ML20062F586

Lilco Opposition to Emergency Aspects of Motion for Restraining Order & Other Relief by Petitioners for Intervention.* W/Certificate of Svc

ML20062F586
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/12/1990
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-11035 ALAB-534, CLI-90-08, CLI-90-8, OLA, NUDOCS 9011280059
Download: ML20062F586 (6)

Text

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lf UNITED STATES OF AMERICA DUChiilD N

NUCLEAR REGULATORY COMMISSION

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Before the Atomic Safety and Licensina Board Or(ic: m !! c,0. w v Daniiw; , 9 my l In the Matter of

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LONG ISLAND LIGHTING COMPANY Docket No. 50-322 " O N

) i (Shoreham Nuclear Power ) l Station, Unit 1) ) l l

LILCO'S OPPOSITION TO EMERGENCY ASPECTS ,

OF MOTION FOR RESTRAINING ORDER AND OTHER RELIEF l BY PETITIONERS FOR INTERVENTION .

l After the close of business of November 9, 1990 and without prior notice, counsel for Petitioners served on Long Island Lighting Company a " Motion for Restraining Order and other Relief l by Potitioner-Intervenors (gig) Shoreham-Wading River Central l

School District and Scientists and Engineers for Secure Energy" (the " Motion"). The Motion has two distinct elements: first, a i

request that this Board enjoin a visit by NRC Commissioner James Curtiss to the Shoreham plant scheduled for tomorrow, Tuesday, November 13 (and perhaps provide other emergency relief); and second, a longer-term request for relief relating to both formal i 1

and informal Commission processes concerning the Shoreham plant. I i

since the Motion requests emergency relief on the first 1

issue only, this opposition don'"., only with that issue. LILCO ,

will respond, absent further instruction from this Board, to the second, longer-term aspect of the Motion under the normal timetable in the Rules of Practice.  ;

9011200059 901112 PDR ADOCK ObOOO322-O PDR . Q3

4 o This Board should summarily deny Petitioners' emergency request that this Board enjoin Commissioner Curtiss' intended site visit tomorrow, for the following reasons:

1. Commissioner Curtiss' visit is not within the scope of issues remanded to this Board by the Commission in CLI-90-08. It is axiomatic that this Board's jurisdiction is defined by the i issues presented to it by the Commission. ERR 322A, WisconstD '

l Elec. Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-l 739, 18 NRC 335, 339 (1983); Portland General Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 & n.6 (1979). Those are the issues presented in Petitioners' six petitions remanded by CLI-90-08. No issues from those petitions have even been admitted yei by this Board, and Petitioners have not attempted to demonstrate how Commissioner Curtiss' visit relates to them.I' *

2. Petitioners have no standing to ask this Board to enjoin Commissioner Curtiss.F Petitioners' motions for intervention have not even been ruled on yet. They have not raised any issues that have been found litigable yet by this Board. They are not  !

entitled to ask this Board for relief before they have even been admitted as parties. Sam, gigt, Texas Utility Elec. Co.

1/ LILCO understands that Commissioner Curtiss paid similar visits in the past week or so to the Fort St.-Vrain and Rancho Seco plants, both of which, like Shoreham, terminated operation prior to the end of a normal operating lifetime. LILCO believes that the purpose of his visits in all cases is to learn general plant conditions and likely approaches toward the decommissioning process.

U This and the following arguments assume that petitioners' claim is'within this Board's jurisdiction, a matter which LILCO does not concede.

d

, ~3-(Comanche Peak Steam Electric Station, Units 1 and 2), CLI-89-6, 29 NRC 348, 354 (1989).

3. Petitioners have failed to exhaust their remedies. ,

Petitioners do not even allege that they have requested consent from Commissioner Curtiss' office, or from any other source, to attend the site visit. Without a showing that regular channels have been tried unsuccessfully, Petitioners cannot properly invoke the emergency authority of this Board.

4. Petitioners have sat on their rights, thus artificially ,

creating a pseudo-emergency situation and unfairly depriving the other parties and this Board of an opportunity for considered decision. Petitioners do not suggest that they received the site visit notice from Commissioner Curtiss' office any later than an October 24 mailing date would indicate. Thus it seems likely that they had it in their possession about two weeks before filing the Motion. Yet they waited until there was only one business day left until Commissioner Curtiss' scheduled visit before asking this Board enjoin it. Petitioners do not allege that they ever sought an invitation from Commissioner Curtiss or from other parties, or that they notified other parties of their intended

-filing (they gave LILCO no advance notice). By their own inequitable behavior they have forfeited any right they'might otherwise have had to seek equitable relief.

l

, ~4-l Praver for Relief For the foregoing reasons the Board should sumnarily deny Petitioners' request to enjoin Commissioner Curtiss' scheduled November 13 site visit.

Similarly, the Board should deny petitioners' other requests for relief pending a normal briefing opportunity to the other parties. Petitioners do not make any showing of impending irreparable harm to them from a continuation of normal contact on ,

the host of plant issues, outside the Board's jurisdiction, that l

L constitute the normal grist of licensee-staff business. Further, their request for relief is far broader than the scope of issues that could come before this Board on remand, and thus broader than they could ever justify even if all issues they seek to i raise were in fact admitted. Accordingly, this Board should deny 1

their request for emergency restraints against contacts among LILCO, the NRC Staff, and other parties concerned with the operation of Shoreham and its anticipated decommissioning.

Respectfully subm ted,

/ >

L c: '

W. Taylor Reveley, III

, Donald P. Irwin David S. Harlow Attorneys for Long Island l Lighting Company Hunton & Williams L 707 East Main Street Richmond, Va. 23219 804/788-8200 Dated: November 12, 1990 l

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a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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'.n.uc Before the Atomic Safety and Ucensinn Board

'90 NOV )5 A10 59 in the Matter of )

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LONG ISLAND LIGHTING COMPANY )

Docket No. 50dlib ,SHamt' 'h' &,! 'f,$'O

)

(Shoreham Nuclear Power )

Station, Unit 1) )

i CERTIFltATE OF SERVICE I hereby certify that copies of LILCO'S OPPOSITION TO EMERGENCY ASPECTS  ;-

OF MOTION FOR RESTRAINING ORDER AND OTHER RELIEF BY PETITIONERS FOR INTERVENTION were served this date upon the following by telecopier and by first-class mal', l postage prepaid.  :

i Atomic Safety and Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Morton B. Margulies, Chairman i Washington, D.C. 20555 Atomic Safety and Licensing Board j Telecopy (301) 492 7285 U.S. Nuclear Regulatory Commission '

Washington, D.C. 20555 Administrative Judge Telecopy (301) 492 7285  :

Jerry R. Kline  !

Atomic Safety and Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission George A. Ferguson  !

Washington, D.C. 20555 ASLBP Telecopy (301) 492-7285 5307 Al Jones Drive ll Columbia Beach, Maryland 20764 l The Honorable Samuel J. Chilk Telecopy (301) 492 7285 i The Secretary of the Commission 1 Of0cc of the Secretary Michael R. Deland, Chairman U.S. Nuclear Regulatory Commission Council on Environmental Quality Washington, D.C. 20555 Executive Office of the President Telecopy (301) 4921672 Washington, D.C. 20500 ,

Telecopy (202) 395 3744  !

Sherwin E. Turk, Esq.

Office of the General Counsel Carl R. Schenker, Jr., Esq.

U.S. Nuclear Regulatory Commission Counsel, lang Island Power Authority Washington, D.C. 20555 O'Melveny & Myers Telecopy (301) 443-7725 55513th Street, N.W.

Washington, D.C. 20004  ;

Telecopy (202) 383 5414

y. .

s 2-Stephen A. Wakefield, Esq.

General Counsel U.S. Department of Energy Washington, D.C. 20585 Telecopy (202) 586-7583 Charles M. Pratt, Esq.

Senior Vice President and General Counsel ,

22nd Floor Power Authority of State of New York ,

1633 Broadway ,

New York, New York 10019 Telecopy (212) 468-6206 James P. McGranery, Jr.

Dow, Lohnes & Albertson 1255 23rd Street, N.W., Suite 500 Washington, D.C. 20037 Telecopy (202) 857-2900 i

% 4,f! A _

( David S. Harlow [

Hunton & Williams

. 707 East Main Street -

Richmond, Virginia 23219 DATED: November 12,1990 i

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