ML20083F111

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Lilco Brief in Opposition to Petitioner Appeal from LBP-91-1,LBP-91-23 & LBP-91-35.W/Certificate of Svc
ML20083F111
Person / Time
Site: Shoreham File:Long Island Lighting Company icon.png
Issue date: 09/25/1991
From: Irwin D
HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:
NRC COMMISSION (OCM)
References
CON-#491-12245 LBP-91-1, LBP-91-23, LBP-91-35, OLA, NUDOCS 9110040073
Download: ML20083F111 (47)
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  • q n ,' n-UNITED STATES OF AMERICA 11UCLEAR REGULATORY COMMISSION D_qfore the Commission

)

)

In the Matter of )

)

LO11G ISLAND LIGitTING COMPANY ) Docket 11o. 50-322-OLA

)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

_ ___ )

LILCO'8 DRIEF IN OPPOSITION TO PETITIONERS' hP_PII;L FROM IDP-91-1, LDP-91-23, AND LDP-91-35 W. Taylor Revoley, III Donald P. Irwin David S. Harlow Coansel for Long Island Lighting Company

!!unton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 September 25, 1991 9110040073 910925 ADOCK 050003p;f

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e s TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................... iii I. Introduction ......................................... 1 II. The Heart of the Matter .............................. 2 III. Background ............................................ 5 A. Procedural History ............................... 5 B. Legal Standard on Appeal ......................... 14 (1) Threshold Standing Issues ................... 14 (2) Admissibility of Contentions ................ 15 IV. Discussion ........................................... 16 A. The Board's Rulings in LDP-91-23 Were Correct ..................................... 17 (1) Petitioners' Dismissal Was Not " Premature" ............................. 17 (2) The Board's Ruling on SWRCSD's Standing Was Correct ........................ 20

a. SWRCSD Did Hot Demonstrate an Injury to its Informational Interests under NEPA ............................. 21
b. SWRCSD's Interest as a " Ratepayer" and " Tax Recipient" Does Not Provide Standing to Intervene .................. 23 (3) Petitioners Had No Right to Discovery ...... 25 B. The Board's Rejection of Petitioners' Contentions in LBP-91-35 Should Be Upheld ........ 26 (1) SE2 's NEPA Contentions Were Properly Rejected ........................... 26
a. Contention 1 ........................... 26
b. Contention 2 ........................... 27
c. Contention 3 ........................... 29
d. Contention 4 ........................... 29
  • s (2) The Security contention was Properly Rejected ........................... 30 (3) Petitioners' Allegations of other Errors Are Trivial and Baseless ............. 38 V. Conclusion .... ....................................... 39
  • s

-lil-TABLE OF AUTilORITIES CASES l

3 American Leaal Foundation v. FCC, 808 F.2d 84 (D.C. 1987) ................................... ...... 22 BPI h _AEC, 502 F.2d 424 (D.C. Cir. 1974) ........... 25 ComDetitiye Entei' rise Inst. v. NHSTA, 901 F.2d 107 (D.C. Cir. 19.)) . ............................... 22 Community Nutrition v. Block, 698 F.2d A139 (D.C. Cir. 1983) ...................... ............. 22

.Shoreham-Wadina River Central School Distrigt

v. NRC, 931 F.2d 102 (D.C. 1991) ..................... 11, 12 STATUTES Atomic Energy Act of 1954, 42 U.S.C.

SS 2011 et seq. ...................................... passim Natjenal Environmental Policy Act of 1969, ,

42 U.S.C. SS 4321 et sea. ............................ passim REGULATIONS 10 C.F.R. S 2.714(a)(2) .............................. 14 i

10 C.F.R. S 2.714(a)(3) .............................. 15, 17, 18 10 C.F.R. S 2.714(b) ................................. 29 l

l 10 C.F.R. S 2.714 (b) (1) .............................. 17, 18, 19 10 C.F.R. S 2.714 (b) (2) .............................. 14, Jo, 38 10 C.F.R. S 2.714(d)(2) .............................. 30 10 C.F.R. S 2.714a(a)_................................ .

2, 13, 17 10 C.F.R. S 2.714a(b) ................................ 10 10 C.F.R. Part.51, Appendix A ........................ 29 10 C.F.R. S 73.5 ..................................... 33, 34 10 C.F.R. S 73.67 .................................... 38

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-iv- j FEDERAL REGISTER 55 Fed. Reg. 10,540 (March 21, 1990) ..................... 6 55 Fed. Reg. 12,076 (March 30, 1990) .................... 7 55 Fed. Reg. 12,758 (April 5, 1990) ...................... 7 55 Fed. Reg. 25,387 (June 20, 1990) ...................... 8 55 Fed. Reg. 31,914 (Aug. 6, 1990) ....................... 8 i DECISIONS OF NUCLEAR REGULATORY COMMISSION Cleveland Electric Illuminatina Co. (Perry !*'uclear Power Plant, Units ?. and 2), ALAB-841, 24 NRC 64 (1986) ................................................... 30, 37 Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LDP-85-20, 21 NRC 1732 (1985);.............................................. 15 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-687, 16_NRC 460 (1982), vacated in cart on other grounds, CLI-83-19, 17 NRC 1041 (1983) ................... 25 Ducuesne Light Co. (Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243 (1973) ....................... 15, 23 Houston Lichtina & Powet_Q.p (Allens Creek Nuclear Generating Station, Unit 1), ALAB-547, 9 NRC 633 (1979).................................................... 17-Lona Island Lichtina Co. (shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990), aff'd on reconsideration, CLI-91-02, 33 NRC 61 (1991) ............. 8, 9, 23 Lona Island Lichtina Co._ (Shoreham Nuclear Power Station, Unit 1), CLI-91-04, 33 NRC 233 (1991) ........... passim

~

Lona Island Liahtina Co. (Shoreham Nuclear Power

, . Station,. Unit 1), CLI-91-08, 34 NRC __

i (June 12, 1991) .......................................... 24 l

l Lona Island Lichtina Co. (Shoreham Nuclear Power l Station, Unit 1), LBP-91-1, '3 NRC 15 (1991) ............. 2, 9, 20 l

Lona Island.Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 33 NRC 430 (1991) ........... passim

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a s

_v_ l hona Island Lightina Co. (shoreham Nucicar Power Utation,. Unit 1), LBP-91-35, 34 NRC __

(Aug. 29, 1991) ......................................... passim 1

Lousigna, Power & Licht _Cgx (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371 (1973) ............ 15 Mississinoi Power & Licht Co. (Grand Gulf Nuclear Station, Units 1 and ?), ALAB-130, 6 AEC 423 (1973) .................................................. 15 l Nor thern States Power Co.- (Tyrone Energy Park, Unit 1), i CLI-80-36, 12 NRC 523 (1980) ............................ 24 Northern States Power Cg2 (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 180 (1973), reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973) ...................... 14, 15, 16, 20, 22, 25 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 33 (1974) ...... 16, 32 4 Sacramento Municinal Utility District (Rancho Seco Nuclear Generating Station), LBP-91-30, 34 NRC __

(July 1, 1991) .......................................... 15, 18 Texas Utilition Electric Co. (Comanche Peak Steam

_ Electric Station, Unit 1), ALAB-868, 25 NRC 912

-(1987) .................................................. 16, 32 Wisconsin Electric Pogtr Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 ALO 928 (1974) ............. 25

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i LILCO, September 25, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore the Commission

)

)

In the Matter of )

)

LONG ISLAND LIGl! TING COMPANY ) Docket No. 50-322-OLA

)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

)

LILCO'S BRIEF IN OPPOSITION TO PETITIONER 88 hPPEAL FROM LDP-91-1, LDP-91-23, ANJLL P-91-3 5 I. Intro 4pction on September 13, 1991, Petitioners Shoreham-Wading River Central School District (SWRCSD) and Scientists and Engineers for Secure Energy, Inc. (SE2 ) noticed an appeal from the Licensing Board's order rejecting their contentions and denying their l petitions to intervene in the Confirmatory Order, Physical l

Security Plan, and emergency pr9pt. redness licence amendment

j. proceedings for Shoreham. Lqo,LIrdand Lichtina Ch (Shoreham Nuclear Power Station, Unit 1), LDP-91-35, 34 NRC _ (Aug. 29, l 1991). Petitioners also noticed an appeal from the Board's two l
  • i 2

carlier rulings on their standing to intervene in these proceed-ings, Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15 (1991) (denying Petitioners' initial petitions but providing them an opportunity to amend) and Long Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-91-23, 33 HRC 430 (1991) (allowing SE2 to file contentions in all three proceedings on issues arising under the National Environmental Policy Act (NEPA) and allowing both SE and 2 SWRCSD to file contentions in the Physical Security Plan proceeding on issues arising under the Atomic Energy Act). Petitioners' notice of appeal was accompanied by a supportinc brief (September 13 Appeal).

Pursuant to 10 C.F.R. S 2.714a(a), Long Island Lighting Company (LILCO or the Company) opposes Petitioners' appeal. The Board's decision denying the petitions to intervene is correct.

l There is no reason to reverso it.

l U. Tlle Heart of the Matte.I Petitioners say they want evidentiary hearirgs on the legality of the NRC's (1) Confirmatory Order denying LILCO the right to reload Shoreham's fuel without prior NRC approval, (2) relaxation of certain requirements-in Shoreham's Physical Secur-l ity Plan, and (3) elimination of certain emergency preparedness requirements for the plant. But this is not what Petitioners rnally want. It-is plain to anyone with eyes to see or ears to hear that what Petitioners really want is evidentiary hearings on

. 3 whether or not Shoreham should be operated. or, to put it another way, whether or not Shoreham should be decommissioned.

i If Shoreham's decommissioning is taken as a given, Petitioners could not care less which method,  ; decommissioning is used.

The commission, however, has repeatedly ruled that whether or not Shoreham should be operated is a decision for LILCO to make. Once LILCO decides (as it has) not to operate the plant, the question requiring NRU review and approval is simply the method of decommissioning to be utel and any necessary condi-tions. Petitioners may try to establish their standing to intervene in a proceeding considering how to decommission Shore-han and (if successful on standing), to try to trame justiciable contentions for evidentiary hearings on how to do the deed. But this is not what Petitioners have done. They have persisted in trying to stuff standing claims and proposed contentions relevant solely to whether Shoreham should be operated into a mold designed to hold standing claims and proposed contentions that take deccmmissioning as a given and then engage how it is to be done.

Petitioners' sweeping unhappiness with LILCO's decision to abandon Shoreham cannot be assuaged in the narrow confines c f a proceeding concerned with how to accomplish decommissioning. _ No

-matter how hard Petitioners twist and strain, they cannot make l

! their litigation desires fit in the available vessel.

The basic incompatibility between what Petitioners so desperately w_ ant to-litigate and what they know the Commission L

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. 4 has told them they gay ]itigate has left with them with no good arguments. Thus, Petitioners' brief on appeal is confusing, at times incomprehensible. It flatly fails to satisfy the Commis-sion't requirement that Petitioners' contentions must at a minimum . . . offer some plausible ex-planation why an EIS might be required for an NRC decision approving a Shoreham decommis-sioning plan and how [the NRC actions at issue here) could, by foreclosing alternative a decommissioning methods or some other NEPA-based considerations, constitute an illegal segmentation of the EIS process.

. Lnna Island Lightina Co.. (Shoreham Nuclear Power Station, Unit

> 1), CLI-91-04, 33 NRC 233, 237 (1991). Further, Petiticners' brief provides only sparse citations to the record, or other authority, to support its claims. And Petitioners recycle arguments made, and lost, by them before in this dochet, with s,

almost no recognition of or response to the reasons given for these arguments' prior rejection. It is not the Commission's job, or that cf the other parties, to try to make sense of the conclusory helter-skelter that is Petitioners' brief. Nor is there any way to make sense of it except for what it is: a i continued, monotonous insistence that same way, some how the NRC must allow Petitioners to litigate the merits of Shoreham's abandonment.l' A

l' lt is possible that SWRCSD, as opposed to SE 2 , cares neither 6 about plant operation ngr the merits of decommissioning, but simply about preservation of its property tax payments (about $25 ,

million a year) from Shoreham and escalation of the base upon which those payments are bastd. By delaying Snorcham's transfer, SWRCSD is seeking to realize a financial gain.

. 5 III. BackoI9MD4 7.. Procedural History Even by Shoreham standards, the procedural history of the throo licensing actions at issuo here is long and tedious. What that history makes undeniably clear is that Petitioners have had i more than amplo opportunity to make their caso on the Confirm-atory Order, Physical Security Plan, and emergency preparednosa amendments. Petitioners' complete failuro throughout this tino to advance anything that might justify evidentiary hearings does not stem from inadequato opportunity to air their views or inadequato attention to them by the NRC's adjudicatory process.

The story starts in 1989, two months after the settlement Agreement between LILCO and New York State took effect. On August 30, 1989, the NRC Staff directed LILCO to describo its plans for Shoreham in light of the Settlement Agreement. In its response, dated September 17, 1989, thu company did so, sug-gi +,ing also that the NRC issue an order prohibiting LILCO from refueling and operating the plant without prior NRC permission.

At the time, the NRC declined to issue such an ordor.

As part of LILCO's effort to minimize Shoreham's costs pending its transfer to the Long Island Power Authority, on l December 15, 1989, the Company submitted to the NRC a combined l

l request for (1)'an exemption from the emergency preparedness I

regairements of 10 C.F.R. 9 50.54 (q) and (2) a license amendment to suspond the effect of the emergency preparedness conditions in Shoreham's operating license. Accompanying LILCO's request was a r

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6 detailed safety analysis of the radiological risk associated with  ;

Shoreham in its defueled state, demonstrating that there was no l need for LILCO to maintain an offsite emergency response capabil-ity and that a reduced onsite capability would be adequate to deal with any plausible accident.

On January 5, 1990, in conjunction with its request for a

" possession only" license (FeL) for Shoreham, LILCO filed an application to amend the plant's Physical Security plan. In support of its application (part of which contained confidential

" safeguards" information pursuant to 10 C.F.R. Part 73), LILCO showed that the greatly reduced risk associated with Shoreham's defueled condition justified (1) reduction of the number of j

" vital" areas in the plant and (2) elimination of certain plan provisions that exceeded NRC requircments.

Following discussions with the NRC, on January 12, 1990, LILCO submitted'a clarification to its emergency preparedness exemption / amendment request. The company also reaffirmed its '

commitment not to refuel Shoreham without prior NRC approval._ '

On' March 21, 1990, the NRC noticed in the federal Reajster a l . proposed finding of "no significant hazards consideration" for f l

LILCO's Physical Security Plan amendment. 55 Ted. Re.g. 10,540 (March 21,.1990). The notico solicited comments on the proposed finding and informed " interested persons" that they could seek a hearing on the proposed amendment.

About a week later, the NRC made a proposed finding of "no significan'c hazards consideration" on LILCO's emergency prepared-

. 7 noss license amendment and noticed it in the Federal Reaister.

55 Fed. Reg. 12,076 (March 30, 1990). Again, interested persons wero invited to comment on the proposed finding and to sock a hearing on the amendment.

On March 29, 1990, in response to LILCO's letter of January 12, 1990, the NRC issued the Confirmatory Order, prohibiting LILCO from refueling Shoreham without first obtaining NRC permis-sion. The Confirmatory Order was noticed in the Esderal Renister a week later, bd "ad. Reg. 12,758 (April 5, 1990). While the Confirmatory order was made immediately offective upon issuance, the NRC announced that interested persons could seek a hearing on the narrow question whnther the NRC's action in imposing the restriction on LILCo should be sustained.

Petitioners filed separate petitions for hearing on the Confirmatory Order on April 18, 1990 Both alleged (incorrectly) 5 that the NRC had violated NEPA by ircuing the order without having first prepared an EIS that considered, among other things, the alleged " alternative" of Shoreham's operation as a nuclear facility. Petitioners also claimed (again, incorrectly) that the Confirmatory Order violated various provisions of the Atemic Energy Act and NRC regulations. LILCO and the NRC Staff opposed the hearing requests on May 3 and 8, 1990, respectively.

Earlier, on April 20, 1990, Petitioners had filed separate petitions tor hearing on both the Physical Security Plan and the emergency preparedness license amendments. Agair., they claimed that NEPA required full-blown consideration of Shoreham's opera-

8 tion as a nuclear facility before the NRC could approve any amendment requests not compatible with resumed operation. Agt in, LILCO and the NRC Staf f opposed the hearing requests, on May 3 and 10, respectively.

At this point, Petitioners also took their campaign to torce Shoreham's operation to the federal courts. On May 7, 1990, they filed in the U.S. Court of Appeals for the District of Columbia Circuit a petition for revie'/ of, among other things, the Con-firmatory Order and the NRC's authorization on April 25, 1990, of an exemption from onsite property insurance requirements.

Briefing was completed on January 18, 1991, with both LILCO and the NRC opposing the petition.

Meanwhile, as allowed under the ' holly" provisions of NRC regulations, on June 14, 1990, while Petitioners' hearing re-quests were pending, the NRC made a final finding of "no signifi-cant hazards consideration" and issued the Physical Security Plan amendment. 55 Fed. Reg. 25,387 (June 20, 1950).

Similarly on July 31, 1990, the NRC made a final finding of "nc significant hazards consideration" and issued the emergency preparedness amendment. 55 Fed. 31,914 (Aug. 6, 1990).

A few months thereafter, the Commission took up the matter of Petitioners' three sets of requests for hearings on the Confirmatory Order. Physical Security Plan, and emergency pre-paredness amendments. On October 17, 1990, the Commission referred the hearing requests to the Licensing Board. Long Island Lichtina Co. (shoreham Nuclear Power Station, Unit 3),

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. 9 CLI-90-08, 32 NRC 201 (1990). But, in so doing, the Commissioni also resolved the vital threshold issuo; it ruled that LILCo's doturmination not to operato Shoreham was a "privato" decision to which NEPA did not apply. Thorofore, the Commission hold, any environmental review of Shoreham's decommissioning nood not consider " resumed operation" of the plant as a nuclear facility.

Petitioners then began their campaign to overturn this ruling. They asked for reconsideration of CLI-90-08 on October 29, 1990. LILCO and the NRC Staf f opposed this request, in ,

responcou filed on November 13 and 19, 1990, respectively. On February 22, 1991, the-Commission affirmed its NEPA decision.

Lona Island Liahtit14 Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-02, 33 NRC 61 (1991).

Meanwhile, on January 8, 1991, the Licensing Board, chaired by' Judge Margulios, denied both Petitioners' throo sets of petitions. Lona Island Linitt;.ing__CA. (Shoreham Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15 (1991). The Board found that Petitioners had demonstrated neither e:4anizational nor representational standing to intervene on s:ther NEPA or Atomic Energy Act issues. As the Board explained, the Commission't i decision in CLI-90-08 had " stripped sway Petitioners' main I

arguments for standing." 33 NRC at 40. But, because "Poti-

,_ tioners did not havo tho bonofit of tho Commission's procedential l . decision . . . at the time they filed their various petitions to I

( interveno," the Board gave them an opportunity to amend their l '

L petitions to "take into account the recent commission decision l;

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1 10 and the deficiencies in their petitions" that the Board had identiflod. & This nocond bito at the appio was " predicated in part on the Commission boing rather liberal in permitting

petitioners the opportunity to curo defectivo petitions to intervono." &

Notwithstanding their opportunity for a second bito, on January 23, 1991, Petitioners tried to appeal the Board's January 8 order to the Commission. Both LILCO and the NRC Staf f opposed L Petitioners' " appeal" on the ground that, among other flaws, it was interlocutory. LILCO and the Staf f pointed out that, since the Board in LBP-91-1 had given Petitionero an opportunity to amend, LDP-91-1 had not " wholly don (iod)" their petitiono for hearing, and completo denial is the predicato for an appeal under 10 C.F.R. 6 2.714a(b).

On February 2, 1991, Potitionero submitted amended petitions to intervene in all throo licensing actions. Included with the amended petitions wore e.ffidavita from, among others, the Presi-dont of the SWRCSD Board of Education and SE2 's Executive Direc-tor. LILCO and the NRC Staff filed oppositions to the amended petitionc on February 12 and 25, 1991,'respectively.

On April 3, 1991, the Commission rejected as interlocutory Petitioners' January 23 " appeal" from LBP-91-1. Long__In]nnd Lightina co_, (shoraham Nucioar Power Station,; Unit 1), CLI-91-04, 33 NRC 233 (1991). The Commission also indicated that its ruling

- in that CLI-90-08 was "not intended to preclude the Licensing j Board, an a matter of law and jurisdiction, from entertaining

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11 properly supported contentions" that an EIS on Shoreham's decom-missioning must be prepared for the three licensing actions at issue. CLI-91-04, 33 NRC at 236.

The Commission went on to explain, however, that it viewed the three licensing actions as "being wholly separate from, and independent of, decommissioning." 33 NRC at 237. And, the Commission " harbor (ed) aubstantial doubts that the Petitioners  !

can make a credible showing that these actions are part of the decommissioning process." Idx But, the commission allowed, if Petitioners were otherwise able to satisfy the NRC's standing requirements, the Board was free to consider a " properly pled contention" on NEPA issues. Idi The Commission set out the test for a properly pled conten-tion." It would at a minimum need to offer some plausible explanation why an EIS might be required for an NRC decision approving a Shoreham decom-missioning plan and how these actions here could, by foreclosing alternative decommis-

, sioning methods or some other NEPA-based l considerations, constitute an illegal segmen-tation of the EIS process.

CLI-91-04, 33 NRC-at 237 (emphasis in originul).

On April 30, 1991, the D.C. Circuit denied Petitioners' petition for review of the Confirmatory order and property insurance exemption. .Ehoreham-Wadina River Central school District v. NRC, 931 F.2d 102 (D.C. Cir. 1991). The court found that even if, as Petitioners alleged, a de facto decommissioning proposal for Shoreham existed, the Confirmatory order and the property insurance exemption were not " interdependent parts of a f

_=-_._., ._ _ .._ ___ _ _ . _ .__ _.-__.._.._ _ . _ _ . _ . _ _ . __._ _ _ _.., . _ - _ _ _ _ . . . _ _ .

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12 larger action (that] depend on the larger action for their justification." 931 F.2d at 107, cuotina 40 C.F.R.

5 1508. 25 (a) (1) (iii) . The two licensing actions, the court said, "cannot possibly be seen as unlawful segmentation of a decommis-sioning proposal to avoid 14 EPA obligations." & at 107.

Rather, they are " simply means of avoiding a waste of resources in the meantime." Isb.

The next month, on May 23, 1991, the Licensing Board ruled on Petitioners' amended petitions. Lonn_ Island Liahtina Co.

(Shoreham liuclear Power Station, Unit 1), LDP-91-23, 33 11RC 4 30 (1991). The Board held that SE 2 had standing under liEPA as to all three licensing actions and allowed it to file contentions on them. While preliminarily finding that SE2 lacked standing under the Atomic Energy Act with respect to the Physical Security Plan, j the Board nonetheless allowed SE2 to file contentions on it as l

l well. SE 2 was said to have been " hindered in its ability to bo specific" about possible harm arising from the security amendment because SE2 lacked access to Physical Security Plan. Thu Board decided to " defer ruling on standing" until SE2 had filed conten-tions. 3 3 11RC at 4 4 0. In this regard, the Board stated that in. reviewing the merits of the contention (s),

the Licensing Board [would) take into account SE2 's lack of access to the security plan.

Although the lack of the security plan

[might) -adversely af fect DE2 's ability to demonstrate that the security plan is the cause of the matter complained of, it should in no way otherwise hinder SE 2 's ability to establish the other elements of an acceptable contention, as provided for in section 2.734(b).

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i 13 Ti The Board denied SE 's amended petition as to Confirmatory Order and amorgency preparednous issues utidor the Atomic Enorgy .

Act.

As for SWRCSD, the Board denied its amendud petition except for Physical Security Plan issues under the Atomic Energy Act.

"Liko SE ," the Doard said, it would not " finally decido (SWRCSD) 2 standing" under the Atomic Energy Act until contentions had boon filed. The Board further hold that SWRCSD's "and its employoos' claim of a deprivation of information mandated by NEPA is vague and does not identify a cognizabic palpabic injury that would provido a basis for organizational or representational standing."

33 NRC at 443. - And otherwise, the Board found, SWRCSD's "organi-zational interests are those of a ratopayer and tax recipient."

& Thoso " economic intorests," the Board hold, "do not qualify (SWRCSD) for standing under NEPA or the [ Atomic Energy Act)."

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s On June 21, 1991, SE2 . submitted four NEPA-based contentions ,

on the Confirmatory Order, Physical Security Plan, and amorgency preparedness amendments; and SWRCSD and SE2 jointly filed one

-Atomic Energy Act-based contention'(with savon subparts) on the Physical Security Plan amendment. LILCO and the NRC Staf f filed l' Thus, the Board's ruling in LBP-91-23 had tho_offect of

" wholly denying" SWRCSD's petitions for hearing in the Confirme- .

tory Order and emergency preparedness proccodings. SWRCSD'did

  • not appeal LBP-91-23's ruling on its standing in those two proceedings within the 10-day limit mandated by 10 C.F.R.

S 2.714a(a).

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14 oppositions to all of the contentions on July 3 and 11, 1991, respectively.

A prehearing conference was hold in Bethesda, Maryland on July 23, 1991. During the conference, Petitioners woro given a longthy opportunity to explain their contentions and to address the concerns over their admissibility raised by members of the Board.

Five wooks thereafter, and more than two years into this adjudicatory forum, the Licensing Board issued hono Island Ljahtinu Co. (Shoreham Nuclear Power Station, Unit 1), LDP-91-35, 34 NRC __ (Aug. 29, 1991). This decision denied all of Peti-tioners' contentions, finding that they did not moet the require-monts for basis and specificity of 10 C.F.R. 5 2.714 (b) (3) . In addition, having scrutinized Petitioners' Physical Security Plan contention, the Board concluded that Petitioners had failed to establish standing under 5 2.714 (a) (2) . Accordingly, the Board denied intervention to both Petitioners.

B. Leoal Standard on Appeal (1) _ Threshold Standina Issugs The determination whether a petitioner has demonstrated

- standing to intervene is "a matter within the discretion of the Licensing Board." Eag, e.a., Northern States Power Cot (Prairie Island Nuclear Generating Plant, Units 1 and 2) , ALAB-107, 6 AEC 188, 193 (1973), reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973). A Board's standing decision m -e r+ p r, v- ww-e v

N 4 15 will not be disturbed "unless it appears that that conclusion is ,

irrational." E.at 193. Egg also lhtqpenne Lich_t Co. (Boavor Valley Power Station, Unit No.1), A1AB-109, 6 AEC 243, 244 (1973).

Similarly, the " acceptance of tendered amendments to o petition for leave to intervono" ic a " matter within the disc 2 tion of the Licensing Board." Northern States Power Co., 6 AEC at 193. In the " absence of a showing of a gross abuse of discro-tion," the Board's decision is not overturned. E.; p_qq al so Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LDP-85-20, 21 NRC 1732, 1738 (1985) (taking noto of 10 C.F.R. S 2.714 (a) (3) 's " express recognition . . . of the Board's discretion to permit the amendment of a petition to inter-veno") (emphasis added) ; Sacramento Municinal Utility District (Rancho Seco Nuclear Generating Station), LDP-91-30, 34 NRC _

-(July 1, 1991).

(2) Mmhibility of Cont 9AtiRna Under-NRC precedent, in an appeal from a Licenair.g Board's denial of contentions, the reviewing body (in this caso, the Commission itself), itself reviews the proffered contentions.

l

-Egg, c . cf . , liississippi Power &_141ght Co. (Grand Gulf Nuclear Station, Units 1 and 2), A1AB-13 0, 6 AEC 423, 424-25 (1973);

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 (1973); Ducuenne Licht Co.

(Boaver Valley Power Statior. Unit 1), ALAB-109, 6 AEC 243, 245 i

_._ _ - _ _ _ _ _ _. _ _ _ _ ._- _ -- _ _.-_.u-____ -, _ , - -

16 (1973); Northern States Power Co. (Prairic Island Nuclear Gener-ating Plant, Units 1 and 2) , ALAB 107, 6 AEC 188, 194 (1973).

But as with standing, the Licensing Board " exercises substantial discretion in determining the adequacy" of contentions, and review of the Board's decision is " limited to whether the Board abused its discretion." Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912 (1987); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 (1974)(the Board exercises " considerable amount of discretion" in determining the admissibility of contentions). In order for the reviewing body to reverse a Board on contentions, it "must be persuaded that no reasonable person could take the view" adopted by the Board.

Iexas Utilities Electric Co., ALAB-868, 25 NRC at 931.

IV. Discussion Petitioners' September 13 appeal comes in two parts. First, they allege (a) that the Board was " premature" in ruling on their standing before they had a chance to amend or supplement their petitions, (b) that the Board erred in determining that SWRCSD's interest in the proceedings was solely as a " ratepayer" and " tax recipient," and (c) that the Board should have provided them an opportunity for discovery before ruling on the petitions. These arguments are wrong.2/

2/ Further, with respect to SWRCSD in the Confirmatory Order and emergenc'r preparedness proceedings, the allegations are (continued...)

17 Second, Petitioners object to the Board's rejection of their four NEPA-based contentions and their one Atomic Energy Act-based contention. Petitioners also make two miscellaneous and trivial allegations of error. Again, Petitioners are wrong.

A. The Board's_Rulinos in_LDP-91-23 hare Correct (1) Ecliiioners' Dismissal Was Hot " Premature" Petitioners claim they had a "right to be able to amend their petitions for leave to intervene 'without prior approval of the presiding officer at any time up to fifteen (15) days prior to holding of the . . . first prehearing conference.'" September 13 Appeal at 2 (emphasis in original), citina 10 C.F.R. 5 2.714(a)(3). Petitioners also allege they had an " absolute right to be able to ' supplement' their petitions to intervene at any time prior to fifteen (15) days before the . . . first prehearing conference." Idx, piting 10 C.F.R. s 2. 714 (b) (1) .

Since the prehearing conference was on July 23, 1991, Petitioners claim they had a right to amend and supplement their petitions "at any time prior to July 8, 1991." Id2 F (... continued) untimely. In LBP-91-23, decided on May 23, 1991, the Board found that SWRCSD lacked standing under NEPA or the Atomic Energy.Act in both of those proceedings. If SWRCSD wished to challenge this finding, it had to file a notice of appeal within 10 days after service of the Board's order. 10 C.F.R. 9 2.714a(a). SWRCSD failed to do so. Thus, the attempt here to appeal the Board's denial of SWRCSD's standing in those two proceedings should be rejected as untimely. See, e.a., [Logston Lichtina & Power Co.2 (Allens Creek Nuclear Generating Station, Unit 1), ALAB-547, 9 j NRC 638 (1979).

i

- m f(gh la

' .let f.?" Petitioners are wrong. As the plain languane of 10 C.F.R.

iS 2.714 (a) (3) and 2.714 (b) (1) reveals, those regulations do not L;o/ide a petitioner an absolute "right" to amend a petition to b,e=

s sne. Tor instance, S 2.714(a)(3) states:

[*Ia' ,

Any person who has filed a petition for leave to intervene . . . may raend his petition for 8 f;, ler.ve to intervene. A b.uition may be 9,b amended ;tithout prior approval of the pre-p5g -[ siding officer at any time up to . . . fif-

- '6 teen (15) days prior to the holdjrg of the first prehearing conference. After this time a petition may be amended only with approval 4 . < .  ? of the presidino officer, based on a bal-N# +iO. ancing of the factors specified in paragraph (a)(1) [concerning late-filed petitions).

This regulation does not preclude a Board from ruling on and dismisr an intervention petition more than 15 days before the first prehearing conference. Gnn Encrarento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-91-30, 34 NRC __, slip op. at 8 (July 1, 1991) (rejecting the argume!.t by petitioner Environmental Conservation Organization (ECO) that, under C.F.R, S 2.714(a)(3), the Licensing Board may only expand, anf. not contract. the 15-day doadline for amending a petition to intervene).i' Rather, the actual gist c'i the provi-sion is that a petition, otherwise_ptill nondina, may be amended without leave of the Board until shortly before the prehearing conference. Beyond that, to avo3d the introduction of new issues

, on the eve of the prehearing conferer.ce, the petition may be l' Before the NRC, petitioners ECO (in the Rar.'_no Seco case) und SERC3D and FE 2 (in the Shoreham case) are represanted by the same counsel, i

l 1

__ _ _ - - _ _ _ . _ _ _ --_____ __ l

19 amended only with the permission of the Board. But there is no i

bar to the P~~~s ability tu rule at any time on papers 3 fore it.

Similarly, there is no basis for Petitioners' claim that 5 2.714 (b) (1) gives them an " absolute" right to " supplement" their petition. According to this provision,

["]nt later tnan . . . fifteen (15) days p- 1r to the holding of the first prehearing co..f o rence , the petitioner shall file a sup-plement to his or her petition to intervene that must include a list of the contentions Nhich petitioner seeks to have litigated in the hearing.

Petitioners stand this regulation ca its head. They argue that S 2.714 (b) (1) provides a petitioner with the "right" to supple-mer, its petition, when actually the provision provides a time-bound obligation on the petitioner to file acceptable contentions in order to obtain a hearing. Obviously, if the Board determinen on the basis of the intervention petition that the petitioner has failed to demonstrate standing on a particular issue, it r'y k dismiss the petition with respect to that issue without walc.ing for the cubmission of contentions.F Petitioners having failed to show that they had a "right" to amend, the only question left is whether the Board's dismissal of choir petition with respect to certain issues was e " gross abuse F The Commission recognized this two-step approach in L9ng Island 'iohtina Cpt (Shoreham Nuclear Power Station, Unit 1),

CLI-91-04, 33 NRC 233 (1991), stating that "if petitioners satisfy the NRC's standing requirements in their amended peta-tions, the Licensing Board is free to consider a properly pled contention." 33 NRC at 237 (emphasis added).

l

1 20 of discretion." Northern Staten Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193 (1973). Clearly, it was not. Indeed, the Board had already give7 Petitioners one opportunity to submit amended petitions, after identifying precisely what was wrong with the initial defective pleadings. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LDP-91-1, 33 NRC 15, 40 (1991)(the Board allows Petitioners to submit amended petitions, the " Commission being rather liberal in permitting petitioners the opportunity-to cure defective _ petitions to intervene"). Certainly, it was reasonable for the Board n*t to allow Petitioners a third oppor-tunity to make an adequate showd.ng of standing.F (2) The Board's_Rulino on SWECBD's Standina Was Correct SWRCSD " suggests" that the Board made a mistake in LDP-91-23 l-j by l-implying that the School District's claims for standing are-limited to " organizational internsts . . . of a ratepayer and tax reci-pient . . . and that those intorasts are l limited to " economic" interestr . . ., find-l ing that such " economic interesta do not qualify it for standing unfer NEPA or the

[ Atomic Energy Act)."

i U The claim that Petitioners "had planned to amend and supple-ment their petitions"_by submitting affidavits "further speci-fying the interests that are barmed by issuance" of the three amendments at issue does not help them. Petitioners do not identify these new affiants nor explain why they could not have provided this further specification when they submitted their amended petitions on February 4, 1991.

21 September 13 Appeal at 3. SWRCSD's allegation of error regcrding the Board's ruling on its standing has two parts. First, SWRCSD says that the Board was wrong in finding that SWRCSD's only interest in the proceeding concerning issues urising under NEPA (with respect to all three licensing actions) and iscues arising under thn Atomic Energy Act (with respect to the Confirmatory Order and emergency preparedness amendments) was that of a

" ratepayer" and " tax recipient." Second, it argues that, even if its sole interest is that of a " ratepayer" and " tax recipient,"

such interests are sufficient to establish standing in this case.

SWRCSD is wrong on both counts.

a. SWRCSD Did Not Demonstrate an Injury to its InLonnat_ lod 31_ Interests under NEPh In LBP-91-23, the Board found that SWRCSD's and "its employ-ees' claim of a deprivation of information mandated by NEPA is vague ,nd does not identify a cognizable palpable injury that would provide a basis for organizational or representational standing." 33 NRC at 443. SWRCSD does not confront the Board's finding that it provided only vague" allegations of harm.

Rather, SWRCSD sim}.'v cla'.as that the " denial of the availability of the information" in an EIS on Shoreham's decommissioning is a

" distinct and palpable" harm to SWRCSD "within the zone of interest protected by NEPA." September 13 Appeal at 5. Signifi-cantly, SWRCSD cites no authority for this proposition.

The Board is correct. To catablish standing under NEPA, SWRCSD had to identify specific " programmatic concerns [that] are

- _ -- .. __..m..._._- _ _ . . _ . _ . . _ - - _ _ . . . . .. ._ ___. _ _ _ _ _

.- =. .

22 being directly and adversely affected" by the challenged agency action. Ecq Cpanttitivo Enterpr.iDo Inst. v. NltTSA, 901 F.2d 107, 122 (D.C. 1990) ; American Lecial Foundation v. FCC, 808 F.2d 84, 92 (D.C. 1987). Further, even ausuming that SWRCSD had identi-flod a rop ' ant fedorel action and anaerto 1 a cognizable interont under NEPA, the tout for standing, -o exproosed in Comnetitive jintgrprino _ Irust' ., requires more:

To establich utanding (on the basis of infor-mational injury), petitioners must assert a plausible lin); betwoon the agency'a action, the information injury, and the organi-zation'a activitica.

16. at 122 (emphasis added); non nign Community Nutrition _h l}1gg15, 698 F.2d 1239, 1254 (D.C. Cir. 1983) (potitionor'n assor-l tion of atanding was rejected because petitioner " failed to catablich any connection betwoon the alleged injury and the (agoney acalon)"). Thus, while the objectiven of NEPA may

" lower [] the threshold for catablishing injury to informational interacts," 901 F.2d at 123, they do not climinate the threshold requiremont of a plausible crennection betwoon- the challenged agency action and the allegcd injury.

It was this plauniM a connection between the alleand harm and the NRC'sLissuance of the three lictnac amendments at issue here that SWRCOD failed to octablish. Nowhore in SWRCSD's petitions to interveno ,is any tangible, specific connection chewn betwoon agency action and alleged harm. The Board acted well within its " discretion" in Iinding that SWRCSD had not demon-l strated standing. Sp.c NorthentfLhits:LJ10xer Ggt (Prairic Island

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

23 Nuclear Generating Plant. nita 1 and 2), AIAB-107, 6 AEC 188, 193 (1973). Far from being " irrational," the Board'n finding wan the natural conacquence of SWRCSD's having submitted, for a necond timo, and donpito specific guidanco from the Board in LDP-91-1, an innufficlent notitlon. Een Dnminnng_ Light _Qp, (Donver Valley Power Station, Unit No. 1), AIAD-109, 6 AEC 243, 244 (1973). Indood, the fact that, on appeal, SWRCSD continues to mako no effort to refute the Board's finding in a compelling indication that SWRCSD had no injury to a cognizablo interont under NEPA.

b. SWRCDD'n Interont an a "Ratopayer" und " Tax RR91pi9nt" D9sn._H91_PIoYido_Rtanding_t@_InLIVenu Even if " economic injury" woro usually nufficient to provido atanding in 11RC proceedings, it would not further SwitCSD' n cauce -

The "oconomic injury" (12nu the lons of tax income) about which

.JRCSD complainn atoma neither from the three licensing actionn 9: Aucue het: nor even from Shoreham'a decomminutoning. Rather, any " economic injury" SWRCSD may nuffer flown from LILeo'n private decision to close the plant. Au toe Comminnion han repontodly mado clear, that dociolon in not at innue. Long 1Dlaud__LIDIlk} !ig_CL. (Shoreham Nuclear Power Station, Unit 1),

CL1-90-08, 32 11RC 201 (1990), 01f 'A_On. reggnnhlerAtilgn , C L1 02, 33 NRC 61 (1991).l' l' An for SWRCSD'n edditional claim of environmental injury from the " indirect ( qug t , air pollution) ofrectn of the plan to replace Shoreham with tousil fueled generating units," here, too, (continued...)

a . .

r 24 Expressed another way, contrary to SWRCSD's representr. tion, there is nothing that the NRC can do to afford "redressability" of the econo'mic injury SWRCSD alleges it will suffer. A decision by the NPC to rescind the Physical Security Plan amendment (or, for that matter, the Confirmatory order or the emnrgency pre-paredness amendment) would not lead to Shoreham's operation.

Even a refusal by the NRC to allow Shoreham's transfer to LIPA would not prompt LILCO to operate the plant. The Commission has expressly recognized the irrevocable nature of LILCO's deci-c lon . E' SNRCSD simply has no " injury ir, fact" that can be "re-dressed" by any NRC action. Cf. Up_r_thern States Power Cox (Tyrone Energy Park, Unit 1), CL1-80-36, 12 NRC 523, 526-27 (1980)(no standing found where the alleged " injury derives . . .

not from the proposed revocation of the license but from the termination of the project," and the Commission "cannot fashion relinf which would in any way redress the harm" to petitioners from the prcject's cancellation).

I/

(... continued)

SWRCSD seeks to raise issues that are outside the scope of any proceeding on Shoreham, as the Commission has ruled. See CLI 08, 32 HRC at 207 (the " alternative of ' resumed operation' -- or other methods of generating electricity -- are alternatives to the dacision not to operate Shorche.m and thus are beyond Commis-sion consideration"),

l' See Lonct IslansLLicthting.D_, (Shoreham Nuclear Power Sta-tion, Unit 1), CLI-91-08, 34 NRC , slip op. at 6, 11 (June 12, 1991) (the Commission "has no basi _s_to look behind LILCO's state-ment" that it is "commircod Dot o to operate Shoreham under any circumstances," and dmos accordingly " accept LILCO's declaration at face value")(emphasis in or3ginal).

25 (3) Patitioners Had No Richt to Discovery Petitioners are mistaken in their -Juggestion that is was

" improper" for the Board in LDP-91-23 to have dismissed them before they had been provided " adequate time for discovery."

September 13 Appeal at 9. This claim flies in the face of long-settled Commission precedent that there is no right to discovery before D. petitioner must file his petition. Egg, e.a., Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2),

CLI-74-45, 8 AEC 928 (1974); Horthern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-10", 6 AEC 188 (1973). Indeed, a petitioner has no right to discovery before-filing contentionc. As the Appeal Board has noted,

"[n]either Section 189a of tha Atomic Energy Act nor S 2.714 of the Rules of Practice permits the filing of a vague, unparticu-larized contention, followed by an endeavor to flesh it out through discovery against the applicant or Stat. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in p_ art on other argunds, CLI-83-19, 17

\

NRC 1041 (1983). The Commission's position on this issue has been upheld by the federal courts. See, e.a., BPI v. AEC, 502 F.2d 424, 428 (D.C. Cir. 1974)(rejecting the argument that the Atomic Energy Act should be so construed "that the interested person need not articulate the issues until after having been admitted as a party to the proceeding, with consequent access to discovery").

I 1

. . .....-.g.- . . . - . - ~ . - - - - -. - - - -... ..=. - - - - - . - -

26 B. .The Board's Rejection of Petitioners' Qgntentions 2 in LBP-91-35 Should Be 11Dhp14 (1) SE 3 's NEPA Contentions Were ProDerlV Reiect_qj i.s noted at the outset, SE2 's arguments on appeal are diffi-cult to confront because they are so badly stated. The one thing that -in clear from SE2 's brief, however, is that SE2 has utterly disregarded-the Commissica's guidance in CLI-91-04 about what constitutes a " properly pled" NEPA contention in this proceeding.

The Licensing Board correctly applied that guidanco in rejecting SE2 's NEPA-based contentions.

P

a. Contention 1 It is difficult to .ollow SE2 's- argumento cince they mis-characterize the Board's ruling and misstate the Commission's guidance-in CLI-91-04. At its most concrete, SE2 asserts that the Board's rulingithat Contention 1 does not place "st issue how  ;

the three licensing actions could preclude any NEPA-based consid-

.erations and constitute an illegal segmentation of the EIS process,"-LPB-91-35, slip op. at 14, is "latellectually indefen-Lsible."- September 13 Appeal at 12-13. The "NEPA-based consider-ation"' relied--on_to " satisfy the-alternative part of the second-prong =of the Commission's standard," SE2 says, "is.. illegal seg-mentation ~" Id

. at 13. SE2 further says it has cited the standard adopted by the CEO and the NRC for determining whether particular sub-sidiary actions may be considered or must be included within the scope of a single EIS (i.e., not illegally segmented).

l l

1.

l l

, . . _ . . - . , ---,--yrm,,.- m,,_s. n.-y,,, --

  • is .

1 1

27

! Idx (emphasis in original). The Board, SE2 concludes, "never

. comes to grips with this proposition." Idi

But the Board did "come to grips" with this " proposition."

[ It correctly determined that SE2 's more recitation of the CEQ 4- standards "neither provides the plausible explanation (why an EIS might be required for an NRC decision approving a Shorchem decommissioning plan) called for by the Commission in CLI-91-04, 1 nor does it conform to the requirements of 10 C.T.R.

j 2. 714 (b) (2 ) (i) , (ii) and (iii)." LDP-91-35, slip op, at 11-12.

The Board's essential point -- which SE 2 steadfastly refuses to

! accept -- was that the allegatien that the three porti). ant

, licensing actions are part of the decommissioning process at i

Shoreham " presents a factual consideration." Idi at 12 (emphasis
added). Accordingly, Contention I failed hto contain a brief explanation of the bases of the contention," or a " concise l statement of the alleged facts or expert opinion which support 3 the allegation." IfL. SE2 offurs nothing in response to this finding but babble,
b. Contention _a According to SE 2, the Board created a " straw man fir. ding" by conclud.:q ' hat it had " failed to submit an admissible contention on the issue of whether the licensing actions requ.' n an 2IS."

September 13 Appeal at 13. "It is plain from Contentions 1 & 2,"

SE2 says, "that (SE2 3 do[es] Dgt argue that the three licensing actions require an EIS, but rather argue that the proposal to

2 11 dCCDamiDa1Qn (including thone three liconning actionn) requirca an EIS." 1d,, (emphanin in original).

SE han created the "utrnw man." The Ilonrd did not any that SE 2 had to nhow that the throo actionn thomnolvon requiro an 1:18.

l The lionrd'n e.na'.ynis fell within the context of Shoreham'n decomminnionina:

SE han in11od to nubmit an adminnihic con-2 tantion on the inuuo of whether the throo licenuing actionn require an EIS, ytt_Conten-tion _L.ittoremined_9a_that_nu num D.tip n . With-out that annumption there in no banin to dincuor, the applicability of the GEIS to Shorcham. The GEIS in but one form of an EIE. To debate whether the GEIS OXtonda 10

.thn_Diorchnm_nituation, without the annump-tion of a requiromont for an EIS, would be to engago in an irrolovant academic exercino.

LIlP-91-3S, aljp op. at 16 (emphnain added). The lionrd' o point that Contentjon 2 wan "promined on that annumption" wan a plain referenco to the firnt few worda of the contention: "The nood for nn EIU on tho DEDDDRal_tO_fiUS9mminD1DILGhprehum in ontab-

" An the lionrd pointed out, Contention 2 was linhed . . . .

" baned on the very point GE2 ultimately noekn to entablinh nnd in thun fallacioun." E The lionrd properly rejected Centention 2, which wna nothing but an o* fort by SE2 to renurrect thei r of t-rejected annertion that an environmental review of Shorehnm'n decommincioning munt include concidoration of the alternativo of ,

"renumed operntion."

29

o. R9Atp_ntign_1 SE. Daya the Board is wrong with respect to Contention 3, because the "foruat sotout (nic) in Regulatory Guido 4.2 (Rev. 2, July 1976) has been codified and in required by 10 C.F.R. Part 51 Appendix A (1991) . " September 13 Appeal at 14. But SE2 falla to confront the Board's ruling that Contention 3 "doco not present a litigable inauo" because thcro has been no showing that an environmental report is cvon required for the threo liconning actions at incue. LDP-91-35, slip op. at 17.2/ The Board'a .

rejection of Contention 3 no being of only " academic intercut,"

and one which doca not procent a "genuino incue of fact or law for litigation" as required under 10 C.F.R. S 2.714(b) in clearly correct.

d. E9Rt9At19D_i SE2 did a curious thing in Contention 4. Rather than try to show how the throo licensing actions at issue could foreclono consideration of a decommincioning option at Shoreham (comething which SE2 la charged to do by CL1-91-04), Contention 4 dealt entirely with how the inntmagpq_oLiLEQL for Shoreham could foreclose consideration of such options. The Board properly determined that Contention 4 was " irrelevant to the mattern at issue in this proceeding." LUP-91-35, nlip op, at 19.

2/ Petitionarc' reference to 10 C.F.R. Part 51, Appendix A la irrelevant. Appendix A, by it plain terms, concerna an EIS prepared by the flRC Staff, not an environmental report prepared by a licencee.

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

30 On appeal, SE, characterizes the Board's determination of the self-evident irrelevance of Contentien 4 as "conclusory,"

but, ultimately, SE 2 is left with nothing to say., SE, asserts that it "put in issue the question" of the connection between the three licensing actions, the issuance of the POL l and the pro-posal to decommission Shoreham in Contention 1. Even if that were true (it is not), SE2 wau required to do more than simply put the issue "in question." Under the NRC's regulations, SE2 was obligated to provide a threshold showing that there is some factual support underlying its contention. It did not uo that, l and che Board was therefore correct in determining that Conton-l.

tion 4 " fails to meet the requirements of 10 C.F.R. 2. 714 (b) (2) and 2.714 (d) (2) (1) . " LPD-91-35, slip op, at 20.

1 (2) The Security Contention Was Preparly_Reiected Petitioners race through the alleged errors in the Board's ruling rejecting their Physical Security Plan contention as if they were late to catch a bus. At no point do they stop to provide any real explanation or analysis to support their claims l

I of' error. Most of the time, they offer littic more than an 1 -assertion that "we were right the first time." This is inade-

! quate. Seg, e.c z , Cleyeland Electric Illumiiatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 67 (1986) (if petitioner " wished us to take seriously its insistence that the Licensing Board committed error, its counsel was duty-bound to illume the foundation for that insistence"). ,

31 First, Petitioners say the Board's " reliance on the absence of expert opinion is meaningless" because they "have not had access to either the previous or current security plan for analysis by experts." September 13 Appeal at 15. Relatedly, they complain that the "' physical plant and equipment configuration given in the final safety analysis report' . . . is irrelevant without knowledge of how the security plan (original and amended) classi-fled those areas and equipment as ' vital' or not vital." 141 That information, they say, io contained only in the security plan which was not available to Petitioners." Id1 The Board took adequate consideration of Petitioners' lack of access to the Physical Security Plan before dismissing their contention, stating that it had "previously recognized that Petitioners did no. have access to the amended security plan."

LDP-91-35, slip op, at 23.E' At the same time, the Board pointed out that, in deferring its ruling on standing, it expected Petitioners to analyze available public information to establish at least a threshold basis for positing possible hazards to public health and safety attributable to M' It remains the case, too, that while Petitioners seek to take refuge in the fact that they have not been provided access to the Lhoreham Physical Security Plan, thev twve _ILey_cr recuested access to the JlnD1 In light of the NRC's strict policy against disclosure of Safeguards Information, it was not LILCO's respon-sibility to have so offered. Nevertheless, as the Board in LDP-91-35 suggested, had Petitioners over evidenced an intention to engage in anything other than a " fishing expedition" on this issue (for instance, by diligently pursuing the wealth of public information that was already available to them), the Board might have " permitted further examination of the amended security plan to determine its adequacy in preventing or reducing public rink."

LBP-91-35, slip op. at 22.

  • ..i .

32 Shoreham in its procent physical configura-tion.

Idt Dut " absent Jomo adoquately supported a0sortion of public risk (or risk to Potitionern)," the Board ruled, it saw "no banis-for proccoding further." Idx In oc ruling, the Board acted well within the boundo of its discretion. Sen, gigt, Texas Utilitiqa Electric Co. (Comancho Peak Steam Electric Station, Unit 1),

ALAD-868, 25 NRC 912 (1987) ; J2h11miglphin_Elsctric Co. (Peach -

Dottom Atomic Power Station, Unita 2 and 3), ALAD-216, 8 AEC 13, 21 (1974).H/

Second, Petitionera disputo as "ill-founded" the Board's rejection of their argument that "rolaxation" of the security requiremonta is ' arbitrary and capricious" because aimilar relaxation has not been granted to other nuclear planta in extended outages. September 13 Appoal at 15. They suggest that the Board's ruling on this point in based on its " implicit HI Petitionors' subsidiary assertion that the Board nover

" point [od] to any ' publicly available information' that would have boon rolovant" la simply not true. For examplo, the Board plainly.noted that there was no reason Potitioners could not analyze or take account of information in the public record, as tor example the current defuelod :

stato of the reactor, sources and location of radioactivity within the reactor complex, amount of radioactivity on alto, und physical plant and equipment configuration given in the Final Safety Analysis Report, to framo a contention-havlag the required specificity in all but-[the] limited aspecto previously discusnod if a public hazard from fuel theft or cabotago exists at Shoreham.

LUP-93-35, slip op. at 23.

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

33 finding that Shoreham la not 'likely to b.e restarted.'" &

Thio, in turn, Petitioners argue, is an " ultimate finding . . .

that is at issue in this proceeding and cannot be accumed" by the ,

Board. &

But the Board's Ical ruling on this point wan:

Wo reject that argument for 1319 reasono.

First there is no oyppartj,nn banin proffered for tho assortion that Shoreham, which has not operated at full power and la dorueled, in in fact similarly situated with roupoct to other reactoro.in extended outage (s) but which are likely to be restarted. Second, there io no lenal authgy.ity cited to suggnst that the Licensing Board could impone re-quiremonta on Shoreham based on an analogous situation with other reactors rather than the provisions of 10 C.F.R. Part 73.

LBP-91-35, slip op, at 25 (emphanin added). The Board thus identified both a factual mei.cor that Petitioners had not ad-droscod, as well as a legal issue that Petitionora failed to resolvo. On appeal, Petitioners offer nothing in responsa.

Third, Petitionara say that the Board "arrs in f aul ting Petitioners for not discussing 10 C.F.R. 5 73.5 relating to the possibility of exemptions from Part 73 . - . . because the [ Board]

lator recognizon that there is no ' exemption request' at incue in this-proceeding." September 13 Appeal at 16.

This la just silly. Petitionern ignore completely that the Board further stated that Irleanrdlers_o.LMhe_thcL_ar _nnL_.1 L12dl_Jan DRDD 1DYgted in tillA_qAqq, it suggento on itn face that Part 73 pormits consideration of public risk in implomonting its provisionn and it does not inflexibly bind the Commis-aion 30 the contention suggents.

._ __. . _ . _ _ _ _ _ _ _ . . - ~ _ _ . _ . _ - _ _ _ _ _ _ . _ _ - . _ . . .. .m__ _ _ _ _

$ g W - g 34 LDP-91-35, nilp op. at 26 (emp' : sis added) . In other wordo, tho Board cited S 73.5 na evidenco for the proposition that the lovel of physical occurity required at a nuclear facility under Part 73 may vary given the radiological risk prosented by that facility.

Rather than confront this, however, Petitionera protond that the Board was paying comething altogether different.

Fourth, Petitionora arguo that the Board's "trohtment of

[their] procontation. of evidenco of an attempt at sabotage on October 16, 1989, in a misunderstanding of (their] purpoco."

September 13 Appeal at 16. Petitionera claim that they woro not asking the Board to auscas the adequacy of the Shoreham Physical l

Security Plan prior to the amendment. Rather, Petitionero cay, l'

their argument was that the " existence of the attempted cabotago, and the licensco's poor performance in addronning it under the L previous-plan, indicates that there should be no relaxation of 1

socarity plan requirements." Idt 1

Thoro was no "misunderutanding." The Board did not reject this pbrLlon of the contention cololy because Petitioners tried to retino irrolovant isnuos. The Board said that "ft]o the_gxient thct [that subpart of the contention) invites auch an inquiry it L

cornot be admitted." LDP-91-35, slip op. at-28. The Board L ly;;ML9I explained that Petitioners had " failed to support this i

contention with citations to publicly available information or export opinion indicating the existence of nomo form of risk to public health arising from the defueled Shoreham reactor." lh l

l

35 Fifth, Petitionern dispute the Board's rejection of their subpart on the security acttlement agreement between LILCO and Suffolk County. The Board held that Petitioners' " cryptic citation" to a " transcript of a management level meeting held in I

1989" was " simply inadequate," since the " relevance" of the meeting was not established. LDP-91-35, slip op. at 29. Peti-tioners claim that "(c]ontrary to the (Board's) accortion," they

" clearly identified the relevance of the information presented at the Management Meeting on July 28, 1989." Reptember 13 Appeal at

17. According to Petitioners, a " reduction in guard force would violate the acttlement agreement on cecurity where Petitioners and the persons thny reprocent are third party beneficiaries."

Id t Petitioners, who provide no further explanation of the relevance of the July 28, 1989 meeting, offer nothing to confront the Board determinadion that it was " unwilling to assume that the parties to a past settlement agreement bargained away the Licen-sco's entitlement under NRC regulations to Deck amendments to its operating license, or that the (NRC) Staff concurred in such a settlement." Id1 at 29-30. Moreover, while Petitionero claim to be "thi party beneficiaries" of the settlement agreement (a g

99.g% hge, invention that does ngt appear in the contention) , they ignore the reality that "no party to the settlement has com-plained" about the amendment. LPD-91-35, slip op. at 30. Nor do l Petitioners dispute that "it is the current regulations contained in 10 C.F.R. Part 73 by which the acceptability" of the amendment

w . . . .

36 "must be tested" and that they provided "no factual or legal basis for their assertion of invalidity of the amendment under the applicable regulation." 141 Sixth, as to the Board's rejection of subpart 5(o), Peti-tioners say they " identified the appropriate criteria to be applied for allowing a reduction from 10 guards" and " asserted that those criteria had not been met." September 13 Appeal at

17. Since they did not have " access to the original and amended security plans and the justification for the reduction offered by the licensee and accepted by the Staff," Petitioners assert that they "can say nothing more." Id2 Access to the Physical Security Plan by Petitioners would not have saved this subpart. Its fundamental defect aas that it ran contrary to the plain langu e of 10 C.F.R.
73. 55 (h) (3) which provides tnat the nominal number of crmed guards immediately available at a facility shall be 10 "unless specifi-cally require otherwise on a case by case basis by the Commission; however this number may not be reduced to less than ' ve (5) guards."

LBP-91-35, slip op. at 30-31. The ,+ard pointed out that, under this provision, the " number of armed guards required at Shoreham is permitted to be flexible under the regulation and is not fixed immutably at 10." Id 1 at 31. In short, subpart 5(c) is wrong as a matter of law.

Seventh, Petitioners say that the Board wrongly rejected subpart 5(f) because, "as a matter of low," the protection of equipment deemed " vital" for the operation "is essential to a

37 l liconoco with a full power operating licence." September 13 l

Appeal at 17. Petitionorn complain that neither LILCO nor the NRC Staff " presented evidence of the NRC's declancification of equipment for areas ao vital in any other prior caso duo to the

' modo of the reactor.'" Idx at 17-18.

The Board properly characterized thin allegation as nothing "but another variation on [the] often annerted and rejected claim that thoro can be no relaxat..on of nocurity requiremento that are applicabic to poccoanorn of full power operating licennon regard-less of the state or modo of the reactor or the degree of rick it poson to the public." LDP-91-35, slip op, at 32. The lloa rd again rejected that " rigid interpretation" an " conflict (ing) on its face with the definition of ' vital equipment' given ut 10 C.F.R. Part 73.2." Iqh once more, the Iloard nald, Petitioners provided "nothing in the form of citations to authority or any other banos for their novel interpretation of law." h on appc'), Petitionero nimply protect that "the !!oard got it wrong."

But th are obliaod to do more. See Clny.clansLlilucirit.lll3mir nutinq C 2,. (Perry Nuclear Power l>1 ant, Unita 1 and 2), A LAll- 8 41, 24 MRC 64 (1986).

Eighth, Petitionern argue that the Board "minunderntood" nub}'a rt 5(g), whono "ounence" la that the "rmrna l requiremonto for security plano for fu]1 power operating 11conneen would not be nubject to relaxation in the cano of Shorchem becauno the iuol wan not colf-protecting and no exemption had boon nought.'

September 13 Appeal at 18.

  • i. .

38 The Board han not misundoratood Petitioners. It just doon not agree with them. The Board noted that there in no disputo that 10 C.F.R. S 73.67 in inapplicable to Shoreham, sinco LILCO has not cought an exemption under that provicion. Since cubpart S(g) does "nothing to provido any additional banin or specifi-city" to the contention, the oubpart fails to nhow that a genuino dispute exista on a material inaue of law or fact, as required by 10 C.F.R. 5 2.714 (b) (2) (iii) . LBP-91-35, alip op. at 34.

(3) Petitioners' Allegations of Other KrI9Ip_Are_TrlyLal an4_RAILelMHa__

Tacked on the end of Petitionern' brief are n couple at other allegations. First, they argue that the Board's rejection of their claim that they should not have been required to file NEPA contentions prior to LILCO's filing of an environmental report "must be reveracd" becauce NRC regulations allegedly state that NEPA contentions are tc be nubmitted "9Dly_01 tat the submit-tal of the environmental report." September 33 Appeal at 18 (emphasis in original), pitjo_g 10 C.F.R. 9 2.714 (b) (2) (iii) . But the Donrd right)/ observed that Petitionero had failed to offor t

any explanation as to how they %ere prejudiced or injured." ,

LDP-91-35, slip op. at 35-36. They still have not provided any such explanation. Moreover, S 2. 714 (b) ( 2 ) (l ii ) is irrelevant unicos an environmental report is, in fact, required for the three licensing actions. As the Board pointed out in itt ruling on Contention 3, Petitionern never octablished that. LBP-91-35, alip op. at 17

6 <o e 1

39 Petitioners also assert that, in refusing to consider LILCO's post-hearing filing on the Physical Security Plan filing and their response thereto, the Board abused its discretion "without explanation or attempt at reasoning." September 13 Appeal at 19. The Board acted well within its discretion. Since the Board was able to dismiss subpart 5(d) --

the sole subject of LILCO's July 29, 1991 letter and Petitioners' reply -- on the l basis of the papers already before it, it was hardly obligated to take into account further information submitted by LILCO in opposition to that subpart.

V. Conclusion For the reasons above, Petitioners' appeal from LBP-91-1.

LBP-91-23, and LBP-91-35 should be denied.

Respectfully submitted, e}

A  !, m L JW~

f W.' Taylor Reveley, III Donald P. Irwin David S. Harlow Counuel for Long Island Lighting Company Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 DATED: September 25, 1991

dhi* .LILCO, September 25,1991

  • .viat UNITED STATES OF AMERICA 'M .

NUCLEAR REGULATORY COMMISSION Before the Commission at. '

Aci ~_ ,

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 BRIEF IN OPPOSITION TO PETITIONERS' APPEAL- FROM LHP-91-1, LBP-91-23, AND LilP-91-35 were served this date upon the '

following by Federal Express, as indicated by an asterisk, or by first class mail, postage prepaid.

Commissioner Ivan Selin, Chairman

  • The Honorable Samuel J. Chilk Nuclear Regulatory Commission The Secretary of the Commission

' One White Flint North Building . Office of the Secretary

- 11555 Rockville Pike - U.S. Nudcar Regulatory Commission

-Rockville, MD 20852 Washington, D.C. 20555 Commissioner Kenneth C. Rogerr* Administrative Judge

  • Nuclear Regulatory Commission Morton B. Margulies, Chairman
One White Flint North Builoing Atomic Safety and Licensing Board 11555 Rockville Pike. U.S. Nuclear Regulatory CommisMon Rockville, MD : 20852 - East-West Towers, Fourth Floor l

4350 East-West Highway

. Commissioner James R ~Curtiss* Bethesda, MD 20814 L Nuclear Regulatory Commission One White Flint North Building Administrative Judge *

1155! I;ockville Pike . Jerry R. Kline L

Roc'A ville, MD 20852-- Atomic Safety and Licensing Board l _

U.S. Nuclear Regulatory Commission Commissio W Forrest J. Remick* East-West Towers,-Fourth Floor Nuclear Regulatory Commission 4350 East West Highway

One White Flint North Building Bethesda, MD 20814 11555 Rockville Pilec Rockville, MD 20852 4

. - .a

f*

ca , .

2-Administrative Judge' Charles hi. Pratt, lisq.

Thomas S. Moore, Alternate Chairman Senior Vice President and General Counsel Atomic Safety and Licensing floard 22nd Floor U.S. Nuclear Regulatory Commission Power Authority of State of New York East-West Towers, Fourth Fh>or 1633 Ilroadway 4350 East-West flighway New York, New York 10019 Bethesda, MD 20814 Stanley 11. Klimberg, Esq.

Administrative Judge

  • Executive Director and General George A. Ferguson Counsel

- Atomic Safety and Licensing Board Long Island Power Authority 5307 Al Jones Drive 200 Garden City Plaza, Suite 201 Columbia Beach, Maryland 20764 Garden City, New York 11530 James P. McGranery, Jr., Esq.* Carl R. Schenker, Jr., Esq.'

Dow, Lohnes & Albertson ' Counsel, Long Island Power Authority 1255 23rd Street, N.W., Suite 500 O'Melveny & Myers Washington, D.C. 20037 55513th Street, N.W.

Washington, D.C. 20004 Mitzi A. Young, Esq.*

Office of the General Counsel Gerald C. Goldstein, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel One White Flint North New York Power Authority 11555 Rockville Pike 1633 Broadway Rockville, Maryland 20852 New York, New York 10019 l Nicholas S. Reynolds, Esq. Samuel A. Cherniak, Esq.

David A. Repka, Esq. New York State Department of Law L _ Winston & Strawn Bureau of Consumer Frauds and Protection 1400 L Street, N.W. 120 Broadway Washington, D.C. 20005 New York, New York 10271 1

Stephen A. Wakefield, Esquire L General Counsel l U. S. Department of Energy

! 1000 Independence Avenue, S.W.

Washington, D.C. 20585 Ilunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond. Virginia 232!9 DATED: September 25,1991 AvY.h

/ David S.~Tlarlow

~

-, __

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