ML20092A433

Joint Opposition to Lilco 840602 Motion for Protective Order & Motion in Limine.Motion Lacks Legal or Factual Basis. Certificate of Svc Encl.Related Correspondence

ML20092A433
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/14/1984
From:	Lanpher L, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
OL-4, NUDOCS 8406190206
Download: ML20092A433 (10)

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6/14/84 DOCHETED UNITED STATES OF AMERICA USNPC NUCLEAP REGULATORY COMMISSION Before the Atomic Safety and Licensi $4 J@kh8 B P3:10

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY AND STATE OF NEW YORK OPPOSITION TO LILCO " MOTION FOR PROTECTIVE ORDER AND MOTION IN LIMINE" By Motions' dated June 2, 1984, LILCO has moved this Board -

for an order " precluding all discovery requests whose relevance is to the issue of security and for an order that any evidence whose sole materiality is a question of security is inadmissi-ble." LILCO Motion For Protective Order and Motion in Limine, p.). Suffolk County and New York State hereby oppose LILCO's notions on the following grounds:

(1) The Commission's Order of June 8, 1984 (served June 11, 1984) conclusively demonstrates that the security provision.

of Section 50.12(a) applies to LILCO's request for exemption.

Thus, the Commission stated: " Finally, it is for the Licensing Board to address in the first instance the ' common defense and O N2 i 9 G PDR ( )

p securitv' showino recuired under 10 C.F.R. 50.12(a)." (Order pp. 2-3, Emphasis added). Thus, a LILCO " showing" under the Section 50.12(a) " common defense and security" criterion is recuired in order for this Board even to consider LILCO's Ap-plication for Exemption. '*The interest of the County and State to pursue security-related issues via discovery is so that the County and State can have essential information with which to contest any LILCO " showing" if LILCO should decide to attempt to meet the Section 50.12(a) requirements.

The County and State emphasize that as of this date LILCO has not even attempted to make the " showing" required under Section_50.12(a). Instead, in its May 22 Application for Ex -

emption, LILCO failed to proffer anything of substance related to security, choosing rather to characterize the Commission's May 16LOrder as not requiring consideration of security issues.

See Application for Exemption, p. 15, note 10. LILCO's charac-terization of the Commission's May 16 order is clearly erroneous, and the Commission's June 8 Order makes it categori-cally certain that a failure by LILCO to make the security

" showing" expressly required by the terms of Section 50.12(a) requires rejection of LILCO's Application for Exemption.

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(2) LILCO's motions are contrary to the explicit require-ments of'Section 50.12(a) of the NBC's regulations, which

' provide that an exemption may not be granted unless a finding is madexthat such exemption would "not endanger the common defense and security." Thus, even absent the clear direction given by the Commission,.the plain words of Section 50.12(a) require denial of LILCO's Motions unless LILCO makes the requi-site' security showing.

( 3 )' LILCO's motions constitute a direct challenge to Section 50.12(a) in contravention of Section 2.758, which prohibits the challenge of a regulation in an adjudicatory pro-ceeding. Indeed, the Commission's Order of June 8 makes all I-the more clear that LILCO's Motions challenge not only Section 50.12(a) but the NRC's May 16 Order as well.

(4) LILCO's argument that there is no pending security contention (aside from being incorrect -- see point (6) below))

begs the question here at issue -- namely, the explicit securi-ty requirement of Section 50.12(a). The presence-or absence of a security contention .is irrelevant to the security standard imposed independently by Seccion 50.12.1/ ,

1/. There is a puzzling statement in the Sta f f's " Response to Suffolk County's and the State of New York's Request for "

Clarification of the Commission's Order of May 6 . . . .

(Footnote cont'd next page) 3-i

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(5) LILCO's Motions ignore the company's responsibilities under Section 2.732, which places the burden of proof on LILCO.

Under this regulation, LILCO must prove that the exemption it requests 1would not endanger the common defense and security.

Since LILCO has not even attempted to make the common defense and security showing reouired by Section 50.12(a), it clearly has failed to sustain its burden of proof.

(6) LILCO's argument that the so-called "all encompassing Final Security Settlement Agreement" makes the security issue immaterial here (LILCO Motion, p. 4) is a mischaracterization of what that Agreement covers and a circumvention of Section 50.12. The Agreement covers the matters there addressed by the (Footnote cont'd from previous page) 1 There, at page 5, the Staff states, " Security issues have to date not been injacted into this proceeding." The Staff's statement is incorrect. First, LILCO itself has injected security issues into this proceeding by filing its-low power license request, Which under Section 50.57(c) requires the finding that the grant of such license would "not be inimical to the common defense and security." See 10 C.F.R. $ 50.57(a)(6). Second, the Staff's own SSER on LILCO's low-power license, Which discusses ~recurity issues, has injected security issues here. See SSER, Supp. 5, pp. 13-2 through 13-4. And LILCO's " Application for Exemption" again has injected se-curity issues into this proceeding because Section 50.12(a) requires that LILCO prove and the Commission find that the grant of an exemption would "not endanger the common defense and security."

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a parties. Those natters included the Part 73 design basis -

threat with respect to the onsite emergency power system con-figuration then proposed by LILCo. Since then, LILCO has pro-

-posed an entirely new emergency power system. The vulnerabilities of this system must be considered under Section . .

I

!H).12 and under Part 73 as well . Further, since the new AC L l

i power configuration clearly changes the bases for the prior settlement, the issues. considered therein cre clearly now re-vived and LILCO's compliance with Section 73.55 when preparing to operate in the new AC power configuration is a critical unresolved issue. (The County again reiterates its often re-peated request that the NFC establish the requisite Part 73 l

procedures so that the necessary safeguards information can be i properly addressed.)

(7) LILCO's argument that the " common defense and securi- I ty" does not mean the provisions of Part 73 is contrary to law.

It ignores the fact that the Commission has, throughout its ,

history, defined the " common defense and security" by explicit regulatory standards -- those now embraced by Part 73. When ,

Section 50.12(a) uses the phrase " common defense and security,"

it means just that: the standards of Part 73.2/ LILCO, l 2/ LILCO's citation of the Siegel case is misplaced. See Sienel v. Atomic Energy Comm., 400 F.2d 778 (D.C. Cir.

f (Footnote cont'd next,page) l'

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l nevertheless, persists in arguing that the term " common defense and security" is some sort of abstraction Which is not applica-ble to LILCO's exemption request. See Application for Exemp-tion at 15, note 10: Motion for Protective Order and Motion in Limine, at 3. LILCO is incorrect. First, the NRC's June A Order confirms that Section 50.12(a) r,equires a security ,

" showing" by LILCO. Second, while in some contexts the term l

" common defense and security" involves national security and defense matters (particularly in contexts concerning military application of nuclear technology and exports and imports of nucienr materials), that term, with respect to nuclear power (Footnote cont'd from previous page) 1968). That case has nothing Whatsoever to do with the issue here at bar. Siegel involved arguments that an in-tervenor must be permitted to litigate the question Wheth- i er the plant coeld defend against an enemy attack (Cuba in I the Siegel case). Siegel never considered the findings required under Section 50 12(a), the Part 73 design basis  ;

threat, or the requirements of Section 73.55 (the latter )

was not even adopted by the NRC until nearly a decade later). Moreover, LILCO states, "There is no cuggestion that LTLCO's request for a low power license implicates the defense and security of the United States." (Motion,

p. 3.) LILCO's statement is legally and factually incor-rect. Indeed, LILCO's low power license request requires findings under Section 50.57(c). These findings include the security requirements of Part 73. The Staff's discus-sion of security in its SSER is further testimony to that  !

fact. Finally, LILCO itself has put security into issue by seeking a Section 50.12(a) exemption, Which explicitly requires LILCO to prove that its request would "not endan-ger the common defense and security."

i plants, means the physical protection and security arrangements set forth in Psrt 73. See, e.o., 42 Fed. Reg. 10836 (1977)r 39 Fed. Reg. 40038 (1974). The physic 11 protection and security arrangements for LILCO's new emergency AC power sources are a l

critient issue in the instant proceeding. The AC power sources j now relied upon by LILCO are essentially unprotected -- in one ,

case being entirely outside the protweted area and in another 1

case being within the protected area but in a wholly exposed location. This Board would be unable even to consider the issues embraced by 10 C.F.R 46 50.12(a), 50.57(a)(6), and 73.55 unicas LILCO assumes its burden of attempting to prove compli-ance with such accurity requirements.

l (8) Section 50.12(a) requires that, in order to grant an  ;

exemption, the Commission must find that such exemption would l not endanger the common defense and security. If LILCO does j not satisfy this standard and does not sustain its burden of ]

proof under Section 2.732, this Board and the Commission could j not grant LILCO the exemption it requests. In such case, LILCO would be in default and there would be a failure of proof. In-deed, the County and State submit that LILCO is already in default, and for that reason alone this Board should summarily reject LILCO's exemption request.

The reasons proffered by LILCO in support of its Motions do no more than docunent the company's failure to carry its burden of proof on the explicit security requirement of Section 50.12(a). There is no legal or factual basis for LILCO's Motions. Accordingly, they should be denied.

Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 U f -/

CW'14 Mill fld '7h h1 &

Herbert H. Brown /

Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS' 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County fa ba + YGm 50 b y ..Y Fabian G. Palomino -

Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for MARIO M. CUOMO Governor of the State of New York June 14, 1984

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UNITED STATES.OF AMERICA NUCLEAR REGULATORY COMMISSICN Before the Atomic Safety and Licensing Board

) >

In the Matter of~ )

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L'ONG I'SLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

)- (Low Power)

-(Shoreham Nuclear Power Station, ) ,

Unit 1). )

) i

. CERTIFICATE OF SERVICE ,

P I hereby. certify that copies of SUFFOLK COUNTY.AND STATE OF NEW" YORK OPPOSITION TO LILCO " MOTION FOR PROTECTIVE ORDER AND MOTION IN LIMINE," dated June 14, 1984, have been served on the following this 14th day of June 1984 by U.S. mail, first class; by ,

hand when indicated by an asterisk; and by Federal Express.when indicated by two asterisks.-

Judge Marshall'E. Miller, Chairman

• Edward M. Barrett, Esq.

' Atomic Safety and Licensing Board Long Island Lighting Company U.S.cNuclear Regulatory Commission 250 Old Country Road Washington, D.C. -20555 Mineola, .New York 11501 ,

Judge Glenn O. Bright

• Honorable Peter Cohalan Atomic Safety.and Licensing Board Suffolk County Executive U.S.JNuclear Regulatory Commission H. Lee Dennison Building Washington, D.C. 20555 Veterans Memorial. Highway Hauppauge, New York 11788 f Judge. Elizabeth B., Johnson **  ;

Oak Ridge National Laboratory Fabian Palomino, Esq.**

P.O. Box X, Building-3500 Special Counsel to the Oak, Ridge,ETennessee 37830 Govern 6r

. Executive Chamber, Room 229

-Eleanor L. Frucci, Esq.* State Capitol  ;

12224

' Atomic Safety and Licensing Board Albany, New York U.S. Nuclear Regulatory Commission

-Washington, D.C. 20555 **W. Taylor Reveley, III, Esq.

Anthony F.-Earley, Jr., Esq.

Bernard M.-Bordenick, Esq.* Robert M. Rolfe, Esq.

Edwin J. Reis,.Esq. .Hunton & Williams Office of Exec. Legal Director 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington,LD.C. 20555 l

e .. .

Mr. Martin Suubert James Dougherty, Esq.

c/o-Cong. William Carney 3045 Porter Street, N.W.

lll3 Longworth House Office Washington, D.C. 20008 '

Building Washington, D.C. 20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq. Shoreham Nuclear Power Sta.

Suffolk County Attorney P.O. Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.

Docketing and Service Branch New York State Energy Office Office of the Secretary Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C. 20555 Albany, New York 12223 Stephen B. Latham, Esq.

John F. Shea, Esq.

Twomey, Latham and Shea 33 West Second Street Riverhead, New York 11901 rd' t <E 9 ~

Lawrence Coe Lanphef KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: June 14, 1984 l

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