ML20091G205

Brief in Support of Appeal.* Commission Should Consider Appeal on Basis That Findings of Matl of Facts Clearly Erroneous.W/Certificate of Svc

ML20091G205
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/03/1991
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY
To:	NRC COMMISSION (OCM)
Shared Package
ML20091G198	List: ML20091G197 ML20091G205
References
CLI-90-08, CLI-90-8, LBP-90-39, LBP-91-39, OLA-2, NUDOCS 9112110054
Download: ML20091G205 (8)

Text

.. - . _ - - _ __ . . ..

l w

e 00DiiE0 UNITED STATES OF AMERICA U5Ni< C NUCLEAR REGULATORY COMMISSION-BEFORE THE COMMISSION '91 DEC -6 P12 :05

~

)

E, h k ),9fh

+

In the Matter of ) i

)

-LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OLA-2

)

(Shoreham Nuclear Power Station, ) (Possession Only License) ,

Unit 1)-

)

)

BRIEF IN SUPPORT OF APPEAL The Atomic Safety and Licensing Board ("ASLB")

initially denies the Petitioner'sU first contention that the NRC must prepare an Environmental Impact Statement ("EIS") before issuing a POL on the basis that Petitioner failed to satisfy the two-prong test set out in CLI-90-8 (33 NRC at 237). LBP-90-39-at

6. First, Petitioner _ argues that the ASLB misinterpreted the Commission's two-prong test in saying that Petitioner must

" explain how the granting of the POL involves special circumstances likely to foreclose one or more of the alternatives for decommissioning so that such agency action constitutes an illegal segmentation of the EIS process." LBP-91-39 at 9. The Commission had said that Petitioners must show "how these actions here could, by foreclosing alternative decommissioning methods SI some other NEPA-base considerations, constitute an illegal segmentation of the EIS process." 33 NRC at 237 (emphasis 1/ The contentions herein were expressed on behalf of both SE2 and the School District pending the School District's appaal of l

the denial of standing.

l 9112110054 911203 PDR ADOCK 05000322 G PDR

i added). The commission explicitly allowed this second prong of the test to be met by showing an illegal segmentation of the EIS process alternatively by "some uther NEPA-base considerations" which the ASLB omits from its consideration. This is reversible errer requiring a remand for reconsideration.

Further, the ASLB erred in finding that the Petitioner failed to provide a " reasonable explanation why the GEIS is inapplicable to the decommissioning of Shoreham." LBP-91-39 at

9. The record is replete with Petitioner's explanation that GEIS applied only to reactors at the end of life by age or accident, that Shoreham is at the beginning of its life, and thus a full consideration of the cost benefits and alternatives of the proposal is required. This error requires reversal and romand with an order to admit the contention.

The ASLB also erred in finding that the Petitioner did not provide a plausible explanation of why issuance of the POL constituted an illegal sepnentation of the process. Contrary to the ASLB's assertion (LBP-91-39 at 10), the Petitioner did not rely only on Council on Environmental Quality regulations, but also on the Commission's own discussion of the decommissioning l

-process in the 1989 rule arguing that that statement of

consideration showed that the only function of a " possession-i only" license was as part of the decommissioning process, i

Further, the ASLB's insinuation that a purely legal claim is not sufficient to meet the appropriate standards is incorrect as a matter of law insofar as that argument is laid out with

- -, ..n., -

=. = .. . . -. .... .- . - .-

sufficient reference to the relevant law and facts (including regulations). This error independently requires reversal.

The ASLB's rejection of Petitioners' second contention that the GEIS does not apply the proposal to decommission Shoreham because the GEIS is limited in its scope to facilities at the end of their useful life is also in error. LBP-91-39 at 11-13. The ASLB's logic fails since it denied the admissibility of the first contention for failure to show why the GEIS is not applicable and now would deny a contention explaining why the GEIS is not applicable due to Petitioners' alleged failure to show that the POL amendment "is part of the proposal to decommission Shoreham." LBP-91-39 at 13. Rather, as was argued, the two contentions can be read together to form a single contention which then could not be rejected by ASLB. This is also reversible error.

The ASLB's rejection of Petitioner's third contention (LBP-91-39 at 13-15) is also reversible error. At the prehearing conference, it was made clear . hat Petitioner was relying not only on regulatory guides but also on 10 C.F.R. Part 51 Appendix A, which in binding asla regulation.

In rejecting Petitioner's fourth contention (LBP-91-39 at 15-17), the ASLB relies on the fact that in that contention there is "no explanation why the GEIS is inapplicable to the decommissioning of Shoreham." LBP-91-39 at 16. However, just such an explanation was provided by the second contention. Once l again, the failure to merge these contentions as a single i

, , ~ . . . , , . - - .

-4 -

contention constitutes reversible error. The ASLB also erred in finding that Petitioner "has not even attempted to explain why the environmental impacts of dec mmissioning Shoreham fall outside the envelope of impacts already considered in the GEIS" (LBP-91-39 at 16) since there was an extended colloquy on that subject between counsel for the Petitioner and the ASLB at the prehearing conference as well as a further explanation in the second contention. Since the ASLB apparently found that Petitioner had satisfied the second prong of the commission's test the ASLB's order should be reversed and remanded with instructions to admit the contention (as amalgamated).

Petitioner also appeals the ASLB's determination in LBP-91-26 that SE2 does not have standing to raise Atomic Energy Act issues. SE2 is a tax exempt New York State not-for-profit corporation whose purposes include promoting intelligent uses of secure energy resources within the United States and informing its members, governmental officials and others of the health and safety issues of various forms of energy, including atomic energy, and SE2 has been designated by six of its members who are dependent upon LILCO for electricity and all of whom reside and work within 50 miles of the Shoreham plant, and some of whom live and work within 10 miles of the Shoreham plant to represent and protect their interests under the AEA as described in their affidavits in those proceedings. The ASLB's rejection of the normal NRC geographical nexus standards in this respect is arbitrary and capricious, especially considering the fact that

the activities to be allowed under the POL will increase the risk of SE2's members to radiation hazards through allowing and

,increes ing the transportation of irradiated / radioactive materials.

LBP-91-20 is also in error in finding that the

. Licensing Board should not consider the indirect affects of the decommissioning of Shoreham. Regardless of the correctness of the Commission's prior rulings as to the scope of " alternatives" to the proposal to be considered, there is no limitation on EIS consideration of " direct and indirect effects."

Finally, the ASLB errs ir, finding that Petitioners' seventh contention "would not entitle the Petitioner to any relief." LBP-91-39 at 20.

r l

l

s WHEREFORE, the Commission should consider this appeal on the basis that findings of material of facts are clearly erroneous, necessary legal conclusions are without governing precedent and are a dcparture from and contrary to established law, and the appeal raisc:a substantial and important questions of law, policy and discretion which are also questions of first impression before this Commission.  ;!pon further consideration, the Commission should reverse and remand with instructions to grant SE2 standing under the Atomic Energy Act, to allow it to file contentions under that Act, and to admit its contention (s) pursuant to NEPA.

Respectfully submitted, December 3, 1991 -_ 4.. -

James P. McGranery, Dow, Lohnes & Alber/Jr. tson Suite 500 1255 Twenty-Third St., N.W.

Washington, D.C. 20037 (202) 857-2929 Counsel to Petitioner Scientists and Enginacts for Secure Energy, Inc.

i I

l

4

. ' D i. : i: 0 UNITED STATES OF AMERICA 0 3Ni'C NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR 91 DEC -6 P12 :05 ci t ia di : t i. rt Ti#'

) dan !N; a ti n .or '

In the Matter of ) Docket No. 5 0-3 2 2 -Ol#1* 2

)

LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-631-03-OLA-2

)

(Shoreham Nuclear Power Station, ) (Possession Only License)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the Petitioner's Notice of Appeal and Brief in Support of Appeal the above-captioned proceeding have been cerved on the following by first-class mail, postage prepaid on this 3rd day of December, 1991:

Thomas S. Moore, Chairman Jerry R. Kline Administrative Judge Administrative Judge Atom 3c Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 George A. Ferguson Edwin J. Reis, Esq.

Administrative Judge Mitzi A. Young, Esq.

Atomic Safety & Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 5307 Al Jones Drive Washington, D.C. 20555 Columbia Beach, Maryland 20764 W. Taylor Reveley, III, Esq. Samuel A. Cherniak, Esq.

Donald P. Irwin, Esq. NYS Department of Law Hunton & Williams Bureau of Consumer Frauds Riverfront Plaza, East Tower and Protection 951 East Byrd Street 120 Broadway Richmond, Virginia 23219-4074 New York, New York 10271 Carl R. Schenker, Esq. Gerald C. Goldstein, Esq.

O'Melveny & Myers Office of General Counsel 555 13th Street, N.W. New York Power Authority Washington, D.C. 20004 1633 Broadway New York, New York 10019 Stanley B. .Klimberg, Esq. Nicholas S. Reynolds Executive Director & David A. Repka General Counsel Winston & Strawn Long Island Power Authority 1400 L Street, N.W.

200 Garden City Plaza, Suite 201 Washington, D.C. 20005 Garden City, New York 11530

. . - . - - - - - - - , _ , , , , - - - - + - . , , - . ~ , - . , - --._,c,-,,m_, _...,,e ,,,,..nr.,- , , . , - . ,

Stephen A. Wakefield,.Esq.

General Counsel U.S. Department of Energy 1000 In;iependence Avenue Room 6A245 Washington, D.C. 20585 r . . .

Jpmes P. McGranery// fr.

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