ML20082B431

Lilco Opposition to Petitioner Contentions on Confirmatory Order,Physical Security Plan & Emergency Preparedeness License Amends.* Petitioner Contentions Should Be Rejected & License Amends Denied.W/Certificate of Svc

ML20082B431
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/03/1991
From:	Reveley T HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#391-11954 OLA, NUDOCS 9107150165
Download: ML20082B431 (41)

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! !H LILCO, July 3, 1991:crm

'91 M -5 P 4 :c6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OLA

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(Shoreham Ntelear Power Station, )

Unit 1) )

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LILCO'S OPPOSITION TO PETITIONERS' CONTENTIONS ON CONFIRMATORY ORDER, PHYSICAL SECURITY PLAN AND__ E}{E}1GINCY PEEfABXDJ{ESS LICENSJJENDMENTS_

la._IDiroductio2 On June 21, 1991, Petitioners Shoreham-Wading River Central School District (SWRCSD) and Scientists and Engineers for Secure Energy, Inc. (SE 2 ) filed an " Amendment and Supplement to Petitions to Intervene" (June 21 Supplement) in the proceeding on the Confirmatory order, Physical Security Plan, and emergency preparedness license amendments for Shoreham. The June 21 Supplement included both a " suggestion" that the Licensing Board erred in certain rulings concerning SWRCSD's standing to intervene and a list of contentions Petitioners want to litigate.

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Pursuant to 10 C.F.R. $ 2.714(c), Long Island Lighting Company (LILCO) opposes Petitioners' June 21 Supplement. There is no reason for the Board to reconsider its ruling on SWRCSD's standing to intervene. Further, none of the proffered contentions satisfy the NRC's standard for admission under 5 2.714 (b) (2) , as informed by the specific guidance in Lgng lalnDd Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),

CLI-91-04, 33 NRC __ (April 3, 1991).

II. Backcrou_nd A. EActa The . actual background is well known to the Board and will net be repeated here. Subsequent to the Board's accision on Petitioners' amended petitions to intervene,l' however, there have been two noteworthy developments.

First, on June 12, 1991, the Commission issued a memorandum and order, Lona Island _Lightina Co1 (Shoreham Nuclear Power Station, Unit 1), CLI-91-08, 33 NRC __ (June 12, 1991), denying Petitioners' March 8, 1991 request that all NRC proceedings concerning Shoreham be held in abeyance pending the outcome of an appeal before the New York Court of Appeals challenging the Settlement Agreement between LILCO and the State of New York. In particular, Petitioners had sought to prevent the NRC Staff from granting LILCO a " possession only" license ( POL) . In denying l' Long Island Light 1Bq Cot (Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 33 NRC __ (May 23, 1991).

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Petitioners' request, the Commission approved the Staff's recommendation in SECY-91-129 1

' that it be allowed to issue the POL. CLI-91-08, slip op. at 13-14.k' Second, on June 14, 1991, the Staff made a final determination that the proposed POL amendment presents "no significant hazards consideration" and issued the amendment, subject to the administrative stay prescribed by the Commission in CLI-91-08. The notice of the issuance of the amendment was published in the Federal Register on June 20, 1991. 56 Fed. Reg.

28,424 (June 20, 1991). With respect to its environmental review of the POL amendment, the Staff stated that the Commission had

" determined (in CLI-91-01) that this amendment satisfies the criteria for categorical exclusion." 56 Fed. Reg. 28,425.

Therefore, " pursuant to 10 = C. F.R. S 51.22(b), no environmental impact statement or environmental assessment need be prepared for this amendment." Isb i

E' In SECY-91-129, a Commission Paper entitled " Status and l Developments at the_Shoreham Nuclear Power Station" (May 13, l 1991), the NRC Staff recommended that the Commission " approve the l

issuance of the (Shoreham) POL to LILCO in accordance with the

. . . proposed license amendment." SECY-91-129 at 8.

I' Noting that Petitioners were likely to " seek a judicial stay of our action authorizing the issuance of a POL," the Commission stayed.the effectiveness of the POL "until ten (10) working days after the date of publication of the amendment in the Federal

-Register." CLI-91-08, slip op. at 13._ If Petitioners'" file a motion for a stay with the appropriate U.S. Court of Appeals within that time, the administrative stay will be automatically extended for an additional (10) working days to provide the court with the time to review the matter." Id2

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B. Local Standard _for Contentions The NRC's standard for acceptable contentions appears in 10 C.F.R. $ 2.714(b)(2). As revised in i989,A' this standard requires a petitioner's contentions to possess adequate " basis" and " specificity," with a contention's " basis" being demonstrated through a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish facts or expert opinion.

10 C.F.R. S 2.714 (b) (2) (ii) . In ruling on contentions, the Licensing Board shall refuse to admit a contention ifs (1) The contention and supporting material fail to satisfy the requirements of paragraph (b) (2) of this section; or (ii) The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.

10 C.F.R. 5 2. 714 (d) (2) . The regulations as revised, by requiring a petitioner to provide, at the-threshold, information sufficient to show that a genuine issue of law or fact exists, impose a more stringent standard for admissibility than under prior NRC practice. See, e.a., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-942, 32 NRC 395, 426 n.104 (1990)(revised contention rule " imposes a higher l' 54 Fed. Reg. 33,168 (Aug. 11, 1989).

5 standard" than previous regulations); Vermont Yankee Nuclear Power Corn. (Vermont Yanken Nuclear Power Station), ALAD-938, 32 NRC 154, 163-64 n.5 (1990).

Apart from the criteria of 6 2.714, the Commission has provided guidance as to what constitutes a properly framed NEPA contention in the specific context of the three licensing actions at issue here. In CLI-91-04, the Commission stated that its comments in its initial HEPA decision, Lona Island Lichtina Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990), were "not intended to preclude the-Licensing Board, as a matter of law and jurisdiction," from addressing an allegation that an environmental impact statement (EIS) on Shoreham's decommissioning must be prepared in connection with the NRC's approval of the three licensing actions. CLI-91-04, slip op. at

4. Accordingly, the Commission ruled that, if Petitioners otherwise satisfied the NRC's standing requirements in their amended petitions, the Board would be " free to consider a properly pled contention on the need for an EIS for these three actions." & at 5.

Significantly, the Commission went on to establish a two-part test for a " properly pled" contention, instructing Petitioners that such a contention will at a minimum need to offer some plausible explanation why an EIS might be required for an NRC decision approving a Shoreham decommissioning plan and how these actions could, by foreclosing alternative decommissioning methods or some other NEPA-based considerations, constitute an illegal segmentation of the EIS process.

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6 CLI-91-04, slip op, at 5. (emphasis in original). For its part, the Commission noted that it " view (ed) the (three) actions in question as being wholly separate from, and independent of, decommissioning," adding that it harbored " substantial doubts that the petitioners can make a credible showing that these actions are a part of the decommissioning process." 1d1 at 4.

In LBP-91-23, the Board adopted the Commission's guidance, warning Petitioners that "(c)ontentions filed will be required to meet Commission requirements specified in CLI-90-8 and CLI-91-4."

LBP-91-23, 33 NRC __, slip op. at 11. The Board also reminded Petitioners that "(r]esumed operation or other methods of generating electricity are beyond the scope of the proceedings."

lh III. SWRCS_D's "Suggest_ ion" of Erfor in_LDP-11-23 At the outset of the June 21 Supplement, SWRCSD

" respectfully suggests" that the Board erred in LBP-91-23 when it ruled that SWRCSD's " economic" interest as a " ratepayer and tax recipient" did not provide standing under NEPA. June 21 Supplement at 2. Contending that " economic injury" can indeed satisfy the " injury in fact" criterion for standing under federal law, SWRCSD asserts that it will " eventually lose over $25 million in annual income" if the " proposal to decommission the Shoreham Nuclear Power Station, Unit 1 . . . and its segmented parts is approved" by the NRC. Idz at 3 (emphasis in original).

SURCSD further alleges that

7 there is a direct causation and sure redressability of the economic injury as well as other environmental injuries flowing from the indirect (o.a., air pollution) effects of the plan to replace Shoreham with fossil fueled generating units. Under those circumstances, (SWRCSD) certainly does have standing under NEPA.

142 at 4.

It is not clear whether SWRCSD is asking the Board to reconsider its ruling on this issue. It does not say as much.

In any event, there is no basis for the Board to do so.

SWRCSD has missed the crucial point. Even if it EgIn correct that " economic injury" is usual.ly sufficient to provide standing in NRC proceedings, such a ruling by the Board on reconsideration would not further SWRCSD's cause. This is because the " economic injury" (that is, loss of tax income) of which SWRCSD complains stems DQt from the three licensing actions at issue here aar from Shoreham's decommissioning. Rather, the

" economic injury" that SWRCSD claims flows directly from L1LCO's private decision to close the plant. That decision is not at issue here, nor will it be at issue in any other NRC proceeding on Shoreham. The Commission made that unmistakably clear in CLI-90-08.

Put another way, SWRCSD cannot obtain the relief it truly seeks -- a reversal of LILCO's decision to close Shoreham -- in the present forum. Nor can SWRCSD get standing under NEPA by alleging that it will be harmed by the " indirect" effects of replacing Shoreham with fossil-fired plants. The Board has already found that

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0 possible injury . . . from substitute oil burning plants is not a relevant NEPA consideration in those matters. The l Commission found that "the alternative of i

' resumed operation' -- or other methods of generating electricity -- are alternatives to the decision not to operate Shoreham and thus beyond Commission consideration."

LDP-91-23, slip op. at 12-13, nuoting CLI-90-08, 32 NRC at 207.

There is no reason for the Board to reconsider its ruling on SWRCSD's standing, which is clearly correct.

IV. Contentions..l..thrAugh 4i NEPAlama Petitioners have submitted five contentions, the first four ,

of which are based generally on concerns allegedly arising under the National Environmental Policy Act (NEPA).A' Petitioners' fifth contention, consisting of seven subparts, concerns the amendment to the Shoreham Physical Security Plan and-is based on issues arising under the Atomic Energy Act and the NRC's physical security regulations, 10 C.F.R. Part 73. Because the first four contentions focus on fundamentally different issues, it is appropriate to discus them separately from the fifth.

Contentions 1 througn

• should each be denied. None of them meets the two-prong. standard for a " properly pled contention" as set forth by the Commission in CLI-91-04. As noted, in CLI o04,.the Commission directed Petitioners to submit contentions l' While the June 21 Supplement, which refers only to

" Petitioners' contentions," does not make it clear, Cententions 1 through 4 must be considered as having been proffered by SE:

only. The Board's ruling in LDP-91-23 precluded SWRCSD from submitting NEPA contentions.

9 I that would "at a minimum" provide some " plausible explanation" (1) why an EIS might be required for an NRC decision approving a Shoreham decommissioning plan and (2) how the three licensing actions at issue here could, by foroclosing "alternativo decommissioning methods" or some "other NEPA-based considerations," constitute an " illegal segmentation" of the EIS process. CLI-91-04, slip op, at 5.

SE: does not make this threshold showing. Its failure to do no is t'atal, given the Commission's admonition that it viewed the

" actions in question as being wholly separate from, and independent of, decommissioning," and that it " harbor (ed) substantial doubts" that Petitioners could make a " credible showing that these actions are a part of the decommissioning process." CLI-91-04, slip op. at 4. In effect, the Commission put SE2 on notico from the outset that it had a very heavy burden in framing acceptable contentions on those three licensing actions. It is a burden that SE2 has failed completely to carry.

A. Contention _1 Contention 1 is the key to SE 2 's entire NEPA position, since it is the only contention in which SE: even attempts to address the second prong of the Commission's standard in CLI-91-04.

Contentions 2, 3, and 4, which focus solely on the first prong of the Comnission's test, thus depend completely on contention l's validity.

SE2 alleges that the NRC

10 must require LILCO to prepare an environmental report and that the NRC Staff must then publish a draft environmental impact statement ("DEIS") for comment, prepare a final environmental impact statement ("FEIS"), and follow other NRC procedures for the consideration of the environmental impact of the proposal to decommission Shoreham before issuing the Confirmatory Order, Emergency Preparedness '

Amendment and/or the Security Plan Amendment because all three of those actions are within the " scone" of the oronosal to decommission Shoreham . . . .

June 21 Supplement at 6 (emphasis added).

SE has not met the second prong of the Commission's instruction in CLI-91-04. SE2 has simply alleged that the three licensing actions are part of the decommissioning process at Shoreham,'without ever trying to make the " plausible showing" required by the Commission. On this critical point, SE, says only that the-three actions which are the subject of this proceeding are within the scope of the proposal to decommission Shoreham because they are " interdependent parts of (that]

larger action and depend (upon) the larger action for their justification."

- June 21 Supplement at 6, quotina 40 C.F.R. 6 1508. 25 (a) (1) (iii) .

This bare asserti+>n does not constitute the sort of " plausible explanation . . . how these actions here could . . . constitute an illegal segnantation of the EIS process" that the Commission required. Indeed, it is no explanation at all. It merely states the. conclusion SE2 is required to prove . Nowhere in Contention 1 does SE2 make any effort to explain why it believes the three licensing actions constitute an " illegal segmentation" that

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" forecloses alternative decommissioning methods or some other NEPA-based considerations." For this reason, contention 1 should be rejected.L' Even apart from its failure to follow the Commission's instruction in CLI-91-04, Contention 1 is inadequate under the general standard for acceptable contentions established by the NRC's regulations. In particular, SE2 has not act forth the

" alleged facts or expert opinion which support the contention" and on which it " intends to rely in proving the contention at hearing." Eng 10 C.F.R. $ 2.714 (b) (2) (ii) . Again, all that SE 2 has done is quote from the Council on Environmental Quality's NEPA guidelines to the effect that acti7ns are " connected" if they are " interdependent parts of a larger action and depend on the larger action for their justification." June 21 Supplement at 6, gnoting 40 C.F.R. S 1508. 2 5 (a) (3 ) (iii) . SE 2 's mere recitation of regulatory boilerplate, with no effort to relate the legal standard to the facts of the situation at hand, plainly does not satisfy the criterion of 5 2.714 (b) (2) (ii) .I' i' SE2 alleges elsewhere in Contention 1 that the NRC Staff

" relied on the existence of the Confirmatory order as a significant part of the basis for its approval of the emergency preparedness and security plan amendments." June 21 Supplement at

6. De that as it may, this assertion is beside the point. SE 2 has been charged by the Commission to explain how the three actions at issue are linked to deccmmissioning, not how the three actions are linked to one ancther.

l' If SE2 means to imply that it is gelf-evident that the three licensing actions are part of the decomirissioning process at Shoreham, the Commission has already disagreed, stating that it

" view [s] the actions in question as being wholly separate from, and independent of, decommissioning." CLI-91-04, slip op. at 4.

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12 If the Board rejects Contention 1, then it must reject the rest of SE 's NEPA contentions as well. Contentions 2, 3, and 4 do not even mention the three licensing actions at issue here.

Rather, they take as given the " truth" of Contention 1 and proceed only to address the need for an EIS for the alleged proposal to decommission Shoreham, the first part of the Commission's two-prong standard in CLI-91-04. But because SE 2 .

has failed in contention-1 to explain why the three licensing actions are part of the decommissioning process, its subsequent allegations concerning the need to prepare an EIS for that '

process are, in and of themselves, inadequate.

There are additional reasons, however, why Contentions 2, 3, and 4 should be rejected. These reasons are set forth below.

D. Contention 2 In Contention 2, SE2 alleges that the NRC's Final Generic Environmental Impact Statement on Decommissioning Nuclear Facilities, NUREG-0586 (GEIS), does not apply to Shoreham because the GEIS is applicable only to " facilities where decommissioning is necessary because such facilities are either 'at the end of their normal lifetimes' or where there is a ' premature closure of a reactor due to an accident.'" June 21 Supplement at 8, cuotina GEIS at 8-1. Neither of these, SE 2 asserts, describes Shoreham's current situation. Therefore, SE2 maintains, the former requirement of 10 C.F.R. 5 51. 20(b) (S) that the NRC prepare a

13 site-specific EIS on decommissioning in all cases is still in force hert.

SE 's argument that the GEIS does not apply to shoreham is as an attempt to resurrect, albeit in a different guise, Petitioners' oft-rejected assertion that an envircnmental review of Shoreham's decommissioning must include consideration of the alternative of " resumed operation." The GEIS assesses the NRC's three options for decommissioning: DECON, SAFSTOR, and ENTOMB.F If, by saying the GEIS does not apply to Shoreham, SE 2 truly means to argue that some other method of decommissioning in addition to these three options should be considered at Shoreham, it has failed to make its position clear, or explain what that 4

other method is.I' F With respect to the "no action" alternative, the GEIS states that No Action, implying that a licensee would simply abandon or leave a facility after ceasing operations, is not a viable decommissioning ,,lternative.

GEIS at 2-6. SE2 cannot credibly dispute the NRC's position oz.

this issue.

i l' Consideration of any such additional decommissioning method would be an inappropriate subject of a hearing in any event, since the NRC, in promulgating its decommissioning regulations, has established DECON, SAFSTOR, ENTOMB as the three options available to licensees. See 50 Fed. Reg. 5603-04 (Feb. 11, 1985) (proposed decommissioning rule) ; 53 Fed. Reg. 24,020-24 (June 27, 1988) (final decommissioning rule) . If SE2 believes that other plausible means of decommissioning nuclear facilities exist, the time to express those views was during the rulemaking, not in the context of the present proceeding. Alternatively, if SE2 wishes to challenge the application of the NRC's (continued...)

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14 l But, of course, that is r.ot what SE means at all. Rather, l its suggestion that Shoreham is "not at the end of its ' normal life'" reveals that SE2 's real point is that, in contrast to nuclear facilities that either have operated for many years and finished their useful lives or have had a crippling accident, operation of Shoreham remains -- physically, at least -- a viable alternative. SE2 may not argue that point, as the Board, following explicit Commission guidance, has already said, ggg, 0.4., LBP-91-23, slip op. at 11 ("(r]esumed operation or other methods of generating electricity are beyond the scope of the proceedings").

C. Gonignhion 3 In Contention 3, SE alleges that LILCO's environmental report should be in the format prescribed by Regulatory Guide 4.2 (Rev. 2, July 1976) as appropriately modified for the proposal at issue as a result of the future application of the Commission's scoping procedures at 10 C.F.R. SS 51.28 &

51.29 (1991) since that format for an environmental report on a nuclear power station has been determined by the NRC Staff to be the format " acceptable to the NRC Staff for implementing (these) specific parts of the Commission's regulations." NUREG-0099, Cover Sheet (July 1976).

June 21 Supplement at 8. This contention is frivolous. In the first place, its predicate -- that LILCQ has failed to submit an F (... continued)

, decommissioning rules to Shoreham's situation, if has failed to satisfy the criteria of 10 C.F.R. 6 2.758(b).

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" environmental report" as required by the NRC's decommissioning regulations -- follows only if the central allegation in Contention 1 (that the three licensing actions at issue are part of the decommissioning process) is true. An explained above, that allegation is-not true.

Further, in conjunction with LIPA's submittal of its proposed decommissioning plan for Shoreham on December 29, 1990 (a plan which LILCO has asked the NRC to review under 10 C.F.R. 5 50.82),M/ LIPA filed its own " Supplement to Environmental Report (Docommissioning)." If SE means to argue that LIPA's supplemental environmental report does not follow an acceptable format, then-the assertion ignores that NRC regulatory guides do not carry the force of law. Indood, the " cover sheet" to NUREG-0099 cited by SE2 states that Regulatory Guides are not substitutes for regulations, and compliance with them is not required. Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission.

Idx Thus, even if it were true that LIPA's supplement to Shoreham's environmental report does not follow the format of Regulatory Guide 4.2, such a determination would be "of no consequence in the proceeding because it would not entitle (SE] 2 to re11ef." Egg 10 C.F.R. 5 2. 714 (d) (2) .

l L E' See Letter from John D. Leonard, Jr., LILCO Vice President for Nuclear, to NRC, SNRC-1781 (Jan. 2, 1991).

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16 In addition, SE has overlooked that the format described in Regulatory Guide 4.2 was not drafted with decommissioning in mind,H' but focuses on the sonstruction and operatio.D of new i l

nuclear facilities. Regulatory Guide 4.2 states )

Section B (i.e., the section entitled i

" Standard Format and Content of Environmental Reports" of this guide identifies the information needed by the staff in its assessment of the potential environmental effects of the nroposed nuclear facility and establishes a format acceptable to the staff for its presentation.

Regulatory Guide 4.2 at ix (emphasis added). Significantly, Regulatory Guide 4.2 continues that (c]onformance with this format, however, is not required. An environmental report with a different format will be acceptable to the staff if it provides an adequate basis for the findings requisite to the issuance of a license or a permit.

Thus, even by its own terms, Regulatory Guide 4.2 contemplates that different formats may be used, given the nature of the

" license" or " permit" being sought. This is entirely consistent with both 10 C.F.R. 5 51.53(b), the regulation which governs the submittal of supplemental environmental reports on decommissioning, and the supplementary information that accompanied the promulgation of 5 51.53(b), neither of which indicates that any particular format must be followed in the preparation of such reports.

D' Revision 2 of Regulatory Guide 4.2 was issued in 1976, nearly two years before the NRC published an advanced notice of proposed rulemaking that led to the present decommissioning regulations. 43 Fed. Reg. 10,370 (March 13, 1978).

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D. Contention _1 1

In Contention 4, SE2 alleges that an EIS on Shoreham's decommissioning is required because LIPA's de vamissioning plan, by proposing the DECON method, would " foreclose the consideration of alternative decommissioning methods including SAFSTOR and ENTOMB." June 21 Supplomont at 9. SE: adds that proceeding with DECON without a prior EIS forfeits the consideration of the NRC's recognition that SAFSTOR "is advantageius in that it can result in reduced occupational radiation exposure in situations where urgent land use considerations do not exist." GEIS at S 5.3.2. It also would deny the similar benefits of avoidance of radiation exposure available through the ENTOMB alternative which explicitly foresees the entombment of "the pressure vessel internals and their long-lived . . . isotopes . . ., along with other radioactive material." GEIS at 5 5.3.3.

Id2 Similarly, after noting that " issuance of the POL" for Shoreham would allow LILCO to ship the fuel support pieces for offsite disposal, SE 2 contends that,

[s)ince DECON is the only alternative "in l which the equipment, structures, and portions l of the facility and site containing i radioactive contaminants are removed . . .

l from the site," it is clear that allowing l

LILCO to proceed with the disposal of reactor internals at this time would prejudice the consideration both of SAFSTOR , . . and of ENTOMB . . . .

Id2 (emphasis in original).

Nowhere in contention 4 (or anywhere else, for that matter) l does SE2 attempt to explain how the three licensing actions at issue here, either individually or collectively, would preclude

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18 consideration of either SAFSTOR or ENTOMB in favor of DECON.

Indeed, contention 4 alleges only that such options would be foreclosed by (1) LIpA's selection of a decommissioning method ,

and (2) the issuance of a POL. Neither of those matters are at ,

issue in this proccoding.

Even apart from this fundamental deficiency, Contention 4 is flawed. SE 2 's position, taken to its logical ond, would mean

-that an EIS is required for overy plant that is to bo decommissioned. A licensee will always choooo one of the NRC's three decommissioning methods and forego the other two. But the NRC's regulations do not specify that a site-specific EIS be prepared in overy caso, To the contrary, such a requiremont was doloted when the NRC promulgated its final decommissioning rule.

Een 53 Fed. Reg. 24,039 (June 27, 1988) (the " Commission's primary reason for eliminating a mandatory EIS for decommissioning is that theLimpacts have been considered generically in a GEIS").

As for the subsidiary assertion that the NRC's allowing LILCO to dispose of the fuel support pieces constitutes d2 facto approval of the DECON method, SE2 is simply mistaken as matter of law. It ignores that the Commission has determined, by approving SECY-91-129, that disposal of the fuel support pieces does not fall within the class of " major structural changes =to radioactive components" that cannot be undertaken prior to approval of a

19 decommissioning plan. SECY-91-129 at 3.H' In other words, the NRC's regulations permit the disassembly and removal of minor reactor components (such as the fuel support pieces) no matter which decommissioning method is to be employed.

l V. Contention St Physical _ Security Plan Issues In LBP-91-23, this Board found that Petitioners had not established standing to submit contentions on radiological I security and safeguards issues, and held that their submissions on such issues were too vague or baseless to be acceptable in any event.U' LBP-91-23, slip op. at 17-20, 25-26. Given, however, H' In this regard, in promulgating its final decommissioning rule, the NRC said that,

[ajlthough the Commission must approve the decommissioning alternative and major structural changes to radioactive components of the facility or other major changes, the licensee may proceed with some activities such as decontamination, minor component disassembly, and shipment and storage of spent fuel if these activities are permitted by the operating license and/or S 50.59.

53 Fed. Reg. 24,025-26 (June 27, 1988).

D' The issues that the Board found to give rise potentially to I standing involved (1) theft and transportation of fuel and

[ placement in water supplies to cause radiological harm, (2) changing of configuration of the fuel in such a manner so as to create further fission activities, (3) theft of fuel and diversion to weapons, and (4) reduction in vital areas, vital equipment and plant security staff so as to not provide adequate assurance of the public health and safety and as to not meet the design basis threat of radiological sabotage. LBP-91-23, slip op, at 17, 20. In their security contention, Petitioners appear

-to have abandoned all but the last of these potential bases for assertion of harm. In addition, while the Licensing Board found (continued...)

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20 Petitioners' claimed lack of access to information about the l

Shoreham Phyrical Security Plan, the Board did not rule conclusively on Petitioners' standing to raise security and safeguards issues, and permitted them conditionally to file contentions on those issues. The Board stated that in reviewing the merits of the contention (s),

the Licensing Board will take into account (Petitioners']M' lack of access to the security plan. Although the lack of the security plan may adversely affect (their) ability to demonstrate that the security plan is the cause of the matter complained of, it l

should in no way otherwise hinder (their]

ability to establish the other elements of an acceptable contention, as provided for in 10 C.F.R. 5 2.714(b).

If the contention submitted is meritorious (taking into account (Petitioners'] handicap on the causal issue),

the Licensing Board will further pursue with the participants the resolution of the nroblems rnlated to standing. If the contentic in not otherwise meritorious, the Licensing L ..J will decide the standing issue against the Petitioner (s).

Id 1 at 20.

&  :... continued) that 3E2 had established potential standing on security issues under NEPA as well as the Atomic Energy Act, id2 at 27, Petitioners' contention relates only to the Atomic Energy Act.

No NEPA-based contentions on security have been filed, and SE 2, the only Petitioner held to be conditionally eligible to raise NEPA issues on security, has now abandoned this basis fcr dispute.

M' The quoted excerpt relates specifically to the Board's proposed treatment of SE 2 's. However, given the essential identity of the SE2 and SWRCSD submissions, the Board indicated later that it would dispose of SWRCSD's proposed contentions in the name manner. LBP-91-23, slip op. at 26. Hence, the cited language apparently applies equally to both Petitioners and has been so edited. i

21 In response, Petitioners have filed a contention on security matters, with an introductory section and seven subparts. The contention is not " meritorious" and should be rejected by the Board in entirety. Neither in the aggregato nor in any of its subparts does the contention r- .u the heightened basis and specificity requiremonts of 1 - ( ..R. $ 2.'i14, as that rule has been in effect since 1989. 54 Fed. Reg. 33,168, 33168-74, 33,180 (Aug. 11: 1989). It bears repeating that the regulation requirgn the rejection of a contention that does not meet these requirements. 10 C.F.R. s 2.714(d)(2).

Petitioners' security contention fails, in all respects, for deficiencies in specificity, basis, or both, and occasionally for additional reasons. Petitioners' only potential avenue of escape from this otherwise inevitable conclusion is their argument that they cannot plead with proper specificity and basis because they have not had access to the Shoreham Physical Security Plan and related documents, all of which contain Safeguards Information and are restricted in their distribution as required by 10 C.F.R.

S 73.21. Petitioners have asserted this argument liberally. See June 21 Supplement at 11-12. But it does not excuse their failure to use information that is available. And that information is such as to have made possible significantly more precise contentions, grcunded in the facts of Shoreham, than Petitioners filed.

,=

l l

22 ,

LA. -Petitioners Have-Not Used the

Information Available to'Then il)- Background Petitioners have'falled systematically to meet the basis and specificity requirements of 6 2.714, for reasons that cannot be laid off on the-_ unavailability to them of the Shoreham Physical Security Plan.- Petitioners' failures stem from their unwillingness to recognize a few central, public-record facts in framing _their1 contention. In a nutshell, these facts, which can be. easily obtained from the documents listed below, include the following:

= 1. - Shoreham's fuel has been removed from the reactor and

placed underwater in a seismically qualified spent fuel _ pool, lined with stainless-steel. That pool is located within the secondary-containment of the reactor _ building, and, under the Confirmatory order,-Shoreham's fuel cannot be placed back into Ethe: reactor without prior NRC authorization.

2. .The fuel itself~is the only significant source of radioactivity anywhere on site. Thus, the fuel and the equipment and. spaces necessary to protect'it against theft or radiological 1 sabotage are the;only areas of the plant subject to regulation under Part 73 in the defueled condition.

3. The-fuel is barely ~ irradiated. Shoreham never operated at-power levels =above 5%, and the fuel experienced the equivalent of'only two days of full-power operation. Two years ago, in June 1989, the total thermal energy of the 560 fuel bundles was 550 watts, and its total radioactive inventory was approximately

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

23 )

.156,000 curies. Since then, the thermal energy has declined-to 250 watts,,with corresponding reductions in activity levels.

(2) There Is Ample Documentary Basis for Petitioners to Have Gained Specific'Information about the Zacts-Underivina Physical security I. agues at Shoreham Numerous publicly available documents shed light on the nature of the-Shoreham security plan:

1. Memorandum and Order Cancelina Hearina, Acorovina Final Security Settlement Aareement. and Terminatina Proceedina (Dec. 3. 1982):

This is the Licensing Board's order approving the settlement of security-issues among LILCO, Suffolk County and the NRC Staff

-(not published but available in the public docket).

2. Shoreham's Undated Safety Analysis Report (USAR):

This document contains detailed plans of the Shoreham site and facility. .It shows, for instance, the location of the spent fuel' pool in the secondary containment of the reactor building and describes it as a Class 1, seismically qualified stainless-

steel lined concrete structure. It also shows detailed topographical and other layouts of the site, from which informed

. inferences can be drawn about plausible security requirements for e

L normal operating-or'defueled conditions.

3. HERC-1672. Reauest to Amend the Physical Security Plan for Shoreham, and attached Aeolication to Amend the Shoreham Physical Security Plan (Jan. 5. 1990):

This request. notes the transfer of the fuel to the spent fuel' pool, and proposes the modification of vital areas and certain other aspects of the Physical Security Plan that exceeded

24 NRC requirements. The request contains LILCo's analysis, pursuant to 10 C.F.R. 9 50.92, that the proposed amendment presents'"no significant hazards consideration." This analysis, in turn, shows that the proposed amendment would not increase the probability or consequences of previously evaluated accidento, would not create the pocaibility of new or different kinds of accident from those previously evaluated, and would not vive a significant reduction in a margin of safety.

4. FIFRC-1664, License CAgnge Annlication, and qt3 ached Defueled Safety Analysis Report (DSAR) (Jan. 5, 1990):

This all-important public document provides detailed information concerning the plant, the_ site, and the fuel. The DSAR's introduction contains the following information about the storage of Shoreham's fuel:

The DSAR assumes that the 560 fuel bundles comprising the Shoreham core are stored under water in the Shoreham spent fuel pool. The fuel bundles are held in seismic category I spent fuel racks within the stainless steel-lined spent fuel pool. The spent fuel pool in located in the secondary containment, the Shoreham reactor building. The structures are designed to withstand seismic loads.

The Shoreham spent fuel is in a low burnup condition. The Shoreham Nuclear Power Station operated during low power testing at power levels-not exceeding 5% of rated power.

The effective burnup of the fuel is approximately 2 full power days. This results in an estimated total core wide heat generation rate of approximately 550 watts as of June'1989. The estimated fuel heat load versus time. . . .

The Shoreham spent fuel contains limited quantities of radioactive materials that are available for release. As is stated in DSAR Section 12.2, approximately 176,000 curies of

1 25 radioactivity reside in the 560 fuel assemblies. . . .

The results of the September 1989 spent fuel radiological analysis described in DSAR Chapter 15 indicate that integrated doses are very small in comparison with 10 C.F.R.

(Part) 100 limits. For the worst case scenario in which all the gaseous activity is assumed to be released from the entire core, a spectrum of cases were analyzed as follows:

operation of the standby ventilation system, operation of the normal ventilation system, and no ventilation (modeled as puff release).

The results of the analyses indicate that the integrated whole body and skin doses, with Reactor Building Normal Ventilation System operational, are less than approximately .03%

of (the] 10 C.F.R. [Part) 100 limite.

DSAR at 1-1, 1-2. Chapter 15 of that report also evaluates the potential mechanisms for accident occurrence, which would inform the preparation of contentions on potential risks associated with the physical security of the fuel.

5. SNRC-1651 (Dec. 15. 1989), Reauest to Cease Offsite Emercency Erep_qredness Activities and to Imolement the D2tyeled Emercency Preparedness Plan, and attached tgp,1 cal report NED 4170024. Shoreham Nuclear Power Station. Radioloaical Analysis for Scent Fuel Storage and Handlina (Sent. 1989):

This document, and its attached topical report (which underlies LILCO's emergency preparedness exemption request and license amendment application), provide detailed information on the radiological characteristics associated with the fuel being stored in the spent fuel, and of accident possibilities. This report is the basis for the safety analysis set forth in SNRC-1664 and, again, is readily available to inform the preparation of contentions on potential risks associated with the physical security of the fue).

26

6. Safety Evaluation by the Office of Nuclear Reactor Reaulation.supoortina Amendment No. 4 to Facility Operatina License No. NPF-82 (SER) (June 14. 1990):

This document describes the bases for approval of LILCO's Physical Security Plan amendment: (1) the defueled condition of the plant, and (2) the restriction placed by the Confirmatory Order, requiring prior NRC approval before fuel may be returned to the reactor. The SER also recites its bases for consideration of multiple objections, filed by Petitioners with the Staff, to the Physical Security Plan amendment. It is important to note the number of requirements-at the heart of Shoreham's security that are left in effect:

The licensee shall fully implement and maintain in effect all provisions of the Co.amission-approved physical security, guard training and qualification, and safeguards contingency plans including amendments made pursuant to provisions of the Miscellaneous Amendments and Search Requirements revisions to [10] C.F.R. S 73.55 . . . and to the authority of 10 C.F.R. S 50.90 and 10 C.F.R. 5 50.54(p).

NPF-82, 1 2.E The documents listed above describe Shoreham in detail; declare the low radiological inventory of the fuel (176,000 curies in 1989; 550 watts of decay heat from the entire core in 1989, 250 watts in 1991) ; describe the configuration of the plant and the location of the fuel (underwater in racks in the spent fuel pool);-tell the nature of the pool (stainless-steel lined Class I seismic structure located within the secondary containment in the reactor building); confirm that there is no

27 fuel in the reactor or anywhere else besides the spent fuel pool; ,

1 fand analyze and quantify the minimal consequences of accidents l l

possible from the fuel (in the " worst case" postulated incident, l 0.03% or less of 10 C.F.R. Part 100 limits at the plant i boundary).

l In addition, these documents provido a myriad of detail for the drafting of meaningful contentions, without requiring access to one word of Safeguards Information. They provide a basis for an assessment of the size of the remaining guard force, since LILCO did not request an exemption from 10 C.F.R. S 73.55(h)(3).

They provide a basis for assessing the nature of the revised vital areas and vital equipment, since the DSAR and spent fuel safety analysis evaluate those systems necessary to maintenance of the fuel in a safe condition. They provide a basis for informed expert evaluation of the possibilities for radiological sabotage, and the possibilities for causation of events of significance under 10 C.F.R. Part 73.

Although Petitioners are on notice of these public resources (and have been served with some of them), they have failed entirely to make use of them. And while access to the Physical Security Plan might provide further detail, its lack does not excuse failure to make use of these existing resources.U' The D' Petitioners suggest that they have never had access to any .

Licensing Board decisions on the Shoreham Physical Security Plan or to the Staff's SER on the Plan or any revision to it, or to "other relevant ' facts' which could be subject to expert analysis." June 21 Supplement at 11-12. As seen above, this is not so: the documents described above were in fact accessible to (continued...)

28 Board, in evaluating the adequacy of Petitioners' proposed contention, should not restrict itself to a comparison of the contention Petitioners submitted with those they might have submitted with full access to the Physical Security Plan. It should evaluate deficiencies in their contention against the kinds of contentions Petitioners could have submitted using existing information, and therefore were reauired to submit by 10 C.F.R. 5 2. 714 (d) (2) . Measured against this standard, the contention and its subparts fail.

D. Response to the Contents of Contention 5 Contention 5 consists of an introduction (June 21 Supplement at 10-12) and seven subparts. The theme of the introduction is a general allegation that the " reduction in vital areas, vital equipment and plant security staff, as well as possible other changes made by the Security Plan Amendment" fail to meet the requirements of the Atomic Energy Act and Part 73 of the Commission's regulations. The seven subparts, rather than simply illustrating this general proposition, take c"f on separate subjects of their own. Thereforc,.the introduction will be evaluated on its own merits.

of (... continued) them. And Petitioners have never requested LILCO to provide them with access to the Shoreham Physical Security _ Plan. Nor should LILCO have offered that access in light of the NRC's strict policy against-disclosure of Safeguards Information. See 10 C.F.R. S 73.21(c).

29 (1) Introduction to contention 5 The Introduction recites a potential ground for a contention permitted by this Board in LBP-91-23, slip op, at 20: alleged creation of an unreasonable risk to public health and safety from unspecified reductions in vital areas, vital equipment and plant security staff. But the contention does not engage the Board's injunction that Petitioners plead the contention with as much specificity as possible given the absence of the Physical Security Plan. They make no effort to use any of the documentary sources listed above to particularize the types of reductions in vital areas, vital equipment and personnel of concern to them.

They fail even to speculate hypothetically about types of reductions in these areas that might be of concern to them. They make no effort to particularize the type of harm that they believe may occur from these reductions, much less to assert its regulatory significance. They do not attempt to set forth facts or the basis for opinions on which they will rely, nor even sources; the only " source" cited is the Atomic Energy Act. The Introduction states a generalized conclusion with no basis, and so f ails to meet the requirements of 5 2.714 (b) (2) (li) . It must be rejected.

(2) Subpart (al This subpart alleges two matters. It asserts that the

" requirements of Part 73 apply in their fullness to Shoreham regardless of its current ' mode.'" And it asserts that the

30 yardstick for determining the appropriateness of the modifications to Shoreham's Physical Security Plan should be the modifications permitted to the security plans of other plants in extended outages. Petitioners fail te substantiate either portion of their subpart.

First, Petitioners do not allege which requirements of Part 73, if any, Shoreham is not meeting. Thus, the subpart is fatally baseless and vague. Indeed, Shoreham does comply with Fart 73 "in its fullness," taking account of the plant's defueled condition, its low fuel radioactivity, and the NRC's Confirmatory Order against reloading. Significantly, the NRC Staff did not require LILCO to seek any exemptions from Part 73 in order to amend the Physical Security Plan and LILCO did not seek any exemption.

The second assertion -- that other plants are the yardstick for determining compliance with Part 73 -- suffers from the same deficiencies. There is no basis provided for the claim that other shut-down plants' provide the appropriate yardstick, or for the claim that "a shutdown is a shutdown is a shutdown." There is no representation whatsoever as to the security provisions of those other shut-down plants, nor any assertion as to whether their circumstances are parallel to those of Shoreham (For instance, where is their fuel? What is its burnup? How much fuel, of what characteristics, is in the spent fuel pool? Are there any arrangements to assure that the reactor will remain defueled?). Nor are there any references to pertinent documents

31 or to expert opinions on this matter. Further, Petitioners fail to lay any basis for their passing assertion that it is uhe Staff's obligation to compare the security circumstances of various shut-down plants with Shoreham'a. Again, the subpart lacks requisite basis and specificity.

(3) Subpart (bl This subpart alleges that the Physical Security Plan at Shoreham is inadequate, both as amended and as in existence before the amendment, to meet the design basis threat defined in 10 C.F.R. S 73.1(a) (1) . The only relevant portion of the subpart is the assertion that the amended plan fails to meet the design basis threat adequately. But other than a brief quotation from the regulation, there is no allegation whatsoever, much less any particularization or statement of basis, as to the alleged inadequacy of the amendment in this regard. Once more, the contention fails simply for lack of basis or specificity.

The allegation about the Physical Security Plan as it formerly existed is irrelevant to the amendment under consideration. Equally important, there is no basis whatsoever for Petitioners' suggestion that an event of sabotage occurred at Shoreham on October 16, 1989. Licensee Event Report (LER)89-008 did not, contrary to Petitioners' assertion, " recognize" the event in question -- a spurious manual fire protection deluge system activation -- as " attempted sabotage / tampering." June 21 Supplement at 13-14. Flatly contrary to Petitioners'

e 32 representation, LILCO did not conclude, after investigation, that the incident was sabotage. LER-89-008 states, at 4:

Based upon the available evidence i.e.,

investigations by plant staff and security personnel, a check for fingerprints, interviews (with every person in_the building at the time of the spurious actuation) and

-past experience with the-fire suppression deluge system, no definite conclusion as to the cause of the activation of the manual pulistation has been made. This event is not considered to be a case of sabotaae.

The event had initially been classified, in accordance with plant emergency procedures, as an Unusual Event (" attempted sabotage / tampering"), id. at 1; but this was obviously not the ultimate evaluation. And when the NRC Staff reviewed the matter, it concurred with LILCO's final evaluation. Inspection Report 50-322/89-07 (Jan. 5, 1990), available to (but not cited by)

Petitioners, discusses the event and concludes that the problem was that LILCO's emergency procedures needed a lesser category of response for-such ambiguous situations. The Staff recommended that in light of the facts, LILCO amend its emergency procedures to meet the need for ' revised classification to evaluate ever.:s such as this as something less than " attempted sabotage." " Attempted sabotage" implies a more serious threat to systems required to maintain fuel integrity and radiological safety. At no time during the event was there any degradation in, or threat to, the fuel integrity or radiological boundaries.

Inspection Report 50-332/89-07 (Jan. 5, 1990) at 4. In short, the second portion of this subpart is not only irrelevant to the proposed amendment, but without basis.

33 (4) Subcart (c)

This subpart contends, totally without particularization or substantiation, that the amendment-does not " conform with" the guidance for implementation of Part 73 made mandatory by amendments of November 28, 1979. The subpart also recites the titles of various related Regulatory Guides.

At the outset, as already noted, regulatory guides are guidance only and an assertion of noncompliance with them is legally insufficient. Further, the subpart is fatally vague:

here is no assertion -- and no clue -- as to what parts of the Regulatory Guides and other cited materials Petitioners believe the amendment does not comply with, nor any reason why it is considered not to comply. And the documents with which Petitioners allege noncompliance are, in toto, long and generalized. There are no facts alleged, nor any export opinions, nor any documentary basis for believing that the alleged inconsistencies have occurred. Even allowing for the unavailability of the Physical Security Plan, the degree of Petitioners' vagueness is unacceptable under 5 2.714 (b) (2) (ii) .

(5) Subpart (d)

This subpart alleges that the modification to the size of the guard force violates the settlement agreement among the parties to the shoreham operating license case, and is therefore invalid. This contention is sufficiently specific. However, its stated basis -- an excerpt from a transcript of the July 28, 1989

34 Management Level Meeting between LILCO and the NRC Staff --

provides no basis for the subpart. Read carefully, all the cited excerpt states is that a certain number of armed guards, 10, was called for by the settlement. That was an accurate statement, and the excerpt reveals that LILCO personnel mentioned this provision as one they desired to modify in a defueled condition.

The subpart does not allege either that this provision of the security setticment agreement could not be modified by the parties, or that the modification sought is inconsistent with NRC regulations. Thus, there is no basis for an issue to be placed in litigation.M' (6) Subpart (e)

This subpart argues that reduction of the size of the guard force at Shoreham violates 10 C.F.R. 73.55(h)(3) because of, "among other reasons,"E' the 11 criteria relating to guard force size set forth in a 1977 rulemaking. This subpart has no basis.

First, the pertinent regulation -- S 73.55(h) (3) -- while less than elegant in expression, clearly permits a guard force, H' The security settlement agreement has, in fact, been modified to provide for a number of armed guards, less than 10, but consistent with 10 C.F.R. 5 73.55 (h) (3) .

E' LILCO can not respond to the assertion that the action is improper "for other reasons," since such an unspecified allegation is hopelessly vague.

35 with Commission authorization, as small as five members. The regulation states:

The total number of guards, and armed, trained personnel immediately available at the facility to fultill these response requirements shall nominally be ten (10),

unless specifically required otherwise on a case by case basis by the commission; however, this number may not be reduced to less than five (5) guards.

Petitioners are simply wrong if they mean to assert a categorical bar-against a reduction to fewer than 10 responders.

Further, petitioners fall to provide any basis for their assertion that a number lower than 10 "cannot be justified" in light of the 11 criteria set out at 42 Fed. Reg. 10,897 (Feb. 24, 1977). Petitioners provide no basis for this assertion. And the text surrounding the 11 criteria plainly contemplates guard forces that may be either greater or lesser than the nominal 10 responders:

In addition, minimum and nominal numbers of armed response personnel have been specified in S 73.55(h) (2) . The number of such armed response personnel required at a given facility could be__more or less than the nominal number depending on factors such as the following to be considered during evaluation of a licensee's physical security plan, not necessarily in order of importance.

42 Fed. Reg. 10,897 (Feb. 24, 1977). The text then goes on to list those " factors."

Petitioners make no attempt to indicate how or why any of these " factors" apply to Shoreham, or what it is about the site with fuel out of the reactor and in a Class 1 seismic structure that requires any given number of guards. Again, Petitioners

~ . - - -. - - . . .. -

4 36 merely cite a regulation with no attempt to link it coherently to the facts..

(7) Eyboart (f)

The subpart apparently alleges that-any " machinery, components or controls" of the nuclear-related portions of Shoreham must be in " vital areas" or " protected areas." The subpart fails for lack of basis and specificity.

This subpart may also involve misguided reading of the Atomic Energy Act and a misconstruction of the Commission's regulations. At the outset, the statutory citations in the subpart are not illuminating. Section 236 (not 5 238, as cited by Petitioners) is a criminal provision prohibiting and providing penalties for sabotage and tampering with nuclear facilities of all types; it has nothing to do with setting safety standards (of which physical security requirements in Part 73 are a subset) for facility operation, and it-is essentially irrelevant to a contention based on security requirements. Similarly, 42 U.S.C.

5 2014 (cc) (2) is merely the definition of a " utilization facility," a matter not disagreed upon by the parties or relevant to the appar+ct assertion.

Turning to the regulations, vital equipment is defined by 10 C.F.R. S 73.2 as equipment, systems, devices or material whose failure, destruction or release could directly or indirectly endanger the public health and safety by exposure to radiation.

The concept also includes equipment required to function as a

4 37 backup in the case of failure, destruction or release of vital equipment. Vital equipment must be kept in a vital area. The

" vital" equipment for any plant is that equipment needed to bring the plant to a safe shutdown and maintain it there, depending on the plant's coadition. It follows that different amounts or

- items of equipment will be considered vital when fuel is in the reactor than when fuel is in the spent fuel pool. Thus, the appropriato " vital areas" for Shoreham, defueled, are those

- required to protect the fuel. They have only a coincidental relationship to the " machinery, components or controls" discussed in S 236(b) of the Atomic Energy Act. The subpart rests on a faulty analytical basis. _It also is totally nonspecific.

(8) Subpart (ql This subpart alleges that Shoreham's fuel is not exempt from 10 C.F.R. S 73.67, which concerns the security for special nuclear material.of moderate and low strategic significance.

LILCO agrees. The fuel at Shoreham is not exempt from 9 73.67, and LILCO has not sought any such exemption. The subpart provides no basis for suggesting that LILCO has either sought

! such an exemption or.is otherwise not in compliance with 5 73.67.

Accordingly, the subpart lacks basis. Alternatively, even if true, it would not affect the outcome of the proceeding "because it would not entitle (Petitioners] to relief." 10 C.F.R.

S 2.714 (d) (2) (ii) .

.- . _ ~ -

l 38 In sum, Contention 5, in its entirety, fails to meet the NRC's basis and specificity requirements for a properly-pled contention. This failure is directly attributable to Petitionerc' own inability, or unwillingness, to use the record material available to them. Pursuant to its irstructions in L3P-91-23, slip op. at 20, the Board should decide the standing issue against Petitioners with respect to Physical Security Plan issues.

VI. Conclusion For the reasons above, Petitioners' contentions should be rejected and theic request for a hearing on the Confirmatory order, Physical Security Plan, and emergency preparedness license amendments should be denied.

Respectfully submitted,

)

( . ,c- ~"

l W. Tayfo'r Reveley, III

! Donald P. Irwin David S. Harlow Counsel for Long Island Lighting Company l

l Hunton & Williams l Riverfront Plaza, East Tower

! 951 East Byrd Street L Richmond, Virginia 23219

! DATED: July 3, 1991 L

1.

I

LILCO, July 3,1991

1. $8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 91 3 -5 P 4 56 Before the Atomic Safety and Licensing Board

' 3, y In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OLA

)

(Shoreham Nuclear Power Station; )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of LILCO'S OPPOSITION TO PETITIONERS' CONTENTIONS ON CONFIRMATORY ORDER, PHYSICAL SECURITY PLAN AND EMERGENCY PREPAREDNESS LICENSE AMENDMENT were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mail, postage prepaid.

Administrative Judge

• Mitzi A. Young, Esq.*

Morton B. Margulies, Chairman Office of the General Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flirt North East-West Towers, Fourth Floor 11555 Rockville Pike 4350 East-West Highway Rockville, Maryland 20852 Bethesda, Maryland 20814 James P. McGranery, Jr., Esq.*

Administrative Judge

• Dow, Lohnes & Albertson Jeg R. Kline 1255 23rd Street, N.W., Suite 500 Atomic Safety and Licensing Board Washington, D.C. 20037 U.S. Nuclear Regulatory Commission East-West Towera, Fourth Floor Docketing and Service Section 4350 East-West Highway Office of the Secretary Bethesda, Maryland 20814 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ac'ministrative Judge

• George A. Ferguson Nicholas S. Reynolds, Esq.

Atomic Safety and Licensing Board David A. Repka, Esq.

5307 Al Jonas Drive Winston & Strawn Columbia Beach, Maryland 20764 1400 L Street, N.W.

Washington, D.C. 20005

'. Stanley B. Klimberg, Esq. Stephen A. Wakefield, Esq.

Executive Director and General General Counsel Caunsel U.S. Department of Energy Long Island Power Authority 1000 Independence Avenue, S.W.

200 Garden City Plaza, Suite 201 Washington, D.C. 20585 Garden City, New York 11530 Gerald C. Goldstein, Esq.

Carl R. Schenker, Jr., Esq.* Office of General Counsel Counsel, Long Island Power Authority New York Power Authority O'Melveny & Myers 1633 Broadway 55513th Street, N.W. New York, New York 10019 Washington, D.C. 20004 Samuel A. Cherniak, Esq.

New York State Department of Law Bureau of Consumer Frauds and Protection 120 Broadway New York, New York 10271 DAM. M

' David S. Harlow Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219-4074 DATED: July 3,1991