ML20086N166

Motion for Stay of License Transfer Pending Final Order on Petition to Intervene & Request for Hearing & for Addl or Alternative Stay.W/Certificate of Svc

ML20086N166
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/17/1991
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY
To:	NRC COMMISSION (OCM)
References
CON-#491-12430 OLA-3, NUDOCS 9112190099
Download: ML20086N166 (13)

Text

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! L 00CKE100 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 1 - - t cym '

)

In the Matter of ) Docket No. 50-322-OLA-3

)

LONG ISLAND LIGHTING COMPANY )

) (Application for (Shoreham Nuclear Power Station, ) License Transfer)

Unit 1) )

)

MOTION FOR STAY OF LICENSE TRANSFER PENDING FINAL ORDER ON PETITION TO INTERVENE AND REQUEST FOR HEARING AND FOR ADDITIONAL OR ALTERNATIVE STAY The Shoreham-Wading River Central School District

'(" School District") and Scientists and Engineers and for Secure Energy, Inc. ("SE 2 ") hereby move the Commiasion to exercise its

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discretionary supervisory authority to stay any NRC Staff action to approve the transfer of the Possession Only License (" POL")

-for the Shoreham Nuclear Power Station, Unit 1 ("Shoreham") from

'the Long Island-Lighting company ("LILCO") to the Long Island Power--Authority ("LIPA") pursuant to 42 U.S.C. 5 2239(a)(2)

(1988) and the regulations issued thereunder ("Sholly Procedures"). Egg,-Pacific-Gas & Electric Co. (Diablo Canyon

= Nuclear Power Plant, Units 1 & 2), CLI-86-12, 24 NRC 1 (July 22, 1986).

Alternatively or additionally, the School District and SE2 , on behalf _of themselves and the persons they represent, move the Commission to administratively stay approval of the license 9112190099 911217 3

- DR ADOCK 05G0 2

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transfer for a " period of time"l' af ter issuance of a final order in the above-captioned matter, or denial of the foregoing motion, to allow them to seek a judicial stay of approval of that license transfer pending judicial review of any commission action authorizing that approval in order to permit the orderly processing of such a stay request by the Court of Appeals.

BACKGROUND Pursuant to the proposal to decommission Shoreham embedded in the Settlement Agreement and its subsidiary agreementsI ', a POL was issued for Shoreham in Juns 1991 and became effective July 20, 1991 pursuant to the Sholly Procedures while the request for hearing and petitions to intervene of the School District and SE2 continued to pend before this commission.

1/ Petitioners respectfully suggest that that " period of time" should allow for ten (10) working days after the date of publication of notice of approval of license transfer in the Federal Reaister for Petitioners to file the petition for review and stay request and, if Petitioners-file such a petition for review and-motion for stay within that time, the administrative stay should be automatically extended for an additional ten (10) working days (for a total of twenty (20) working days) to allow the Court to decide whether it wishes to (a) grant or (b) deny the stay, or (c) extend that period of time for its consideration of the grant or denial of the stay.

2/ The legal validity of these agreements (which are the whole premise of the illegally segmented proposal to decommission Shoreham currently before the NRC):is currently subject to doubt due to the pendency of a motion for reargument of the New York Court of Appeals' (4-3) decision upholding that legal validity.

And even if valid, the agreement to transfer Shoreham to LIPA is currently subject to termination by any party pursuant to its own terms.

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4 On March 20, 1991, the NRC Staff published notice of its Proposed No Significant Hazards Determination with respect to the application to transfer the Shoreham license as to LIPA in the Federal Recister. 54 Fed. Reg. 11768, 11781 (1991).

The Staff explicitly recognized in that notice that the proposal to transfer the Shoreham licennes to LIPA was dependent upon transfer of nothing more than a POL.

The granting of the POL for Shoreham pursuant to the Sholly Procedures is currently before the U.S. Court of Appeals for the District of Columbia Circuit and is thus subject to being vacated. Further, the administrative proceedings on the petitions to intervene and request for hearings on the license transfer application have not yet culminated in a final order by 1

this Commission, much less have those proceedings achieve true j l

finality after judicial review. j THE COMMISSION SHOULD EXERCISE ITS DISCRETIONARY SUPERVISORY AUTHORITY TO STAY NRC STAFF APPROVAL OF THE LICENSE TRANSFER I. TRANSFER OF A POL IS NOT - SUBJECT TO THE SHOLLY PROCEDURES l

Congress granted the Commission special authority to l-

" issue and make. immediately . affective any agendment to an ooeratino license, upon a determination by the Commission that such amendment' involves no significant hazards consideration, not withstanding the pendency before the Commission of request for a hearing from any person." 42 U.S.C. 5 2239(a)(2)(A) (1988).

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A. A POL Is Not An Operatina License.

It is beyond question that a POL is not an operating license; therefore, the Sholly Procedures cannot be applied to such a reactor non-operating license. The Commission's own regulations issued pursuant to the Sholly amendment also recognize the limitation of these procedures to applications

" requesting an amendment to an operatina license for a facility licensed under S 50.21(b) or S 50.22 or for attesting facility."

10 C.F.R. SS 50.91 & 50.92(c) (1991) (emphasis added).

B. An Application For License Transfer Is Not An ADD 11 cation For " License Amendment".

Even if one were to ignore the plain language of the Sho11.y Amendment restricting it to " operating licenses," it is clear from the structure of the Atomic Energy Act ("AEA") and the Commission's regulations, that the " transfer" of a license is not treated as a license " amendment."

The Atomic Energy Act itself distinguishes among proceedings "for the granting, suspending, revoking, or amending of any licgnge or construction permit, or application to trAD21CI cor_ trol (in specifying proceedings where) the Commission shall grant a hearing upon the request of any person whose interest may be affected-by the proceeding . . . .

" 42 U.S.C. $ 2239(a)(1)

(1988). The Act's separate specification of proceedings for the

" amending of any license" and " application to transfer"

l demonstrates that an acclication to transfer is separate and distinct from an apolication to amend a license.

The Commission's regulations also set out clearly the structure for consideration of applications for license

" amendment" at 10 C.F.R. SS 50.90-50.92 and make distinct and separate provision for the factors to be considered in an application for " license transfer" at 10 C.F.R. S 50.80 (1991).

In particular, the Commission's regulations recognize that an application for license transfer must " include as much of the information described in SS 50.33 and 50.34 of this part with respect to the identity and technical and financial qualifications of the proposed transferee as would be required by those sections if the application were for an initial license, and, if the license to be issued is a Class 103 license, the information required by S 50. 33a, among other things. 10 C.F.R.

S 50.80(b) (emphasis added).

And the Commission's regulations further provide that such license transfer may only be approved "(a)fter appropriate notice to interested persons . . . and observance of such procedures as may be required by the Act or regulations or orders of the Comminsion" and also after the subsequent Commission determination that "the proposed transferee is qualified to be the holder of the license; and (2) That transfer the license otherwise consistent with applicable provisions of law, regulations, and orders issued hf the Commission pursuant thereto." 10 C.F.R. S 50.80(c) (1991).

In short, the commission's regulations recognize that a license transfer application should be treated as an application for an " initial license," not a license " amendment."

II. LIPA IS NOT TECHNICALLY OR FINANCIALLY QUALIFIED TO BE A CLASS 103 POL LICENSEE. _

As the School District and SE2 have specified in proposed contentions before the Atomic Safety and Licensing Board, LIPA has neither the managerial integrity nor financial qualifications to be a NRC Class 103 licensee.

For example, it is clear that LIPA is not an " electric utility" as defined by the NRC's regulations since it neither generates nor distributes electricity and earns no income except for the recovery of part of its general and administrative costs and capital costs related to Shoreham. Egg, 10 C.F.R. S 50.2 (1991). Further, as of March 31, 1991, LIPA had an " accumulated deficit" of at least $11.89 million with no prospect of repaying its creditors through any earnings. There is no escaping the conclusion that LIPA is a bankruot.

l Moreover, there are many circumstances casting significant doubt on LIPA'c managerial integrity, including _its l

l failure to adhere to agreements made with the State of New York, its failure to comply with its statute in contracting, issuing bonds, etc., and its managerial integrity is most seriously questioned on the basis of the lack candor of LIPA's Chief Executive Officer in meetings with the NRC Staff and the fact l

that, although LIPA made a commitment to the NRC to establish a nuclear review board, the LIPA Budget Request to the State of New York for t'ne year April 1, 1992-March 31, 1993 (filed October 30, 1991) addressing its Shoreham proposed work, among other things, but includes n2 mention of, much less financial provision for, such a board.F Also, and not least of all, it should be noted that LIPA was totally denied any State appropriation for the current fiscal year and the School District and SE2 submit that LIPA has no reasonable prospect of receiving ADY appropriation for the State of New York for the forthcoming fiscal year.

In these circumstances, the School District and SE 2 significantly doubt that the Commission can make the required determinations of managerial integrity and financial ability necessary to issuing a Class 103 license to LIPA.

III. APPROVAL OF TRANSFER OF THE POL WOULD BE CONTRARY TO THE STAFF'S OWN PREMISE.

In making its Proposed No Significant Hazards Determination, the Staff limited that determination to the transfer of a POL to LIPA. 54 Fed. Reg. at 11781, col. 1.

l However, the grant of the POL to LILCO pursuant to the Sholly l

Procedures is currently under judicial review, and the continuing i

1/ This document was not in the possession undersigned counsel when the Petitioners' contentions were submitted to the Atomic Safety and Licensing Board.

1

POL proceeding before the NRC has not yet culminated in a final order much less been subject to judicial review.

In these circumstances, there is an unacceptable risk however small, that that POL may be vacated by the Commission or the federal courts, resulting in LIPA becoming a full power nuclear reactor operating licensee. Therefore, in no event

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should the transfer of the POL for Shoreham to LIPA be approved by the Commission or its Staff until after the Commission can have full confidence that that license will not revert to a full power operating license.

IV. THE LICENSE TRANSFER SHOULD NOT APPROVED UNTIL NEPA REVIEW OF THE PROPOSAL TO DECOMMISSION HAS BEEN COMPLETED.

There can be no reasonable doubt but that the license transfer is being sought pursuant to a proposal to decommission.

Equally there can no doubt that if the license transfer is ,

approved, LIPA will legally have no alternative but to decommission the reactor due to its statutory mandate. Thus, at least at this point, the Commission is required by NEPA, and the CEQ and NRC regulations pursuant thereto, to pause and consider the alternatives, costs and benefits, environmental impacts, adverse environmental effects which cannot be avoided, and the irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. S 4332(2)(C) (1988); 40 C.F.R. Part 1500; 10 C.F.R. SS 51.100 & 51.101 (1991).

At least at this juncture the NRC should heed the strong and unambiguous advice from kath the Council on Environmental Quality and the U.S. Department of Energy that such environmental review is necessary which was previously given in the context of the POL proceeding.

V. APPROVAL OF THE LICENSE TRANSFER PRIOR TO THE DEVELOPMENT OF A FULL RECORD IN HEARINGS WOULD BE 3RBITRARY AND CAPRICIOUS.

For all of the foregoing reasons, the commission's allowance of the approval of the license transfer without following the Commission's normal procedures would be arbitrary and-capricious in denigration of the public's fair expectation of unprejudiced-proceedings and would contribute to a negative image of the-Commission's impartiality in its dealings with licensees, especially reactor licensees.

VI. h3SENT STAYS PETITIONERS WILL BE IRREPARABLY HARMED.

If the stays requested are not issued, Petitioners' rights and the rights of those whom they represent will be l irreparably. harmed under the AEA because the very careful decommissioning procedures developed by the Commission will not l -

have been followed, the Sholly Amendment Procedures will have been violated, and the. preconditions for approval of license-transfer will have been violat?d, thus creating a presumption of endangerment-to the public health and safety. And the rights of those same entities and persons under NEPA will also have been l

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irreparably harmed since a major federal action significantly affecting the quality of the human environment, namely the proposal to decommission Shoreham, will have been given further and perhaps irreversible approval prior to the completion of the NEPA process, thus eviscerating NEPA's informational purposes and denying the School District and SE2 and those whom they represent the availability of the information that would otherwise be developed and denying them their rights to comment on that information, as well as denying state and federal decisionmakers the information promised by NEPA to available prior to such an irreversible and irretrievable commitment of resources.

VII. THERE IS NO COGNIZABLE HARM TO OTHERS AND PUBLIC INTEREST DEMANDS A STAY.

Neither LILCO, LIPA nor the NRC Staff can allege any coanizable harm to their interest under the AEA or NEPA from issuance of such stay and the public interest would clearly be better served by careful adherence to the Commission's AEA regulations and its observance of the NEPA process prior to any such approval.

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CONCLUSION WHEREFORE, Petitioners School District and SE2 urge the Commission to issue the initial and/or additional or alternative

- stayat.

. Respectfully submitted, December 17,_1991:

I

%~2 h, Mt.<l n} M*

/.

James P. McGranery,/fr.

Dow, Lohnes & Albeytsbn Suite 500 1255 Twenty-Third St., NW Washington, D.C. 20037 (202) 857-2929 Counsel for Petitioners Shoreham-Wading River Central.

School District and Scientists and Engineers for-Secure Energy, Inc.

UNITED STATES OF AMERICA iMMD U5NiiC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 91 DEC 18 A11:15

) 4!CE N HCat %v Docket- No.qt ($0i-g2gLA43

-In the Matter of )

LONG ISLAND LIGHTING COMPANY )

) (Application for (Shoreham Nuclear Power Station, ) License Transfer)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the Petitioners' Motion for Stay of License Transfer Pending Final Order on Petition to Intervenc and Request for. Hearing and for Additional or Alternative Stay in the above-captioned proceeding have been served on the following by hand, or first-class mail, postage prepaid (as indicated) on this 17th day of December, 1991:

Chairman, Ivan Selin Commissioner Forrest J. Remick U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory _ Commission One White Flint North' One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, Maryland 20852 Rockville, Maryland-20852 (hand) (hand)

Commissioner Kenneth C. Rogers Commissioner James R. Curtiss U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission

-One White Flint-North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, Maryland 20852 Rockville,-Maryland 20852 (hand) (hand)

Commissioner E. Gail de Planque. Thomas S. Moore, Chairman U.S.-Nuclear Regulatory Commission Administrative Judge One White Flint Nort.h Atomic Safety & Licensing Board 11555 Rockville Pike -U.S. Nuclear Regulatory Commission

.Rockville,. Maryland 20852 Wsshington, D.C. 20555

.(hand) (mail)

Jerry R. Kline George A. Ferguson Administrative. Judge Aaministrative Judge

-Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear' Regulatory Commission U.S. Nuclear Regulatory Commission-Washington, D.C. 205!5 5307 Al Jones Drive .

(mail) Shady Side, Maryland 20764-(mail)

Edwin J. Reis, Esq. W. Taylor Reveley, III, Esq.

Mitzi A. Young, Esq. Donald P. Irwin, Esq.

Office of the General Counsel Hunton & Williams U.S. Nuclear Regulatory Commission Riverfront Plaza, East Tower Washington, D.C. 20555 951 East Byrd Street (hand) Richmond, Virginia 23219-4074 (mail)

Samuel A. Cherniak, Esq. Carl R. Schenker, Jr., Esq.

NYS Department of Law O'Melveny & Myers Bureau or Consumer Frauds 555 13th Street, N.W.

and Protection Washington, D.C. 20004 120 Broadway (hand)

New York, New York 10271 (mail)

Gerald C. Goldstein, Esq. Stanley B. Klimberg, Esq.

Office of General Counsel Exocutive Director &

New York Power Authority General Counsel 1633 Broadway Long Island Power Authority New York, New York 10019 200 Garden City Plaza, Suite 201 (mail) Garden City, New York 11530 (mail)

Nicholas S. Reynolds David A. Repka Winston & Stravn 1400 L Street, N.W.

Washington, D.C. 20005 (mail)

A) ,_l & A'0A~b' 1 1-

, James P. McGranery/ Ar.

Counsel for the Petitioners Shoreham-Wading River Central School District and Scientists and Enginaters for Secure Energy, Inc.

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