Suffice it to say that there were 70 days of EC hearings on the Shoreham CP application, spread over a 29-month period. There were 44 days of NRC hearings on the Jamesport CP application spread over a 10-month period, with a subsequent 3-month re-opening of the record for radon purposes. New York State hearings 9/

2 Except as the content of this document bears on the summary disposition requests presented here, we see no need for comment on SC's latest statement of its views. This SC document appears to have been offered principally in response to certain Staff interrogatories. We do not understand the document to be the final particularization of SC contentions, which is now slated to appear 70 days after issuance of the SER. See Board Order of March 8, 1978, at 5.

on Shoreham at the CP stage lasted 21 days, and New York State Article VII and VIII hearings on Jamesport have totalled 50 and 123 days, respectively, so far. Thus, there have been over 300 days of hearings on LILCO's two nuclear proj ects since the fall of 1970. The pattern has been for there to be more, not less, time in hearings as the years progress.

Past experience dictates that this proceeding be conducted so that it can accommodate, if necessary, a long seige of Shore-ham OL hearings. By Long Island standards, this means the assumption, for planning purposes, that there will be at least 10 months between the opening and close of the hearing record.

E. Recapitulation It has been suggested above that there might easily be 5 months of " final" prehearing work after issuance of the SER, 10 months between the opening and close of the hearing record, and 3 months for briefing and decision. That comes to 18 months from issuance of the SER to Board decision.

It has been exceptionally difficult, to date, to predict when the SER will appear. And it seems certain that at least one supplement will be required at some point after the document-in-chief is issued. There now appears to be reason to believe that the SER will be issued at some point in February 1979.

Eighteen months from February 1979 run to August 1980. The Appli-cant proj ects , however, that Shoreham will be physically ready to load fuel at some point between March and July 1980. Accord-ingly, this proceeding seems to be in scheduling difficulty.

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Thus, rathcr than passing anather quarter year in dis-covery while waiting for the SER to appear, the Applicant now moves for summary disposition of the following contentions:

SC cententions 4a(vii), (x); 7a(ii)-(iii), (vi)- (vii) ; 12a (viii); and 14a. In our judgment, sufficient information already exists to permit their disposition. The Applicant will move in the near future for summary disposition of other conten-tions now " ripe" for resolution. In this fashion, we hope to eliminate certain issues or, failing that, to sharpen their focus. To the extent that the latter occurs -- that is, a pre-cise identification of matters which the Board thinks appropri-ate for hearings rather than summary disposition -- the Applicant will request early hearings.

If other parties have some better idea for getting on with this proceeding, we are eager to listen. If, conversely, other parties have no sense of urgency, we look forward to their concrete analysis, akin to that on pages 5-8 above, of why no time constraints exist.

II. Summary Disposition The following documents constitute the Applicant's request for immediate resolution, pursuant to 10 CFR S 2.749, of the contentions noted above:

(1) Motion for Summary Disposition of SC Contentions 4a(vii) and 7a(ii) with attached Affidavit of G. R. Heine II, (2) Motion for Summary Disposition of SC Contention 4a(x),

(3) Motion for Summary Disposition of SC Contention 7a(iii) with attached Affidavits of William J.

Tunney and Robert S. Blackman, (4) Motion for Su= mary Disposition of SC Contention 7a(vi) with attached Affidavit of William J.

Tunney, (5) Motion for Su= mary Disposition of SC Contention 7a(vii) with attached Affidavit of William J.

Tunney, (6) Motion for Summary Disposition of SC Contention 12a(viii) with attached Affidavit of Robert M.

Kascsak, and (7) Motion for Summary Disposition of SC Contention 14a with attached Affidavit of Robert M. Kascsak.

For the reasons stated in the foregoing materials, the Applicant urges that SC contentions 4a(vii), (x); 7 a (ii) - (iii) ,

(vi)-(vii); 12a(viii); and 14a be dismissed because, as to each, "there is no genuine issue to be heard 10 CFR S 2.749(a).

In the alternative, if the Board finds sucmary dispo-sition inappropriate as to any affected contention (in whole or part), the Applicant requests that the Board, after reviewing the attached materials and replies from other parties, (a) state the exact issue (s) to be litigated from among the

4 contention (s) in question and (b) set a schedule for t.he prompt beginning of hearings on such issue (s),

Respectfully submitted, LONG ISLAND LIGHTING COMPANY Me / III W. TaylgtReveley, F. Case Whittenore Hunton & Willimms 707 East Main Street P O. Box 1535 E chmond, Virginia 23212

--esdD: December 18, 1978 e

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