ML20090L207
| ML20090L207 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/24/1984 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| References | |
| OL-4, NUDOCS 8405250242 | |
| Download: ML20090L207 (7) | |
Text
W I
UNITED STATES OF AMERICA CD NUCLEAR REGULATORY COMMISSION e.,
4 //$724 g, Before the Commission 5
rk 3f {4
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D f hi 'O f
In the Matter' of
)
)
LONG ISLAND LIGHTING COMPANY
)
(Shoreham Nuclear Power Station, Unit 1)
)
)
)
JOINT MOTION OF SUFFOLK COUNTY AND THE STATE OF NEW YORK TO STRIKE LILCO'S THREE UNAUTHORIZED PLEADINGS ENTITLED "LILCO'S MOTION FOR
SUMMARY
' DISPOSITION ON PHASE I LOW POWER TESTING;" " MOTION FOR
SUMMARY
DISPOSITION ON PHASE II LOW POWER TESTING;" AND " MOTION FOR PROMPT RESPONSE TO LILCO'S
SUMMARY
DISPOSITION MOTIONS."
On May 23, Suffolk County and the State of New York received three pleadings filed by LILCO with the ASLB:
"LILCO'S MOTION FOR
SUMMARY
DISPOSITION ON PHASE I LOW POWER TESTING;"
" MOTION FOR
SUMMARY
DISPOSITION ON PHASE II LOW POWER TESTING;"
and " MOTION FOR PROMPT RESPONSE TO LILCO'S
SUMMARY
DISPOSITION i
MOTIONS."
The instant Joint Motion is being filed with the Commission, rather than the Licensing Board, because LILCO's I
three pleadings disregard and, indeed, challenge the substance of the Commission's Order of May 16 in this proceeding.
- Thus, the County and State request the Commission to exercise the inherent jurisdiction it continues to hold over its May.16 Order and thireby to preserve the integrity of that Order.
For the following reasons, the County and State urge the Commission to preemptorily strike the subject LILCO Motions.
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First,.LILCO's pleadings request the. Commission to issue licenses for'only " fuel loading" and " cold' criticality testing" activities which LILCO itself admits do not involve operation of Shoreham.j Under NRC regulations, however, the Commission does'not issue such types of-licenses.
Since LILCO's Motions I
_are or perm ss on to carry out act v t es manifestly short f
i i
iii i
of " operating" Shoreham, the Motions are for " licenses" not authorized by NRC regulations.
Accordingly, the Motions are unauthorized pleadings and should be stricken. /
- / LILCO's request for the Commission to issue what~ amounts to a "No-Power License" was the subject of discussion at the May 7 oral argument before the Commission.
The County there made clear that there is neither legal basis nor precedent for i
issuance of such a no-power license.
While LILCO.and the Staff argued that the Diablo' Canyon proceeding provides support for such a license, that' case in fact demonstrates i
the opposite:
(1) 'Diablo Canyon was an enforcement pro-1 ceeding, not an initial licensing case.such as Shoreham.
l (2) The initial license in Diablo Canyon was a low power 4
license, not a no-power license which LILCO here requests.
4 (3) The Commission's decision to phase-in operation;of Diablo Canyon was an integral ~part of the Commission's: Independent-Design Verification Program (IDVP) for reinstatement of a t
i suspended license.. Inithat " reinstatement" context, phase-in was the way the Commission determined the public would
[
best be protected, given the'extraordinaryLaeries of design-deficiencies.which were discovered over'a'long period of i
time. lShoreham is'an entirely different situations it'is
.not an enforcement proceeding;.there is no suspended license; and there is.no IDVP. lEn Shoreham, there is room only for an operating license.
In'the event the Commission wishes.to. pursue the matter of legality _of a>no-power license," theLCounty:and State submit 4
thatEthis' matter'should be briefed by the parties and addressed:
.by the: Commission itself.- We< emphasize, however, that the issue was discussed by the parties'and Commission at thelMay.7 oral' argument. iThe fact that the Commission heard LILCO's i -
-(footnote cont'd on next page)
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-3 Second, the Commission's Order of May 16 -- which was issued after the oral argument where each of the parties
- presented 'its ' views on the legitimacy of " licenses" for Phase I and Phase II1of LILCO's proposal -- does not mention the
-possibility _of such a license application being even con.sidered, let:alone granted.
Indeed, the Commission stated, "If (LILCO) intends _to (seek an exemption under 10 C.F.R. 50.12 (a) ], the applicant should modify its application for low power operation (Order, p. 2.
Emphasis added.)
Similarly, the' Commission stated that LILCO's request for an exemption should include a discussion of, "its basis for concluding that, at power levels for which it seeks authorization to operate (Order, p. 3.
Emphasis added.)
Thus, the Commission was clear that LILCO's only option was to seek a license to operate Shoreham.
What LILCO has done once again is to'ask this Commission for a favor - namely, for a document -
a " license" --'which authorizes something LILCO can use'in pursuing its.own. purposes unrelated to operating Shoreham.
By now, everyone should know i
that these purposes embrace LILCO's worn-out strategy _for gaining
-access to Wall Street's. credit markets. -It is'a strategy'of no relevance to'the1NRC, where'public safety must be the only, objective..
~
- / - (footnote cont'd from previous page)
' arguments :and 'did 'not rule on -May 16 in accordance with LILCO implies that the-Commission-agreed with the County and: state's 7
positionithat a "no'-power license".may not~be issued.-
o
4-l Finally, LILCO claims that it has filed its Motions "in i
a continuing effort to have the merits of its case engaged.
The way to do that properly, however, is not by LILCO's Motions for_the Commission to take ultra' vires action, but to follow 2
l the NRC's regulations and the Commission's May 16 Order.
- Indeed, i
that Order went so far as to state:
"The Licensing Board shall conduct the proceeding on the modified application in accordance with the Commission's rules."
(Order, p. 3.)
However, within j
mere days of that admonition, LILCO has already filed Motions for licenses not contemplated by the rules or by the Commission's l
May 16 Order.
After what has transpired over the past two l
months, this proceeding has seen more than enough of LILCO's short-cuts and corner-cutting.- /
i
- /
LILCO's Motion For Prompt Responses To LILCO's Summary I
Disposition Motions" is most unfitting'given the problems caused earlier by " expeditiousness" in this' proceeding.
It is time for the Commission's regulations to be applied as intended.
Insofar as substtntive County and State responses to LILCO's Motions are concerned, the parties await (1) tha Commission's~ ruling on the instant Joint Motion that such LILCO Motions be stricken as unauthorized pleadings; and (2) the assertion of-jurisdiction in this new proceeding by the Licensing Board and the establishment of procedures
)j and timetables.
Only if LILCO's submittedly unauthorized ~
pleadings were permitted to stand would~it be appropriate for substantive responses thereto.
Finally, LILCO's " Application for Exemption," filed May 22, is incomplete and-substantively inadequate given the explicit requirements of Section 50.12 (a). 'The county and State have requested, by separate pending Motions for'Clarifica-tion, that the Commission provide'a procedural means by which i
the County and State may seek remedies to deal with such inadequacies.
A
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.. Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
' Herbert H.
Brown Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County IkM k
Fabian G.
Palomino Special Counsel to the Governor of New York State Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for MARIO M. CUOMO May 24, 1984 Governor of the State of New York l
I I
<k UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION Before The Atomic Safety And Licensing Board
~
)
In the. Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies'of the JOINT MOTION OF SUFFOLK COUNTY AND THE STATE OF NEW YORK.TO STRIKE LILCO'S'THREE UN-l AUTHORIZED PLEADINGS ENTITLED "LILCO'S MOTION FOR
SUMMARY
DISPOSI-TION ON PHASE I LOW POWER-TESTING;" " MOTION FOR
SUMMARY
DISPOSITION ON PHASE II LOW POWER TESTING;" AND " MOTION FOR PROMPT RESPONSE TO LILCO'S
SUMMARY
DISPOSITION MOTIONS," dated May 24, 1984, have been served to the following this 24th day of May 1984 by U.S.
mail, first class, unless otherwise indicated.
Judge Marshall E.
Miller, Chairman
- Edwin Reis, Esq.*
Atomic Safety and Licensing Board Counsel for NRC Staff U.S.
Nuclear Regulatory Commission Office of;the Executive Legal Washington, D.C.
20555 Director
'U.S.
Nuclear Regulatory Commission Judge Glenn O.
Bright
- Washington, D.C.
20555 Atomic Safety and Licensing Board I
U.S.
Nuclear Regulatory Commission Edward M.
Barrett, Esq.
Washington, D.C.
20555 Long Island Lighting Company i
250 Old Country Road Judge Elizabeth B. Johnson **
Mineola, New York 11501 Oak Ridge National Laboratory P.O.
Box X, Building 3500
' Honorable Peter F.
Cohalan.
Oak Ridge, Tennessee 37830 Suffolk County Executive-H. Lee Dennison Building Eleanor L.
Frucci, Ecq.
Veterans Memorial Highway Atomic Safety and Licensing Board Hauppauge, New York 1176S U.S.
Nuclear Regulatory Commission Washington,.D.C.
~20555 By Hand
- By Federal Express **
By Telecopier e
-s--.--
r e,
4n--
Fabian Palomino, Esq. ##
James B.
Dougherty, Esq.
Special Counsel to the Governor 3045 Porter Street, N.W.
Executive Chamber Washington, D.C.
20008 Room 229 State Capitol Mr. Brian McCaffrey Albany, New York 12224 Long Island Lighting Company Shoreham Nuclear Pcwer Station W.
Taylor Reyeley, III, Esq. ##
P.O.
Box 618 Anthony F.
- Earley, Jr.,
Esq.
North Country Road Robert M.
Rolfe, Esq.
Wading River, New York 11792 Hunton & Williams P.O.
Box 1535 Jay Dunkleberger, Esq.
707 East Main Street New York State Energy Office Richmond, Virginia 23212 Agency Building 2 Empire State Plaza Mr. Martin Suubert Albany, New York 12223 c/o Congressman William Carney 1113 Longworth House Office Bldg.
Stephen B.
Latham, Esq.
Washington, D.C.
20515 John F.
Shea, Esq.
Twomey, Latham and Shea Martin Bradley Ashare, Esq.
33 West Second Street Suffolk County Attorney Riverhead, New York 11901 H.
Lee Dennison Building Veterans Memorial Highway Docketing and Service Branch Hauppauge, New York 11783 Office of the Secretary U.S.
Nuclear Regulatory Nunzio J.
Palladino, Chairman
- Commission
'U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Room 1114 1717 H Street, N.W.
Washington, D.C.
20555 A
^ U M I-l
'lM M l Commissioner Victor Gilinsky Herbert H. Brown U.S. Nuclear Regulatory Commission KIRKPATRICK, LOCKHART, HILL, Room 1103 CHRISTOPHER & PHILLIPS 1717 H Street, N.W.
1900 M Street, N.W.,
Suite 800 Washington, D.C.
20555 Washington, D.C.
20036 Commissioner James K. Asselstine
- DATE:
May 24, 1984 U.S. Nuclear Regulatory' Commission Room 1136 1717 H Street, N.W.
Washington, D.C.
20555 Commissioner Frederick M. Bernthal
- U.S. Nuclear Regulatory Commission
_)
Room 1156 1717 H Street, N.W.
l Washington, D.C.
20555
[
l Commissioner Thomas M. Roberts
- l U.S. Nuclear Regulatory Commission
.e Room 1113 1717 H Street, N.W.
Washington, D.C.
20555 -.
.