ML20086J635

Lilco Opposition to Petitioners Contentions on License Transfer Amend.* Concludes That License Transfer Amend Contentions Be Rejected & Petitioner Request to Intervene Denied.W/Certificate of Svc

ML20086J635
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/09/1991
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#491-12411 OLA-3, NUDOCS 9112120026
Download: ML20086J635 (7)

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LILCO, Decembeg. . l'1991 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9) g jj g 34 Eefore the Atomic Safety On tri .T Sl ;H. i As and LicensingJkgdigg }l Wif f.

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OLA-3

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(Shoreham Nuclear Power Station, )

Unit 1) )

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LILCO'8 OPPOSITION TO PETITIONER 8' CONTENTIONS ON LICENSE TRANSFER AMENDMENT I. ' Introduction On November 18, 1991, Petitioners Shoreham-Wading River Central School District (SWRCSD) and Scientists and Engineers for Secure Energy, Inc. (SE 2 ) submitted a joint supplemental petition to intervene in the proceeding regarding the amendment authorizing the transfer of the "possessicn only" license (POL) for the Shoreham Nuclear Power Station from Long Island Lighting Company (LILCO) to the Long Island Lighting Power Authority (LIPA). As instructed by the Board in its October 23, 1991 scheduling order, Petitioners included in their joint supplemental petition soven contentions on Shoreham's transfer that they wish to litigate.

Pursuant to 10 C.F.R. S 2.714(c), LILCO opposes Petitioners' joint supplemental petition and their proffered contentions. In 911D)DOOD6 911D09 PDR C ADOCK 05000322 PDR 7 d[)

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2 addition, LILCO renews its requ .J that the Board strike the petitioLE, as supplemented, as a sanction for Petitioners' repeated, blatant disregard of the NRC's instruction and authority.

II. The contentions Should Be Rejected and the Intervention Petitiong, as SuDplegented, D_q1134 Petitioners' transfer amendment contentions should be rejected, and their requests for hearing denied, for the reasons given in the " Response of the Long Island Power Authority to Petitioners' Joint Supplemental Petition" (December 9 Response),

being filed today by LIPA under separate cover. As LIPA's December 9 Response explains, neither SWRCSD and SE2 have standing to intervene. Further, the contentions are plainly insufficient under both the Commission's Shoreham-specific guidance as to what constitutes a " properly pled contention,"l/

as well as a recent Commission ruling on the higher threshold for admissibility established by the revised pleading requirements for contentions. Egg Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991) (because the revised pleading requirements

" demand" that a contention contain adequate basis and a statement M

of the facts or sxpert opinion to be relied upon, if these requirements are not met, the contention "must be rejected").

1/ Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-04, 33 NRC 233 (1991).

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HI . The Petitiong_JhqMid be Struck as a Sanction In addition, LILCO renews its request that SWRCSD's and SE2 's requests to intervene in the license transfer amendment proceeding also be struck as a sanction for thoir repeated, blatant disregard of the Commissiot's instruction and authority.

In its May 6, 1991 opposition to Petitioners' April 19, 1991 requests for hearing on Shoreham's transfer, filed May 6, 1991, (May 6 Opposition) ,2/ LILC9 pointed out that SWRCSD and SE2 ' DY recycling verbatim NEPA-based arguments that the Commission had already considered and rejected in Lena Island Lichtino Cat (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990), aff'd, CLI-91-02, 33 NRC 61 (1991), " pretend as if the Commission never issued CLI-90-08 and CLI-91-02." May 6 opposition at 14.  ?.fter giving several examples of Petitioners' refusal to recognize the Commission's NEPA holdings, LILCO argued that such " disregard for the Commission's authority should be not be tolerated." May 6 Opposition at 17.

In its Statement of Policy on Conduct _of Licensing Pro-coedinca, CLI-81-08, 13 NRC 452 (1981), the Commiresion stated that "[f)airness to all involved in NPC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regula-tions." 13 NRC 454. When a " participant fails to meet its 2/ As a courtesy, a copy of LILCO's May 6 Opposition is provided to each member of the Board.

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obligations," the Commission continued, "the imposition of sanctions against the offending party" should be considered. Idt Among the " spectrum" of available sanctions, the Commission said, is the "refustal) to consider a filing by the offending party."

Idx Such a sanction is appropriate here. Petitioners are certainly entitled to disagree with the NRC's NEPA rulings.2/

But that are n21 entitled simply to disregard entirely those-rulings and reclamor issues that they have lost.

In its May 6 opposition, LILCO predicted that, "(u)nless deterred, it is clear that Petitioners will seek, through_the submission of frivolous pleadings like the ones at issue, to frustrate the NRC's process." May 6 Opposition at 18. Peti-tioners' NEPA-based transfer amendment contentions bear out this prediction. Petitioners' submission of transfer amendment contentions that, with respect'to issues arising under_NEPA, are nearly identical 2.- contentions that have been rejected in ty2_

other Shoreham proceedingsi/ underscores the need for the Board-to curb SWRCSD's and SE 2 's insistence on submitting frivolous 2/- Indeed, Petitioners are presently: seeking review of those rulings before the U.S. Court of Appeals for the District of Columbia circuit. Snoreham-Wgdino River Central School District y.. NBQ (D.C. Cir. Nos. 91-1140 & .1301) .

l/ Egg Lona Island Lichtino cot (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC_163 (1991) (rejecting Peti-tioners' contentions in the Confirmatory _ Order, emergency pre-paredness, and Physical Security Plan amendment proceeding); L2D9 I h i_Linht.lDo Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-91 '9, 34 NRC __ (Nov. 15,fl991) (rejecting Petitioners'

-contentions in the POL amendment proceeding).

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pleadings whose only purpose is to engender delay. The Board j she'ald not tolerate such abuse of the hRC's adjudicatory process. l t

III. conclua19.a t r

For the reasons given above, the license transter amendment contentions should be rejected and Petitioners' request to  ;

i intervene in the license transfer amendment proceeding denied. >

In addition, for the reasons given above, the intervertion petitions, as supplemented, should be struck, to deter Petitioners from further-ignoring the Commission's guidance on ,

the scope'and applicability of NEPA to Shoreham.  ;

Respectfully submitted, W.TpyprReveley,II;I Donald P. Irwin  !

David S. Harlow Counsel for Long Is and ,

Lighting Company

- Hunton & Williams

' Riverfront Plaza, East Tower 951 East Byrd Street i Richmond, Virginia 23219 i

DATED: December 9, 1991

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1.11.C0, December 9,1991 i ai :ll' UNITED STATES OF AMERICA "'"

NUCLliAR REGULATORY COMMISSION Dciere the Atomic Safety and_Listniing.Doud '91 DEC 11 A10:34

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In the Matter of ) iM 'g ,j -- " l

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LONG ISLAND LIGHTING COMPANY ) Docket No.30-322 OLA .)

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(Shoreham Nuclear Power Station. )

Unit 1) )

CERTIFICAT1LOFERYlCl3 1 hereby certify that copies of Lil,CO's OPPOSITION TO PETITIONERS' CONTENTIONS ON LICENSE TRANSFER AMENDMENT were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mail, postage prepaid.

Thomas S. Moore, Esq., Chairman

• James P. McGranery, Jr., lisq.*

Atomic Safety and Licensing Board Dow, LAhnes & Albertson U.S. Nnclear Regulatory Commission 1255 23rd Street, N.W., Suite 500 East West Towers, Fourth Floor Washington, D.C. 20037 4350 East West Highway Bethesda, Maryland 20814 Docketing and Servke Section Oflice of the Secretary Dr. Jerry R. Kline* U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 70555 U.S. Nuclear Regulatory Commission

- East West Towers. Fourth Floor Nicholas S. Reynolds, Esq.

4350 East West Highway David A. Repka, Esq.

Bethesda, Maryland 20814 Winston & Strawn 1400 L Street, N.W.

Dr. George A. Ferguson* Washington, D.C. 20005 Atomic Safety and Licensing Board 5307 Al Jones Drive Stanley B. Klimberg, Esq.

Columbia Beach, Maryland 20764 Executive Director and General Counsel Mitzi A. Young, Esq.* long Island Power Authority Office of the General Counsel 200 Garden City Plaza, Suite 201 U.S. Nuclear Regulatory Commission Garden City, New York 11530 One White Flint North 11555 Rockville Pike Rockville, Maryland 20852

t 2 Carl R. Schenker, Jr., Esq

• Gerald C. Goldstein Esq.

Counsel, long Island Power Authority Office of General Counsel 55513th Street, N W. New York Power Authority Washington, D.C. 20CXM 1633 Broadway New York, New York 10019 Stephen A. Wakencid, Esq.

General Counsel Samuel A. Cherniak, Esq.

U.S. Department of Energy New York State Department of Law 1000 Independence Avenue, S.W. Bureau of Consumer Frauds and Protection Washington, D.C. 20585 120 Broadway New York, New York 10271 hb S. Aki/w David S. Harlow Hunton & Williams Riverfront Plaza, East Tower 951 Byrd Street Rl:hmond, Virginia 23219 4074 DATED: December 9,1991 l

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