ML20084S365

Response to Suffolk County 840521 Request for Clarification of Commission 840516 Order.Pending Clarification,Requests Seek Reconsideration & Not Clarification.Certificate of Svc Encl

ML20084S365
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/24/1984
From:	Rolfe R HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
Shared Package
ML20084S363	List: ML20084S362 ML20084S365
References
OL-4, NUDOCS 8405240411
Download: ML20084S365 (17)

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UNITED STATES OF AMERICA '

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NUCLEAR REGULATORY COMMISSION '

Before the Commission In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

LONG ISLAND LIGHTING COMPANY'S RESPONSE TO REQUESTS FOR CLARIFICATION I.

On May 21, 1984, Suffolk County filed a " Request for Clarification of Commission's Order of May 16, 1984." Governor Cuomo filed his clarification request the next day. The filing of these requests was of course predictable; the only question was how many days would elapse between the Commission's decision and the County's and State's first complaints that it was procedurally inadequate. Suffolk County Executive Peter Cohalan described the Commission's May 16 Order as "a victory

for Suffolk County in our effort to keep that plant closed."

l l Newsday, May 17, 1984. It is perfectly apparent that the 1

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" clarifications" that he and the Governor now seek are simply the next steps in their " effort to keep that plant closed" by avoiding a decision on the merits -- by delaying at all costs a determination whether in fact Shoreham can be tested at low

. power without undue risk to the public health and safety.

Thus, these " clarification" requests are the next, wholly predictable moves in the campaign to kill Shoreham by licensing attrition. .

We repeat what we have said before: fundamental fairness has been denied LILCO in Shoreham's licensing process, most egregiously'during the last two months of administrative confusion and conflict.1/ It is vital to future fairness, as well as to the integrity of this agency's process, that the Commission understand what is actually going on, engage pertinent issues on a timely basis and, when appropriate, lay down guidelines to govern the future conduct of the proceeding.

For reasons set out below, the May 16 Order does provide'such 1/ See LILCO's Comments in Response to the Commission's Order of April 30th, at 1-17 (May 4, 1984); see also LILCO's l Memorandum of Law in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon which Relief Can be Granted and in Opposition to Motion for Preliminary Injunction, Civ. Action No. 84-1264, U.S. District Court for the District of Columbia (April 27, 1984); LILCO's Statement before Subcommittee on Energy & Environment of House Committee on Interior & Insular Affairs (May 17, 1984).

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guidelines in LILCO's judgment. If for whatever reason the Commission has second thoughts about its May 16 action, however, this is the time to say so. It would be intolerable for the low power proceeding to move a second time down procedural paths known to the Commission, only to have the Commission later abort the journey because the wrong roads had been travelled.

There 'is no meaningful risk to the health and safety of the public from what LILCO proposes to do. LILCO wants a chance to finish proving its case. If the pertinent procedures for doing so aren't laid out in the Commission's May 16 Order, and we believe they are, then it is crucial they be set out in another order that endures. .

II.

A. Resumption of Hearings The County contends that the hearings should be "new in all ways." This suggestion' finds no basis in the Commission's May 16 Order or in common sense.

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i o-The County's suggestion is misleading in that it characterizes the April 24-25 hearings as " void ab initio." To the contrary, the commission's Order was carefully worded to indicate the continuous nature of the proceeding and to dispel

, any notion that the previous effort by all parties would be wastefully and irrationally disregarded. Thus, the Commission ordered that the Licensing Board's Memorandum and Order of April 6, 1984 be vacated only "to the extent that it is inconsistent with this Order." Commission Order at 1.

Similarly, the Commission advised that LILCO "should modify its application for l'ow power operation" in seeking an exemption; it did not suggest that a new application for low power operation was necessary. Commission Order at 2. Again, the i Commission ordered that the " Licensing Board shall conduct the i proceeding on the modified application in accordance with the l

Commission's rules." Commission Order at 3. And, finally, as Suffolk County points out, the Commissicn provided guidance for a schedule incident to " resuming the hearing." Commission Order at 3. Clearly, the Commission intended a continuation, not a new beginning.

Nor would a new'beginning be warranted here. As LILCO prospectively indicated to the Commission, it has applied for an exemption based on the same core facts as supported its

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Supplemental Motion. Only the legal garb has changed.2/ Since the factual underpinnings for the Application for Exemption and request for low power license have remained the same since at least March 20, the County can rely on the same experts it has retained and can expect to face predominately the same witnesses whose affidavits and prefiled testimony it has reviewed and whom it has had the opportunity to cross-examine on April 24 and 25. If new evidence or new issues are presented, the County will obviously have an opportunity to ccnfront that evidence. There is absolutely no point, however, in refiling the same testimony and repeating the proceedings of April 24 and 25.

2/ Admittedly, the exemption request necessitates a review of I public interest considerations. Those LILCO has asserted in l

its Application for Exemption, however, will not require any extensive factual development. For example, the Licensing B,oard and Commission can probably take judicial notice of the~

l precariousness of this country's oil supply given the instability in the Middle East. Similarly, there can be little dispute that LILCO has exerted good-faith efforts to comply with GDC 17.

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l B. Scheduling The County next tries to revisit the scheduling issue that has been addressed at length by the parties and finally put to rest by the Commission on May 16. It asks for scheduling flexibility pending a determination of the issues "actually . . . in controversy." Yet, as the County knew from LILCO's earlier com;'ents to the Commission and as it now knows from LILCO's Application for Exemption, the health and safety issues presented remain identical to those presented by LILCO's Supplemental Motion cui March 20. If, as the County suggests, the complexity of new issues is the benchmark for establishing a schedule, the schedule ought to be compressed, not prolonged.

Equally important, the County has had ample time to explore LILCO's case and prepare its own affirmative case. The tale of the County's deliberate decision to proceed at a snail's pace with respect to the factual issues raised on March 20 has been repeated often, but warrants repetition again. At the very latest, the County could have begun inquiring actively into LILCO's case on March 20, the day LILCO's Supplemental Motion and affidavits were served. Notwithstanding the County's contrary desires, the Licensing Board's intention to move quickly was signaled by_its telephone notice of March 30 2D

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setting an April 4 oral argument, by its remarks at the ensuing conference and by its April 6 Order. Still, LILCO did not receive any discovery requests from the County until April 12.

Even at that, Suffolk County's discovery requests, though extraordinarily burdensome, were of a boilerplate variety that could have been formulated on a first reading of LILCO's March 20 motion and affidavits.

The County's pursuit of document discovery actually requested has been equally superficial. Following receipt of the County's first discovery request, LILCO had documents assembled for examination and copying on Long Island the next day, April 13, and offered to make them available around the clock. The County responded to the invitation by sending one lawyer recently assigned to the case and two paralegals; they spent between three and four hours going through some of the available documents, requested extensive copying (which was performed overnight) and departed. Documents responsive to the second request were also assembled and made available for i

review on Long Island by April 14. The County forewent this opportunity, too, choosing instead to have documents copied and s,ent its attorneys' offices in Washington, D.C. which was accomplished by April 16.

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Despite having known since March 20 the identities of LILCO's potential witnesses and the gist of their proposed testimony, the County neither took nor requested depositions.

Nor did the County engage in extensive cross-examination during

, the hearings beginning April 24. Hearings began at 9:00 a.m.

on Tuesday, April 24, and by the time they were suspended at approximately 11:30 a.m. on Wednesday, April 25, all cross-examination of LILCO's witnesses had been completed. If the County had valid safety concerns or thought the record needed further development, it could and should have put the available hearing time to far better use than it did.

The County's pursuit of consultants or expert witnesses has been similarly lackadasical. Despite the clear. indication as early as February, 1984, that LILCO intended to propose alternatives relying in whole or in part on the enhanced reliability of LILCO's offsite power sources, the County took no steps to secure additional consultants. Indeed, even when LILCO made a specific proposal supported by four affidavits including exhibits, the County made no effort to hire new consultants to engage in the proposal. It was not until after April 4 that the County began to move. Minor Affidavit of April 20, 1984.

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Despite its sluggishness, the County has retained a number of experts according to ito affidavits. It has had ample time to review LILCO's proposal and to prepare its affirmative case. To the extent the County may need additional time, it should specify now, in detail, the reasons. It should not be allowed to make vague assertions of unpreparedness and wait until the end of the allotted discovery period to seek delay.3/

3/ Before being deprived of an opportunity to hear the jurisdictional issues and merits of the County's request for a preliminary injunction, United States Judge Gesell recognized the County's motive of delay in addressing its still unspecified request for recusal. He said:

I'm rather hesitant [to allow discovery before a hearing on the jurisidictional issues) unless I'm satisifed that there's some basis of your desire for delay, your primary interest, I'm very hesitant to permit a litigant before an agency in advance of the hearing to call the hearing officers and raise questions of their bona fides and their character and everything

, else as a way of getting off a nice easy administrative hearing.

Cuomo v. Nuclear Regulatory Commission, Civil Action No.

84-1264, Transcript p. 16 (D.D.C. April 26, 1984).

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1 C. The Prehearing Schedule In context, the County's complaint that LILCO's exemption request may lack sufficient information or factual support to allow the County to proceed is obviously nothing other than a try for further delay. As described above, the County has had ample time to study LILCO's technical case and ample time to prepare its own case. If the County needs additional information concerning LILCO's proposal, it will have 30 days to supplement the already extensive production of documents by LILCO. By the time hearings resume, the County will have had nearly four months.to prepare its case. Even by the County's own inflated estimates of the time needed to prepare, the time afforded has been sufficient.

D. Resolution of Motions The County's suggestion that the schedule leading to i

hearings should be suspended while it moves for disposition as a matter of law should similarly be disregarded. First, the County knows exactly what LILCO proposes. If the County believes that LILCO's proposal is unlawful for any reason, it should have said so before the Commission when the possibility i

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i of an exemption request was extensively discussed or in its own request for clarification. If the County wants to raise the 4

issue, it certainly should not be allowed to wield such a motion as a weapon for delay. There can be no other explanation for the County's failure to have made its views known previously.

Second, any argument that LILCO's exemption request is not authorized by law is spurious. Obviously, LILCO will be seeking an exemption from the application of GDC 17.

Otherwise, however, low power licensing of a nuclear plant is precisely an activity contemplaced by law and by the Commission's own regulations.

Third, the suggestion that the Cpunty should not have to ecmpile a factual record while at the same time legally challenging LILCO's request for a low power license and

! secompanying exemption application, has no basis in practicality or in previous practice. The County's effort to investigate the facts of the case, both by discovery and l

through its own consultants, ought to have been well underway.4/ There can be no benefit from a suspension of the i

4/ The County's discovery has, in fact, already been resumed.

On May 22 by telephone and confirmed by letter of May 23, the i

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discovery and prehearing schedule other than serving the County's own avowed purpose "to keep that plant closed" by preventing a decision on the evidentiary merits. Moreover, the Commission's own adjudicatory policies would not be served by allowing parties to stop the evidentiary process simply by

raising legal challenges; rather, such challenges ar_ heard as the evidentiary process goes forward.

-l E. Security Issues Finally, the County argues that " common defense and t

security" and other security issues must be considered in Commission. The County misconstrues the importance of the

" common defense and security" requirement. "The term ' common defense and security' means the common defense and security of

, the United States." 42 U.S.C. $ 2014(g). There is no t

suggestion that LILCO's request for a low power license implicates the common defense and security of the United States.

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County has requested that its lawyers and nine of its

, . consultants be permitted to visit the Shoreham site and view various facilities the County perceives relevant to this proceeding. That visit will occur May 24.

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Moreover, there are no pending contentions concerning security issues. As well established by precedent, filing of a request for a low power license is not an appropriate opportunity for filing new contentions. E.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and i

2), ALAB-728, 17 NRC 777, 803 n.78 (1983). And, LILCO seeks no exemption from any security requirements.

4 III.

The State of New York's contention that the April 24 and 25 hearings have no effect because its counsel chose to leave at the lunch break on the first day is frivolous. A party cannot render a proceeding void by.unilateraliy deciding not to participate. Until its suspension, the April 24-25 hearing was properly convened. New York State had an oppor-tunity and a duty to appear and participate as its interest warranted. Its choice not to participate and not to attend the full hearing was made at its own peril.5/

5/ The State of New York never even attempted any discovery in this proceeding. It, therefore, had little or no legitimate standing to complain about the schedule originally established by the Licensing Board.

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1 Although the hearings were temporarily restrained, there has been no binding adjudication that the State was j denied any due process rights. In LILCO's judgment, the federal suit underlying the TRO would have been dismissed for

, the reasons set out in LILCO's' April 27 filings in the district court. The court lacked subject matter jurisidiction because (1) the suit was filed in the wrong court, (2) a scheduling

't order is not a reviewable final agency action, (3) no agency action had been taken on the disqualification issue, and (4) as a matter of law, no deprivation of due process had occurred.

With respect to the disqualification issue, the complaint also failed to state sufficient facts to support the asserted claim of bias. Finally, the plaintiffs had failed to meet the standards for the issuance of a preliminary injunction. Thus, New York State's decision to rest on its legal arguments was a gamble whose consequences the State must accept.

IV.

In conclusion, the pending " clarification" requests do not really seek clarification. They seek reconsideration.

They want to reopen scheduling matters the Commission has considered at length. Having issued its guidance, the

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Commission should adhere to its decision. Any further, subsidiary procedural matters should now be decided consistently with the Commission's guidance by the Licensing Board before whom pertinent issues are pending.

Respectfully submitted, LO ' LIGHTING COMPANY 1 (

. Taylor R'avelK I Robert M. Rolfe Anthony F. Earley, r.

Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: May 24, 1984 .

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LILCO, May 24, j tgBg[fn J5yp

CERTIFICATE OF SERVICC b4 ANY24 O 'S]

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In the Matter of C pg , _

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) Nc N .'-% - [/

Docket No. 50-322-OL-4 (Low Power)

I hereby certify that copies of LILCO'S RESPONSE TO RE-QUESTS FOR CLARIFICATION dated May 24 were served this date upon the following by U.S. mail, first-class, postage prepaid, and in addition by hand (as indicated by one asterisk) or by Federal Express (as indicated by two asterisks).

Chairman Nunzio J. Palladino* Judge Glenn O. Bright

• U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board 1717 H Street U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Commissioner James K. Asselstine*

U.S. Nuclear Regulatory Judge Elizabeth B. Johnson **

Commission Oak Ridge National Laboratory 1717 H Street, N.W. P.O. Box X, Building 3500 Washington, D.C. 20555 Oak Ridge, Tennessee 37830 Commissioner Victor Gilinsky* Eleanor L. Frucci, Esq.*

U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board 1717 H Street, N.W. U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Commissioner Frederick M. Bernthal*

U.S. Nuclear Regulatory Honorable Peter Cohalan Commission Suffolk County Executive 1717 H Street, N.W. County Executive /

Washington, D.C. 20555 Legislative Building Veteran's Memorial Highway Commissioner Thomas M. Roberts

• Hauppauge, New York 11788 U.S. Nuclear Regulatory Commission Fabian G. Palomino, Esq.**

1717 H Street, N.W. Special Counsel to the Washington, D.C. 20555 Governor Executive Chamber, Room 229 Judge Marshall E. Miller

• State Capitol Atomic Safety and Licensing Albany, New York 12224 Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Alan R. Dynner, Esq.* Edwin J. Reis, Esq.*

Herbert H. Brown, Esq. Office of the Executive Lawrence Coe Lanpher, Esq. Legal Director Kirkpatrick, Lockhart, Hill, U.S. Nuclear Regulatory Christopher & Phillips Commission 1900 M Street, N.W., 8th Floor Washington, D.C. 20555 -

Washington, D.C. 20036 Martin Bradley Ashare, Esq.

Mr. Martin Suubert Suffolk County Attorney c/o Congressman William Carney H. Lee Dennison Building 113 Longworth House Office Bldg. Veterans Memorial Highway Weshington, D.C. 20515 Hauppauge, New York 11788 James Dougherty, Esq. Docketing and Service Branch 3045 Porter Street, N.W. Office of the Secretary Washington, D.C. 20008 U.S. Nuclear Regulatory Commission Jay Dunkleberger, Esq. Washington, D.C. 20555 New York State Energy Office Agency Building 2 Empire State Plaza Albany, New York, 12223

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Robert M. Rolfe' Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: May 24, 1984

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