ML20059B062

Long Island Power Authority Response to Nuclear Regulatory Commission Order of 931014.* Requests That NRC Reject State of Nj Filing.W/Certificate of Svc

ML20059B062
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/20/1993
From:	Lanpher L KIRKPATRICK & LOCKHART, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#493-14396 MISC-93-01, MISC-93-1, NUDOCS 9310280017
Download: ML20059B062 (11)

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UNITED STATES OF AMERICA ;2sc NUCLEAR REGULATORY COMMISSION

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) ,. , , .3 In the Matter of ) j}h ;n . [ 0m!  !

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STATE OF NEW JERSEY ) Docket No. Misc. 00 01

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Department of Law and Public ) Docket No. 50-322 Safety's Requests, )

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dated October 8, 1993. )

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LONG ISLAND POWER AUTHORITY RESPONSE TO NUCLEAR REGULATORY COMMISSION ORDER OF OCTOBER 14. 1993 [

In accordance with the Nuclear Regulatory Commission's

("NRC") Order dated October 14, 1993 (" Order"), the Long Island Power Authority ("LIPA") hereby responds to the two questions I r

posed therein: ,

(1) Whether at this time either matter referenced by the State gives rise to any hearing right under Section 189 of the Atomic Energy Act; and, if so, (2) Based on l the State's October 8, 1993 submittal, does New Jersey j meet the applicable standards for intervention under 10 i C.F.R S 2.714?  ;

Order at 2.F With respect to the Shoreham Nuclear Power Station

("Shoreham"), the Commission framed the matter as whether "the i Commission erred in not offering intervention and a hearing on LIPA's ' transfer and transportation of the [Shoreham] fuel.'"  !

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F LIPA does not herein address the specifics of New Jersey's 47- j page filing. LIPA understands that this submission should address only jurisdictional / procedural issues, leaving the

" merits" to a later filing, if the Commission were to determine j that New Jersey's filing requires further consideration. LIPA 1 wants it to be understood, however, that it disagrees strongly with many of New Jersey's merits-related allegations. .,

DC-115126.1 9310P80017 931020 PDR ADOCK 05000322 f%5o ]3 O PDR l

t Order at 2 (quoting from New Jersey filing dated October 8, 1993 at 46 ("N.J. Filing")).2t I. The Matter Raised by New Jersey Does Not Give Rise to Section 189 Hearino Richts [

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New Jersey's petition may trigger Section 189 hearing rights _

only if there is a " proceeding . . . for the granting, suspending, revoking, or amending of any license or construction  !

permit . . . .." 42 U.S.C. S 2239 (a) (1) (A) ; see .10 C.F.R. S 2.714 (a) (1) . As demonstrated below, there is no such current proceeding. Moreover, at no time was the NRC under an obligation s

to convene any proceeding regarding LIPA's transport of the Shoreham fuel.

First, there presently is no " proceeding" with respect to 1 Shoreham for the granting, suspending, revoking or amending of any license pertaining to Shoreham. Absent such a proceeding, New Jersey has no hearing rights. E.o., Illinois v. Nuclear i Reculatory Comm'n, 591 F.2d 12, 14 (7th Cir. 1979) (Section 189 requires the NRC to hold hearings only after a formal proceeding has begun; when no proceeding has been commenced, the State has l l

no right to a hearing). '

i NRC regulations regarding the requirements for the commencement of a proceeding are clear,-and none of these requirements is satisfied here. See 10 C.F.R. SS 2.104, 2.105. i e

The courts have ruled that these NRC procedures for commencement i of proceedings are proper and determine when Section 189 rights '

21 The other matter as to which the Commission requested a response pertains to the Limerick Generating Station l

(" Limerick"), owned by Philadelphia Electric Company ("PECO").

Order-at 2. PECO will file a response addressing that issue.

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I a.;e triggered. E.g., West Chicaco v. Nuclear Reaulatory Comm'n, {

701 F.2d 632, 63 (7th Cir. 1983). See also Texas Utilities Elec.

I Co. (Comanche Peak Steam Elec. Station, Unit 2), CLI-93-4, 37

- i N.R.C. 156, 160 (1993) (issuance of full power license ends the I operating license proceeding; all subsequent challenges to the .

license must be under 10 C.F.R. S 2.206).

Second, New Jersey's request under 10 C.F.R. S 2.206 that the NRC Staff commence a proceeding under 10 C.F.R. S 2.202 does not trigger Section 189 hearing rights. See Eddleman v. Nuclear. >

Reculatory Comm'n, 825 F.2d 46, 48 (4th Cir. 1987) (the f disposition of a petition under S 2.206 is not a " proceeding" under Section 189(a) to which hearing rights attach);

Commonwealth Edison Co. (Shipment of Irradiated Nuclear Fuel from West Valley, N.Y.), DD-83-14, 18 N.R.C. 726, 728 n.1 (1983)  !

(" Consideration of a request for action under 10 C.F.R.

S 2.206 does not initiate any formal proceeding or give rise to ,

any hearing or intervention rights under the Atomic Energy i t

Act."). Only if the Staff decides to institute a proceeding pursuant to 10 C.F.R. S 2.202 will Section 189(a) hearing rights t

possibly be implicated. See Porter County Chapter of the Izaak l i

Walton Leaaue. Inc. v. Nuclear Reculatory Comm'n, 606 F.2d 1363, '

l 1368-69 (D.C. Cir. 1979) (Section 189(a) defines procedures to be l

\

implemented once a proceeding has begun). l Third, perhaps recognizing the weakness of its claim for a hearing, New Jersey appears to assert that the NRC erred in the first instance in granting LIPA general authority under 10 C.F.R. 1 Part 71 to transport the fuel instead of requiring LIPA to obtain J

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a separate license amendment for the transport. There are multiple reasons why such an argument must be rejected.

First, to the extent New Jersey is challenging the license previously issued to LIPA, New Jersey must do so under 10 C.F.R.

S 2.206, not via an intervention petition. See Texas Utilities, 37 N.R.C. at 160. Second, New Jersey's claim is nothing but an attack on the NRC's general licensing scheme. New Jersey is dissatisfied that a specific NRC approval is not required at this time. However, under the NRC's licensing scheme, LIPA needs no further NRC approval for transport of the fuel. Rather, as a Part 50 licensee, LIPA has a general license under Part 71 to transfer and transport the fuel,2/ so long as it utilizes NRC-approved casks and moves those casks in accordance with Department of Transportation regulations. See 10 C.F.R. S 71.12.

New Jersey's complaint, therefore, is strictly with the NRC's general licensing scheme. This challenge is impermissible.

See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-456, 7 N.R.C. 63, 65 (1978) (as a matter of law, a challenge to a regulation may not be permitted in an adjudicatory proceeding). See also 10 C.F.R. SS 2.758, 50.12.

I' New Jersey alleges that Section 71.12 permits only the transport and not the transfer of licensed materials, thus suggesting that LIPA has no authority to transfer its fuel. N.J.

Filing at 32. This assertion demonstrates the lengths to which New Jersey apparently will go to attempt to disrupt LIPA's carefully planned fuel shipment campaign.

New Jersey allegedly is concerned about environmental dangers. No such dangers possibly could be presented by the transfer of the fuel, which 3 will occur when the fuel is delivered to PECO at Limerick. In any event, the NRC, in approving the receipt of the fuel by PECO, has given whatever approval is required for the transfer of the fuel.

A challenge to the NRC's regulations must be made in a b

petition for rulemaking requesting the Commission to change its  !

l rules. Shloments of Hich-Level Nuclear Power Plant Waste Throuah i and to Illinois, 18 N.R.C. 713, 717, 720 (1983) (Where petitioners seeking to postpone spent fuel shipments do not allege a shipper's violation of the NRC regulatory scheme, but  ;

seek additional public hearings on the NRC's approval of the shipments, the NRC directs them to file a petition for rulemaking). '

New Jersey also appears to be challenging the NRC's Table S-  !

4, found in 10 C.F.R. Part 51, as defective or otherwise invalid 1 i

when applied to LIPA's barge shipments of the fuel.f' Again,  !

however, such a challenge cannot be permitted. E.a., Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units j 1 and 2), LBP-76-9, 3 N.R.C. 205, 207 (1976) (intervenor may not  ;

challenge Table S-4 absent application for and issuance of a ,

waiver).F i i

s' New Jersey alleges that no environmental analyses were conducted in connection with the transportation of the fuel. ,

N.J. Filing at 5. That is untrue. With respect to the operating license for shoreham, Table S-4 values were incorporated, thus ,

factoring into the balance the anticipated transportation 1 impacts. 1 F

Further, New Jersey's attacks on the adequacy of the NRC Staff's review of LIPA's applications for NRC licenses or subsequent amendments thereof (N.J. Filing at 4), are impermis- I sible and provide no hearing rights. "[1]n an operating license proceeding . . ., the applicant's license application is in issue, not the adequacy of the staff's review of the application. I An intervenor . .

. may not proceed on the basis of allegations that the staff has somehow failed in its performance." Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3),

ALAB-812, 22 N.R.C. 5, 55-56 (1985) (citing Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

(continued...)

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_ _ _ _ _ _ . -_ _ . I

In essence, New Jersey is challenging the validity of NRC regulations and NRC Staff actions, both of which are prohibited, absent compliance with specific regulatory requirements. See 10 C.F.R. SS 2.758, 50.12. Under no circumstances could New Jersey be entitled to a hearing for this purpose.

Finally, New Jersey asserts a fantastic claim that LIPA's general Part 50 license for Shoreham must be reviewed because it was issued by the NRC without a required consistency determination under the Coastal Zone Management Act, 16 U.S.C. SS 1451 et sea ("CZMA"). N.J. Filing at 32-35. New Jersey is incorrect, however, because LIPA's general license for the transport and transfer of spent fuel is not a " required federal approval" that triggers CZMA requirements.s' To the extent that New Jersey alleges that there should have been a separate, required NRC approval of the fuel transport triggering CZMA requirements, it is impermissibly challenging the NRC's regulations.  !

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i l'( . . . continued)

ALAB-728, 17 N.R.C.

1309 (1983)).

777, 807, review denied, CLI-83-32, 18 N.R.C.

e' New Jersey has no basis to allege that the NRC violated the i CZMA shipments. with respect to Coast Guard activities pertaining to fuel ^

Both the coast Guard and the National Oceanographic and Atmospheric Administration ("NOAA") have stated that the shipments involved no required federal permit issued by the Coast Guard.

Further, the United States District Court in Trenton, New Jersey, in Civil Action 93-4269, on October 12, 1993, ruled that no required federal permit had been issued by the Coast Guard and thus that the CZMA was not triggered.

II. Assumino Arquendo That an Intervention Riaht Exists.

New Jersey Has Failed to Satisfy ADolicable NRC Standards For Intervention LIPA evaluates here whether New Jersey's petition satisfies the Section 2.714 (a) (1) criteria for untimely intervention petitions, since its petition was filed long after New Jersey became aware of the fuel shipment plan and, indeed, after several ,

fuel shipments had occurred.2/ While it is difficult to assess New Jersey's intervention into a proceeding that does not exist, LIPA nonetheless offers several comments.

First, New Jersey must show that it has " good cause" for its nontimely filing. New Jersey cannot make such a showing, since it had knowledge of the proposed shipments months before  !

submitting its petition. See Textiles Utilities, 37 N.R.C. at 164-165 (where information was in the "public domain" for six months prior to an intervention petition being filed, the petition was denied for lack of good cause).

In this instance, New Jersey has not been timely; its statements to the contrary (N.J. Filing at 44-46) are not complete or accurate. In summary, the pertinent facts are as follows:!'

2' Many of the points addressed in Section I above are also relevant to whether New Jersey has satisfied the intervention criteria. For example, New Jersey's failure to proffer an i admissible contention (it only seeks to challenge NRC regulations) is a factor militating against intervention.

I' Given the 10-page limit imposed on this submission, LIPA will j abbreviate discussion of the facts. Each of the facts set forth ,

in the text is contained in one or more of the affidavits sub- 5 mitted by defendants in the New Jersey District Court litigation.

See Note 6, suora. Copies of those affidavits have been previously submitted to NRC counsel (and, obviously, to New Jersey) and will not be resubmitted at this time.

New Jersey was informed by LIPA personnel in late May 1993, that it was considering barge transportation of the fuel.

In June 1993, LIPA personnel met twice with New Jersey personnel to discuss barge transportation plans. The second meeting, on June 22, included representatives of the Coast Guard and NOAA, thus underscoring the seriousness of LIPA's plans.

On July 8, 1993, a New Jersey official advised PECO that it might attempt to invoke the CZMA to delay or prohibit barge shipments.

On August 9, 1993, LIPA gave written notice to New Jersey that barge shipments would start on or just after September 23, 1993.

On September 8, 1993, New Jersey protested the proposed barge shipments to the Coast Guard.

On September 15, 1993, New Jersey protested the proposed barge shipments to NOAA.

On September 21, 1993', New Jersey sued LIPA, PECO, the Coast Guard, and the NRC in federal District Court and since then has expended enormous resources (and forced defendants to do likewise) in pursuing the suit.

On September 22, 1993, before the District Court, defendants pointed out that New Jersey had not pursued various potential avenues for relief at the NRC.

Notwithstanding the foregoing --

a record of New Jersey knowledge of the barge shipments since May and actual written notice since early August --

New Jersey waited until October 8, 1993, to make its initial NRC filing. LIPA respectfully submits that there is no excuse for such delay and that this militates strongly against permitting intervention, assuming there were a proceeding in which to intervene.

Where there is no " good cause for tardiness, the petitioner's demonstration on the other factors must be particularly strong." Texas Utilities, 37 N.R.C. at 165 (citing Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3),

i ALAB-431, 6 N.R.C. 460, 462 (1977)). Because New Jersey has_made no showing of good cause, and because its showing on the other factors is weak, its petition must be denied.

Section 2.714 (a) (1) (ii) addresses whether there are other ,

means by which New Jersey's interests could be protected. In this instance, where there is no proceeding, the procedure under 10 C.F.R. S 2.206 is specifically designed to provide a mechanism to address the State's concerns. Also, New Jersey clearly has utilized procedures at NOAA, the Coast Guard and in the courts in an effort to champion its cause. Any claim that it has no other forums in which to protect its interest is inaccurate.

With regard to the third factor of Section 2.714 (a) (1) , New Jersey has failed to show that its participation will contribute to " developing a sound record." 10 C.F.R. S 2.714 (a) (1) (iii) .

New Jersey's pleading, while replete with references to the

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fragile nature of its coastal areas, fails to state the precise  !

issues it would cover in a hearing, and fails to identify any prospective witnesses or to summarize proposed testimony, all of I which it must do. Texas Utilities, 36 N.R.C. at 62, 74.

Finally, New Jersey's participation in any proceeding regarding LIPA undoubtedly will " broaden the issues or delay the proceeding," thus weighing against its claim for intervention. i 10 C.F.R. S 2.714 (a) (1) (v) . This is'a case where a grant of the petition will require "an entirely new formal proceeding, not just the ' alteration' of an already existing hearing." Texas Utilities, 36 N R.C. at 75.

t Conclusion For the foregoing reasons, LIPA respectfully requests the NRC to reject New Jersey's filing insofar as it constitutes an intervention petition under 10 C.F.R. S 2.714. ~

Respectfully submitted KIRKPATRICK & LOCKHART By: b -

L't!'wrence Coe Lanpher Barry H. Hartman Linda L. Raclin 1800 M Street, N.W.

South Lobby, 9th Fl.

Washington, D.C. 20036 (202) 778-9000 Attorneys for Long Island Power Authority October 20, 1993 Of Counsel: '

Richard P. Bonnifield General Counsel Long Island Power Authority 200 Garden City Plaza Garden City, N.Y. 11530 l

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L, ft " b I CERTIFICATE OF SERVICE  ;

93 GCT 20 P :3 47  :

I, Linda L. Raclin, hereby certify that on this 20th day'of i October, 1993, I served on the following parties, infthe.mannerj specified, a copy of the Long Island Power Authority's" Response to Nuclear Regulatory Commission Order of October 14, 1993: ,

{

t Fred Devesa, Esq. Winston & Strawn Acting Attorney General Robert Rader,- Esq. '

of New Jersey Mark J. Wetterhahn Thomas J. Kowalczyk 1400 L Street, NW  ;

Deputy Attorney General Washington, DC 20005-3502 '

Jack Van Dalen (202) 371-5950 Carol Grulacki (Courier)

R. J. Hughes Justice Complex  ;

CN 093 Trenton, New Jersey 08625 (609) 948-9315 i (Facsimile /FEDEX) l Katherine W. Hazard Susan S. Chidakel, Esq.

Attorney, Appellate Section U.S. Nuclear Regulatory  !

Department of Justice commission P. O. Box 23795 11555 Rockville Pike (L' Enfant Station) Rockville, MD 20852 Washington, DC 20026 (301) 504-3725 '

(Courier) (Facsimile /FEDEX) i Marjorie Nordlinger, Esq. Samuel J. Chilk U.S. Nuclear Regulatory Secretary of the Commission Commission U.S. Nuclear Regulatory 11555 Rockville Pike Commission Rockville, MD 20852 Washington, DC 20555 (301) 504-1616 (Facsimile /FEDEX) TFit s t Class-Ma-i4-} {('m

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L/ Linda L. Raclin f

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