ML20031G147
| ML20031G147 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/15/1981 |
| From: | Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CPA, NUDOCS 8110210160 | |
| Download: ML20031G147 (13) | |
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Eil oy Before the Atomic Safety and Licensing Board G/
Ctr In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322 (CPA)
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(Shoreham Nuclear Power
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Station, Unit 1)
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APPLICANT'S REPLY TO q(fs y/
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SOC'S STATEMENT OF CONTENTIONS
/, / [Y FOR A CONSTRUCTION PERMIT
'V EXTENSION HEARING I
i I.
On July 22, 1981, the Nuclear Regulatory Commission granted the request of the Shoreham Opponents Coalition (SOC) for a construction permit extension hearing " subject to the petitioner advancing at least one litigable contention."
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(Emphasis added.)
In an attempt to satisfy this requirement, SOC filed on September 25th its " Statement of Contentions Pursuant to 10 CFR Section 2.714, with Respect to the 9b l
S i
Application for a Construction Permit Extension" [ hereinafter
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l 8110210160 811015 l
[DRADOCK 05000322
[
PDR I
8 cited as SOC Petition].
SOC also filed on that date (1) a letter to Harold R.
Denton, making various NEPA demands, and (2) a " Motion Pursuant to 10 CPR Section 2.714 to Supplement Contentions with Respect to the Application for an Operating License."
None of these documents, however, includes "at least one litigable contention."
Accordingly, under the Commission's July 22, 1981 directive, no CP-extension hearing 11 appro-priate.
II.
What sorts of contentions are litigable in a CP-extension hearing?
In 1973, the Appeal Board said that "[i]n the final analysis, the question here comes down to whether the reasons assigned for the extension give rise to health and safety or environmental issues which cannot appropriately abide the event of the environmental review-facility operating license hearing."l/ Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414, 420 (1973).
Presented with safety-related contentions challenging a facility which, like Shoreham, was far along in construction and for which operating-license hearings were soon to begin, the Appeal Board explained that:
[H]ad the design changes effected by the applicants in the present case, taken in I
conjunction with other factors, not 1/
The Appeal Board noted that its inquiry was " entirely res nova."
Cook, 6 AEC at 420.
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delayed the completion of construction beyond the latest completion date specified in the permits, there would be no question that (absent a show cause proceeding) any safety issues associated
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with those changes would have been considered by the Licensing Board in the operating license proceeding--and not before.
It is hard to fathom wny a different result should obtain simply because of the fortuitous circumstance that a combination of events--only one of which involved design changes--did require applicants to seek an extension for completion.
Cook, 6 AEC at 421.
Last year, the Appeal Board restated the basic test formulated in Cook:
[I]ntervenors [may] litigate only those safety or environmental issues which both (1) arose from the reasons assigned in justification of the request for a construction permit extension; and (2)
[can] not, consistent with the protection of the public interest,
" appropriately abide the event of the environmental review-f acility operating license hearing."
l Northern Indiana Public Service Co. (Bailly Generating St.1 tion, l
l Nuclear 1), ALAB-619, 12 NRC 558, 568, aff'g LBP-80-22, 12 NRC 191 (1980).
In Bailly, the contentions proposed for a CP extension hearing dealt with the site suitability of a facility that was less than 1% built, and the proposed contentions had nothing to l
do with reasons given to justify the CP extension.
Applying
" common sense" and considering "the totality of the circum-Stances," the Appeal Board stated that:
_4-
[W]ere the operating license proceeding the only alternative vehicle for the airing of petitioners' concerns, we would encounter great difficulty in erecting a barrier, on the strength of anything said in Cook, to the exploration of those concerns in the
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(CP-extension hearing].
To be sure, petitioners do not satisfy the precise test employed'in that decision; to repeat, their site suitability contentions are not rooted in the reasons assigned for the delay in completing construction.
But that test was tailored to the particular facts of that case.
Bailly, 12 NRC at 570.
However, noting that 10 CPR S 2.206 provides a forum for contentions based upon "a newly arising cause why plant construction should be halted well before the operating license stage is reached," the Appeal Board found that "where [a proposed contention based upon a newly arising cause] has no discernible relationship to any other pending l
proceeding involving the same facility (e.g., one concerned with permit extension), the Section 2.206 remedy must be regar acu as exclusive."
Id.
This nexus requirement was reiterated in Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), LBP-80-31, 12 NRC 699 (1980), where the Board stated:
l "Considering that the newly-filed contentions are unrelated to the reasons assigned for the requested construction permit extension (the first prerequisite (to a CP-extension hearing]), this Board has no choice but to reject the contentions Bailly, 12 NRC at 701 (emphasis added).
In denying a motion to reconsider that decision, the Board emphissized that:
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While ALAB-619 may have disclaimed the two-pronged test as "an inflexible mold" for judging every contention in all permit extension proceedings, it clearly mandated the dismissal of any contention that has "no discernable relationship" to the permit extension as is the case with the newly-filed contentions.
For those contentions, 10 C.F.R.
S 2.206 is the exclusive remedy.
Ibid.
Whether or not that formulation in ALAB-619 is merely a rephrasing of the first prong of the Cook test as we see it, intervenors have offered no substantial reason for reversing our ruling.
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), LBP-81-6, 13 NRC 253, 254 (1981) (emphasis added).
Against this background, the Bailly determination of litigability involves three successive questions: first, does each proposed contention concern a " safety or environmental" l
issue; if so, second, does the would-be contention arise "from i
the reasons assigned in justification of the request for a construction permit extension" or otherwise have a " discernable relationship" to it; and, assuming it does, third, can litigation of the contention " appropriately abide the operating license hearing"?
A negative answer to either of the l
first two questions precludes reaching the next level (s) of 1
inquiry.
See Bailly, 12 NRC at 701.
On the present facts, answers to these three questions make clear that SOC has no,right to a CP-extension hearing.
We deal below with each question, in turn.
III.
SOC has proposed four CP-extension contentions, concerning (1) Class 9 accidents, (2) liquid pathways, (3) siting (actually, emergency planning), and (4) financial qualifications.
A.
Question One of the Bailly Test:
Whether Each Proposed Contention Concerns Safety or Environmental Issues _,
SOC's fourti would-be contention (concerning financial qualifications) flunks this test.
SOC has made no claim -- much less an adequate S 2.714 showing -- that a
" safety or environmental" issue is involved in its financial claim.
Rather SOC states in pertinent part:
Before any extension of the Shoreham construction permit can be
- granted,
. LILCO must provide detailed financial information sufficient to demonstrate its present ability to cover remaining construction and fuel cycle costs.
Should LILCO's ability be contingent upon the granting of further rate relief by the PSC, LILCO must detail the nature, timing and magnitude of such relief and its basis for concluding that such relief will be granted.
SOC Petition at 24-25.
If this financial deraand is appropriately concidered by any regulatory body, it would be state rate-making authori-ties -- not the NRC in the discharge of its safety and environmental responsibilities.2/
2/
It is also worth note'that the Commission's interest in Tinancial inquiries at the OL stage is limited.
See " Financial (continued)
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B.
Question Two of the Bailly Test:
Whether Each Proposed Contention Arose from the Justifications Advanced for the CP Extension To justify an extension of Shoreham's construction permit, LILCO stated:
The extension is needed for a number of reasons which include:
1.
New Regulatory Requirements 2.
Evolving Interpretation of Existing Regulatory Requirements 3.
Late Delivery of Equipment 4.
Unexpected Difficulties in Completion of Required Plant Modifications Letter from Joseph P.
Novarro to Harold R.
Denton, SNRC-517, dated November 26, 1980.
Although SOC argues its would-be contentions at length, it never mentions the Applicant's reasons for a Shoreham CP extension.
Indeed, Petitioner has made no effort _at_all to show the essential nexus -- at least a " discernable relationship" -- between the issues it wants considered in a CP-extension hearing and LILCO's CP extension request.
Whatever SOC's motive for utterly disregarding the nexus element of the Bailly standard, that disregard is fatal to Petitioner's desire for hearings on the extension request.
See Cook, 6 AEC at 420; Bailly, 12 NRC at 568.
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l Perhaps SOC's silence reflects the fact that its j
(continued)
Qualifications; Domestic Licensing of Production and Utilization Facilities," 46 Fed. Reg. 41786 (Aug. 18, 1981)
(proposed rule).
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. t concerns and claims -- premised in one form or another on the occurrence of severe radiological accidents / -- have nothing 3
to do with the construction of the plant.
They become ripe, if all,4/ only when considering the station's operation.
at Accordingly, satisfaction of the crucial Bailly nexus is missing, not only because SOC defaulted on its obligation to try to show it, but also because the nexus simply does not exist.
C.
Question Three of the Bailly Test:
Whether Each Litic.:ble Contention Can Await OL Hearings This question need not be reached, since none of SOC's would-be contentions survives Bailly questions one and/or two.
Nonetheless, it is worth noting that Shoreham's OL hearings will begin at least as soon as any CP-extension hearings could get underway, following all necessary prehearing steps.
Shoreham is 90% built.
Its physical readiness for fuel load is only a year away.
Its OL proceeding has been vigorously ongoing since April 1976.
The Staff's Safety Evaluation Report on the plant has been available since April 1981, and an equally voluminous SER Supplement No. I was issued 3/
Although SOC's financial claim does not hinge on Class 9 events, neither does it deal with any safety or environmental aspect of either Shoreham's construction or operation.
See page 6 above.
4/
Though irrelevant here, the applicability of SOC's Class 9 demands to Shoreham in Jan NRC forum is questionable.
See
" Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969,' 45 Fed. Reg. 40101, 40103 (June 13, 1980) (statec ent 'of interim policy).
last month, closing most of the "open items" in the Staff's review of Shcreham.
Following subcommittee review, the ACRS will consider the plant on October 15, 1981.
Accordingly, LILCO moved on October 6, 1981 that the Board adopt a schedule leading quickly to OL hearings.
The imminence of OL hearings obviates any need for separate CP-extension hee _ngs, even assuming the existence of litigable CP-extension issues.5/ The imminence of OL hearings also monts F)C's pending " Motion
. to Supplement Contentions with Respect to the Application for an Operating License."
In this motion, SOC asked for early consideration in a CP-extension hearing of certain TMI issues "should the [OL) proceedings be delayed."1/ As indicated, the OL proceeding is moving rapidly towards hearings, and the OL forum is the proper place for further consideration of these TMI issues, beginning with whether they are adequately particularized and otherwise justiciable.
LILCO does not believe that they all are, and the 5/
While not material here, SOC is mistaken that $500 million must be spent to finish the plant, exclusive cE carrying charges on prior expenditures.
The correct figure is approximately $387 million.
Further, given completion of the plant by fall 1982, it is unrealistic to suggest that, if only SOC could have CP-extension hearings, it could quickly stop the plant's construction.
The likelihood of any such an end to the Shoreham project is remote at_best, and the likelihood of obtaining it within a matter of months (and thus in time to save some of the alleged $500 million) is flatly nonexistent.
6/
Of course, SOC would have to meet the Bailly test to Include these issues in a CP-extension hearing.
That it cannot do, for the same reasons that its Class 9, liquid pathways and siting contentions are not litigable in such a hearing.
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Company expects to so indicate very shortly in the OL proceed-ing.
In the Applicant's October 6, 1981 motion to this Board, November 4th was suggested as the date for all parties to file their final positions on proposed contentions, TMI issues included.1/
IV.
SOC also argues that a CP-extension hearing is required because its would-be contentions were not considered as fully as SOC wished, pursuant to 10 CFR S 2.206.
That does not follow.
SOC sought and received a S 2.206 decision.
See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), DD-81-9, 13 NRC (June 26, 1981).
If SOC disliked that decision, the remedy was to appeal it judicially and seek a remand to Director Denton for more detniled consideration of SOC's claims.
The remedy is not consideration in a CP-extension hearing of issues not litigable there.
Each pertinent NRC forum -- the CP-extension proceeding, the S 2.206 proceeding, snd the OL proceeding -- has its own jurisdictional requirements that must be satisfied irrespective _of developments elsewhere.
3 7/
SOC requested that the TMI issues be considered "as expeditiously as possible" for litigation in the OL hearings, SOC Petition at 26, and that the Board " rule now on the admissibility in the OL proceeding of those contentions found
. to be not litigable in the c!--extension hearings."
SOC Petition at 34.
Again, the CP-extension proceeding is the wrong forum in which to consider these matters.
They are being engaged, ac appropriate, in the OL proceeding.
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V.
Finally, what of SOC's NEPA claims?
N63A can be satisfied here by NRC issuance of a negative declaration, because extending Shoreham's construction permit will have no adverse consequences other than those alrt:ady analyzed in prior Shoreham impact statements.
Indicatively, such a negative declaration accompanied the first extension of Shoreham's CP:
The preparation of an environmental impact statement for this particular action is not warranted because there will be no environmental impact attributable to the action authorized by the Order other than that which has already been predicted and described in the Commission's Final Environmental Statement-Operating License Stage for the Shoreham facility, published in October 1977 and the Final Environmental Statement-Construction Permit Stage published in September 1972.
A negative declaration and an environmental impact appraisal have been prepared and ate available, as are the above stated documents, for public inspection 44 Fed. Reg. 29545 (May 21, 1979).
Other than Class 9 arguments not applicable to Shoreham, 8/ SOC has suggested no l
i reason why a negative declaration will not suffice for the second extension of the plant's CP.
No such reasons exist.
VI.
Pursuant to the Commission's Order of July 22, 1981, there may be no CP-extension hearing because SOC has failed to advance "at least one litigable contention."
While the 8/
See note 4 above.
a rationale for SOC's default is not clear, the fact of its existence is unavoidable.
Respectfully submitted, l
/
/ $] A'V 1
4^
W. Ta'ylo Reveley, III Anthony F.
Earley, Jr.
Kathy E.B.
McCleskey H"qton & Williams 7C1 East Main Street P.O.
Box 1535
"'..amond, VA 23212 DATED:
October 15, 1981 CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Reply to SOC 's Statement of Contentions for a Construction Permit Extension Hearing were served upon the following persons by first-class mail, postage prepaid, on October 15, 1981:
Louis J.
Carter, Esq.
Jeffrey C.
Cohen, Esq.
Administrative Judge New York State Energy Office 23 Wiltshire Road Swan Street Building, Core 1 Philadelphiac Pennsylvania 19153 Empire State Plaza Albany, New York, 12223 Dr. Oscar H.
Paris Administrative Judge Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Board Panel Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C.
20555 Albany, New York 12223
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Mr. Frederick J. Shon Howard L.
Blau, Esq.
Administrative Judge 217 Newbridge Road Atomic Safety and Licensing Hicksville, New York 11801 Board Panel U.S. Nuclear Regulatory Commission Ralph Shapiro, Esq.
WaFhington, D.C.
20555 Cammer and Shapiro, P.C.
9 East 40th Street Secretary of the Commission New York, New York 10016 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dav id J. Gilmartin, Esq.
Attn: Patricia Dempsey, Esq.
Atomic Safety and Licensing County Attorney Appeal Esard Panel Suffolk County Department of Law U.S. Nuclear Regulatory Commission Veterans Memorial Highway Washington, D.C.
20555 Hauppauge, New York 11787 Atomic Safety and Licensing Mr. Marc W.
Goldsmith Board Panel Energy Research Group, Inc.
U.S. Nuclear Regulatory Commission 400-1 Totten Pond Road Washington, D.C.
20555 Waltham, Massachusetts 02154 Bernard M.
Bordenick, Esq.
MHB Technical Associates U.S. Nuclear Regulatory Commission 1723 Hamilton Avenue Washington, D.C.
20555.
Suite K San Jotu, California 95125 Stephen B.
Latham, Esq.
Twomey, Latham & Schmitt 33 West Second Street P.O. Box 398 Riverhead, New York 11901 jf f
VWil I
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- Rev eley, III W. Jay 1 l
Hunt
& Williams 707 East Main Street P.O.
Box 1535 Richmond, Virginia 23212 DATED:
October 15, 1981 l
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