ML20091H866
| ML20091H866 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/18/1991 |
| From: | Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#491-12437 OLA-2, NUDOCS 9112240170 | |
| Download: ML20091H866 (48) | |
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UNITED STATES OF AMERICA ~
NUCLEAR REGULATORY COMMISSICE DEC 19 1931 % i po;xtwaG A i
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Beforo t112._COMIDR1QD /x
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OLA-2
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(Shoreham Huolear Power Station, )
Unit 1)_ ) !
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LYLCO'S OPPOSITION TO BE '8 hp. PEAL FROM LBP-91-26_ARD LBP-91-31 W. Taylor Revoley, III Donald P. Irwin David S. Harlow Counsel for Long Island Lighting Company Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street.
Richmond, Virginia 23219 December 18, 1991 9112240170 911210 PDR ADDCK 05000322 0 PDR
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o TABLE OF CONIERTH
-TABLE OF AUTP.0RITIES ...................................... 111 ;
i I. Introduction ........................................ 1 II. Background .......................................... 2 ,
I A. Procedural History ............................. 2 B. Legal Standard on Appeal . . . . . . . . . . . . . . . . . . . . . . . 12 J. "nroshold
. Standing Issues ................. 12
- 2. Admissibility of contentions ............... 13 ;
- 3. Adequacy of Briots on Appeal .............. 14 III. Discussion .......................................... 15 i
A. The December 3 Appeal Should Be-Summarily Rojected ........................... 15 B. The Board's Decision in '
LBPa91-39 Is Correct ............................ 16
- 1. Contention 1 ................................ 17
- a. The Contention ....................... 17
- b. The.Doard's Ruling .................... 18
- c. SE 's Argument on Appeal ;
and LILCO's Responso ................. 20
.2 . Contention 2 .............................. 24 l
- a. The contention ....................... 24
- b. The Board's Ruling ................... 24
- 3. Contention 3 ............. ................. 27
- a. The Contantion,....................... 27 ,
- b. The Baard's Ruling ... ............... 27 -
- c. SE 's Argument on Appeal and LILCO's Response .................. 28 i
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- 4. Contention 4 ............................... 29
- a. The contention ....................... 29
- b. The Board's Ruling ................... 29 l
- c. SE3 's Argument on Appeal l and LILCO's Response .................. 30 j j
- 5. Contention 5 ............................... 32 i l
- a. The contention ....................... 32
- b. The Board's Ruling ................... 32
- c. SE3 's Argument on Appeal and LILCO's Response .................. 33
- 6. Contention 6 ............................... 35
- a. The contention ....................... 35
- b. The Board's Ruling ................... 35
- c. SE 3 's Argument on Appeal-and LILCO's Hosponse .................. 35 ,
- 7. Contention 7 ............................... 36
- a. The contention ....................... 36
- b. The Board's Ruling ................... 36
~c. SE 2 's Argument on Appeal a nd LI LCO 's ' Re spons e . . . . . . . . . . . . . . . . . . 37 IV . - Conclusion .......................................... 38 3 s .i-f l
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-lii-TABLE OF AUTHORITIES CASES Ci.tizens for an Ordefly Enerciv Policy v. CuoJ112, Docket No. 182-84, 78 NY 2d 398 (Oct. 22, 1991) ,,....., ............................ 9 ETATUTIS Atomic Energy Act of; 1954, 42 U.S.C.
55 2011 nt sea. ...................................... passim National Environmw titl Pol. icy Act of 1969, 42 U.S.C. SS 4321 at_ nag 2. ............................ passim REGULATIONS 10 C.F.R. 5 2.7A4a(a) ................................. 2 10 C.F.R. 5 2.714a(a)(2) ............................. 5 10 C.F.R. 5 2.714a(b) ............................... 7 10 C.F.R. 5 2.714(b) ................................. 19, 20, 33 10 C.F.R. 5 2.714 (b) (?) .............................. 13, 24 10 C.F.R. 5 2. 714 (b) ( !) (' '.) ......................... 20 10 C.F.R. 5 2.714 (b) (2) (iii) ......................... 20 10 C.F.R. 5 2.714 (d) (2) (ii) .......................... 28, 3" 10 C.F.R. 5 51.2 0(b) (5) .............................. 24 10 C.F.R. 5 51.100 .................................. 36
} 10 C.F.R. 5 51.101(a) (2) ............................. 36 51 C.F.R. Part $1, Appendix A ........................ 28 40 C.F.R. 5 1508.25 .................................. 19
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-iv-ECDEEhk PEGISTER 56 Fed. Reg. 49,804 (Oct. 1, 1991) ................... 3 ,
56 Fed. Reg. 28,424 (June 20, 1991) .................. 9 56 Fed. Reg. 4310 (Feb. 4, 1991) ..................... 3 55 Tod. Reg. 34,099 (Aug. 21, 1990) .................. 2 54 Fed. Reg. 33,168 (Aug. 11, 1989)................... 13 53 Fed. Reg. 24,025 (June 27, 1988) .................. 32 DECISIONS OF TNE NUCLEAR REGULATORY COMMISSION Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CL1-91-12, 34 NRC 149 (1991) .................................... 14, 20 Carolina Power & Liaht Co. (Shearon Harris' ,
Power- Plant) , ALAB-856, 24 NRC 802 (1986) ............ 28 Cleveland Electric Illuminatina Co o (Perry Nucleer Power Plant, Units 1 and 2) , ALAD-841, 24 HRC 64 (1986) ............................................... 14, 15, 16, 37 CommonWgalth Edison Co. (Zion Station, Units 1 and 2) , ALAB-226, 8 AEC-381 (1974) ................... 26, 30 Duauesnq Licht Co x (Beaver Valley Power Station, Unit No. 1) , AIAB-109, 6 AEC 243 (1973) .............. 12, 13 Lona Island Liahtina Co_t (Shoreham Nuclear Power Station, Unit 1), CLI-91-10, 34 NRC 1 (1991) ......... 11 Lona Island Lichtina Co. (Shoreham Nuclear Power .
Station, Unit 1), CLI-91-08, 33 NRC 461 (1991) ....... 8 LQnp_J.MEDA.11ahtina Co. (Shoreham Nuclear Power t 4 Station, Unit 1), CLI-91-04, 33 NRC 233 (1991) ....... passim Iona Island Lightino Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-01, 33 NRC 1 (1991) ......... 3, 23 L9Da Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990),
aff'd on reconsideration, CLI-91-02, 33 NRC 61 (1991) .............. ................................ 4
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-v-Lona Island Liahtino Co.- (Shoreham Nuclear Power Station, Unit 1), LDP-91-39, 34 NRC __
(Nov. 15, 1991) ........-............................. passim Lona Island LLghtdna Co. (Shoreham Nucioar Power Station, Unit 1), LDP-91-35, 34 NRC 163 (1991) ....... 4, 27 Long_ Island Lichtina CR2 (Shoreham Nuclear Power Station, Unit 1), LBP-91-32, 34 NRC 132 (1991) ....... 7 Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), L3P-91-26, 33 HRC 537 (1991) ....... passim Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 33 NRC 430 (1991) ....... 4 Lono Island Lichtino Co.- (Shoreham Nuclear Power Station,- Unit 1) , LBP-91-7, 33 NRC 179 (1991) ........ 5 Lona Island Lichtina Co.- (shoreham Nuclear Power Station, Unit 1),=LBP-91-1, 33 HRC 15 (1991) ......... 4 Lona Island Liahtina Co.- (Shoreham Nuc1 car Power Station, Unit 1), DD-90-08, 32 NRC 469 (1990) ........ 9 Lcusiana Power & Light-Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371 (1973) ......... 13 Mississioni Power & Light Cot (Grand Gulf NuclEnr Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973) ............................................... 13 Eorthern States Power Co. (Prairie Island Nuclear Generating Plant, Unita 1 and 2) , ALAB-107, 6 AEC 188 (1973), reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973) ................... 12, 13 Philadelchia Electric Co_t (Peach Bottom Atomic Power Station, Units 2 and 3) , ALAB-216, 8 AEC 13 (1974) ............................................... 13, 23, 28 Public Service Co. - of !{ew Hampshiro (Seabroo'k Station, Units 1 and 2), ALAB-942, 32 NRC 395 (1990) .............................................. 14 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2) , ALAB-388, 5 NRC 640 (1977) ........... 16 Public Service Electric & Gas Cot (Hope Creek Generating Station, Units 1 and 2) , ALAB-394, 5 NRC 769 (1977) ..................................... 16
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-vi-Texas Utilities Electric Co1 (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912 (1987) ............................................... 13, 23, 28 Vermont Yankee Nuclear Power Coro..(Vermont Yankee Nuclear Power Station), ALAB-938, 32 NRC 154 (1990) ............................................... 14 MISCELLANEOUS Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities (May 1988) (NUREG-0586) ............................... 18 NRC Regulatory Guide 4.2 (Rev. 2, July 1976) ......... 27 Transcript of Prehearing Conference (July 30, 1991) ...................................... 21 i
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LILCO, December 18, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore th2_.C2MaiaPJRD
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 5 0- 3 2 2 -OLA-2
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(Shoreham Nuclear Power Station, )
Unit 1) )
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LILCO'S OPPOSITION TO BE 'S APPEAL FROM LDP-91-26 AND LDP-91-39 I. Introduction On December 3,-1991, Petitioner Scientists and-Engineers for Secure Energy, Inc. (SEg) noticed an appeal from the Licensing Board's order rejecting its contentions and denying its petition to intervene in the " possession only" license (POL) amendment proceeding for Shoreham. Lona Island Lichting Cqt (Shoreham Nuclear Power Station, Unit 1), LBP-91-39, 34 NRC _ (Nov. 15, 1991). SE: also noticed an appeal from one of the Board's earlier rulings on its standing to intervene in that proceeding, Lona Is1And Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-26, 33 NRC 537 (1991) (allowing SE2 to file contentions I
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2 on issues arising under the National Environmental Policy Act (NEPA) but not on Atomic Energy Act issues, and denying follow petitionet Shoreham-Wading River Central School District's (SWRCSD's) petition entirely). SE2 's notice of appeal was accompanied by a five page brief (December 3 Appeal).
Pursuant to 10 C.F.R. 5 2.714a(a), Long Island Lighting Company (LILCO or the Company) opposes SE 2 's appeal, whose five page supporting brief is so woefully deficient in its failure to address adequately the alleged errors in LBP-91-26 and LDP-91-39 as to warrant summary rejection. Further, the Board's decision rejecting SE 's2 POL amendment contentions and denying the petition to intervene in clearly correct on the merits.
II2_anekoround A. 2rocedural History On January 5, 1990, LILCO submitted an application to amend Shoreham's operating license to transform it into-a POL.
Accompanying LILCO's request was a safety analysis report that described the plant in its defueled state.
The NRC noticed LILCO's POL amendment request in the Ec@ ral Engister on August 21. 1990, and solicited public comments on the NRC's proposed determination that the amendment presented "no significant hazards consideration." 55 Fed. Reg. 34,099-100 (Aug. 21, 1990). The NRC also provided an opportunity for "any interested person whose interest may be affected" to file a
3 petition to intervene and request for hearing on the proposed amendment. Idx at 34,100.
On September 20, SE: and SWRCSD each submitted to the Commission a petition to intervene in the POL amendment proceeding. They alleged that the NRC would violate NEPA if it ,
issued the POL amendment without having first prepared an environmental impact statement (EIS) that considered the
" alternative" of Shoreham's operation as a nucicar facility.
Petitioners also claimed that the POL amendment would violate various provisions of the Atomic Energy Act. LILCO and the NRC Staff opposed the petitions on October 12 and 24, 19?U, respectively.
On January 24, 1991, the Commission referred Petitioners'
- requests, and LILCo's and the NRC Staff's oppositions, to the Licensing Board panel. Lona Island Lichtina qnt (Shoreham Nuclear Power Station, Unit 1), CLI-91-01, 33 NRC 1 (1991). On
-January 28, 1991, a-three-member Licensing Board chaired by Judge Margulies.was established to rule on the joint petition. 56 Fed.
Reg. 4310 (Feb. 4, 1991).1' Earlier, on October 17, 1990, in response to separate sets of petitions to intervene in' the Confirmatory order, Physical Security Plan,.and emergency preparedness amendment proceedings, the' Commission had resolved the crucial threshold issues it l' Because of a scheduling conflict, Judge Margulies was later replaced as Chairman by Judge Moore. SG Fed. Reg. 49,804 (Oct.
1, 1991).
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ruled that LIIco's determination not to operate shoreham was a privato decision to which HEPA did not apply. Igna_ Island Lightino Cqt (Shoreham Huclear Power Station, Unit 1), CLI-90-08, 33 HRC 201 (1990). Thorefore, the Commission hold, any environmental review of Shoreham's decommissioning nood not consider e resumed operation" of the plant as a nuclear facility.
The Commission affirmed its decision on February 22, 1991, in response to a request by Petitioners for reconsideration. L2nq ISlaDd Lichtina Co. (Shoreham Nuclear Powet Station, Unit 1),
CLI-91-02, 33'NRC 61 (1991).U l
& Subsequently, the Licensing Board rejected Petitioners' initial petitions for hearing on the Confirmatory order, Physical Security Plan, and emergency preparedness license amendments, but provided them an opportunity to amend. Lona Island Lighting _Cqi (Shoreham Nuclear Power Station, Unit 1), LDP-91-1, 33 NRC 15 (1991). The Board said that Petitioners' second chanco to file '
acceptable petitions on the three licensing actions was
" predicated in part on the Commission being rather liberal in permitting- petitioners the opportunity tv cure defectivo ,
petitions to intervene." LDP-91-1, 33 NRC at 40. Yet, notwithstanding this second chance, on January-23, 1991,
- Petitioners tried to appeal LDP-91-1 to the Commission. Both LILCo and the NRC Staff opposed the " appeal" on the ground that,
- among other flaws,-it was interlocutory. The Commiselon ngrood, '
in Lona Isignd 'dahtina Co.. (Shoreham Nuclear Power Station, Unit 1), CLI-91-04, 33 NRC 233 (1991). While Petitioners' " appeal" from LBP-91-1 was pending, on February 2, 1991, they submitted amended petitions to !ntervene in all three licensing actions.
The Board subsequently allowed Petitioners to file contentions on cortain issues, but, following a prehearing conference on July 23, 1991, ultimately rejected the contentions. Ec2 Lang_ Island Lightina Co.x (shoreham Nuclear Power Station, Unit 1), LDP-91-23, 33 NRC 430 - (1991) (allowing SEg to file contentions in all thres proceedings on issues arising under NEPA and allowing bc' hc S2 and SWRCSD to file contentions in the Physical Security Flan proceeding on issues arising under the Atomic Energy Act)f L2n2
-Island Lightina Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-91-35, 34 NRC 163 (1991) (denying all of Petitioners' contentions). On September 13, 1991, Petitioners took an appeal (continued...)
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The Licensing Board ruled on Petitioners' hearing requests on 'the POL amendment on. March 6, 1991. Lgng Island Lichtina Co.
(Shoreham Naclear Power Station, Unit 1), LBP-91-7, 33 NRC 179 (1991). The Board, identifying numerous deficiencies in the petitions to intervene, found that with respect to issues arising under NEPA and the Atomic Energy Act, both SWRCSD and SE2 had
" failed to establish standing, as reqaired by 10 C.F.R. 5 2.714 (a) (2) . " LBP-91-7, 33 NRC at 195. Nevertheless, the -
n Foard ruled that, since Petitioners had not had the " benefit of the Commission's two precedential policy decisiona (CLI-91-08 and CLI-91-02) et the time they filed their petitions to intervene,"
Petitioners would be given .an opportunity to amend their petitions to'take into account those two decisions and otherwise to correct the various flaws found by the Board. Idt Thus_ aided by the Board, which specified the defects in Petitioners' initial petitions and gave them another chance to try to demonstrate standing, Petitioners filed amended petitions in'the POL amendment proceeding on April 8, 1991. LILCo and the NRC Staff'again responded in opposition, on April 23 and April 29, 1991, respectively.
.In the meantime, on April 3, 1991, the Commission issued CLI-91-04, in response to Petitioners' January 23, 1991 " appeal"
'from LBP-91-1. See note 2, above. While rejecting the " appeal" F (... continued) from ' LBP-51-1,-- LBP-91-2 3, and LBP-91-35 to the Commission. LILCO and the NRC. Staff opposed the appeal on September 25, 1991. The appeal-is pending.
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6-as. interlocutory,.-the Comnission also indicated that its ruling p+ in CLI-90-08 was "not-intended-to preclude the Licensing Board,-
U ~ ias a matterzofilaw and jurisdiction,.from entertaining properly ,
supported contentions".that an EIS on Shoreham's dec<mm_ssioning must be: prepared for the three licensing actions at ;te~o. CLI-91-04, 33: NRC -at :236.
The Commission uent on to explain, however, that it viewed the three'licensingLactions as "being wholly separate from, and
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independent of,' decommissioning." 33 NRC at 237. The Commission said it=" harbor [ed) substantial doubts that the Petitioners can
= make a-credible showing lthat these actions are part of the decommissioning process." Idt- But,1the Commission allowed, if
-Petitioncrs were otherwise ableito satisfy the NRC's standing requirements, the Board was free to consider a " properly pled -
contention"~on NEPA issues. Id2
-The commission. set out the_ test for a " properly pled contention." It would tat a minimum need to offer scrue plausible-
-explanation.why an EIS might be. required for :
an'NRC decision. approving a Shorehen
, decommissioning plan And-how these actions -
hereEcould, by foreclosing alternative decommissioning' methods.orisome other NEPA-based ~ considerations, constitute an-illegal segmentation of the EIS process.
I CLI-91-04, 33 NRC at 237 (emphasis in original).
On-June 13, 1991, the Board issued-its ruling on SWRCSD's
- and sea's amended petitions in :the POL amendment proceeding.-
lLona' Island-Lichtina Co. (Shoreham Nuclear Power Station, Unit
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7 1), LBP-91-26, 33 NRC 537 (1991). The Board found that SE2 had, in its amended petition, demonstrated standing to intervene with respect to issues arising under NEPA and could file contentions on those issues. But the Board held that SE2 did not have standing as to issues arising under the Atomic Energy Act.F SWRCSD, the Board determined, did not have standing under either NEPA or the Atomic EnerT,' Act. Consequently, SWRCSD was not allowed to file contentions and its hearing request was " wholly denied" under 10 C.F.R. S 2.714a(b).F In LBP-91-26, the Board also ruled that the Commission'a guidance in CLI-91-04 regarding what constitutes a "proporly pled" NEPA contention applied to the POL proceeding as well as to the proceeding on the Confirmatory Order, emergency preparedness, and Physical Security Plan license amendments. The Board caid:
The Commission, in assigning the POL to the Licensing Board, stated that the matter shcold be handled in accordance with CLI 8. The guidance CLI-91-4 is but a modification of CLI-90-8 and to the extent CLI-90-8 is applicable to the POL so is its modification.
33 NRC at S42.
F On June 25, 1991, the NRC Staff asked the Board to reconsider its ruling on SE 2 's standing to intervene on NEPA-based issues. LILCO supported the NRC reconsideration en July 10, 1991. The Board subsequently denied the Staff's request.
Lona Island Jdahtino Co. (Shoreham Nuclear Power Station, Unit 1), LDP-91-Ja r 34 NRC 132 (1991).
F SWRCSD took an appeal from LBP-91-26 to the Commission on June 28, 1991. LILCO and the-NRC opposed the appeal on July 15, 1991. It is pending.
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8 On July 1, 1991,-SE submitted seven contentionN on the POL
- amendment (SE July .pplement).F Six of SE 's contentions were based' generally 3on cohcerns allegedly arising under NEPA. _
One1(Contention 5) impermissibly raised radiological health and safetyLissues,fdisregarding the Board's-ruling in LBP-91-26 that cSE2 did-not-havo standing under the Atomic Energy Act. LILCO and the NRC Staff opposed SEz's contentions on July 15 and July 22, !
-1991,-respectively.
Meanwhile, as proceedings before the Licensing Board continued, on June 12, 1991, the Commission issued Lona Island Licht'ina Co. (Shoreham Nuclear Power -Station, Unit 1) , CLI-41-08, J 33 NRC 461 (1991). In CLI-91-08, the Commission approved the NRC Staff's recommendation to issue the-POL amendment. At the same
- time, the commission denied Petitioners' request to hold in abeyance all Shoreham-related proceedings, including issuance of the_ POL _ amendment, pending resolution of three consolidated suits T
F Accompanying SE 's contentions was a " suggestion" by SWRCSD
-that the Board erredLin LBP-91-26 when it dismissed SWRCSD from the: POL amendment proceeding for lcnk of standing. SWRCSD also attempted to adopt as its own the -10L amendment contentions submitted by SE 2 , arguing that it could do this -"because the
.ASLB's dismissal of (SWRCSD) is cn1 appeal and,. therefore, not-
- final."- As-LILCO pointed out in response, this was incorrect.
SWRCSD's dismissal fromLthe POL amendment proceeding remained in-effect unless and until either-the commission reversed the Board on appeal'or the Board reconsidered its ruling ou SWRCSD's stending.
9 before the New York Court of Appeals challenging the validity of the Shoreham Settlement Agreement.i' Having thus received authorization from the Commission, on June 14, 1991, the NRC Staff made a final finding that the POL amendment presented "no significant hazards consideration" and issued it. 56 Fed. Reg. 28,424 (June 20, 1991). As instructed by the Commission in CLI-91-08, the Staff $.ssued the POL amendment subject to an administrative st{y, to allow SWRCSD and SE: an opportunity to seek a further stay [from the federal Courts.
On June 26, 1991, Petitioners filed in the U.S. Court of Appealo ior the District of Columbia Cir.:uit a petition for reviewoftheissuanceofthePOLamendr[ ente as well as the four Commission decisions underlying it, namtly, CLI-90-08, CLI-91-01, CLI-91-02, and CLI-91-08. Petitioners also sought review of Long Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), DD-90-08, 32 NRC 469 (1990), the Director's Decision denying SWRCSD's and 2SE 's 5 2.206 petitions.F' u Petitioners bad made tneir reques; for an anticipatory stay at all Shoreham-related proceedings oa March 8, 1991. LILCO and the NRC Staff had opposed the request lon March 25, 1990. On October 22, 1991, the New York Court of Appeals affirmed the validity of the Settlement Agreement lin all respects. Citizens for an Orderly Energy Policy v. CugE5[, Docket No. 182-84, 78 NY 2d 398 (Oct. 22, 1991) (motion for rerl.rgument pending) .
F Earlier, on March 25, 1991, SWRC/3C and SE had filed in the 2
D.C. Circuit a petition for review of CLI-90-08, CLI-91-01, CLI-91-02, and DD-90-08. On June 5, 199 ll, the NRC moved to dismiss this petition, docketed as No. 91-1140, on the grounds thec (1) the three Commission decisions were ,not final agency action and (continued...)
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10 On July 5, 1991, as the administrative stay of the POL amendment'was about to expire, SWRCSD and SEg filed in the D.C.
Circuit a-request for a stay of the effectiveness of the POL amendment, as well as a request for an expedited briefing schedule.I' LILCO and the NRC responded in opposition to the stay and to expedited briefing on July 12, 1991.
The D.C. Circuit denied Petitioners' requests both for a stay and for expedited briefing on July 19, 1991. That same day, SWRCSD and SE2 asked the Chief Justice of the U.S. Supreme Court, acting in his capacity as the Circuit Justice for tl.o D.C.
Circuit, for an emergency stay of the effectiveness of the POL amendment. The Chief Justice refused on July 20, 1991.
Thus rebuffed by the federal courts, the next day, July 21, Petitioners submitted to the Commission two interrelated emergency motions for a stay of the effectiveness of the POL I' (... continued)
(2) the Director's Decision was action " committed to agency discretion by law," and, hence, presumptively unreviewable.
LILCO filed a motion in support of the NRC on June 11,-1991. The NRC's motion to dismiss in No. 91-1140 was pending at the time the Commission handed down CLI-91-08 and the NRC Staff issued the POL amendment. SWRCSD's and SE 2 's June 26, 1991 petition for review, docketed as No. 91-1301, was subsequently consolidated with No. 91-1140.. The motion to dismiss ~is still pending.
Briefing on the merits in Nos. 1140 and 1301 will be completed on December 26, 1991. Oral argument is scheduled for February 7, 1992.
E' On July 11, 1991, the U.S. Department of-Justice (acting under its identity as the statutory respondent " United States")
. filed a response in support of the stay at the behest of the U.S.
Department of-Energy.
11 amendment.- LILCO filed an opposition to the requests on July 22, 1991.-
While their latest stay motions were pending before the Commission, on July 23, 1991, SWRCSD and SE2 went back yet again to the U.S. Supreme Court, this time filing a stay request with Justice Stevens. Justice Stevens, in turn, referred it to the full Court.I' OnJJuly 25, 1991, the Commission denied Petitioners' July 21 requests. Lona Island Lichtina Cox (Shoreham Nuclear Power Station, Unit 1), CLI-91-10, 34 NRC 1 (1991). The other shoe dropped for SWRCSD and SE2 on August 2, 1991, when the Supreme Court denied the stay request that had initially been filed with Justice Stevens. 112 S. Ct. 9 (1991).
On July 30, 1991, the Licensing Board held a prehearing conference on the POL amendment. Petitioners were given an I/ While LILCO was under no obligation to do so, as a courtesy to the Supreme Court and to allow for the orderly consideration of Petitioners' last-gasp filing, LILCO committed to take no irreparable actions under the POL amendment for several days, while the Company was engaged in various planning and preparatory activities:
-Although the Possession-Only License for the Shoreham Nuclear Power Station has been in effect since-midnight July 19, the next several days will be devoted primarily to planning and organization for its effective use. LILCO will take no acts of a destructive nature at the plant, nor will there be any actions or inactions of an irreparable nature taken during this period.
Letter from LILCO counsel to Supreme Court Deputy Clerk (July 22, 1991).
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w 12 opportunity to explain at length their POL amendment contentions and to respond to LIIco's and-the Staff's objections to them.- .
Hon November 115,_1991, the Board issued Lona Island Llahtina
-492 (Shoreham. Nuclear Power Station, Unit 1) , LBP-91-39, 34 NRC ,
__.(Nov. 15,: 1991) , the decision ' that is' the subject of the instant appeal. In LBP-91-39, the Board ruled that none of the seven contentions was admissible and denied Sc a's request for a hearing?on the pol amendment.H' l B. - Lagal' Standard on ADDeal
- 1. Threshold standina Issues The determination whether a petitioner has denonstrated
- standing to intsrvene is "a matter within ti.e discretion of the Licensing Board." Egg, e.g., Northern States Power Co. (Prairic Island' Nuclear-Generating Plant, Units 1-and 2), ALAB-107, 6 AEC 188, 193-(1973), reconsideration denied, ALAB-110, 6 AEC 247, aff'1,.CLI-73-12, 6 AEC 241 (1973). -A Board's standing decision will notibe-disturbed'"unless it appears that that~ conclusion is irrational." 15L,. at 193.- Sae glap. Ducuesne Licht Co. (Beaver
- Valley Power _ Station, Unit No. 1) , ALAB-109, 6 AEC-243, 244 (1973)e-A' The Board also refused to reconsider its ruling that SWRCSD was dismissed from1the POL amendment proceeding and, hence, not authorized to submit contentions. LBP-91-39, slip op at 2 n.3 (Nov. 15, 1991).
w c *-
a 13
- 2. h4gissibility of Contentions Under NRC precedent, in an appeal from a Licensing Board's denial of contentions, the reviewing body itself (in this case, the Commission) reviews the proffered contentions. Egg, e.c.,
Mississioni Power & Licht._E22 (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424-25 (1973); Louisiana Power &
Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 (1973); Duguesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973); NorthEED States Pqyer Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) , ALAB-107, 6 AEC 188, 194 (1973). But as with standing, the Licensing Board " exercises substantial discretion in determining the adequacy" of contentions, and review of the Board's decision is " limited to whether the Board abused its discretion." Texas Utilities Electric Co x (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912 (1987);
Ehfladelchia Electric Cg2 (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 (1974)(the Board exercises a " considerable amount of. discretion" in determining the admissibility of contentions). In order for the reviewing body to reverse a Board on contentions, it "must be persuaded that no reasonable person could take the view" adopted by the Board.
Texas Utilities Electric Co., ALAB-868, 25 NRC at 931.
As revised in 1989, 54 Fed. Reg. 33,168 (Aug. 11, 1989), the NRC's regulatory standard for admissible contentions in 10 C.F.R. 5 2.714(b)(2) now present an even heavier burden. Ege, e.a.,
1.
14 Public Service Co. of New Hampshirq (Seabrook Station, Units 1 and 2) , ALAB-942, 32 NRC 395, 426 n.104 (1990) (revised 5 2.714(b)(2) " imposes a higher standard" than previous regulations); Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power Station) , AIAB-938, 32 NRC 154, 163-64 n.5 (1990).
More recently, the Commission, strictly construing the revised regulations, explained that these requirements " demand that .1 Petitioners provide an explanation of the bases for the contention, a statement of fact or expert opinion upon which they intend to rely, and sufficient information to show a dispute with the applicant on a material issue of law or fact." Arizona Eu lic Service Cox (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991) (emphasis added) .
If any of these is not met, the Commission stated, "a contention must be rejected." Idx (emphasis added).
S. Adequacy of Briefs on Anneal Finally, NRC pre.cedent establishes that simply repeating contentions and their proffered bases in an appeal frem a Licensing Board decision rejecting those contentions, without explaining why the decision is erroneous, is entirely inadequate.
Such an approach warrants the appeal being " summarily rejected" in its entirety. Cleveland Electric illuminatina Cox (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 69 (1986).
l I
_- -m _ __-_________m_ . _ _ _ _ _ _ _ _ - . _ _ _ _ _ - _ _ _ _ _ _ _ _ . _ _ _ _ _
. _ ~ . _ . . . . ._.~. . _ _ _ _ _ - _ . _ _ _ . - . . _ _ - _ _ _ . _ . _ _ . _
can 15 ,
In Earry, the Appeal: Board noted that the Licensing Board -
had ruled 1that petitioners' proffered contentions were denied admission "because their bases were not set forth with reasonable specificity" as required-under 5 2.714(b). 24 NRC at 69. The -'
Appeal Board continued that, on appeal, the petitioners had not
- " favored" it with an " explanation as to why the Board was wrong in so' concluding." Idx The "short of the matter is," the Appeal 1;4rd held, " is-that -
if f e itioners) wished us to take seriously its insistence that tb- ;?s -
Bra-1 committed error, its counsel was-duty-bound '
t - "e foundation for that insistence." ;Uli III. Discussisu A. The December 3 Anneal'should Be Summari3v Rejectts Nearly two" years after LILCO first applied for the POL
- amendment, and over six months after the Commission authorized l . its issuance, the merits of' the ICL amendment are now before the
- Commission for final resolution. In the' interim, as the *
(in laborious chronology set forth above indicates,.SE 2 conjunction 1with SWRCSD) ha; twice sought a stay of the POL amendment's issuance from the Commission. SE2 and SWRCSD have also-sought;a stay of the POL amendment's effectivanoss from the
- U.S. Court of LAppeals.- for the D.C. Circuit, from the chief
, Justice of-the U.S.--Supreme Court, and, finally,-from the full Supreme Court. -Each time, Petitioners have asserted that they were "likely to succeed on-the merits" of the POL amendment's
( r ,vv-v
-vew.- r v-- t- e a-v- = m . w rvae 4 w -w .r - - - -m-, , , - . . ---- - - -
0 .. '
16 issuance, once they_were given the opportunity to brief the issues.
-Now; after~all thosentripsyto the Commission, the D.C.
Circuit, and the U.S.-Supreme Court-itself,1 sea has- had its opportunity to make its-case on the merits of the POL amendment.
And.what SE2 has-submitted are five pages of unsupported ,
recitation of alleged error by the Licensing Board. SE 2 's brief does not cito_to single _NRC or federal court decision, apart from-
-the Licensing Board cases at issue.1V
~
SE2 's five perfunctory
.pages also: lack-anything that-could be characterized as a reasoned 1 analysis of the alleged errors in LBP-91-26 and LBP 39. In no respect whatsoever has SE2 " illume (d) the foundation"
.for'its. insistence that the~ Board's rejection of (1) its POL amendment contentions and-(2) its petition to intervene was improper. Egg-Perry, ALAB-841, 24 NRC at 69. For this reason, SE 2 's' December 3 appeal should be summarily rejected.
D. T]Lg_yggrd's Decision in LBP-91-39 Is Corre_c.1 If the Commission does not summarily reject SE 's2 _ appeal, then it should be denied on the merits.- As shown below, the +
'1U Nor'does'the'brief have a statement'of_-the case,-or some similar description of the relevant procedural history, even ithough it.has long been. settled in NRC practice that inclusion of such'a statement of facts in briefs is mandatory.- See, e.g.,
Public^ Service Electric & Gas Co. (Hope _ Creek Generating Station, Units 1 and'2), ALAB-394, 5 NRC 769 (1977); Public Service Co. of Oklahoma - (Black . Fox Station, Units 1 and 2) , ALAB-388, 5 NRC 640
- ( 197 7 ) ' .
17 Board's decision, finding all of SE 2 's contentions inadmissible, is clearly correct.E'
- 1. Contention 1
- a. The Contention The Board spent the largest part of LBP-91-39 addressing the first contention, properly recognizing that it underlay SE 2's entire argument. Contention 1 alleged that, before issuing the POL amendment, the NRC was required to prepare an EIS that considered the impacts of the overall proposal to decommission Shoreham. This was so, the contention alleged, because (1) the POL amendment was within the scope of the decommissioning proposal, and (2).the decrmmissioning proposal was itself a
" major federal action significantly affecting the quality of the human environment" for which, under NEPA, an EIS must be prepared. As support for its asserticn that the POL amendment was "within the scope of the decommissioning proposal,"
Contention 1 quoted the NEPA regulations of the Council on Environmental Quality (CEQ) to assert that the POL amendment "is an ' interdependent (part) of (that] larger action and depend [s M' SE 2 's appeal should be summarily rejected and LILCO urges the Commission te do so, for the reasons given above. To assist the Commission should it choose to reach the merits, LILCO provides the following discussion of .SE 2 's arguments on appeal.
Given the number of errors squeezed into it, SE 2 's cursory brief requires far more pages to refute than it itself contains.
Further, unlike SE 2 's brief, LILCO's brief also describes the contentions at issue and the Board's rulings on them.
- ff;i
J ,
18 upon)-the clarger action for--;[its] justification. '"- Egg-LBP 39',- slip-op, at 3,,guoting SE: July 1 Supplement at 7.
- b. The Board's Ruling
- The Board ruledtthat, as LILCO and the NRC. Staff had pointed out, _ SE 's: first contention' did "not meet the special
- requirements'for an-admissible contention-enunciated in earlier rulings by the Commission," including CLI-90-08, CLI-91-01, and CLI-91-04. LBP-91-39,_ slip op, at 4.- After reviewing these
- decisions,-__the-Board found that, "in this POL proceeding, an admissible contention-must meet-two tests." Idz at 7.
First,Jthe' contention must-"' offer some plausible-Lexplanation why'an: EIS might be required _for an NRC decision approving a Shoreham decommissioning plan.'" LBP-91-39, slip;op.
'at 7, ouotina CLI-91-04, 33 NRC at 237. In other words, the '
contention "must_ explain.why the environmental impacts of
' decommissioning;Shoreham' fall-outside-the-envelope of-impacts alreadyJconsidered by_-the Commission 11n the agency's Generic-LEnvironmental ImpactiStatement on Decommissioning of Nuclear Facilities ~(GEIS)."_
LBP-91-39, slip op. at'7.
'Second, the contention must " plausibly explain how the granting of.the1 POL involves special circumstances likely to-
- - foreclose-one or more of the alternatives.-for-decommissioning Shoreham so'that such' agency; action constitutes an illegal segmentation of1the EIS process." LBP-91-39, slip op, at 8-9,.
citina CLI-91-04, 33 NRC at 237.
i 19 The Board continued that, in CLI-91-04, the Commission had
" mandated that hath these requirements must be met, making a contention's failure to meet either fatal to its admissibility."
LBP-91-39, slip op at 9. In addition, the Board said, the contention "must satisfy the pleading requirements of 10 C.F.R. 5 2.714(b)." &
The Board found Contention 1 to be defective on all counts.
The contention " fail [ed] to meet either part of the Commission's two-prong test." LBP-91-39, slip op, at 9. While Contention 1
" asserts that an EIS_is required because the proposal to decommission Shoreham is a major federal action significantly affecting the quality of the human environment," that assertion was " completely inadequate to meet the first part of the test, requiring a reasonable explanation whv the GEIS is inapplicable to the decommissioning of Shoreham." Idz (emphasis added).
Nothing in Contention 1 "even hints at such an explanation." 142 Nor did Contention 1 " satisfy the second requirement that it provide a ' plausible explanation' of how the POL amendment constitutes an illegal segmentation of the EIS process." LBP 39, slip op. at 10. While SE 2 had attempted to " confront this requirement by relying upon" the CEQ definitions in 40 C.F.R.
$ 1508.25, the Commission's direction in CLI-91-04 that a contention "contain a ' plausible explanation' requires much more than merely quoting regulatory definitions." LDP-93-39, slip op.
at 10. The Board ruled that, "(i]n order to provide a sufficient explanation," Contention 1 must, at a minimum, " spell out how the 1
20 POL amendment is an interdependent part of the decommissioning process and how that amendment is unjustified except as part of that process." Idz Because these matters were "not self-evident," the Board said, " fulfillment of the Commission's test requires a much fuller explanation in order to make the proffered explanation 'plausibic,' even if (SE 2 ) seeks to raise only a legal issue." Idz at 10-11.
Further, the Board found Contention 1 inadequate when judged by the stricter pleading requirements imposed by the 1989 revisions to 10 C.F.R. 5 2.714 (b) (2) (ii) and (iii). LBP-91-39, slip op, at 11. Since the Commission had "made it clear that the new pleading requirements of section 2.714(b) are to be enforced rigorously," the Board was "not free to assume any missing information in a contention." Idz, citina Arizona Public Service Cgt (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),
CLI-91-12, 34 NRC 149, 155-56 (1991). When " viewed'in light of these strictures," ths Board concluded, "it is apparent that
[SE 's) first contention is inadmissible."
2 LBP-91-39, slip op.
at 11.
- c. SE,'s Arcument on An pal and LILCO's Respons_e SE2 claims, without elaboration or nupport, that the Board made four errors when rejecting Contention 1. First, the Board
" misinterpreted" the second part of the-two-prong test of CLI 04, by " omit [ ting) from its consideration" the fact that the Commission in CLI-91-04 " explicitly allowed" that the second
21-l prong could be met-by showing an " illegal segmentation of the EIS -
-process alternatively 1by 'some other NEPA-based considerations.'"
-December 3 Appeal-at.2. Although SE: implies that it had made such'a showing (based on "some other NEPA-based considerations,"
Lit does not identify just what .those "other . . . considerations" are.
i In fact, during the July 30 prehearing conference in Bethesda,. SE2 's counsel indicated that the "other NEPA-based considerations" upon which SE2 was relying to meet the second Eprong'of the_CLI-91-04 test were the CEQ definitions. July 30 Prehearing Conference Transcript at 16. The Board clearly considered and rejected this argument in LBP-91-39, noting that ,
"at-the prehearing conference, (SE ) argued that it was raising onlyfa legal argument in attempting to meet the second prong of
, the commission's test." 'LBP-91-39, slip op._at-10. But CLI 104,.the-Board correctly determined, " requires much more than merely' quoting 1 regulatory definitions." Idi Thus, the Board fully considered -- and properly rejected -- SE 2's "other NEPA-
--based; considerations."
Second- SE: argues that the Board erred when it found that Contention 1_did not meet the first prong of the CLI-91-04 by
-failing to provide a " reasonable explanation" why the GEIS is inapplicable to Shoreham's' decommissioning. -December 3 Appeal at 2.- SE2 claims-(without actually citing to the record) that the i ." record ~is replete with Petitioner's explanation that (the] GEIS applied only to reactors at the end of' life by age or accident, f'
e
- . ,4 _. . . - - - . ,--~ .
a 22 -
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." Idz SE2 misstates the Board's ruling. In LBP-91-39, the Board indicated that in order for SE: to demonstrate that the GEIS did not. apply to Shoreham, it was incumbent on SE2 to " distinguish
'the imoacts of decommissionina Shoreham from the range of impacts already considered in the GEIS." LBP-91-39, slip op at 8 (emphasis added). SE 's cursory assertions on appeal as to why the GEIS is inapplicable to Shoreham simply do not address the
-fact that the radiological impacts of Shoreham are Dnt, as the Board properly recognized, different from those evaluated in the GEIS.
Third, SE2 argues that the Board erred by finding that Contention 1_ relied solely.on the CEQ definitions in attempting to meet the first prong of the CLI-91-04 test. December 3 Appeal at-2. SE2 , in conclusory fashion, says that Contention 1 also relied on "the Commission's own discussion of the decommissioning process-in the 1989 rule arguing that that statement of consideration showed that the only function of a ' possession-only' license was as part of the decommissioning process." Id2 But nowhere in Contention 1 were the NRC's decommissioning ,
rules ever mentioned. Moreover, even if Contention 1 had contained an argument that the NRC's decommissioning regulations indicate that a POL is necessarily a part of the decommissioning
4 23 process, that argument would be wrong as a matter of law. The
. commission has already considered and rejected that views
[0]ur decommissioning regulations do not recuire any POL -- the Statement of Considerations merely describes the POL as something the licensee maY seek in order to be relieved of requirements not necessary for safety in a " possession only" mode.
Lona Island Llahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-01, 31 NRC 1, 6 - (1991) (emphasis added) .
Finally, SE2 argues that the Board's " insinuation that a purely legal claim-is not sufficient to meet the appropriate standards" is incorrect "as a matter of law," provided that the legal claim contains " sufficient reference to the relevant law and facts (including regulations)." December 3-Appeal at 2-3.
LBP-91-39, however, does not " insinuate" that a purely legal claim cannot form the basis for an acceptable contention.
Rather, the Board indicated that even a contention that presents a-pure issue of law was still required, under CLI-91-04, to provide some " plausible explanation" that " spell (s) out how the
-POL amendment is an interdependent part of the decommissioning process and how that amendment is unjustified except as part of that process." - LBP-91-39, slip op. at 10. Again, "merely quoting regulatory definitions" was simply inadequate. Idx The Board exacted well within its discretion in so ruling. . Sug ,
ea gt, Texas Utilitir Slgetric Co. (Comanche Peak Steam Electric Station, Unit 1) , ALAB-868, 25 NRC 912 (1987); Philadelphia l
4 24 Klectric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-216, 8 AEC 13, 21 (1974).
Finally, on appeal, SE2 does not even attempt to address the Board's finding that Contention 1 did not meet the stricter pleading requirements of 10 C.F.R. 6 2. 714 (b) (2) , as revised in 1989. For this reason alone, the Board's rejection of Contention 1 should be upheld.
- 2. Contentiqn_A
- a. T11gt,Qontention In Contention 2, SE2 asserted that the NRC's GEIS for decommissioning does not apply to the proposal to decommission Shoreham because the GEIS is limited to facilities at the end of their useful life and to plants that are closed prematurely due to an accident. Because Shoreham falls into neither category, the contention argued, the NRC should continue to apply its now abrogated regulation, 10 C.F.R. S 51. 20 (b) (5) , that formerly required that a site-specific EIS be prepared for every decommissioning proposal. See LBp-91-39, slip op. at 11-12.
- b. The Board's Ru_ ling The Board noted that Contention 2 was " identical to a contention (SE 2 ] filed" in the earlier proceeding on the Confirmatory order, emergency preparedness, and Physical Security Plan amendments. That contention had been " rejected . . . on the grounds that it was premised on the erroneous and unestablished
25 prenAse that the three actions at issue required the preparation of an EIS." LBP-91-39, slip op, at 12. The same reasoning "is applicable here because (SE 2 's) second contention is footed on the same mintaken premise." LBP-91-39, slip op. at 12.
SE 's first POL contention, the Board noted, had alleged that the NRC was required to prepare an EIS on Shoreham's decommissioning before issuing the POL amendment "because the POL was within the scope of that decommissioning proposal." Id2 at
- 13. Itaving rejected Contention 1, the Board found, Contention 2, "which deals exclusively with the need for an EIS on the decommissioning of Shoreham without mentioning the POL, has no logical foundation." Ida.
Stated another way, the Board said, in order for the issue of Shoreham decommissioning -- the sole subject of the second contention -- to become relevant, the petitioner must first establish that the POL amendment -- the only licensing action involved in this proceeding -- is part of the proposal to decommission Shoreham.
LBP-91-39, slip op, at 13. Having " failed to establish this crucial linkage," the Board ruled, Contention 2 "is inadmissible." 14.
Additionally,-the contention "contains no explanation of how the POL amendment constitutes an illegal segmentation of the EIS process by foreclosing any decommissioning methods." LBP-91-39, slip op. at 13. As a consequence, the contention "does not meet the second prong of the Commission's test for an admissible Shoreham contention" in CLI-91-04. 14,2
)
, a-26 c.- AL's Araument'on Anogal and LILCO's Response SE: says that the. Board's logic-fails since it denied the' admissibility of the first contention for failure to show- I
= why-the-GEIS is not applicable and now would deny;a contention explaining why the GEIS is not applicable due1to (SE 's) alleged failure to show that the POL amendment "is part of the proposal to' decommission Shoreham."
LDecember 3 Appeal at ' 3, gustina LBP-91-39 at 13. sea argues that the'"two contentions can be read together to form a single contention which then could not be rejected" by the Boald.
The Board's ruling is straightferward and clearly correct:
= sinco SE2 1had failed,- in Contention 1, to demonstrate the need for an-EIS on the POL amendment that addresses the entirety of the~Shoreham decommissioning proposal, Contention 2's assertions
_as to why the GEIS isfinapplicable to Shoreham's decommissioning have "noLlogical foundation." LBP-91-39, slip op. at 13. What SE2 seems to be _ arguing:-- though its logic is none too clear --
is that the Board should have read the unsupported allegations in contention 1 in, conjunction with the unsupported allegations in Contention-2 to derive a hybrid contention "which then could not be rejected." Even assuming that'makes-any sense, which is does
.not', the--Board was underrno obligation, on.its own initiative, to read two separately' inadequate contentions together in an effort to create a joint' contention cnat would Ima acceptable under the regulations.- ERS, e.g., Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406 (1974).
d "y ,-
e
27
- 3. goAttntion 3
- a. The Contention llore, SE: asserted that "LILCO's environmental report should be in the format prescribed by Regulatory Guide 4.2 (Rev. 2, July 1976)." SE 2 's July 1 Supplement at 8. As the Board notes, during the July 30 prehearing conference, SE2 attempted to amend Contention 3 so that it focused more on the content of the environmental report, rather than its literal format. Ep_q LBP-91-39, slip op. at 15, n.31,
- b. The Board's Ruling The Board, noting that Contention 3 was " identical to one (SE ] had filed in the earlier Shoreham confirmatory order and license amendments proceedings," found the contention to be
" clearly inadmissible." LBP-91-39, slip op, at 14. In LBP 35, the Board had rejected the contention for "failing to present a litigable issue." LBP-91-39, slip op. at 14. Since regulatory guides are "not mandatory regulations," the Board in LBP-91-35 had concluded that "even if the contention was proven, it would be of no consequence in the proceeding so as to entitle (SE 2) to relief." LBP-91-39, slip op. at 14, citing LDP-91-35, 34 NRC at 172-73.
Such " reasoning is equally applicable" to the POL amendment proceeding. LBP-91-39, slip op. at 14. It is "Well settled,"
the Board explained, "that regulatory guides are just that --
guides, not regulations -- and compliance with them is not l
1
I' 28 required." Idi Accordingly, Contention 3 " fails to raise a litigable issue and, pursuant to 10 C.F.R. 5 2.714 (u) (2) (ii) , it must be rejected." Idz at 14-15. The Board added that, even as amended along the lines SEg had sought during the July 30 prehearing conference, the contention was "still woefully deficient." Idt at 15 n.31.
- c. DJ,'s Arcument on Appeal and LIkCO's Espoonse SE2 's position on appeal is simple. SE2 again recharacterizes what it was argtling in Contention 3, now stating that "[a]t the prehearing conference, (SE ] made clear that [it]
2 was relying not only on regulatory guides but also on 10 C.F.R. Part 51 Appendix A, which in a binding regulation." December 3 Appeal at 3 (emphasis in original).
It is long-settled in NRC practice that a petitioner is bound by the literal terms of its own contentions. Ege, e . a t, Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant),
ALAB-856, 24 NRC 802, 816 (1986). Since Contention 3 nowhere mentions 10 C.F.R. Part 51, Appendix A, the Board was justified in refusing to consider SE 2 's post hgg reconstruction. S_qs ,
gtgt, Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912 (1987); Philadelnhia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3).
ALAB-216, 8 AEC 13, 21 (1974).
Further, even if Contention 3 were read to incorporate Appendix A, that would not save it. By its plain terms, Appendix
4 I
29 A addresses the format and content of EIS's prepared by the NRC Staff, ngt environmental reports submitted by applicants for licenses.
- 4. ContentigA_i
- a. The conteatlen In Contention 4, SE, tried to raise two issues. First, the contention complained t'aat, since the decommissioning plan for Shoreham submitted by the Long Island Power Authority (LIPA) proposes the use of the DECON method, consideration of the SAFSTOR and ENTOMB options will be foreclosed. LBP-91-39, slip op. at 15-16. Second, the contention argued that, because allegedly only the DECON method involves the removal of radioactive components from the site, issuance of the POL amendment, authorizing LILCO to remove certain such components, also forecloses consideration of SAFSTOR and ENTOMB. Id2 at 16.
The Board'pJiling alle Contention 4 " clearly attempts the second requirement oi ao Commission's two-part test" in CLI-91-04, the contention is " fatally flawed for ignoring the first requirement." LBP 39, slip op. at 16. The Board continued that, in Contention 4, SE2 had "not even attempted to explain why the environmental impacts of decommissioning Shoreham fall outside the envelope of impacts already considered in the GEIS." Idz "Regardless of how liberally we read it," the Board said, "the contention contains I
- . . . . - . ~ . . - - - - - - - . - . - . - _ , ., - -. - . - - - -
30 absolutely no language-that can be construed as offering an ;
1 explanation' satisfying the first prong of the Commission's test" - :
in CLI-91-04. Idx Further, "in view of the fact that none of i
(SEz's) other contentions are admissible, there is no basis for ,
incorporating the required explanation from another contention, j even Jf. that were appropriate." -Id2 at 16-17. ;
- c. 33?s Aroument on Appeal and LILCO's ResDonse SE2 says that_the Board erred by not reading Contention 4 in conjunction with contention 2, since the latter contention
-provided "just such an explanation" why the environmental impacts
.of decommissioning Shoreham fall outside_the impacts already assessed ~in the GEIS. December 3 Appeal at 3. The Board's
" failure to merge these contentions as a single contention T
constitutes. reversible error." Idt at 3-4. In addition, SE2 argues _that'during an " extended colloquy" between its counsel and
-the Board during'the July 31 prehearing conference, SE2 attempted to explain why the environmental-impacts of! decommissioning ,
'Shoreham fall outside-those assessed in the GEIS. Id2_at 4.
Since the Board "apparently found that (SE 2 ] had satisfied the second-prong-of the Commission's test," SE 2 concludes, this
- rtAing in LBP-91-39 "should be reversed and remanded with instructions to. admit;the contention ~-(as amalgamated)." Idc SE2 is wrong for four' reasons. First, as a matter of law, the Board's refusal to " amalgamate" Contentions 2 and 4 does not
" constitute reversible error." See, e.a., commonwealth Edison
_ , ,_ . __ _ ~ _ _ _ . - _ __ _ __ ___ _ _.- _ -_ _ _
/ .
31 lQai (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406
.(1974)-.
Second, SE: assumes that if the Board had " amalgamated"
- Contentions 2 and-4, the resulting hybrid contention would have beenifoundiadmissible. This, in turn, is based on the entirely erroneous assumption that Contention 2 is itself admissible. See the-; discussion of Contention 2, above.
Third, .SE 's reference to its " extended colloquy" with the Board (for which it provides no citation to the hearing transcript) is unavailing because, even if it were true that SE Attemoted to explain why the GEIS.was' inapplicable to Shoreham, SE2 oobviously did not convince the Board' that its position was
' Correct.-
' Finally, there is nothina in LBP-91-39 to support SE 2'8
- assertion that.the Board "apparently found" that SE2 "had satisfied _the second prong of-the Commission's test" in CLI =
- 04. December 3 Appeal'at 4. .At best,_the Board simply noted that,-in Contention--4, SE 2 " clearly attemotg to address the
-second requirement."- LBP-91-39,_ slip op. at'16.- LILCO=itself' noted - as much in its July 12 ' opposition to all seven of- SE 2 's POL amendment contentions. - But as the: Board determined that the :
contention failed completely to address-the first prong of CLI-
f.
32 91-04, it had no need to rule on whether the second prong had been satisfied.M/
- 5. 92Rt.9At19A-.E
- a. The Contentiqn Contentivn 5 was not so much a contention as it was a request that the Board reconsider its ruling from LBP-91-26 that SE2 did not have standing in the POL amendment proceeding to raise issues based on the Atomic Energy Act. Specifically, SE 2 asserted that the NRC's action in issuing the POL amendment was arbitrary and capricious because the NRC had not provided similar relief to other licensed plants v.ndergoing long outages. Eng LDP-91-39, slip op, at 17.
- b. The Board's Rvling The Board determined that SE 2 's request for reconsideration of LDP-91-26 was "not a proper subject for a contention as that F M/ In fact, as LILCO explained in its July 12 opposition to SE 2 's POL amendment contentions, Contention 4 did not meet the first QI the econd prong of the Commission's test in CLI-91-04.
SE2 's compla! t that LIPA's belection of DECON forecloses the consideration of SAFSTOR and ENTOMB, taken to its logical end, would mean that an EIS is required for every plant that is to be decommissioned. A licensee will always choose one of the NRC's three decommissioning methods and forgo the other two. As for SE2 's additional concern that the NRC's allowing LILCO, on the basis of the POL amendment, to dispose or certain radioactive components constitutes da facto approval of the DECON method, SE 2 is mistaken as a matter c.f law. SE2 has overlooked that NRC regulations permit the disassembly and removal of minor reactor components no matter which decommissioning option is ultimately employed. Sgg 53 Fed. Reg. 24,025-26 (June 27, 1988).
{
_ _ _ -__--_-_-- _ _ _-__- - - - --- - -- -- - _- - -- u
i 33 term is used in 10 C.P.R. % 2.714'b)." LDP-91-39, slip op, at 17-18. In the pol amendment proceeding, SE 's contentions "must focus on the issues identified in the notice of hearing, the applicant's auendment application, and the staff's ortvironmental ror ponsibilities relating to that application, not on (SE 's) own othnding to raise issues concerning those matters." Idt at 18.
Moreover, even if Contention 5 "could be considered a contontion, it still must be rvjected" fer having failed to raise issues based on NEPA, the only statuto under which SE: had boon allowed to go forward. & -
- o. AZ ,'pEgyggnt on A.ppmLLpA4_LILCO's RuRQnu - - -
on appeal, SE2 abandons Contention 5 as a contoacion ngr an.
Rather, SE: says 4+ is appealing the Board's determination in LDP-9 ; that it "does not have standing to raiso Atomic Energy Act is, s." December 3 Appeal at 4. SE notes that it is a
" tax exempt New York Stato not-for-profit corporation" whose purposes "includa promoting intelligent uses of secure energy resources within the United Staten." Idz SE2 continucs that it has b+ ten " designated by six of its members who are dependent upon LILco f w: clectricity and all of whom resido and work witbin 50 miles of the Shoreham plant, and some of whom live and work 10 miles of the Shoreham plant to represent and erotect their interests under the (Atomic Energy Act)." 141 SE, argues ,
without support or explanation, that the Board's " rejection of the normal NRC geographical nexus standard in this respect is
4 34 arbitrary cr1 capricious, especially considering the fact that the activitics to be allowed under the POL will increase the risk of Sta's members to radiation hazards through allowing and increasing the trancportation or irradiated /tadioactivo materials." IdA at 4-5.
There is no reason for the Commission to overturn LBP-91-26.
In LDP-91-26, the Board found that, with respect to SE 's claims arising out of the Atomic Energy Act, it had not offered "more than its bare conclusory assertion that to rollevo (LILCO) of the licenso conditions as proposed will result in a potential injury to persons and their property." LBP-91-26, 33 HRC at 544.
Further, "the potential injuries are not identified." Idi Such pleadings, the Board corre tly determined, " arc legally insufficient to establish standing." Idx As for SE 2 's attempt to rely on the "50-mile presumption," SE2 had presented 4
"(n)othing meritorious" to overcomo its prior ruling (in LDP 1) that "the presumption was inapplicable." Id2 It is evident from the December 3 Appeal that, when it comen to demonstrating standing, SE: is still sooking to got by with
" bare conclusory assertions." The appeal from LBP-91-26, masquerading as Contention 5, should be denied.
___-__._______________..-m m_ _ _ _ _ _
35
- 6. Contention.6 ,
- a. Thi_qgntentign In contention 6, SE asserted that an EIS on Shoreham's decommissioning must includo consideration of the indirect offects of fossil-fuel plants (and their transmission lines) that allegedly would have to be built to replace Shoreham's lost capacity. Sf g LDP-91-39, slip op. at 18-19.
- b. Ib.5LJoarA's.. Ru11Rg The Board found that, in submitting Contention 6, SE2 had
" disregarded" the Board's "carlier explicit ruling with respect to raising any issue involving the building of fossil-fuel plants and associated transmission lines." LBP-91-39, slip op. at 19, glting LDP*91-26, 33 liRC at 545. The Board held that its earlier ruling fron LBF-91-26 "fnrecloses the admission of this contention.." Isb.
- c. DE.'s Arquagat qD_Apppal and LILCO's ReHPJ2Dat SE 2 says, again without elaboration or explanation, that
"[r]ogardless of the correctness of the Commission's prior rulings as to the scupe of the ' alternatives' to the preposal to be considered, there is no limitation on EIS consideration of
' direct and indirect effects.'" December 3 Appeal at 5.
Once again, SE2 offers only a boilerplate recitation of the CEQ definitions, rather than any reasoned analyels. Moreover, Contention 6 is relevant to the POL amendment only to the extent I
36 that it nanuman that the POL amendment required preparation of an EIS addressing Shoreham's decommissioning as a whole. As has been shown, that assumption is misplaced.
- 7. GEDIDAtlRD.1
- a. no contentiRD SE: argued that its pursuit of a judicial stay of the POL amendment did not doprive the Board of jurisdiction to enforce 10 C.F.R. Il 51.100 and 51.101(a) (2) . Under 5 53.100, the NRC is prohibited from making any decision on a proposal for which an EIS la required until the EIS has been made available for public comment. Section 51.101(a)(2) provides that an applicant may be denied a license for a proposed action that requires an EIS if the applicant takes any step that has an adverse envirunmental impact or which limits the choice of reasonable alternatives before the EIS process is completed. Eng LDP-91-39, slip op. at 19-20 & n.35,
- b. ReJ pyrd's Ruling SE 2 's last contention, though " labeled a 'centention, '" was "merely a statement to the effect that the Licensing Board has jurisdiction to enforce 10 C.F.R. 5 5 51.100 anr1 51.101(a) (2) ,
while the petitioner pursues a judicial stay of the POL amendment." LBP-91-39, slip op. at 20. As written, Contention 7 was " clearly intdmissible hechase, even if true, it would not l
a i 37 entitio the petitioner to any relicta under the provisions of 10 C.F.R. $ 2.714 (d) (2) {ii) . & I Further, the Board held, even Lf Contention 7 were "somehow readtoclaimthattheagencymust!nforcethecited regulations," those provisions "are only epplicable to proposals requiring an EIS." LDP-91-39, slip lop. at 20. Since SE2 had fniled to establish that the POL amandment " requires the preparationofanEIS,"theBoardcbncluded, "the contention must be rejected." Lit at 70, 21. ;
i l
- c. SE,'s Arctiment on __ Appgab nd LILCO's Resoqjing I
SE2 essentially abandons contention 7, stating only that the Board "erra in finding that (SE:'s) seventh contention 'Would not i
entitle (SE ) to any relief. '" Decefber3Appealat5.
i Obviously, such a conclusory allegat! ion of error, pr:,viding no
\
analysis or explanation, is not suff)cien.t. Egg, o .a . , Clayoland Electric Illuminatina Co x (Peny liuc' car Power Plant, Units 1 and 2), ALAB-841, 24 11RC 64, 69 (1986).
I 1
38 IV. Conclusic.n For the reasons above, SE 2 'c appeal from LBP-91-26 and LBP-91-39 should be summarily rejected. If the appeal is not summarily rejected, then it should be denied on the nerits.
Respectfully submitted,
() .
,f kN W. Taylor Revoley, III Donald P. Irwin David S. liarlow Counsel for Long Island Lighting Company llunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 DATED: December 18, 1991 ll. .
t LILCO, December 18, 1991 l
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission !
I In the Matter of ) ,
) !
LONG ISLAND LIGHTING COMPANY ) Docket No. 50 322-OLA l
) l (Shoreham Nuclear Power Station. ) '
Unit 1) )
CERTIFICAlEOF SERVICE I hereby certify that copics of LILCO'S OPPOSITION TO PETITIONERS' APPEAL FROM LBP-91-26 AND LBP-91-39 were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mall, postage prepaid.
Commissioner Ivan Selin, Chairman
- Commissicner E. Gall de Planquc*
Nuclear Regulatory Commission Nuclear Regulatory Commission One White Flint North Building One White Flint North Dullding 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20F52 Commissioner Kenneth C. Rogers
- The Honorable Samuel J. Chilk Nuclear Regulatory Commission The Secretary of the Commission One White Flint Nonh Building Ofnee of the Secretary 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852 Washington, D.C. 20555 Commissioner James R. Curtiss* Administrative Judge
- Nuclear Regulatory Commihion Thomas S. Moore, Chairman One White Flint North Building Atomic Safety and Licensing Board 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852 East West Towers, Fourth Floor 4350 East West Highway Commissioner Forrest J. Remick* Bethesda, MD 20814 Nuclear Regulatory Commission One White Flint North Building 11555 Rockville Pike Rockville, MD 20852
t 2
Administrative Judge
- Stanley D. Klimberg, Esq.
Jerry R. Kline Executive Director and General Counsel Atomic Safety and Licensing Board lang Island Power Authority U.S. Nuclear Regulatory Commission 200 Garden City Plaza, Suite 201 East-West Towers, Fourth Floor Garden City, NY 11530 4350 East West liighway Bethesda, MD 20814 Carl R. Schenker, Jr., Esq,*
Counsel, Long Island Power Authority Administrative Judge' O'Melveny & Myers George A. Ferguson 55513th Stwt, N.W.
Atomic Safety and Cecnsing Board Washington, D.C. 20004 5307 Al Jones Drive Columbia Beach, MD 20764 Gerald C. Goldstein, Esq.
Office of General Counsel James P. McGranery, Jr., Esq.* New York Power Authority Dow, lehnes & Albertson 1633 Broadway 1255 23rd Street N.W., Suite 500 New York, NY 10019 Washington, D.C. 20037 Samuel A. Cherniak, Esq.
Miti.i A. Young, Esq.* New York State Department of law Office of the General Counsel Bureau of Consumer Frauds and Protection U.S. Nuclear Regulatory Commission 120 Broadway One White Flint North New York, NY 10271 11555 Rockville. Pike Rockville, MD 20852 Stephen A. Wakefield, Esquire General Counsel Nicholas S. Reynolds, Esq. U.S. Department of Energy David A. Repka Esq. 1000 Independence Avenue, S.W.
Winston & Strawn Washington, D.C. 20585 1400 L Street, N.W.
Washington, D.C. 20005 Hunton & Williams b5.MMb -
P4 erfront Plaza, East Tower " David S. Harlow Al East Dyrd Street Richmond, Virginia 23219 DATED: December 18,1991
.