ML20091D140
| ML20091D140 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/30/1984 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20091D144 | List: |
| References | |
| OL-4, NUDOCS 8405310050 | |
| Download: ML20091D140 (10) | |
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@%IfP UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
30 tal:SS Before the Comminaion
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---e w e ';o, A n,
" 4 N <: q In the Matter of
)
)
LONG ISLAND LIGilTIliG COMPANY
)
)
Docket No. 50-322-OL-4 (Shorcham Nucioar Power Station,
)
(Low Powor)
Unit 1)
)
)
JOINT ! UFFOLK COUNTY AND NEW YORK STATE SUPPLEMENT TO REQUESTS FOR CLARIFICATION OF COMMISSI">N'S MAY 16 ORDER Suffolk County and Now York Stato filo thin Supplomont to their "Hoquestn (of May 22 and May 23 respectively) for Clarifi-I cation of Comminnion's Order of May 16, 1984," in ordor to pro-vide the Commission with further information which han developed in support of the mattors addressed in their Roquests.
This further information atoms from the " Application for Lxemption" f11od by LILCO on May 22.
That Application failo to addrons substantively the standards of Section 50.12(a) and the Commis-nion's May 16 Order, an't doon not even attempt to moot LILCO's burdon of proof under Section 2.732 of the regulations.
1.
The County and Stato havo requestod that, "The Commis-uion should make clear that a pro-hearing schedulo should not begin to run until the lionrd maken a finding that any LILCO exemption requent in sufficiently comploto with requisito infor-9 0
1 1
mation and factual support to permit the proceeding to go for-ward."
On May 16, LILCO filed an " Application for Exemption."
LILCO's filing, however, is woef ully incompleto on its f aen, as l
well as being substantively deficient even where it purports to address the requirements of Section 50.12(a).
For illustrativo purposes, a few examplos follows 1
First, LILCO's Application for Exemption ignores the i
requiremont of Section 50.12(a) that LILCO prove that the exemp-tion it requests "will not endanger the cornmon defonso and nocur-1 I
ity."
Instead of properly addressing the merits of this requiro-ment, LILCO casually asserts in a footnote the nonseguitur that the " common defense and security" requiremont does not apply hero and, indeed, does not even mean in this case what it has always meant namely, the physical protection and other security arrangements of Part 73 of the regulations.
Moreover, LILCO goes so far as to state, "the Commission did not direct that (the security) aspect of $50.12(a) be addressed."
(LILCO Application, p. 15, f n. 10. )
One can only wonder what it taken for LILCO to get the message that it is not above complying l
wit h the Commission's regulations.
When the Commission directed in its May 16 Order that any LILCO cxemption requent be filed j
i under Section 50.12(a), the Commission imposed all of the
[
requirements of Section 50.12(a), not j us t, the parts with which
[
LILCO wishes to comply.
Indeed, thn Commission went to the j
i l
I l
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l
, extraordinary length of saying that this proceeding shall be conducted "in accordance with the rules."
Those rules include Section 50.12(a), Part 73, and Setion 2.732, which places the burden of proof on LILCO.
LILCO's failure to address the secur-ity issue, and its failure even to attempt to meet its regulatory burden of proof, should thus be viewed by the Commission as a default-by LILCO.
For this reason alone, the Commission would be justified in rejecting LILCO's Applicatien out-of-hand.
Second, in the May 16 Order, the Commission directed LILCO to address the following criterion in any exemption application it might file:
"Its [LILCO's] basis for concluding that, at
. power levels-for which it seeks authorization to operate, opera-
. tion would be as safe under the conditions proposed by it, as operation would have been with a fully qualified onsite A/C power source."
Order p.
3.
LILCO makes a conclusory assertion (p. 8 of the LILCO Application) that its Chapter 15 analyses provide the basis for meeting the foregoing criterion.
However, there is l-nothing in these analyses or in any other LILCO document which even begins to assess whether the new LILCO configuration of three non-safety related power lines supplying the safety loads at Shoreham is as safe as the prior configuration of five lines
-- three of which were safety related -- supplying such loads.
l.
Thus, LILCO has again defaulted.
l
4' Third, LILCO's Application is a conclusory statement of unsupported assertions.
Throughout the Application, LILCO fails to explain how the grant of an exemption from GDC 17 satisfies the substance of the criteria of Section 50.12(a):
that is, how in any way the elimination of onsite power at Shoreham would be of affirmative public benefit.
Similarly, LILCO's characteri-zations of " rational regulation," " foreign oil dependence," " good faith," " training benefits," and each of LILCO',s other assertions are bald statements which provide no substantive support for the Application.
In short, none of LILCO's assertions engages either
- the merits or the " exigent circumstances" requirement of Section 50.12(a) or makes-the showing required by the Commission to just-ify going foward on LILCO's Application.
LILCO further states that it "has applied for an exemption based on the saya core facts as cupported in its Supplemental Motion.
Only the legal garb has changed."
(LILCO " Response to Requests for Clarification," May 24,.p.
5, Emphasis added.)
Such a cavalier view of this proceeding -- as only a matter of " legal garb" -- makes a mockery of the exemption requirements of Section 50.12(a).
Just as the Commission requires under Section 2.101 a threshold review of the completeness and adequacy of applications for construction permits and operating licenses, it should clari-
~
fy its May 16 Order to require a similar type of threshold review L
for LILCO's Application for Exemption.1!
This particularly is important since the Commission has previously made clear that the use of Section 50.12 is " extraordinary."
See May 16 Order, p.
2.
Given the high standard which the Commission itself has estab-lished for Section 50.12 cases, the Commission should insist on a
. complete and thorough application before any party is required to address the merits.
The alternative is to cause the parties to waste time and money on an unworthy application.
LILCO here is seeking extraordinary relief If it cannot sustain its burden, so be it.
That truly is the standard of " rational regulation."2/
1! The County and State have requested'by their filings of May 22 and 23 that the Commission establish a time for the County and State "to file motions for disposition as a matter of law" of LILCO's Application for Exemption.
(County Request for Clarifi-cation, p.
3.)
Given the wholesale inadequacy of LILCO's Appli-cation, the County and State intend to make such motions, either upon order of the Commission, or, if none, within a reasonable period of time.
-2/ A poignant example of the cavalier treatment LILCO has given the standards of Section 50.12(a) and the Commission's May 16 Order is the way LILCO has applied for multiple exemptions, but has not even identified the regulations from which it seeks those exemptions.
Thus, LILCO states that it seeks exemption "from that portion of' General Design Criterion 17, and from other applicable regulations, if any, requiring that the TDI diesel questions be fully adjudicated prior to" conducting low power operation.
(Application, p.
4.
Emphasis added.)
It is for 7
LILCO -- not the Commission, the ASLB, the Staff, the County, or the State -- to decide what LILCO wants, to apply for that pro-perly, and then to go forward and prove its entitlement to the exemptions.
Surely, without knowing what LILCO is even applying
'for at this point, the County and State cannot join issue with LILCO.
This further demonstrates the need for the Commission to i
entertain motions for disposition of LILCO's Application as a l
matter of law.
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. 2.
The County and State have also requested that, "The scheduling of any hearing on a LILCO exemption request should remain flexible pending a determination of the issues which would actually be put into controversy."
(County Request for Clarifi-cation, p.
2.)
In addition to the reasons in support of this request set forth in the County's and State's Requests for Clari-fication, enclosed herewith is LILCO's May 23 letter concerning pre-hearing discovery and its " Request for Production of Docu-ments."
The breadth of LILCO's deposition requests alone -- 10 depositions already proposed and more promised if the County retains additional consultants -- will affect the length of time needed for discovery, given that the County, State, and Staff also will presumably wish to take depositions and seek documents.
These burdens require that no schedule be adopted for a hearing until the scope of pre-hearing activities-is understood and accommodated in accordance with the rights of the parties.
What is already clear, however, is that there is no factual basis for the schedule proposed by the Commission on May 16 as " guidance" to the Licensing Board.d!
d! At this point, the County and State respectfully suggest that the Commission withdraw such " guidance" and, instead, consider the threshold issue of the completeness and legal sufficiency of LILCO's Application.
Only after an adequate Application is submitted should a hearing schedule be considered.
. Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
)
Sierbert H.
Brown Lawerence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.*
20036 Attorneys for Suffolk County
^^
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, Governor of the State of New York May 30, 1984 l
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By Telecopier Lawrence Coe Lanpher, Esq.
Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.
Washington, D.C. 20035 Long Island Lighting Company Shoreham Nuclear Power Station Docket No. 50-322-OL-4 (Low Power)
Dear Larry:
This will address several ma'tters concerning discovery incideht to LILCo's Supplemental Motion for Low Power l
Operating Licenso and Application for Exemption.
1.
At your request, a visit to the Shoreham site has been arranged for tomorrow, May 24, 1984 at 10:30 a.m.
Your letter of May 23 indicates those who will be in attendance from the County.
I assume that if any representative of New York State wished to attend, he would have coordinated his request through you.
There are three caveats to LILCO's willingness to provide the site tour.
First, inspection of the TDI diesels will not be permitted both because of work going on in the area and because they nave no relevance to the health and safety issues in this proceeding.
In any event, the Councy has previously inspected the diesels and their installation.
Second, accompanying you will be two County police officers who intend to " assess the security arrangements proposed for low power operation."
Their attendance will be permitted, though LILCO does not agree that security issues are relevant or material to any issue before the Licensing Board.
LILCO's willingness to afford the police officers the opportunity to see the areas identified in your letter is not to be construed t
l in any way as a waiver of LI;CO's position that security issues
l HUNTON Sc WILLIAM 8 Lawrence Coe Lanpher, Esq.
Page 2 May 23, 1984 Third, no photographs will b'e
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cre immater'ial and irrelevant.
permitted in vital areas or in the normal switchgear room.Also befor nondisclosure agreement and agree that a copy of any
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photographs taken will be provided LILCo.
Enclosed is LILCO's Request for Production of 2.
We request that the dccuments be Documents to the County.
produced in Hunton & Williams' Richmond Office no later than June 6, 1984.
Between June 7 and June 22, LILCO will depose the 3.
following persons:
(a)
Robert K. Weatherwax; (b)
George Dennis Ely; (c)
Aneesh Bakshi; (d)
Dr. Christian Meyer;-
(e)
Gregory C. Minor; (f)
Professor Jose M. Roesset; (g)
Dale Bridenbaugh; (h)
Richard Hubbard; (i)
Mohamed M. El-Gasseir; (j)
Stanley Christensen.
LILCO will also depose during that period any additional identified.
We can'sultants retained by the County, but not yet ask that you identify any such consultants as quickly as possible so that they may be deposed during the anticipatedWithout waiv discovery period.
of any security issue, LILOO will also depose Officere Roberts is determined that and McGuire during this time period if it security is an issue.
Rather than specify dates for the depositions of particular individuals, we have suggested a range of times to allow you maximum flexibility to arrange the depositions at a
6.
Huwrox & WILLIAMS Lawrence Coe Lanpher, Esq.
Page 3 May 23, 1984 Please let us know by May convenient time for the deponents. suggested dates for these depositions.
30, at the. latest, look forward to your prompt response.
I 54 ly yours, i
a A
b t M. R ife 177/643 Enclosure Fabian Palomino, Esq.
cc:
Edward J. Reis, Esq.
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