ML19350E869

Complaint for Declaratory Relief & Writ of Mandamus.Court Should Declare That Shoreham Opponents Coalition Is Entitled to Hearing & That NRC Failure to Institute Proceeding on Application for CP Extension Violates Law

ML19350E869
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/17/1981
From:	Schmitt Z SHOREHAM OPPONENTS COALITION, TWOMEY, LATHAM & SHEA
To:	U.S. DISTRICT COURT, EASTERN DISTRICT OF NEW YORK
Shared Package
ML19350E863	List: ML19350E862 ML19350E869
References
NUDOCS 8106230605
Download: ML19350E869 (12)

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. UNITED STATES DISTRICT COURT g; g'U 'syNi .

E/ STERN DISTRICT OF NEW YORK  ; ,g 1$ ;9' ,

..................................,  % ($f}s, ii SHOREHAM. OPPONENTS COALITION, N

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Plaintiff,

) 81 Civ _ _ _ _

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) COMPLAINT FOR

-against- ) DECLARATORY RELIEF

) AND FOR WRIT OF THE NUCLEAR REGULATORY COMMISSION,) MANDAMUS HAROLD DENTON AS THE DIRECTOR OF. )

NUCLEAR REACTOR REGULATION, and )

THE LONG ISLAND LIGHTING COMPANY, )

)

Defendants. )

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x Plaintiff, the Shoreham Opponents Coalition, by its attorneys, TWOMEY, LATHAM & SCHMITT, for its comolaint arTains t ,

defendants, alleges:

Nature of the Action

1. This action seeks a judgment declaring tnat Shorenam Opponents Coalition (hereinafter " SOC") is entitled to a timely hearing on the application by tne Long Island Lighting Company (hereinafter "LILCO") to the Nuclear Regulatory Commission (hereinafter "NRC") for an extension of the completion dkte in the NRC construction parmit for the Shoreham Nuclear Power Station (hereinafter the "Shoreham Station"). This action also j 1

seeks a judgment declaring that SOC is entitled to a , timely '

ruling by the NRC's Director of Nuclear Reactor Regulation on 1

SOC's request under 10 CPR Section 2.206 for a proceeding to I

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t determine whether the construction permit for the Shoreham Station should be modified or revoked, and for other relief-.

This action further seeks a judgment declaring that the NRC's f ailure to provide SOC a timely hearing on LILCO's application for an extension to the Unit 1 construction permit, and the Director of Nuclear Reactor Regulation's f ailure to rule on SOC's petition under 10 CFR Section 2.206 violate clear nondiscretionary legal duties of the federal defendants and deprive plaintiff of due process under the Constitution of the United States.

Lastly, this action seeks judgment (a) directing the NRC to commence forthwith the required hearing on LILCO's application for an extension to the completion date for Shoreham Station construction permit, and (b) directing the Director of Nuclear Reactor Regulation to rule forthwith on SOC's petition under 10 CFR Section 2.206.

Pursuant to the guidance of the Third Circuit Court of Appeals in Susquehanna Valley Alliance v. Three Mil 7 Island, 619 F.2d ??I (3d Cir., 1980).

, SOC has also filed a Petition fcr Extraordinary Injunctive Relief Pendente Lite pursuant to the All Writs Act in the Second Circuit Court of Appeals.

SOC is seeking an extraordinary writ pursuant to 28 USC 1651(a) in order to oreserve the Appeals Court's jurisdiction to ceview q

the matter if and when a final order is entered in the NRC proceeding. If the District Court in this action conclude 3 that l

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all! of SOC's actions should be consolidated before the Court of Appeals, SOC will:be amenable to'such a consolidation..

Jurisdiction and Venue

2. The Court has jurisdiction pursuant to:

28 U.S.C. Section 1331' ( Federal Question) 28 U.S.C. Section 1361 (Mandamus) 28 U.S.C. Section 1651 (All Writs)

.28 U.S.C. Section 2201-02 (Declaratory Judgment) 42 U.S.C. Sections 2011, et seg. (Atomic Energy Act) 5 U.S.C. Sections 701-06 (Administrative Procedure Act) 5th Amendment to the. Constitution of the United States (Due Process)

Venue is based upon:

28 U.S.C. Section 1391

3. The muster in controversy exceeds $10,000, exclusive of A

interest and costs.

4. There exists between the parties an actual controversy, justiciable in nature, with respect to which the plaintiff requires a declaration of its rights by this Court.

The Parties S. P'laintiff Shoreham Opponents Coalition is an unincorporated association consisting of 20 civic and environmental groups on Long Island, New York. SOC, which maintains an office in Smithtown, New York, represents approximately 10,000 persons wno live within 60 miles of the constructior. site for the Shoreham Nuclear Power Station, and nearly all of whom are LILCO customers. The members of SOC stand to suffer irreparable harm from the denial of due process by federal defendants as current construction activities authorized

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by the NRC proceed prior to l hearings on SOC's concerns and proposed. safety and environmental requirements.

6. Defendant - Nuclear Regulatory Commission is an independent regulatory commission established by act of Congress s

(42 U.S.C. Section 5841) and is charged with all the nuclear

. licensing and related' regulatory functions of the former Atomic Energy Commission.(42 U.S.C. Section 5841[fl).

7. Defendant liarold Denton is the NRC's Director of Nuclear Reactor Regulation and heads the Of fice of Nuclear Reactor Regulation, which performs NRC licensing functions associated with the construction and operation of nuclear reactors (10 CFR Section 1.61).

8. Defendant Long Island Lighting Company-is a public utility responsible for providing service to the greater part of Long Island, New York, and which is subject to NRC regulatory and licensing authority for the construction of the Shoreham Station.

The Facts

9. On April 4, 1973, the former Atomic Energy Commission (hereinafter "AEC") issued Construction Permit No. CPPR-95 to LILCO for the construction of an 820 Mwe nuclear power reactor in Shoreham, New York, on the north shore of Lonq Island, in the County of Suf folk. The permit stated that the latest date for completion of the Shoreham Station would be May 1, 1979.

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10. The NRC, which took over the functions of the AEC on January 19, 1975,- provides in its regulations at 10'CFR Section 50.55 that, in part:

"(b). If the proposed construction or modificationLof the facility is not ~ completed by the latest completion date, the permit shall expire and all rights thereunder shall be forfeited: Provided, however, that upon good-

'cause shown the Commission will extend the completion date.for a reasonable period of time."

11. .W hen an NRC permittee files.an application for a renewal of a permit at least thirty days prior to the expiration of the existing permit, the NRC purports.to make the permit renewa1 'ef fective immediately, . prior to the consideration of the application, until the NRC finally rules on the application for renewal.

12. On December- 18, 1978, LILCO requested an extension of the latest completion date in the construction permit for the Shoreham Station because of delays LILCO purported to be due to strikes, insuf ficient manpower, severe weather, changes in regulations and late delivery of equipment. On May 14, 1979, the latest completion date for LILCO's Construction Permit was extended by the NRC from May 1, 1979 to December 31, 1980.

, 13. On March 28, 1979, a severe nuclear reactor accident occurred at the Three Mile Island Unit 2 power station in Pennsylvania. That accident has prompted a nation-wide inquiry into, and discussion of, the causes of reactor accidents and the I need for improved reactor safety and environmental features.

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14. On' November 26, 1980, LILCO requested a second extension of the' latest completion date in the construction permit for the'Shoreham Station because of delays LILCO purported

'to be_due to changes in regulations and regulatory interpretations, late delivery of equipment and difficulties in the completion of plant modifications. LILCO requested an-extension of the latest completion date from December 3, 1980 to March 31, 1963 (Appendix A).

15. On January 23, 1981, SOC filed a petition with the NRC requesting a) pursuant to Section 189(a) of the Atomic Energy Act of 1954, as amended, ("AEA") 4 2 U.S .C. Section 2239(a), that tne NRC institute a hearing on LILCO's application f r a second extension to the Shoreham. Station construction permit, and b) pursuant to 10 CPR Section 2.206 of the NRC's regula-tions, that the defendant Director of Nuclear Reactor Regulation institute a proceeding to modify, suspend or revoke the Shoreham Station construction permit, based on grounds identified by SOC, and, further, that the Director suspend LILCO's construction permit pending 'the outcome of that proceeding (Appendix B),

LILCO filed two responses to the SOC petition, the first on t February 4, 1981, and the second on February 27, 1981 (Appendix C).

16. On April 14, 1981, SOC wrote to defendant Director of Nuclear Reactor Regulation demanding a response to its January 23,'1981 petition and underscorinq the prejudice to 90C caused by federal defendants' inaction. SOC received no reply to its April 14,.1981 letter ( Appendix D) .

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.17 . 'According to the most recent LILCO electric rates filing setting forth construction costs, approximately 25% of construction work on the Shoreham Station remains to be completed, and LILCO is now proceeding with that construction'on an expedited basis.

18. To date, federal defendants have failed to institute a hearing under Section 189(a) of the AEA on LILCO's application for an extension to its construction permit and have further failed to either institute a proceeding pursuant ,o SOC's petition under 10 CFR Section 2.206, or advise SOC in writing why such a proceeding will not be inst'tuted . in whole or in part.

,The Law 1 . . The Atomic Energy Act of 1954, as amended, declares that:

"In any proceeding under this chapter for the granting, suspending, revoking or amendment of any license or construction-permit . . . the Commission shall granc a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding." (42 U.S.C.

Section 2239(a))

20. LILCO's application for an extension to the Shoreham Station construction permit entitled SOC to request the NRC to institute a hearing on the application, and the NRC is required, as a matter of law, to grant SOC's requust and to institute a hearing so as to provide timely and reaningful public review of the issues involved in the extension of the construction permit.

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A hearing-on the application for an extensinn held af ter all or a substantial part of the remaining construction is completed would not' satisfy the requirement of AEA Section 189(3).

21. For the purposes of 10 CFR Par.t 2 of its regulations, the NRC states that:

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"' License' means a license or construction permit issued by the Commission." 10 CFR Section 2.4(i)

22. Pursuant to NRC regulations 10 CFR Section 2.202:

"(a) The Director of Nuclear Reactor Regulation . . . may institute a proceeding to modify, suspend, or revoke a license or for such other action as may be proper by serving on the licensee an' order to show cause . . .

(D) A licensee may respond to an order to show cause by filing a_ written answer under oath or affirmation. . . . the answer may demand a hearing.

(c) If the answer demands a hearing, the Commissioner will issue an order designating the time and place of hearing . . . .

(f) When the Director of Nuclear Reactor Regulation . . .

finds that the public health, safety or interest so requires . . . the order to show cause .nay provide, for stated reasons, that the proposed action be temporarily effective pending further order."

23. Pursuant to NRC regulations, 10 CFR Section 2.206:

"(a) Any person may file a request for the Director of Nuclaar Reactor Regulation . .. . to institute a proceeding pursuant to Section 2.202 to modify, suspend or revoke a license, cr for such other action as may be proper . . .

(b) Within a reasonable time af ter a request pursuant to paragraph (a) of this section has been received, the Director of Nuclear Reactor Regulation . . . shall either institue the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor."

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(2) No petition or other request for Commission review of a Director's decision under thi.s section will be entertained by the Commission."

24. Upon information and belief, unless ordered by this Court both.to institute the proceeding required by AEA Section 189(a) and to rule on SOC's petition under 10 CFR Section 2.206, the federal defendants will continue to fail to respond to SOC's requests and will allow construction of the Shoreham Station to

- proceed to completion, thus. violating clear their clear nondiscretionary' legal duties and, by reason of the foregoing, denying plaintiff due process at a meaningful time. Plaintiff is thus threatened with irreparable injury and has no adequate remedy at law.

Plaintiff's First Claim

25. Paragraphs 1 thecugh 24 are incorporated by-reference 4

herein.

26. Plaintif f is entitled to a timely hearing before the NRC on LILCO's application for an extension to the Shoreham Station construction permit pursuant to Section 189(a) of the AEA. Such hearing must be held at a meaningful time in the administrative process.

Flaintiff's Second Claim 12 7 . Paragraphs 1 through 24 are incorporated by reference herein.

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28. Plaintiff'is entitled to a timely ruling by the defendant ' Director of Nuclear Reactor Regulation on SOC's request under - 10 CFR Section 2.206. The defendant Director is required to either institute the proceeding requested by SOC _ to modify, suspend or revoke the Choreham Station construction permit,- or advise SOC, in writing, why such a proceeding is being denied in whole or in part, with the reasons therefor. Such a ruling.must be issued at a meaningful time in the administrative process.

Plaintiff's Third Claim

29. . Paragraphs I through 28 are incorporated by reference herein.

30. Defendant NRC's failure to institute a heari g on LILCO's application for an extension to the Shoreham Station construction permit as requested by SOC violates ~ the NRC's clear nondiscretionary legal duty under Section 189(a) of the AEA, 42 U.S.C. Section 2239(a).

Plaintiff's Fourth Claim  ;

31. Paragraphs 1 through 30 are incorporated by reference herein.

32. Defendant Director of Nuclear Reactor Regulation's failure either to institute a proceeding pursuant to SOC's request under 10 CFR Section 2.206 or to advise SOC in writing that the procee ing will not be instituted in whole or in part, with the reasons for that decision, violates the defendant's clear nondiscretionar) legal duty under 10 CFR Section 2.206.

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-Relief Sought Wherefore, plaintiff prays.for judgment:

a) declaring that SOC is entitled to the qrant of a hearing under Section 189(a) and a ruling on.its. petition under 10 CFR-Section 2.206; b). declaring that defendant NRC's failure to institute a proceeding on LILCG's application for an extension to its construction permit and defendant Director of Nuclear Reactor -

Regulation's f ailure to rule upon SOC's petit i- under 10 CFR Section 2.206 while construction continues are violations of applicable law; c) directing the defendant NRC to conduct _the hearing

- requested by SOC as required by Section 189(a) of the AEA and further directing defendant Director of Nuclear Reactor Regulation either to institute the proceeding requested by SOC under 10 CFR Section 2.206 or to advise SOC in writing why such a hearing will not be held in whole or in part; d) declaring, in the alternative, that defendants' respective failures to act upon SOC's petitions under Section 189(?) of the AEA and 10 CPR Section 2.206 constitute final agency orders det;ying SOC's petitions, and are reviewable directly in the Court of Appeals; e) awarding plaintiff's reasonable attornevs' fees together with the costs and disbursements; 11- ,

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' gJ f) l granting such;other and:further relief to-the plaintiff

'as the Court may considerD just and proper. -

i Dated: Riverhead,-New York

' June /

, .1981 1 e TWOMEY, LAT!!AM fn SCHMITT Attorneys for Plaintiff

. e by ,

Zig Schmitt

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P.O. Box 398, 3 3 W. 2nd St.

Riverhead, N.f. 11901 (516) 727-2180 4

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