ML19341C651

Permittee Opposition to Shoreham Opponents Coalition 810123 Request for Facility CP Suspension,Revocation or Mod. Certificate of Svc Encl

ML19341C651
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/27/1981
From:	Earley A HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Office of Nuclear Reactor Regulation
Shared Package
ML19341C648	List: ML19341C647 ML19341C651
References
NUDOCS 8103030876
Download: ML19341C651 (8)

Text

. _ _ _ _ _ _ _ _ _ - - _ _ _ _ _ _ _ ._ __ _ ___. _ _ _ _ _ _ _ _ _ _ _ _ .. ._

i i .

] February 27, 1981 h

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  :

Before the Director of Nuclear Reactor Regulation i

In the Matter of ) Construction Permit No.

LONG ISLAND LIGHTING COMPANY ) CPPR-95

(Shoreham Nuclear Power Station,)

, Unit 1) )

l Permittee's Opposition to SOC's Request that Shoreham's Construction Permit be Suspended, Revoked or Modified I.

On January 23, 1981, the Shoreham Opponents Coalition >

filed a document entitled " Petition of the Shoreham Opponents Coalition (SOC) to Institute Proceedings on Whether Good

, Cause Exists to Extend the Completion Date of the Shoreham Nuclear Power Station - Unit 1." As noted in the Permittee's response of February 4, 1981, SOC asked for (1) a hearing i

on LILCO's request for an extension of the Shoreham construc-tion pernit and (2) suspension, revocation or modification of Shoreham's CP. LILCO urged you to deny both of SOC's re-quests. With respect to the latter, the Permittee also asked for an opp rtunity to submit furthar comments in the event i that the 10 CFR S 2.206 request was not immediately denied.

Since a denial of SOC's petition has not appeared, the Per-mittee expands briefly upon its opposition to the issuance of a show cause order.

l

)

i 8103080%76

.-- - - _ , _ _ , _ - , . _ _ . , _ . ~ . _ _ . _ , _ _ , . . _ _ _ . _ . . . _ , _ _ , . . _ _ _ _ .

.__ - . .. -_ _ = _ . - - . . - . . - . _ _ . - _ - _ _ _ _ - _ - . - --_

b i .

i i

1 II.

! Stripped to its essentials, SOC's 10 CFR 5 2.206 request

! is an attempt to circumvent the NRC's two-tier licensing pro-i cess by raising issues in a show cause proceeding that are l more properly dealt with in the Shoreham operating license proceeding. In its attempt to have Shoreham's CP suspended and then revoked. SOC challenges the adequacy of the final

environmental statement for Shoreham, LILCO's financial quali-fications, the safety of the Shoreham site and the ability of the Permittee to meet the NRC's new emergency planning f

regulations. SOC alternatively asserts that if the CP remains

} in effect, the safety of the plant will be compromised unless t

I the permit is modified. Specifically, SOC wants to incorporate conditions that would require (1) LILCO to document deviations from the Staff's Standard Review Plan, (2) the NRC to analyze l the safety impact of the deviations and (3) LILCO to perform certain analyses and design changes that are said to flow l inexorably from the accident at TMI-2. All the above are precisely the types of issues routinely raised in operating ,

i license proceedings. And because this is so, they are not properly the subject of a p 2.206 request. As the Commission i has noted, a proceeding under 5 2.206 is not "a vehicle . . .

for avoiding an existing forum in which [ issues) more logically i

l I

f

,,w--- - - - ---,-,u- --v -n- - -

n -, -

1 j should be presented." Consolidated Edison Company (Indian 4

i Point, Units 1-3), CLI-75-8, 2 NRC 173, 177 (1975); see also l Peblic Service Company of Indiana (Marble Hill Nuclear Generat-

ing Station, Units 1 and 2), DD-79-21, 10 NRC 717, 720 (1979).1/

l SOC has not made a convincing showing of special cir-cumstances to justify deviating from the Commission's two-

) tier review proce s. SOC's apparent reliance on Northern i

d Indiana Public Service Company (Bailly Generating Station,

{ Nuclear 1), ALAB-619, __ NRC __ (1980), is not persuasive.

1 1 The circumstances of that case are wholly different from those i

at hand.2/ The lack of special circumstances in this case is j further indicated by a quick review of the issues raised by SOC. ,

J III.

J Final Environmental Statement. SOC argues, first, that

}

the Shoreham CP should be revoked because of alleged i

i 1

l 1/ The fact that the OL proceeding is the proper forum j

for SOC's complaints does not mean that these issues will actually be the subject of a hearing. It is up to the

! Licensing Board to determine the issues to be litigated, j pursuant to all relevant criteria.

2/ In Bailly, the Appeal Board indicated that the j

4 availability or the OL proceeding would not prevent conside-ration of site suitability issues in a $ 2.206 request where construction had barely started. In stark contrast Shoreham  ;

) is approximately 85 percent complete and the OL proceeding

has been underway since 1976.

(

l l

I r

inadequacies in the final environmental statement for the plant.1/ But SOC raised each of the claims relied on here

-- costs, need for power and Class 9 accidents -- in its petition for intervention in the operating license proceeding. l

" Petition of the Shoreham opponents coalition (SOC) to Sus-t pend Construction Permit . . . to Renotice Hearings . . . or

. . . to Permit Late Intervention . . ., " dated January 24, 1980, at 53. In response to SOC's petition for intervention, the Licensing Board dismissed the claims related to the FES because the issues'had already been addressed and no rele-vant "new" information was cited.b/ Board Order of March 5,

1980, at 22-24. SOC petitioned the Board for reconsideration.

" Response of the Shoreham Opponents Coalition (S0C) to Board j Order Dated March 5, 1980," dated April 3, 1980, at 11-15.

The Board found no reason to reopen the environmental phase EI SOC's argument is not entirely clear since it confuses the alleged need to produce an environmental impact state-ment in conjunction with issuing a CP extension with the asserted need to revise the existing FES because of purported deficiencies. The former "need", of course, has nothing to do with the 5 2.206 request.

b/ The Board did find that the TMI-2 accident was a development that might ordinarily justify reconsidering Class 9 accidents but concluded that such was not warranted under Commission policy. That continues to be the case as to Shoreham. See " Statement of Interim Policy on Nuclear Power Plant Accident Considerations Under the National En-vironmental Policy Act of 1969," 45 Fed. Reg. 40101, 40103 (June 13, 1980).

i i

i

_ . ~ _ - ___ _ . . . _ _ . . . _ _ _ _ _ _ _ _ _ . _ . . .__ . _ . - _ _ .

i

. I i

i i

! i i

j of the case.1/ Board Order of May 1, 1980, at 6-8. Now J

SOC comes to the Director seeking to collaterally attack l

{ the Licensing Board's decisions and thereby obtain a result twice denied.

I

{ Obviously, if SOC feels that new developments justify j reopening the environmental phase, it may once again approach

the Board. Failing there, its proper avenue for complaint l 1

is the NRC's appellate process. f Factually, this part of SOC's petition is also undis-tinguished. Aside from the usual but largely irrelevant j patter about Class 9 accidents, SOC makes some generalized assertions about the cost-benefit balance. Declining load growth is cited without any consideration of other aspects j of the need equation, principally oil displacement. SOC's

" Conservation Alternative" study is referenced but it was s

totally discredited during recent New York Public Service Commission hearings. Moreover, SOC fails to show that the ultimate outcome of cost-benefit balance would shift under l

1 the weight of the alleged changed circumstances.

I EI Putting to one side that SOC is now in the wrong forum, it is also inappropriate for SOC to try to use 5 2.206 to reconsider issues already decided. See Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), DD-79-10, 10 NRC 129, 131 (1979).

1 i

i 1

J t

4 l  :  !

f Financial Qualifications. The financial qualifications 4

of an applicant must be demonstrated at both the CP and OL t

stages of the licensing process. See 10 CFR $ 50.33(f).

Again, a 5 2.206 proceeding is not the appropriate forum for SOC's arguments on this score. The arguments, in any event, are not substantial. (1) SOC points to the derating of LILCO bonds but offers no evidence that bond offerings at the new ratings are infeasible. See Public Service

! Company of New Hampshire (Seabrook Station, Units 1 and 2),

1 CLI-78-1, 7 NRC 1, 20 (1978). (2) SOC asserts that LILCO  !

l needs interim rate relief, pending final PSC action on the Company's present rate request, and yet fails to note i

that interim relief has already been granted. (3) SOC L implies some vague link between Shoreham's construction schedule, LILCO's request for rate relief and plant safety but cites no evidence whatsoever that the plant is being improperly built.5/

Siting Criteria. SOC argues that Shoreham is not sited in accordance with criteria now under development and as such can-not meet the Commissions new emergency planning regulations.

5/ This failure is particularly telling since the Commission has recognized that for established utilities, as opposed to ones formed solely for the construction of a nuclear plant, the relationship between financial quali-fications and safety is somewhat tenuous. Id. at 11.

l

4 4

4 1 4

{ First, to the extent new siting criteria are the subject 1 of rulemaking activity, they are not properly raised in a 5 2.206 request. See Public Service Electric and Gas i

Company (Salem Nuclear Generating Station, Units 1 and 2),

DD-80-19, 11 NRC 625, 627-28 (1970). Nor can the request 4

substitute for a petition for rulemaking to impose new l criteria. See General Electric Company (Vallecitos

] Nuclear Center, License No. SNM-960), DD-79-9, 9 NRC 744, 753 (1979).

Second, and more significant, the Licensing Board in Shoreham's OL proceeding has already admitted SOC's emergency a

planning contentions. The only conclusion that can be drawn from the present request is that SOC seeks not so much a determination on the merits as a means to delay an ultimate 4

j decision by raising identical issues in multiple forums.

Documentation of Deviations. In essence, SOC is com-J plaining about the way the NRC Staff is conducting its

, safety review of the Shoreham plant. The key issue, however, i

is not how the plant is reviewed but whether the review j (however conducted) adequately assures its safety. Interest-j ingly, SOC does not point to a single instance where plant safety is compromised by the current review process.

I

! And, as emphasized in Part II, if such an instance does exist, it

)

would be the prototypical example of an OL proceeding contention.

I I

~

TMI Issues. The Commission has issued guidance concerning the litigation of TMI issues in OL proceedings. See "Further Commission Guidance for Power Operating Licenses: Revised -

Statement of Folicy," 45 Fed. Reg. 85236 (December 24, 1980).

Once again, SOC has shown no exceptional circumstances that might justify considering TMI issues in both Shoreham's OL proceeding and a 5 2.206 case.

IV.

As concluded in our February 4 submittal to you, there is no basis for suspending, revoking or modifying Shoreham's CP. SOC has not raised the sort of " substantial health or safety issues" required to sustain a show cause order. See Consolidated Edison Company (Indian Point, Units 1-3), CLI-75-8, 2 NRC 173, 176 (1975). Instead, SOC has tried to cir-cumvent the available and appropriate forum for its complaints in order to complicate and delay Shoreham's licensing. SOC's companion request for a CP extension hearing has a similar goal. As such, both requests shed.1 La denied.

.irap~.cfully submitted, r .

LONG ISLAND LIGHTING COMPANY nua /b gg W. 7aylor vele y 111 d

Anthony F. Earley, Jr.

Hunton & Williams P. O. Box 1535 Richmond, VA 23212 Dated: February 27, 1981

. _ ,