ML20086J352
| ML20086J352 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/09/1991 |
| From: | Schenker C LONG ISLAND POWER AUTHORITY, O'MELVENY & MYERS |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20086J347 | List: |
| References | |
| OLA-3, NUDOCS 9112110201 | |
| Download: ML20086J352 (48) | |
Text
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LIPA December. 9 ti 1991 u9uc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 91 DEC -9 P3 :52
- rr e uv.cs, U t>L hi i s 'i.i! V!' I Esfore the Atomic Safety and Licensina Boats ^k"
)
In the Matter of
)
Docket No. 5 0- 3 2 2 -O LA-3
)
LONG ISLAND LIGHTING COMPANY
)
(License Transfer
)
Application)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
)
RESPONSE OF THE LONG ISLAND POWER AUTHORITY TO PETITIQHRBS' JOINT SUPELEMENTAL PETITION of counsel:
William T.
Coleman, Jr.
Stanley B.
Klimberg Carl R. Schenker, Jr.
President of Shoreham Project John D. Holum and General Counsel John A. Rogovin Richard P. Bonnifield O'MELVENY & MYERS Deputy General Counsel 555 13th Street, N.W.
LONG ISLAND POWER AUTHORITY Washington, D.C.
20004 200 Garden City Plaza Garden City, NY 11530 Nicholas S.
Reynolds (516) 742-2200 David A. Repka WINSTON & STRAWN 1400 L Street, N.W.
Washington, D.C.
20005 (202) 371-5726 Counsel for the Long Island Power Authority Dated:
December 9, 1991 9112110201 911209 ADOCK0500g{2 PDR 0
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TABLE OF CONTENTS l
b1ES I.
PETITIONERS' SUPPLEMENT SIMPLY HIGHLIGHTS PETITIONERS' LACK OF STANDING 4
l II.
PETITIONERS HAVE NOT PRESENTED ANY LITICABLE CONTENTIONS 5
r A.
Legal Standards For Contentions.
5 B.
Petitioners' NEPA-Based Contentions Are Not Litigable For The Reasons Already Addressed I'1 LBP-91-39 7
i 1.
Contention 1.
10 2.
' Contentions 2-5 14 c.
Petitioners' contentions concerning LIPA's Financial Qualifications And Managerial
" Character" Are Not Admissible 21 1.
Petitioners Lack Standing To Litigate Contentions 6 And 7 22 2.
Even If Standing Had Been Established, Contentions 6 And 7 Would Fall To Present Litigable Issues 24 a.
Contention 6 25 b.
Contention 7 36 CONCLUSION 41
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LIPA December 9, 1991 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO)DfICSION l
l I
Before the Atomic Safety and Licensino Board I
)
i In the Matter of
)
Docket No. 50-322-OLA-3
)
LONG ISLAND LIGHTING COMPANY
)
(License Transfer
)
Application)
-(Shoreham Nuclear Power Station,
)
t Unit 1)
)
I
)
)
RESPONSE OF TW4 LONG IGLAND POWER AUTHORITY TO PETITION 5f,G' JOINT SUI.211 MENTAL PETJ.TJD){
I Pursuant'to 10 C.F.R.
$ 2.714(c), the Long Island Power Authority ("LIPA") hereby responds to the Joint Supplemental Petition (" Pet. Supp." or " Supplement") filed on November 18,
- t 1991 by petitioners Shoreham-Wading River Central School District
-(""VRCSD") and Scientists'and Engineers for Secure Energy, Inc.
("SE2") with respect to t.he joint application of LIPA and the Long Island Lighting company ("LILCO") for an amendment of 1 License No. NPF-82 (" License Transfer Amendment"), authorizing transfer to LIPA of a possession-onlyJ11 cense (" POL") for the Shoreham Nuclear Power Station, Unit 1 ("Shoreham").
Petitioners' Supplement was filed pursuant.to the Board'.s October 23, 1991 Scheduling Order, which (1) allowed petitioners an
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- opportunity to-amend their April 19, 1991 intervention petitions
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o in light of the answers filed in May by LIPA, LILCO, and the NRC Staff and (2) directed that petitioners file the contentions they L
seek to litigate in connection with their petitions.
i As will be shown, petitioncru did not avail themselves of the opportunity to amend their intervention petitions in light of the answere by LIPA, LI LCO, and the NRC Gtaff.
Thus, for the reasons shown in those answers, petitioners lack standing to intervene in this matter.
The absence of stadding is only highllrihted by the utter failure of Petitioners' Supplement to set forth admissible contentions.
Petitioners' Contentions 1-5 do nothing more than recycle tive shop-a rn contentions purportedly tiaued on the Natior.nl Environm.1ntal Policy Act ("NEPA"), 42 U.S.C.
5 4321 21 atq.; those contentions were rejected by this Board in Long laland_Lichtina Co. (Shoreham Nuclear Power Station, Unit 1)',
LBP-91-39, 34 NRC (1991) ("LDP-91-39").
Contentions 6 and 7, purporting to challenge LIPA's financial qualifications and managerial " character," merely elaborate upon-points as to which petitioners have already.been shown to lack standing in the May 6 and 17 ansvers by LIPA, LILCO, and the NRC Staff.
Moreover, even if petitioners had standing with respect to contentions 6 and 7 (which they do not), those contentions fail to set forth litigable issues.
Thus, the Board should reject all seven contentions without subjecting itself to the burdens of yet another prehearing conference further considering matters that 2
have been thoroughly reviewed in prior prehearing conferences held on related matters.
The facts underlying this proceeding.are well known to the Board and will not be repeated here.
For a detailed discussion of the factual background, LIPA respectfully refers the Board to the joint LIPA/LILCo application for the License Transfer Amendment 2 and to the May 6 and 17 answers by LIPA, LILCO, and the NRC Staff to petitioners' April 19, 1991 intervention requests regarding the License Transfer Amendment.3 More recently, the New York Court of Appeals rejected all challenges by petitioners and others to the decision not to operate Shoreham.
Egg Citizens for an orderiv Enerav PqLigy.
Inc. ("COEP") v. CuomQ, No. 182 (N.Y. Oct. 22, 1991).
The Court of Appeals' decision in CQEE underscores the fact that this Board should not tolerate petitioners' further efforts to relitigate Caese issues.
2 522 Joint Application of Long Island Lighting company and Long Island Power Authority-for License Amendment to Authorize Transfer of Shoreham, dated June 28, 1990 ("ow.nt Application").
ggg typge s Ansder to Intervention Petitions Concerning a
License Amendment to Authorize Transfer of Shoreham and Response Concerning No Significant Hazards Consideration (dated May 6, 1991) ("LIPA May 6 Answer"); LILCO's opposition to Petitioners' Request for Hearing on Shoreham Transfer and LILCO's Response to Comments on Proposed No Significant Hazards consideration Determination (dated May 6, 1991) ("LILCO May 6 Answer"); NRC Staff Response to Petitioners' Intervention Petitions, Requests for Hearing, And No Significant Hazard Consideration Comments (dated May 17, 1991) ("NRC Staff May 17 Answer").
r 3
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I.
PETITIONERge SUPPLEMENT SIMPLY MIGMLIGHTS PETITIONER 8' L&CK OF STANDING.
As noted, this Board's October 23, 1991 Scheduling l
order (p. 2) provided petitioners an opportunity "to amend their intervention petition in light of the.
. answers" filed by LIPA, LILCO, and the NRC Staff.
Petitioners did not avail themselves of this opportunity to attempt to correct the
- standing-related deficiencies identified in the answers by LIPA, l
LILCo, and the NRC Staf f.-
Instead, in the standing section of the Supplement (pp. 2-8), petitioners have merely rehashed points made in their April 19 petitions to intervene.
i f
Moreover, petitioners' rehash of their standing points only serves to highlight their lack of standing with respect to the License Transfer Amendment.
The only alleged injuries to which petitioners refer in the Supplement all relate to the supposed "' environmental harm'" flowing from the decision of LILCo, in agreement-with New York State entities, to undertake "the destruction of a $5.5 billion electric generating plant at the beginning of its 40 year useful life." '(Pet. Supp., p. 4.)
Petitioners'presentatio$thusservesprincipally-toreaffirm that their grievance is not with transfer of the Shoreham license in a POL ' status f rom LILCO to LIPA, but rather with the prior, non-federal-decision that Shoreham would not operate as a nuclear power plant.
LIPA respectfully refers the Board to prior-discussions as to why petitioners: lack standing.
(Egg LIPA May-6 4
~
Answer, pp. 14-43; LILCO May 6 Answer, pp. 2-9; NRC Staff May 17 Answer, pp. 15-27.)
II.
PflITIONEB1. EAVE NOT PFISIliTEDEY_ LIT 19hnLE_CONTINT10HO.
A.
keJI ALD_ tan 4A rd e_Eo r_ fs nt e nt i.en t.
The NRC's standard for admissible contentions appearc in 10 C.F.R.
$ 2.714(b)(2), an revised in 1989, 54 Ted. Reg.
33,168 (1989).
This standard requires a petitioner's contentions to possess adequate " basis" and " specificity."
A contentien's
basis" must be demonstrated through a concise statement of the alleged facts or export opinion which support the contentien and cn which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish facts or expert opinion.
10 C.F.R. 5 2.714(b)(2)(ii).
.)
The Commission'.s regulations further state that the Board shall refuse to admit a contention if:
(i) The contention and supporting material fail to satisfy the requirements of paragraph (b) (2) of this section; or l
5
(ii) The contention, if proven, would be of__no consecuence in the proceeding because it would not entitle petitioner to relief.
10 C.F.R. $ 2.714 (d) (2) (empba91s added).
1 As revised, these regulations constitute a more rigorous standard for admissibility than existed under prior NRC practice.
S.gg, gag., Public Servi _c d q. of New liangghiIg (Seabrook Station, Units 1 and 2), ALAB-9 4 2, 32 NRC 395, 426 l
n.104 (1990) (revised contention rule " imposes a higher standard" than previous regulations) ; Vermont yaligg_1(ugigar_fow.fr_CQID.
(Vermont Yankee Nuclear Power Station), ALAB-938, 32 HRC 154, 163-64 n.5 (1990) (to same effect).
The Commission has also held that a Board may not ignore "the requirements set forth in 10 C.F.R. I 2.714 (b) (2) (1),
(ii), and (iii)."
Arizona Public Servic.A C2 (Palo Verde Nuclear Generating Station, Units 1, 2,
3), CLI-91-12, 34 NRC 149, 155 (1991). -Strictly construing the new pleading requirements for contentions, the Commission explained that these requirements
" demand that all Petitioners provide an explanation of the bases for the: contention, a statement of fact or expert opinion upon which they intend to rely, and sufficient information to show a dispute with the applicant on a material issue of law or fact."
Id. at 155-(emphasis added).
If any one of these requirements is L
not met, the Commission-said, "a contention Eggt be rejected."
L id. (emphasis added).
(
6
Further, in its Shoreham-related decisions, ti.e Commission has provided additional guidance as to the criteria for an admissible NEPA-based contention.
Egg, exg., LQu2_laland Liahtinn Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-04, 33 NRC 233, 237 (1991) ("CLI-91-04").
The Commission's HEPA-related guidance in CLI-91-04 and other decisions was summarized by this Board in its very recent decision in LDP-91-391 (First,) the contention must explain why the environmental impacts of decommissioning Shoreham fall Rutside Jho enveloce of innacts already considered by the commission in the agency's Final Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities (GEIS).
Second, the contention must plausibly explain how the granting of the (requested amendment) involves special circumstances 11h2Lv_to foreclose one_ or mQre of thg alternatives for decommissioning Shoreham so that such agency action constitutes an Allran1___seamentatioD of the EIS process.
LBP-91-39, pp. 7-9 (emphasis added; footnotes omitted).
Ar we show below, these additional standards for NEPA-based contentions apply equally to the License Transfer Amendment.
D.
Petitioners 8 NEPA-Dased Contentions Are Not Litigable Epr The RealgAp,_Alrady_Miritsed In LDJL-ji-39.
Contentions 1-5 in Petitioners' Supplement present L
virtually the same NEPA-based contentions that petitioners raised previously in conjunction with the POL.
(CompnIn Pet. Supp.,
i pp. B-13 (Contentions 1-5) with Petitioners' Amendment and i
Supplement to Petitions to Intervene Regarding POL Amendment l
7 l
(dated July 1, 1991) (" lot. POL Supp. "), pp. 6-10, 12 f
(Contentions 1, 2,
3, 4, and 6).)8 This Board's decision in LDP-91-39 specifically addressed and rejected all of these contentions in the POL context.
For the reasons shown below, LDP-91-39 applies with equal force here, disposing of each of the five NEPA-based contentions sought to be litigated in this proceeding.
i To be sure, the Board's decialon in LBP-91-39 was made in the context of the POL proceeding, and this proceeding concerns the License Transfer Amen $nerx.
However, four of petitioners' NEPA-based ccttuntions here (Contentions 2-5) do not even refer to the License Transfor Amendment, but rather raise the very same issues raised in the POL contoxt.
Moreover, there is no meaningful distinction between the POL proceeding and the License Transfer proceeding for purposes of analyzing l
petitioners' NEPA-based contentions.
operationally, the License Transfer. Amendment will accomplish nothing more than replacing LILCO with ' LIPA as the Shoreham licensae.
(Egg cenerally Joint Application; LIPA May 6 l
Answer, pp. 4-7; LILCO May 6 Answer, pp. 21, 23 & n. 17.)
The License Transfer Amendment proposes no change whatever in the physical configuration of the Shoreham plant, in the treatment or L.
-~
3 Indeed, Petitioners' Supplement even contains the same
-typographical errors appearing in the earlier iteration of these contentions.
8
i handling of special nuclear material or other hazardous commodities, or in any other material aspect of Shoreham i
activities.
(Egg LIPA May 6 Answer, pp. 4-7.)
The application further proposes no authority to do anything physically with respect to Shoreham beyond what has now been authorized by the t
license to be transferred, the POL.
(Id.)
The License Transfer Amendment thus involves "no environmental impacts," but rather is coextensive with the POL from the perspective of environmental impact (or lack thereof).'
Therefore, the POL and License Transfer Amendment are interchangeable for purposes of analyzing the NEPA-based contentions in Petitioners' Supplement.$
i Appendix D to the Joint Application shows in detail why the License Transfer Amendment has no environmental implications.
Petitioners do not even cite, much less dispute, any portion of Appendix D, even though it has been filed with-the NRC for over 17 months.
This vividly illustrates petitioners' failure to present viable contentions for this Board's consideration.
8 The Board and the Commission have found the same analysis appropriate for the POL on the one hand and the Confirmatory order, Physical Security Plan, and' emergency preparedness-license amendments on the other.
Ega, RAHA, LBP 39; Lona Island Lichting_Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-26, 33 NRC 537 (1991) ("LBP-91-26"); Lona Island Lichtina Cn.-(Shoreham Nuclear Power Station, Unit 1), CLI-91-01, 33 NRC 1 (1991) ("CLI-91-01").
(
9 l
1
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1.
2911 tat 19n_.1 Contention 1 in Petitioners' Supplement renews yet again petitioners' argumento concerning the supposed impermissible segmentation of environmental review "of the proposal to decommission Shoreham."
(Pet. Supp., p. 9.)
As presented-here, this contention is couched identically to the first contention addressed in LDP-91-39 (pp. 3-11), except that the present formulation refers to the License Transfer Amendment instead of the POL Amendment.
(C.omparg Pet. Supp., pp. 8-10 Elih Pet. POL Supp., pp. 6-7.)
More specifically, substituting reference to the License Transfer Amendment for prior reference to the POL Amendment, petitioners contend that the NRC must require LILCO to.repare an environmental report and that the NRC Staff must then publish a draft environmental impact statement ("DEIS") for comment, prepare a final environmental impact statement
("FEIS"), and follow other NRC procedures for the consideration of the environmental impacts of the proposal to decommission Shoreham before appraring transfer gf the Shoreham_Qggnse to the Lona Island Power Authority ( " LI PA" ) - because that action is within the " scope" of the proposal to decommission Shoreham.
(Pet. Supp., p. 8 (emphasis added to show change).)
In LDP 39, the Board declared the same contention to be inadmissible in the POL context because the contention met neither portion of the Commission's two-pronged test of CLI-91-04 for admissible NEPA-based contentions.
10
In LBP-91-39, the first fatal deficiency identified as to this contention was petitioners' complete failure to provide a
" reasonable explanation why the GEIS is inapplicable to the decommissioning of Shoreham."
LDP-91-39, p.
9.
Indeed, in the POL context, this Board indicated that nothing in petitioners' contention "even hints at such an explanation."
Id.
Petitioners' contention 1 regarding the License Transfer Amendment is defective for precisely the same reason, and should therefore b3 rejected.
As in the POL proceeding, there is not a word in Contention 1 that indicates why the GEIS is inapplicable to the decommissioning of Shoreham.
And there is nothing about the License Transfer Amendment that would make the GEIS inapplicable to the decommissioning of Shoreham.
The second reason given for the Board's rejection of the impermissible-segmentation contention in LDP-91-39 was that the contention did not provide a "' plausible explanation' of how the pol amendment constitutes-an illegal segmentation of the EIS process."
Id., pp. 9-10 (footnote omitted).
Likewise, here there has been no attempt to explain how the License Transfer Amendment constitutes an., illegal segmentation of the EIS process.
Like the POL, the License Transfer Amendment is entirely segregable from consideration of a decommissioning plan, which will only determine the method of decontaminating the Shoreham plant.
Egg Lono Island Lichting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201, 208 (1991) ("CLI-90-08")
(" broadest NRC action related to Shoreham decommissioning will be l
11 1
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approval of the decision of how that decommissioning will be accomplished").
The License Transfer Amendment will have no offect on the choice of decommissioning methods.
Also like the POL, the License Transfer Amendment has independent utility, for it permits the transfer os ownership of the plant pursuant to the Asr,et Transfer Agraement,' in conformity with the February 1989 Settlement Agreement between LisCO and New York State.7 Een j
Joint Application, pp. 4-6.8 In a new concluding sentence to the first paragraph of Contention 1, petitioners assert that J
license transfer wculd make the proposal to decommission irreversible since New York State statutes forbid LIPA to operate Shoreham as a nuclear facility 4
and compel LIPA to decommission Shoreham.
Long Island Power Authority Act, 55 1920-t & (1020-h] subd.
9.
4 (Pet. Supp., p. 9.)
But nothing is added by this assertion.
The Commission ha.,ong assumed that the decision by all concerned not to o
.te Shoreham (and hence Shoreham's ultimate See Amended and Restated Asset Transfer Agreement (dated June 16, 1988) AERDded-April 14, 1989
(" Asset Transfer Agreement").
7 Egg Agreement Retween the State of New York and LILCO_
(dated February 28, 1989) ("1989 Settlement Agreement").
In fact, such independent utility is precisely what SWRCSD fears with respect to the License Transfer Amendment.
Transfer of the Shoreham license from LILCO to LIPA will have the effect of beginning to reduce, over a 10-year period, SWRCSD's tax revenues related to Shoreham.
See Long Island Power Authority Act of 1986 ("LIPA Act"), New York Public Authorities Law, 5 1020-q (McKinney Supp. 1990).
12
decommissioning) is irreversible.
Egg CLI-90-08, 32 NRC at 205, 208; Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-02, 33 NRC 61, 71-72 (1991) ("CLI-91-02"); Lono Island Lightinq_gg. (Shoreham Nuclear Power Station, Unit 1),
CLI-91-08, 33 NRC 461, 470 (1991) ("CLI-91-08").
That irreversible decision has been made by the Shoreham licensee (LILCO), the proposed successor licensee ; i.'?A), and the Governor of New York State and upheld by the New York Court of Appeals; the decision is not a federal decision susceptible to intervention by petitionors.
The relevant consideration for this Board is whether issuance of the License Transfer Amendment would forecluse the choice among decommissioning options, not whether such amendment would have the effect of making future operation of Shoreham less likely than it already is.
ER2 CLI-91-08, 33 NRC at 470.
- Here, whether the POL is held by LILCO or by LIPA has no effect on the mathed of decommissioning, and petitioners notably fail to make any allegation to the contrary.
Hence, as in the POL context, petitioners' impermissible-segmentation contention fails the second prong of the Commission's test for NEPA-based ccntentions.
As a third reason for uismissi.n rte impermissible-segmentation contention in LBP-93 s9, the Board noted that the contention failed to satisfy "the pleading requirements of.10 C.F.R. 5 2.714 (b) (ii) and-(iii)."
LBP-91-39, p. 11.
The same inadequacies of pleading exist here.
Despite the Board's ruling 13
e in LBP-91-39 that the impermissible-segmentation contention was inadequately explained in the POL context, Petitioners' Supplement reiterated the contention in the context of the License Transfer Amendment with no additional detail or explanation.
Thus, by definition, contention 1 fails the pleading requirements of 10 C.F.R. 5 2.714 (b) (11) and (iii).
2.
Contentions 2-1 The next four contentions sought to be litigated as to the License Transfer Amendment (Contentions 2-5) do not even mention the " License Transfer Amendment."
Rather, they are virtual clones of four of the POL-related contentions addressed and dismissed in LBP-91-39.
(Comoare Pet. Supp., pp. 10-13 with Pet. POf,Supp., pp. 7-10, 12.)
Therefore, these next four contentions may be dismissed by the Board without revisiting the details of each contention, based on the Board's holdings in LBP-91-39.
Indeed, petitioners' obstinacy in raising these contentions anew despite the Bosrd's holdings in LBP-91-39 simply represents yet another instance of their unwillingness to take guidance from the prior rulings of the Commission and this Board.
l (Egg LIPA May 6 Answer, pp. 7-14; LILCO May 6 Answer, pp. 9-18; NRC Staff May 17 Answer, pp. 10-15.)
Contention 2.
In Contention 2, which is identical to the second contention addressed in LBP-91-39 (pp. 11-13),
l petitioners assert (yet again) that the NRC's GEIS on 14
~ ~.
decommissioning does not apply to Shoreham.
(comoare Pet. Supp.,
p.
10 with Pet. POL Supp., pp. 7-8.)
The Board disposed of this same argument in LBP-91-39 on two independent grounds, which are-
-equally applicable here.
First, LBP-91-39 determined that this contention " deals exclusively with the need for an EIS on the decommissioning of Shoreham," without tying the contention to the proposed POL.
LBP-91-39, p. 13.
Thus, the contention was found by this Board to be irrelevarit to the proposed POL because petitioners had not
" establish (ed) that the POL amendment -- the only licensing action involved in-(the LBP-91-39) proceeding -- is part of the proposal to decommission Shoreham."
Id.
Exactly the same observations are applicable here.
Whether an EIS, other than the GEIS, is necessary for the decommissioning of Shoreham is immaterial to the License Transfer Amendment.
Petitioners have failed to establich that the License Transfer Amendment -- the only licensing action involved in this proceeding -- is part of the proposal to decommission Shoreham.'
The second ground given for rejecting this identical contention in LBP-91-39 was that the contention does not meet the second prong of the Commission't test for' admissibility of a Even if the License Transfer Amendment were part of the proposal te decommission Shoreham, petitioners have failed to supply any factual basis that would undermine a conclusion that the environmental consequences of decommissioning Shoreham fall well within the parameters of the GEIS.
15
1 4
NEpA-based contention:
"The contention contains no explanation of how the POL amendment constitutes an illegal segmenta-tion.
Id., p. 13.
This defect is equally evident here,
- where petitioners have likewise failed to show the " crucial linkage" between the decommissioning process and the License Transfer Amendment.
Id.
As stated previously, the NRC's review of decommissioning relates to the alternatives and methods of decommissioning.
The License Transfer Amendment is completely segregable'from this inquiry.
Contention 3.
In Contention 3, presenting only a minute variation from the third contention addressed in LBP-91-39 (pp. 13-15), petitioners assert that "LILCO's environmeno 1 report should address all issues prescribed by Negulatory Guide 4.2 (Rev.
2, July 1976) and 10 C.F.R. Part 51, App. A (1991)."
(comoare Pet. Supp., pp. 10-11 With Pet. POL Supp., p. 8.)
This contention appears to relate to the Environmental Report submitted by LIPA in December 1990, along with its proposed decommissioning plan; LILCO has asked the Commission to review and act upon these submissions.
(Eeg LIPA's Supplement to Environmental Report on Decommissioning of Shoreham (dated December 1990) ; SNRC-1781 Letter from J.D.
Leonard, Jr.,
- LILCO, to NRC (Document Control Desk), dated January 2, 1991.
Contention 3 must fail in its entirety for non-compliance with the pleading requirements of 10 C.F.R. 5 2.714 (b) (ii) and (iii).
The contention utterly fails to 16
\\l v
" identify the alleged errors in the report and state the reasons why the report is in error," as required by 10 C.F.R. 5
- 2. 714 (b) (2) (iii).
15 n.31.
Moreover, to the extent that this contention relates to petitioners' impermissible-segmentation allegations, it falls with Contentions 1 and 2 for failure to satisfy the Commission's two-pronged test for NEPA-based contentions.
Finally, to.the extent that the contention relies on an alleged failure to comply with Regulatory Guide 4.2, it is fatally defective for the reasons already noted in LBP-91-39.
Compliance with regulatory guides is "not required"; indeed, the guide at issue specifically notes that "conformance with the format set forth in the guide is not required."
Egg LBP-91-39, p.
14 (quoting NRC Regulatory Guide 4.2 (Rev. 2), " Preparation of Environmental Reports for Nuclear Power Stations" (July 1976) at ix).
Contention 4.
In Contention 4, which is identical to the fourth contention considered in LBP-91-39 (pp. 15-17),
petitioners allege that an EIS on Shoreham's decommissioning is required because LIPA's decommissioning plan, by proposing the DECON method, would " foreclose the consideration of alternative decommissioning methods including SAFSTOR and ENTOMB."
(Compare Pet. Supp., pp. 11-13 gith Pet. POL Supp., pp.-9-10.)
Arguing exactly as they did in the POL context, petitioners further claim (1) that " issuance of the POL" for Shoreham (not the License Transfer Amendment) would allow certain components to be shipped for offsite disposal and (2) that 17
(s)ince DECON is the only alternative "in which the equipment, structures, and portions of the-facility and site containing radioactive contaminunts are removed from the site," it is clear that allowing LILCO to proceed with the disposal of reactor internals at this time would prejudice the consideration both of SAFSTOR.
and of ENTOMB.
(Pet. Supp., pp. 11-12 (emphasis in original).)
In LBP-91-39, the Board disposed of this identical contention for " neglect (ing] the first prong" of the Commission's test for NEPA-based contentions "by offering no explanation why the GEIS is inapplicable to the decommissioning of Shoreham."
E23 LBP-91 39, p. 16.
The " petitioner has not even attempted to explain why the environmental impacts of decommissioning Shoreham fall outside_the envelope of impacts already considered in the GEIS."
Id.
Since the contentien here is identical in all respects, it must fail for the same reason.
Altnough LBP-91-39 did not address the question whether this contention met the second prong-of the commission's test with respect to the POL, the contention plainly does not satisfy the second prong in this context, involving the License Transfer Petitionershavemadeabsolutelyngallegationthat Amendment.
issuance of the License Transfer Amendment -- having the effect of-substituting LIPA for LILCO as the licensee -- would in any way prejudice.the availability of the decommissioning options of SAFSTOR and ENTOMB.
Rather, petitioners rely on unsupported, 1
L conclusory assertions that LIPA's decommissioning plan itself and 18 l
the " issuance of the POL" would allegodly foreclose alternatives for decommissioning.
(Etg Pet. Supp., p.
11.)
It is preposterous for petitioners to argue, as they do in this contention, that the mere proposal of a decommissioning plan forecloses the Commission from consideration of other alternative methods of decommissioning.
A decommissioning plan must choose one alternative, and that choice is not an issue in this proceeding unless it is comehow affected by the License Transfer Amendment.
And petitioners here have failed to meet their pleading ob. ligation under CLI-91-04 to show that it is.
Moreover, assertions regarding the effects of the EQL -- as opposed to the License Transfer Amendment -- cannot suffice as the basis of a litigable contention in this proceeding.
As already noted, the License Transfer Amendment proposes no physical changes at tne plant, nor any changes in licensee authority to conduct activities that might impact upon decommissioning.
Instead, the License Transfer Amendment merely substitutes LIPA for LILCO as the Shoreham licensee.
Thus, in the context of the License Transfer Amendment, this contention fails both prongs of the, Commission's test for NEPA-based cratentions.
Contention %.
In Contention 5, which repeats verbatim the sixth contention addressed in LBP-91-39 (pp. 18-19),
petitioners assert that the EIS " required for consideration of 19 l
l
x the (decommissioning)' proposal" must include the_ consideration of t: n indirect' effects of the adoption of that proposal, including the construction of fossil plants and transmission-lines to replace Shoreham. -Egg 40 C.F.R.
5 1508.8 (1989). -The Council on-Environmental Quality i
(*CEQ"). requirement for the cons deration of and definition of_the concept of such " indirect-effects" has been adopted-by the NRC.
10 C.F.R. 55 51.14(b) &
- 51. 4 5 (b) (2 ) (1991).
(comoare Pet. Supp., p.
13 Elih Pet. POL Supp., p. 12.)
This-contention first erroneously assumes that an EIS on decommissioning is required at all and also that it must necessarily' consider-the indirect effects that would flow from non-operation of Shoreham, including the alleged need for the-
.. construction of fossil-fuel plants and associated transmission illnes.
In any event, in LBP-91-39, the Board concluded that its earlier ruling _in LBP-91-26 required the rejection of this contention.
Egg LBP-91-39,.p. 19.
Citing and quoting LBP-91-26, L
the Board stated:
SuchindirectAffecfswouldbeoutsidethescoceofany
[
recuired'NEPA review in this oroceedina.
It is clear E
..beyond cavil that.the-Commission has-held that rostart will not be considered nor-will other methods-of generating electricity, which included-fossil fuel plants. -Likewise, the effects of_ fossil fuel plants are'beyond the scope of the proceeding.
L u
l.
1 I.
20 h
l
.,J.,,...,
~.
O,
-r-
, - ~, -,.
i LBP-91-39, p. 19 (emphasis addedf footnote omitted).- Petitioners
- have_.merely recycled this contention once.again,_and it should be
- dismissed pursuant to the Board's earlier dispositions in LBP.
39 and LDP-91-26.
1 C.-
Petitioners' Contentions Concerning LIPA's Financial Qualifications And Managerial " Character" Are Not Admissible.
For the reasons shown in-Section B above, petitioners' NEPA-based contentions are inadmissible.
Contentions 6 and 7 are made under=the Atomic Energy Act of 1954 ("AEA"), 42 U.S.C.
9.2011-et sea._
In Contentions _6 and 7, petitioners apparently contend that LIPA lacks the financial qualifications and
" character requirements" to become an NRC licensee."
As shown
- below, however,: Contentions 6 and 7 are not admissible for several_ reasons, mostLimportantlyfbecause they fail to demonstrate any link between the asserted deficiencies in LIPA's financial qualifications and managerial " character" and the health and safety considerations relevant under the AEA.
Contention.7 literally asserts that "LILCO's management fails to' meet the character requirements for an NRC licensee."
(Pet. Supp., p. 17 (emphasis added).)
LIPA assumes that the word.
"LILCO's" constitutes a typographical error and that "LIPA's" was meant..
t 21 w-u
,.-n....u---
m-
,o,,mn
-- ; mr
,-o,
,g m --
l l
1.
Petitioners Lack Standing To Litigate Contentions 6 And 7.
As shown at longth in LIPA's May 6 Answer, to establish standing with respect to AEA contentions, would-be petitioners are required to show that, as a " result" of the preposed amendment, they would suffer a " particularized injury in fact" falling within the zone of interests of the AEA.
Egg, e q,,
Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 225, 330 (1989); Lona Island Lichtina Cg. (Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC 179, 185-86 (1991).
But petitioners' April 19 petitions to intervene did not allege (much less show) any potentially adverse radiological impact on them from issuance of the License Transfer Amendment, which would simply transfer to LIPA the POL for a defueled, non-operating, minimally contaminated plant.
- Thus, petitioners' April 19 submissions failed to establish standing, the prerequisite for litigation of admissible contentions.
See Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 330 (1989) (standing must be established with particularity for proposed license actions which lack " obvious potential for offsite consequences") (emphasis added); LIPA May 6 Answer, pp. 14-43; LILCO May 6 Answer, pp.
2-9; NRC Staff May 17 Answer, pp. 15-17."
In this respect, petitioners also failed to challenge a well-developed record that affirmatively shows the lack of offsite radiological risk associated with Shoreham under the management of either LILCO or LIPA.
(Sag LIPA May 6 Answer, pp.
(continued...)
22
Nor has standing been demonstrated in Petitioners' Supplement with respect to petitioners' contentions under the AEA.
Instead, Contentions 6 and 7 exist in a complete vacuum.
Neither contention even asserts -- much less adequately demonstrates -- the existence of any link between alleged deficiencies in LIPA's finances or " character" and potential adverse offsite consequences if LIPA becomes the licensee for Shoreham in its defueled, non-operating, minimally contaminated status.
In this regard, both Contentions 6 and 7 flagrantly disregard the Board's prior guidance that any health-and-safety contentions must take account of Shoreham's status as a "defueled plant that has never been in commercial operation."
Ega L2DS Island Lichtino Co. (Snoreham Nuclear Power Station, Unit 1),
LBP-91-1, 33 NRC at 34 (1991).
Thus, even taking their April 19 petitions to intervene and the November 18 Supplement together, petitioners have not even attempted to satisfy the standards articulated by this Board for establishing standing with respect to contentions under the AEA.
Petitioners' complete failure to tie the License Transfer Amendment to ri ks of adverse offsite radiological
?
impacts is fatal to their effort to litigate Contentions 6 and 7.
As already noted, 10 C.F.R. 5 2.714 (d) (2) (ii) requires-the Board to reject a contention if proof of the contention "would be of no
"(... continued) 34 -39; LILCO May 6 Answer, pp. 6-7 & n.4; NRC Staff May 17 Answer, pp. 25-27 & nn.25-28.)
23
cons 2quence in the proceeding because it would not entitle petitioner to relief."
Here, proof of the allegations in Contentions 6 and 7 regarding LIPA's financial qualifications and character would not entitle petitioners to relief -- img., denial of the Licanse Transfer Amendment -- because petitioners have failed to show that they would be injured by LIPA's becoming the licensee, even if the shortcomings alleged in Contentions 6 and 7 were presumed to exist.
In the absence of a demonstration of adverse offsite impacts affecting petitioners, their objections to LIPA's qualifications constitute mere officious intermeddling motivated, in SWRCSD's case, by nothing more than a desire to perpetuate the receipt of tax revenues by delaying transfer of the License from LILCO to LIPA.
Thus, these petitioners cannot have a hearing concerning LIPA's qualifications, which should instead be judged by the NRC Staff consistent with the Commission's normal process of administrative review.
2.
Even If Standing Had Been Established, Contentions 6 And 7 Would Fail To Present Liticable Issues.
If the Board finds a lack of standing, it will be unnecessary to determine whether Contentions 6 and 7 would be admissible in another context.
However, even assuming arcuendo
_that petitioners have established standing, contentions 6 and 7 l
l 24
fail to raise litigable issues concerning LIPA's qualifications to assume the Shoreham License in a POL status.
LIPA's qualifications to become the Shoreham licensee are set out in detail in the Joint Application and related Supplements.
(Egg Joint Application, pp. 15-30 & Appendix C; LIFA May 6 Answer, pp. 33-43; SNRC-1813, Letter from R.M.
- Kessel, LIPA (enclosing Joint Application supplements), to Dr. T.E.
Murley, Director, Office of Nuclear Reactor Regulation, dated June 13, 1991; SNRC-1819, Letter from R.M.
Kessel, LIPA (enclosing Joint Application supplements), to Dr.
T.E. Murley, Director, Office of Nuclear Reactor Regulation, dated June 27, 1991.)
Notably, petitioners do not specifically dispute any item contained in the Joint Application, which incorporates extensive documentation of both LIPA's financial and managerial qualifications.
(Egg Joint Application, pp. 22-30.)
Instead, in Contentions 6 and 7, petitioners mainly quibble about whether LIPA's bookkeeping for non-Shoreham expenditures complies with New York law and seek to manufacture a false issue concerning the
" character" of LIPA management.
a.
Contention 6.
In Contention 6, petitioners contend that "LIPA is not financially cualified to become a Part 50 licensee or engage in any activities under the existing Shoreham license."
(Pet.
Supp., p.
13 (emphasis added).)
This contention is supposedly 25
cupported in six subparts.
However, subparts (a)-(e) have nothing whatever to do with the financial qualifications of LIPA to function at the Shoreham licensee if the License Transfer Amendment is approved, but rather address financing for LIPA's non-Shorehan activities.
Only subpart (f) of Contention 6 has any relationship to the question whether LIPA's " activities under the existing Shoreham license" will be adequately funded.
suboart ( f).
This proceeding is fundamentally limited by the scope of the approval at issue -- the License Transfer Amendment.
The Joint Application proposes that LIPA become the new licensee under the Shoreham POL, which authorizes only very limited activities.
Pending approval of a decommissioning plan and issuance by the NRC of a decommissioning order, LIPA Will essentially be maintaining Shoreham and continuing preparations for decommissioning.
Accordingly, LIPA's finances are implicated by the License Transfer Amendment only to the extent that they relate to this very narrow scope of activities.
As shown in the Joint Application, LIPA bases its showing of financial wherewithal to become the Shoreham licensee on LILCO's obligation to pay for all of LIPA's costs associated with maintaining (and decommissioning) Shorcham.
(Egg Joint Application, pp. 26-30.)
As petitioners well know and even acknowledge in their contentions (agg Pet. Supp., p. 16), LIPA entered into the Site Cooperation and Reimbursement Agreement
(" Site Agreement") with LILCO on January 24, 1990, whereby LILCO 26
l l
and LIPA established a very precise mechanism to implement LILCO's obligation to retaburse LIPA for all Shoreham-related costs.
(Egg Site Agreement 11 3.1 - 3.16.)"
Petitioners do not assert that the provisions of the Site Agreement and related agreements are inadequate to assure LIPA's ability to meet the obligations LIPA seeks to assume under the License Transfer Amendment.
To the contrary, petitioners expressly state that the Site Agreement "makes LILCO's obligations to pay all costs attributable to Shoreham ' unconditional and not contingent on any PSC action'.
And it gives LIPA absolute authority to establish the amounts that LILCO must pay."
(Pet. Supp.,
- p. 16.)
These statements by Detitioners._themselves effectively concede that LIPA is financially qualified to assume the Shoreham License in a POL status, as requested by the License Transfer Amendment.
It is difficult to imagine a more secure footing for LIPA's financial qualification than the state of facts admitted to exist by petitioners.
(Egg Joint Application, pp. 26-30; LIPA May 6 Answer, pp. 40-42 & n.22; LILCO May 6 Answer, pp. 6-9; NRC Staff May 17 Answer, pp. 25-26.)
Moreover, there is not one word in petitioners' April 19. petitions to intervene or in the November 18 Supplement tending to show that, should the License Transfer Amendment be granted, the Site Agreement and related The Site Agreement has been specifically approved by the New York Public Service Commission, which has allowed LILCO several rate increases in the aftermath of the 1989 Settlement Agreement between LILCO and the State.
(Egg Joint Application, pp.
5-6, 26-30 & n.15; pp. 30-31 infra.)
27
agreements would be insufficient to assure LIPA's ability to meet
-any and-all-obligations under the License.
Petitioners contend, without meaningful basis or specificity, that LIPA's furlf nq may be inadequate for purposes of decommissionina Shoreham.
(Egg Pet. Supp., p. 17.)
But allegations concerning decommissioning funding are not material to the License Transfer Amendment (agg 10 C.F.R. 5 2.714 (b) (iii))
because funding for decommissioning is not an issue raised by the License Transfer Amendment.
Rather, decommissioning funding is an issue related to the ongoing Staff review of the decommissioning plan.
Moreover, even if one were to assume arouendo that the subpart (f) assertions related to decommissioning funding touch on an issue relevant to this proceeding, the contention fails to meet the NRC's requirements for a properly admissible contention.
Petitioners cite no specific deficiencies in the well-documented funding proposals for decommissioning costs, fail to even acknowledge tne various submissions made to the NRC by LIPA and LILCO on decommissicning costs,_and_ fail to point to any relevant evidence that wculd call into question the adequacy of decommissioning funding.
Furthermore, on November 22, 1991, the NRC Stuff issued an exemption approving the LIPA/LILCO funding package as adequate to assure the moneys needed to fund decommissioning of Shoreham over a 27-month period, at a projected cost of $186 million.
See l
Long Island Lichtina Co. (Shoreham Nuclear Power Station, l'
28 l
___ _ _~_
Unit 1),-Exemption from-Financial Assurance for Decommissioning (dated Nov. 2?, 1991) ("Shoreham Exemption"), 56 Fed. Reg. 61,265 (1991).
In support of its determination, the Staff cited the provisions of the Site Agreement, certain other undertakings by LILCO, and "LILCO's and New York State's commitments to fund the decommissioning effort, unconditionally."
Id., p. 61,266."
Petitioners also assert that unspecified positions taken by LIPA in a recent rate case before the New York Public Service Commission ("NYPSC") "mjllLy" somehow hinder "LILCO's ability to provide (Shoreham) funds to LIPA."
(Pet. Supp., p.
16 (emphasis added).)
The very formulation of this contention impermissibly invites the Board to engage in speculation that the funding provisions of the Site Agreement might somehow prove to be inadequate to assure LIPA's ability to carry out activities authorized under the License Transfer Amendment.
But there is no room for such speculation under the NRC's standards for admissible contentions.
Petitioners' Supplement challenges the accuracy of LIPA's $186 million projection for decommissioning funding.
(Pet. Supp., p. 17.)
As already noted, such questions are outside the scope of this proceeding.
However, it is noteworthy that the newspaper article on which petitioners rely for this assertion points out that costs for the overall process of removing Shoreham from LILCo's generating capacity are being driven higher by numerous factors extraneous to the cost of physical decontamination, including LILCO's continuing tax payments to_ petitioner SWRCSD.
(Egg Appendix to Pet. Supp.
(dated Nov. 18, 1991), pp. 111-13).)
Thus, rather than calling LIPA's estimate of decommissioning costs into question, this newspaper article highlights the costs imposed on LILCo's ratepayers by SWRCSD's attempts to protect its tax revenues by l
delaying transfer of the License to LIPA.
I 29 l-
Significantly, LIPA's filings have been a matter of public record for months.
(Eag Appendix to Pet. Supp. (dated Nov. 18, 1991)
(" Pet. App."), p. 108.)
Yet petitioners have failed even to specify any position taken by LIPA in the rate case; much less have they demonstrated any respect in which any LIPA position threatened "LILCO's ability to provide (Shoreham) funds to LIPA."
Petitioners' failure to make any such showing plainly bespeaks the baseless nature of this allegation and compels the rejection of this contention for lack of adequate basis and specificity.
Ee2 10 C.F.R. 5 2.714 (b) (li) and (iii)."
In addition, petitioners have been less than candid with the Board concerning the status of the NYPSC rate caso.
Approximately one month ago, before the filing of. Petitioners' Supplement, the NYPSC announced its determination to allow LILCO rate increases of approximately 4% for each of the next three years.
See Cases 90-E-1185 and 91-G-0112, Lona Island Lichtina go., Opinion No. 91-25 (issued Nov. 26, 1991) ; Ronic Rubin, "4%
Increases In Electric Rates Okd For LILCO," Newsday, Nov.
7, Moreover, in the context of the proposed License Transfer Amendment, petitioners' vague allegations are inherently implausible.
As the present Shoreham licensee, LILCO is already meeting the expenses of maintaining Shoreham in its-defueled, non-operating condition.
Petitioners show no reason whatever to believe that LILCO will be unable to fund activities of the same scope by LIPA after issuance of the License Transfer Amendment.
Further, as already noted, the NRC Staff has recently determined that there is reasonable assurance of LIPA's ability to meet the expenses of decommissioning Shoreham.
30
4 1991, at 23 (attached)."
The rates approved by the NYPSC specifically provide for recovery of the projected costs of maintaining and decommissioning Shoreham in recognition of the Site Agreement between LIPA and LILCO.
Buboarts fal-fe).
The balance of petitioners' Contention 6 (subparts (a)-(e)) is entirely irrelevant to LIPA's financial qualifications as an NRC licensee.
In subparts (a) and (c)-(e), petitioners dwell at length on supposed failures of LIPA and the Budget Division of the State of New York to implement properly certain New York statutory provisions and administrative agreements concerning LIPA's financing for non-Shoreham activities.
(122 Pet. Supp., pp. 13-16.)
Petitioners also assert in subpart (b) that "LIPA has no reasonable prospect of receiving any funds for its non-Shoreham activities."
(Id.,
- p. 14 (emphasis added).)
LIPA disputes most of the allegations raised by petitioners in subparts (a)-(e).
But even assuming arquendo that petitioners are entirely correct on these matters, they have failed to identify any material shortcoming in LIPA's financial qualifications to assume the Shoreham license.
Most of the matters raised in subparts (a)-(e) of Contention 6 involve internal financial adjustments between the Budget Division of the State of New York and LIPA, a corporate municipal instrumentality M
LIPA is considering whether to seek reconsideration of certain' issues resolved adversely to it by the NYPSC.
31
and political subdivision of the State.
Moreover, by definition, all of the matters referenced in subparts (a)-(e) relate to LIPA's tan-Shoreham costs and thus are not relevant to LIPA's ab.i'ity to meet the financial obligations sought to be assumed uider the License Transfer Amendment.
The NRC's mandate is to satisfy itself as to LIPA's financial qualifications to become Shoreham's licensee, not to police agreements between New York State and LIPA at the behest of strangers to that relationship such as petitioners."
What is important in this proceeding is that the Site Agreement with LILCO is functioning smoothly and, further, that LIPA is and will be fully funded to carry out all Shoreham-related activities relevant to the License Transfer Amendment.
Nothing argued in subparts (a)-(e) calls either the present or future functioning of the Site Agreement into question.
Thus, the contentions sought to be framed in_ subparts (a)-(e) of Contention 6 must be The LIPA Act expressly leaves matters such as those raised by petitioners to be adjusted between LIPA and the State.
Section 1020-r of the LIPA Act provides as follows:
All appropriations made by the state to the authority shall be treated as advances by the state to the authority, and shall be repaid to it without interest either out of the proceeds of bonds issued by the authority pursuant to the provisions of this title, or by the delivery of non-interest bearing bonds of the authority to the state for all or any part of such advances, or out of excess revenues of the avthority, at such times and on such conditions as the state and the authority mutually may acree upon.
New York Public Authorities Law 5 1020-r (McKinney Supp. 1990)
(emphasis added).
32
t rejected because the " contention (s], if proven, would be of no consequence in the proceeding because [they] would not entitle petitioner to relief."
10 C.F.R. 5 2. 714 (d) (2) (ii).
Not only are the points raised in subparts (a)-(e) of Contention 6 irrelevant for the reasons shown above, but petitioners also have failed to show how any of the points raised in subparts (a)-(e) concerning non-Shoreham funding could possibly have health or safety implications relevant under the AEA.
Rather, as they have on earlier occasions, petitioners seek to bog down this Board ard the Commission in questions of New York law having no relevance to the function of this commission.
- The Commission has previously resisted invitations to become embroiled in issues of New York law sought to be raised by petitioners (gge Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CL:-91-08, 33 NRC-461 (1991) (declining to stay issuance of FCL or ing resolution of appeals before the New York Court of Appeals;), and the Board-should do likewise in this instance.
In view of the+ foregoing, no purpose would be served by seeking to untangle and respond specifically to all of the irrelevant issues sought to be raised by petitioners in subparts (a)-(e).
However, three points should be made for the Board's general information.
33
First, in subpart (a) of Contention 6, petitioners make the irresponsible assertion that "LIPA is bankrupt."
(Egg Pet.
Supp., p.
13.)
LIPA is not bankrupt, and it never has been.
Far from having any financial difficulties, LIPA has always met its obligations.
As of March 31, 1991, its assets (approximately
$6.2 million) were well in excess of its current liabilities (approximately $3.9 million).
Moreover, its non-Shoreham assets-were $2,822,499, and its non-Shoreham current liabilities were
$520,777.
(Eng Pet. App., p.
- 58. ) "
Second, in subpart (e), petitioners contend that LIPA's fiscal year ("FY") 1990 State allocation for non-Shoreham activities was "in violation of law" because of the alleged absence of a new repayment agreement specifically. addressed to the FY 1990 allocation.
(Pet. Supp., p. 16.)
But the August 1987 Repayment Agreement between LIPA and the Director of the Budget of the State of New York expressly covers all " Fund Appropriations" to LIPA.
(Pet. App., p. 4.)
Thus, there was no l
l Petitioners' manipulation of LIPA's balance sheet is misleading.
Petitioners imply that the $14 million line item
~ labeled " State of New York Allocations" is an immediate obligation that threatens LIPA's financial health as to non-I Shoreham activities.
(Eng Pet. Supp., p.
13; Pet. App., p. 58.)
That is not so.
This $14 million. figure represents amounts due
-the State, whose repayment (without interest) is only required if LIPA is'in receipt of proceeds from the issuance of bonds or has funds in excess of ongoing obligations.
Egg New York Public l
Authorities Law 5 1020-r (McKinney-Supp. 1990) (quoted in note 16 above).
34
.. ~.-
.4'.
e need for LIPA: and the Budget Division to enter into a new 1
repayment agreement relating to the FY 1990 allocation."
i Third, in subpart (b), petitioners.make much of an auditor's statement that-LIPA's future appropriation amounts for non-Shoreham activities."'cannot be determined.'"
(Egg Pet.
Supp., p.-14.)
This auditor's statement merely takes account of the unexceptional fact that LIFA is a political subdivision of the State of New York.
As such, like most state and-federal agencies, LIPA receives an annual budget appropriation (for its non-Shoreham activities) and does-not'know its exact amount until the legislature decides.
Thus, the auditor statement utterly ifails to support pecitioners' contention that "LIPA has no reasonable prospect of receiving any funds for its non-Shoreham activities."
.(Pet. Supp., p.
14. ) "
But even if LIPA received no future State funding for non-Shoreham activities, LIPA's Shoreham-related activities will There simply is'no-basis in the text of-the 1987 Repayment' Agreement for: petitioners' contention that the
' Agreement'is= limited to the initial,$11 million allocation made.
.in FY 1988'and FY 1989.
However, petitioners are correct in pointing'out that LIPA has not.yet-issued-repayment _ bonds as contemplated by the 1987 Repayment. Agreement, a step that LIPA's Board of. Trustees will.take in short order.
As previously indicated to the NRC Staff, the Governor of New-York has. stated in' writing his~ strong. support for continuation of LIPA's non-Shoreham activities.
(Egg Pet. App.,
- p. 120.)
However,'in-recognition of the State's overall budget needs and LIPA's own current surplus (ggg above), LIPA received no State appropriation for'the fiscal year beginning April 1, 1991.
(Egg Pet. App., pp. 117-21.)
L 35 l
remain futly funded.
LIPA has previously explained to the NRC Staff that LIPA will continue to function on Shoreham matters even if its non-Shoreham funding from the State is entirely cut off:
(MR. KLIMBERG):
LIPA does not relv uoon any state-acorocriated funds to carry out its activities related to the license transfer, maintenance and decommissioning.
All of LIPA's funds for these purposes are provided to us by LILCO through the various settlement agreements.
DR. MURLEY :
(I)f the Assembly were to appropriate no more funds for LIPA in the future, could LIPA continue to exist?
MR. KLIMBERG:
That's correct.
(Pet. App., p.
126.)2s Petitioners do not dispute this representation at all, showing yet again that petitioners' contentions relating to non-Shoreham funding must be rejected under 10 C.F.R. 5 2.714 (d) (2) (11).
b.
Contention 7.
With respect to managerial qualifications, Petitioners' Supplement does not dispute that LIPA has assembled a managerial and technical team of considerable talent and appropriate professional experience.
(See Joint Application, pp. 18-26 &
2 Mr. Klimberg is LIPA's President of Shoreham Project and Jeneral Counsel.
The quoted colloquy occurred at a February 13, 1991 meeting of the NRC Staff with LILCO, LIPA, and the New York Power Authority.
36
l l
4 App.EC.)
Rather, petitioners' strain to manufacture false issues of." character," asserting-in contention 7-that-LIPA's " management fails to meet the-character requirements for (an) NRC licensee."
(Pet. Supp.,1p. 17.)
Like. Contention 6, this contention never-asserts any' link-between the supposed deficiency-in management
" character" and the potential for offsite consequences.
- Thus, Contention 7 merely presents yet another " abstract argument that is unconnected with'the legal and factual issues-in the proceeding."- LBP-91-1, 33 NRC at 38.
In any event, there is no' substance whatsoever to the two specific allegations asserted to show a lack of-" character."
LIPA's Rate-Case Position.
LIPA-has specifically identified to the NRC all of its Trustees and senior executives.
.(Egg, gd., Joint Application, pp. 12-14:& App, C; SNRC-1819, Letter'from R.M. Kessel, LIPA (enclosing Joint Application supplements), to Dr. T.E. Murley,-Director, Office of Nuclear Reactor. Regulation, dated June'27, 1991.)
Petitioners fail to allege, much less show, anything in the background of any of'
- those persons calling their-integrity into question. 'Instead,-
Lpetitioners: seize upon f(agments from a March 11, 1991 newspaper article as the basistfor asserting that LIPA representatives misled the NRC Staff "by silence, lack of candor and openness 4
and, perhaps, affirmative misleading" at a management level meeting -between the NRC Staff and -LILCO/LIPA/New York Pover-4 Authority a month earlier, on February.13, 1991.
(Egg Pet.
Supp., pp. 17-19.)
But petitioners utterly fail to demonstrate 37 I
v n,,
,n,
, ~.
any respect in which LIPA representatives supposedly misled the NRC Staff or how their allegations raise a material issue as to the " character" of LIPA's management.
Petitioners quote from remarks to the NRC Staff concerning LILCO/LIPA funding arrangements by two LIPA representatives (LIPA's Chairman Richard M. Kessel and Mr. Klimberg).
None of the quoted assertions is claimed to be false in any respect.
Rather, the alleged deception involves the undisputed fact that, at the February 13, 1991 meeting, LIPA representatives did not volunteer information concerning what positions LIPA might take in LILCO's then newly filed rate case.
(Egg Pet. Supp., p. 18.)
This supposed challenge to LIPA's " character" must fail because there was no reason why LIPA should have addressed its possible rate-case positions at the February 13 meeting.
A questions was asked of LILCO whether its' rate filing "has.
received any opposition," and a LILCO representative responded that'it had not but that the time for filing oppositions was still running.
(Pet. App., pp. 140-41.)
LIPA had nothing to add to this wholly accurate summary of the state of the rate case.
No one, from LIPA or otherwise, was asked whether LIPA was contemplating intervention or what its position might be.
As of-February 13, 1991, LIPA (which is headed by a Board of Trustees) had taken no position in the rate case.
The rate case was a complex proceeding involving a wide range of 38
l issues, many of which had no relation whatever to shoreham or the LILCO/LIPA funding relationship.
Like all other potential rate-case participants, LIPA was entitled to the usual time periods allowed for all parties to formulate their positions.
LIPA submitted copies of its rate-case testimony to the NRC the day it was filed.2t Thus, petitioners' contention simply vanishes into thin air.
Freedom of Inf.qrmation Oblicationa.
Petitioners' second supposed issue of " character" involves the allegation that "LIPA simply ignores its responsibilities to respond to requests" under the State of New York Freedom of Information Law.
(Pet. Supp., p. 19.)
But petitioners offer no proof whatsoever of this charge.
Instead, they simply provide to the Board a copy of a letter requesting information.
(Egg Pet. App., pp. 95-97.)
The mere fact that a request was submitted to LIPA hardly demonstrates that LIPA " simply ignore (d) its responsibilities to respond to such requests," and no assertion is made that the person making the request (Mr. Edwin Schwenk) was dissatisfied with LIPA's response.
(Pet. Supp., p. 19.)
In fact, LIPA responded to Mr. Schwenk's letter ang business day after receiving it.
(Seq Letter from Richard P.
21 Egg Letter from Richard M.
Kessel, LIPA Chairman, to Dr. Thomas E. Murley, Director, Office of Nuclear Reactor Regulation (May 22, 1991); Letter from Richard M. Kessel to Dennis Crutchfield, Division Director for Advanced Reactors and Special Projects (May 22, 1991).
39
i Bonnifield, LIPA Deputy General counsel, to Edwin Schwsenk (dated i
September 23, 1991) (attached).)
That response recites LIPA's commitment to re% 3nd to the requester's two-page 17-item list of requested documensa *within the next thirty days."
(Ld.)
Moreover, on October 24, LIPA followed up sith a letter confirming an agreement whereby the requester would submit narrowed document requests ar-d LIPA "nood not respond until after receipt of the revised request."
(.9.k.a Letter. from Richard Bonnifield, LIPA Deputy General Counsel, to Edwin Schwenk (dated Octooer 24, 1991) (attached).)
LIPA has not yet received a revised request from Mr. Schwenk.
These circumstances reflect poorly on the candor of petitjonera, not on the " character" of i
LIPA's management.
T 9
40
.-. - -. =.
i QQJiCLUEION ror the reasons shown herein and in LIPA'e May 6 i
Answer, the Board should dismiss the petitions to intervene for lack of standing and should reject all contentions proffered by petitioners.
Respectfully submitted, 2
d
's, of counselt Willias T. Colo'mahl/Tr.
~~
Carl R.
Schenker, Jr.
Stanley B. Klimberg John D. Holum President of Shoreham Project John A. Rogovin and General Counsel O'MELVENY & MYERS Richard P. Bonnifield 555 13th Street, N.W.
Deputy General Counsel Washington, D.C.
20304 LONG ISLAND POWER AUTHORITY (202) 303-5360 200 Garden City Plaza Garden City, N.Y.
11530 Nicholas S. Reynolds (516) 742-2200 David A. Repka WINSTON A STRAWN 1400 L Street, N.W.
Washington, D.C.
20005 (202) 371-5726 counsel for the Long Island Power Authority Dated: December 9, 1991 41
. ~..
4"o increase In Electric Rates OKd For LILCO PSCaction clears way for2 additionalhikes By Roni Ratdn e w eemara The state Publ.c Scrwce Commission yesterM sppro*ad a 416 percent hike m LILCO's eltstric rates and cleared the way for additienal annuali creases of shout 4 partent m eerh of the following too yters The Orst rete increene, whech gors into ede(t Dec 1, mill inctesse the eveenge monthly residenteel bill af $97 by about $3. and miu petsduce $13 4 million m revenues for the utably it siso includes novel provssoes desipied to promote en+
ergy coesersaloon by breaking the tradit!onal liekage be-tween utihty revenues and proSts PJchartl Kennel, esecutive director of the state Consumer Protection Board and chastman of the lorig le!and Power Authority, sa;d he was "very disappomted" by yesterday e dwistori He add;d that atterneys fram both bcdee would review it with an eye to en appeal "This is far uso generous en sm ars8." he said, "Our anaJy-eis Indicated LlLCO *as clearly not entitled to more than a 2 2 percent inerts.ne The PSC gave them almnet double thet" The PSC also approved a 41 percent meteene m naturel s rates en meresse desyned to prt4uce eSus lit 7 mal.
Fnon m re, venues Although that is only e one year rate hike, LILCO will submit addatenal hehe requests nonn.
The new rate-setting pronsions are espected to help the utibty estand su energy conservation propems - et even.
tual savings to consumers..ithout puttmr profits et ruit.
semrding to PSC and nTecia.s of the Long bland L.ght.ng Co.
Unider the new system. the smaunt Litf0 collects from customers will not tv cetermined by a Osed schedule o(
roles, but by many variables, such as the amnunt of power the utahty sells, the quehty of its unice, the price of oil its e/mual property Las bill, the vestly tale ofindelsort, preveil, art mterest rites and ernployee wegts As each variable lh quates, so too would the rate that customers pay for electncity L!140's enginal request !ast year sought senwal bikes of
$ percent m electric yatae for each of the following three years. but spokesman Joecph McDonneil asid the company wse pleased with yesterday e decis.on "It sends a favorable sognal to the meestment community that the PSC is uphe,lding its end of the IShureheml wille ment agreement," hs und, adding that such assurances have e punitive smpact on debt rennencing because they lead to lower mterest rates "Dere se samurance on the part of the mwnters thew the PSC is gtedually returning LILCO to Unancial health."
Under the Shoreham pact. LILCO man granted three Nors of guaranteed 5 percent meresses and seven years of.
targeted sacreases of approsimetely S percent The 6 percent increases initially sought by LILCO were wns. stent with the targeta e thned in the sende-u ment reached uith the state two years ago, under which LILCJ speed to close the $horeh6m plant m return for j tasurances of future On6ncial relief. In May, however. 3 state regulators and consumer advocates called for sig.
g nincant cuts in the rete meresses IJLCO requested last Dece mber-a Yesterday's PSC decisions panted a rete increase of 4 i [
percent for the year beginning Dec 1,1992, and a 4 0 p r.
t cent increase for the year bconning Dee I,11#93 Hnwever, E l
. hose roles will be subpet ta cumment and renee, and I
possibly beenngs l
tosG 208. 06tden 04ty Pitts Isised Garan C,ty, NY 115M Po**r
($16) 7d2 2200 Authority September
'3, 1991 Edwin M. Schwenk 10 Little Plains Road
,outhampton, New York 11968 Re:
freedcLqf_ IttfRr_ution lav Recuest Dear Mr. Schwenkt I am writing on behalf of the Long Island Power At.thority
("LIPA")
in response to your letter daced September 17, 1991 requesting certal.n information under the provisions of the Hav York State Freedom of Infornation Law, N.Y. Pub. Of f. Law, Sect.'.ons 84, 31 2.9L, LIPA received your latter on September 19, 1991.
We are collecting the documents you requested and vil' notify you in writing within the next thirty days that the docum ats are available for inspection and/or photocopying.
Sincerely,
~
Richard P. Bonnifield
Lon9 200 G5rden City Pf are titano Garcon City, NY 11530 Power (516) 142 ?200 A vtbority i
October 24, 1991 Mr. Edwin M. Schwenk 38 Little Plains Road Southampton, New York 11968 Ret September 17 Freedom of Information Law Request
Dear Mr. Schwonk:
It is our understanding that you will be rovising your September 17, 1991 FOIL request to LIPA and that we netd not respond until after receipt of the revised request.
Thank you for your consideration.
Sincerely,
&O Richard P. Bonnifield k
\\
- ,(r!'iD CERTIFICATE OF S QyLqg
.$NnC
'91 DEC -9 P3 :52 Pursuant to the service requirements of 10 C.F.R.
c i $.o A si dt ( Ao '
5 2.712 (1991), I hereby certify that on Decembew A 11991 I' I
M A h/
j served a copy of the Response of the Long Island Power Authority to Petitioners' Joint Supplemental Petition and transmittal letter via Courier upon the following parties, except where otherwise indicated:
Commissioner Ivan Selin The Honorable Samuel J.
Chilk Chairman The Secretary of the Commission Nuclear Regulatory Commission Nuclear Regulatory Commission one White Flint North Building One White Flint North Building 11555 Rockville Pike 11555 Rockville Pike Rockville, Maryland 2 08 f *1 Rockville, Maryland 20852 Commissioner Kenneth C.
Rogers Administrative Judge Nuclear Regulatory commissicn Thomas S. Moore, Chairman one White Flint North Building Administrative Judge 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 Washington, D.C.
20555 (First Class Mail)
Commissioner James R.
Curtiss Nuclear Regulatory Commission Administrative Judge one White Flint North Building Jerry R.
Kline 11555 Rockville Pike Atomic Safety and Licensing Board Rockville, Maryland 20852 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Forrest J.
Remick (First Class Mail)
Nuclear Regulatory Commission One White Flint North Building Administrative Judge 11555 Rockville Pike George A.
Ferguson Rockville, Maryland 20852 5307 Al Jones Drive Columbia Beach, Maryland 20764 Stephen A. Wakefield, Esq.
(First Class Mail)
General Counsel U.S.
Department of Energy Forrestal Building 1000 Independence Avenue, S.W.
Washington, D.C.
20585 (First Class Mail) l l
Edwin J. Reie, Esq.
Donald P.
Irwin, Esq.
Deputy Asriscant General Counsel Counsel, Long Island Lighting for Reactor Licensing Company U.S. Nuclear Regulatory Commission Hunton & Williams One White Flint North Building 707 East Main Street 11555 Rockville Pike Richmond, Virginia 23212 Rockville, Maryland 20852 (Via Federal Express)
James P. McGranery, Jr.
Gerald C.
Goldstein, Esq.
Dow, Lohnes & Albertson office of the General Counsel 1255 23rd Street, N.W.
Power Authority of State of Suita 500 New York Washington, D.C.
20037 1633 Broadway New York, New York 10019 Regulatory Publications Branch (Via Federal Express)
Division of Freedom of Information
& Publications Services Samuel A.
Cherniak, Esq.
Office of Administration NYS Department of Law U.S. Nuclear Regulatory Commission Bureau of Consumer Frauds Washington, D.C.
20555 and Protection (First Class Mail) 120 Broadway New York, New York 10271 (Via Federal Express)
Al L
CEkl R. Schenker, Jr. g/
0'Melveny & Myers 555 13th Street, N.W.
Washington, D.C.
20004 Dated:
December 9, 1991 i
l 2
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