ML20099C842

Petition of Suffolk County & State of Ny for Leave to Intervene & Request for Hearing Re ALAB-800.Certificate of Svc Encl

ML20099C842
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/08/1985
From:	Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	NRC COMMISSION (OCM)
References
CON-#185-967 ALAB-800, OL-4, NUDOCS 8503110444
Download: ML20099C842 (14)

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UNITED STATES OF AMERICA

YQE0 NUCLEAR REGUIATORY CC$ MISSION

'89 rv Before the Cmmission -3 PIIM

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In the Matter of ) 'I

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IONG ISIAND LIGffING COMPANY ) Docket No. 50-322-GEs=4 ;_,,,,

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SUFFOIK COUNIY AND STATE OF NEW YORK PETITION FOR REVIEW Pursuant to 10 CFR $2.786(b), Suffolk County and the State of New York seek Ccrmission review of portions of AIAB-800 (February 21, 1985).

Contrary to the explicit guidance set forth in 10 CFR $ 2.764(g) and CLI-85-1, the Appeal Board refused to censider critical issues raised by the County / State appeal of the Miller Board's October 29, 1984 Initial De-cision. We Appeal Board, therefore, barred the State and County frcm ap-pellate review, a violation of 10 CFR $ 2.762. We Ccmnission should grant this Petition to halt this flagrant violation of NRC regulatory require-ments.

I. h e Portion of AIAB-800 of Which Review is Sought AIAB-800 was the Appeal Board's decision on the appeal of Suffolk County and the State of New York frcn the Miller Licensing Board's October 29, 1984 Initial Decision. We Appeal Board stated that "all of the substantial issues presented by the appeal fell into one of three areas":

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s (1) the meaning and scope of both (a) the phrase "oth-crwise in the public interest" contained in 10 CFR $

50.12(a) and (b) the standard for a grant of an exemp-tion under Section 50.12(a) set forth in CLI-84-8, . . .;

(2) the meaning and scope of the Camnission's directive in CLI-84-8 that facility operation utilizing the sub-stitute AC electric pom r system be "as safe as" that operation would have been with a " fully qualified" onsite AC power source; and (3) the applicability to the substitute AC electric power system of the physical security provisions of 10 CFR Part 73.

AIAB-800, at 2-3 (footnotes onitted).

In Section I of AIAB-800, the Appeal Board purported to address issues 1 and 2. It affirmed the Miller Board's resolution of the public

,; interest, exigent-circumstances, and "as safe as" issues, on the basis that the Omnission's February 12, 1985 innediate effectiveness decision (CLI-85-1) " totally foreclosed" any Appeal Board finding of Miller Board error on those issues. AIAB-800, at 5-9. Suffolk County and the State of New York seek Ccmnission review of this portion of AIAB-800.ll lj LIILO has sought review of the remainder of AIAB-800 dealing with the security issue. 'Ihe State and County will respond to LIIro's review petition in a separate pleading.

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II. Proceedings Before the Appeal Board When briefs were filed with the Appeal Board, CLI-85-1 had not yet been issued. Accordingly, the inpact of that decision upon the pending appeal was not addressed by the parties in their briefs. 'Ihe issue was raised sua sponte by the Appeal Board. During oral argument on February 11, 1985 before the Appeal Board, LIIID's counsel referred to a ccziment made by Ocnnissioner Bernthal during the February 8 argument before the Ocmnission. 'Ihe Appeal Board Chairman stated:

I speak just for myself, that the whole inmediate ef-fectiveness process gives me a great deal of concern and I am frank to state that this case illustrates it.

As you well know, the Ocnnission's inmediate effec-tiveness rule provides that - nothing it says in con-

,, nection with an inmediate effectiveness review is to be taken into account by an Appeal Board, unless the Can-mission specifically so provides.

I don't know what was said before the Ccmnission. No member of this panel or of its staff attended that soiree Friday afternoon, and deliberately did so and if the Ocmnission is going to act I don't know what we are going to do. But what Ctruissioner Bernthal said may be very interesting but I don't kncw we are even going to pay very much attention to what the Ocnnission says.

Transcript of February 11, 1985 oral argument, at 61-62 (Rosenthal).2_/

2f Similarly, at a January 8,1985 Ccmnission meeting, Judge Rosenthal stated:

[T]he Appeal Board has pending before it the appeal of

. Suffolk County and the State of New York from that October 29 decision of the Miller Licensing Board.

(Footnote cont'd next page)

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'Ihe Appeal Board's sua sponte raising of the natter of the inpact (Footnote m nt'd fr m previous page)

Now, the only reason I mention all of this is that it looks to me, as I noted in the conversation I had with the General Counsel's Office this morning that the principal issues that are before the Appeal Board on that appeal are the very same issues that the Ocmnis-sion has indicated are the pivotal questions in its im-mediate effectiveness detemination.

I am fully aware of the fact that the Imediate Effec-tiveness Rule says that unless the Ctanission indicates otherwise, what it says or determines on an inmediate effectivness review is to have no bearing on the Appeal Board's deliberations in connection with an ap-peal. . . .

Witili due respect, I think in this instance, since the Ccnnission has gone to the great length it has in iden-tifying the issues which it sees as pivotal in the de-cision on inmediate effectiveness, it is going to be very difficult for the Appeal Board to give full recog-nition to that admonition.

QiAIINAN PALIADINO: What's the bottcm line there?

MR. ROSENINAL: We bottcm - well, I just want the Ocmnission to bear that in mind when it renders its im-mediate effectiveness decision. I just want it to bear 1,

in mind that at least up to this point what it has said is, the critical issues are the critical issues or the l principal issues that have been presented by the ap-peal.

Now, when the Ocnnission renders its decision on inme-

, diate effectiveness, whatever discussion it may have -

I don't kncw which way it is going and I don't know I

what it is going to say - but I think it ought to bear that consideration in mind. Wat's the only bottcm line.

Transcript of January 8,1985 ccmnission meeting, at 37-39 (Rosenthal).

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of the Ctmnission's inmediate effectiveness decision upon the Appeal -

Board's decision on the merits of Intervenors' appeal meets the requirement that the matters raised in this Petition were raised before the Appeal Board. See 10 CFR {$2.786(b)(2)(ii) and (b)(4)(iii).

III. he Appeal Board's Affirmance of the Miller Board's Rulings is Erroneous and Deprives the State and County of W eir Right to Appellate Review In AIAB-800, the Appeal Board flatly refused to obey a clear Ccan-mission directive contained CLI-85-1, wherein the Ccmnission expressly stated:

h e foregoing is entirely without prejudice to pending appeals before the Atcznic Safety and Licensing Appeal Board. Moreover, the grant of the exenption, and au-

,, thorization of Phases III and IV of low power testing, is entirely without prejudice to ongoing reviews and hearings relating to low or full power authorization.

CLI-85-01 at 6 (enphasis supplied).

We Appeal Board's violation of a clear Camission directive is even nore serious since the Ccrmdssion had expressly ccmsidered whether the Appeal Board was to be influenced by the contents of CLI-85-1. Eus, prior to the Ctmnission's vota adopting CLI-85-1, the General Counsel's Office foc.ussed the Ccmnissioners' attention upon the language quoted above.

Mr. Malsch stated:

I had wanted to indicate one additional thing to call to your attention. We provide specifically here on page 6 that this is without, everything the Ccmnission says here, is without prejudice of pending appeals before the Appeal Board.

'Ihis nutter was argued orally before the Appeal Board yesterday and the cannission does have a choice as to whether certain of its views expressed in its order should or should not be binding on the Appeal Board during appeals. Now, we have taken the view here, and the order specifically provides, that none of this is binding on the Appeal Board. But that's an issue the Ccamlission should be aware of. And we discuss it in the paper before you.

Transcript of February 12, 1985 Ocmnission meeting, at 11.1-12 (Malsch)

(emphasis supplied).3_/ 'Ihe Ocmnission then voted to adopt the language contained in CLI-85-1.

Finally, not only had the Ocmnission expressly cormaered - and decided against - instructing the Appeal Board to take into account any of its imediate effectiveness ccmnents, but the Ccmnission's review which led to the February 12 Order clearly was not the full r' eview of the merits of Intervenors' appeal to which Intervenors are entitled under Sections 2.762 and 2.770. The Ocmnission itself has repeatedly characterized its review as " limited." See, e.g., CLI-85-01 at 3, and the following statements which were made by the NBC in its February 20, 1985 brief to the U.S. Court of Appeals:

3] In response to Mr. Malsch's statement, Comnissioner Bernthal stated:

Now, the Appeal Board has just heard the arguments, I guess yesterday, that deal with the legal merits of this proceeding and they will make a determination on those arguments and that's their job.

t Id. at 16 (Dernthal).

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Like all of its inmediate effectiveness reviews, the Ccmnission's February 12 Order is not a full-blown re-view of the merits of the October 29 licensing deci-sion. 'Ib the contrary, it is a nore limited review, in the nature of a decision whether to grant or deny a stay of a licensing decision. . . . Although deciding not to stay the low-power license granted to LIIro, in accordance with its normal NRC practice and regula-tions, the Ocmnission did so without prejudice to the ongoing administrative appeal, before the Appeal Board, of the Licensing Board's Octooer 29 decision. . . .

[T]he NRC's February 12 effectiveness order . . . was not a full-blown review of the Licensing Board exenp-tion ruling. To the contrary, it was snecifically made without prejudice to the normal agency review processc

'Ihe narrow issue which the Ccmnission resolved in its February 12 Order was, in effect, whether it should stay the issuance of LIILO's low-power license which the Licensing Board authorized in its October 29 deci-sion.

'Ihe Miller Board's October 29 decision . . . is pending before the ccmnission's Atcmic Safety and Licensing Ap-peal Board. If the October 29 decision is erroneous, the Appeal Board will reverse it and order such action as is appropriate to cure the errors. If, on the other' hand, the Appeal Board concludes that there is no error, then petitioners will be able to request a Ocm-missicn merits review of the Miller Board decision.

Respondent Unitext States Nuclear Regulatory 0:mnission's Opposition to Dnergency Motion for Stay at 9, 38, 52 (citations cmitted; nest cmphasis supplied).

'Iherefore, the Appeal Board's decision with respect to the public in-terest, exigent circumstances, and "as safe as" issues plainly flies in the 4

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face of the clear Ccmnission directive, the Camtission's own interpretations of its directive, and the plain language of 10 CFR

$ 2.764(g). Se result was to deprive Intervenors of their right to full appellate review of the w rits of the Miller Board's exemption decision.4_/

4] h e Appeal Board's attempts to distinguish this case fran every other case - in which it is obliged "to respect and obey Comtission directives" (AIAB-800 at 5) - are totally without basis; further, such rationalizations must be rejected outright in view of the explic-it NRC directive that the Appeal Board ignore CLI-85-1.

a. Se Appeal Board asserts that if the Comtission reaches or an-nounces "a conclusion on an essentially factual issue in the course of its immdiate effectiveness review," it sees "no impediment to an Ap-peal Board passing independent judgment on the sam factual issue and, possibly, reaching a different conclusion in its appellate decision."

AIAB-800, at 5-6. Clearly, the portions of CLI-85-1 upon which the Appeal Board relies involved conclusions on many factual issues con-corning whether the exemption was in the public interest, whether exi-

,, gent circumstances existed to justify an exemption, and whether LIICO's proposed low power operation would be as safe as operation with a qualified onsite poer source. h us, by the Appeal Board's own reasoning, there is no impediment to its review of those same factual issues and its rendering an independent appellate decision. W e Can-mission directed it to do exactly that.

b. We Appeal Board asserts that "with regard to a legal issue turning upon the interpretation and application of Constitutional or statutory provisions, there might well be similar warrant for a fresh look by an Appeal Board even if the imnediate effectiveness determina-tion had addressed the issue." Id. at 6. Again, the situation presented in this case is identical to that referenced by the Appeal Board: the public interest, exigent circumstances, and "as safe as" issues presented to the Appeal Board involved, amng other things, so-rious Constitutional violations and violations of Section 189(a) of the Atanic Energy Act. hus, by the Appeal Board's own reasoning, the Ccranission's coments on those issues are no bar to a "frech look" at those issues by the Appeal Board as mandated by the Cannission.

c. We Appeal Board asserts that this case presents "a quite differ-ent situation" because "in large measure the substantial issues presented by the intervenors' appeal turn upon the determination as to (Footnote cont'd next page)

IV. The Petition for Review Must be Granted a

Clearly, the referenced portions of ALAB-800 require Ocnnission review and reversal. First, the Appeal Board's decision to " affirm without further discussion the Licensing Board's ultimate resolution of the inter-venors' public interest and 'as safe as' claims," even though the Appeal Board was "not necessarily in agreement with everything that the Board said or did in connection with the claims," (AIAB-800 at 8-9), clearly deprived Intervenors of the administrative appellate review of the merits of the Miller Board's decision to which they are entitled. Second, the Appeal Board's conclusion that "it would defy all reason for us to do anything other than to accept and apply the Ccmnission's determinations" (id. at 7) must be rejected. It amounts to nothing but an assertion that the Appeal 4

Board is wiser than the Cannission, that the Ctanission's directive and its regulations are unreasonable, and that the Ccmnission cannot have intended its directive to be taken seriously.

(Footnote cont'd frcm previous page) the meaning and scope of the terms of either a Ctanission regula-tion . . . cr a Ocmnission opinion" and "these same issues were not merely considered by the Ccmnission in its inmediate effectiveness re-view, but resolved." Id. at 6-7. Obviously, the same is true with respect to g inmediate effectiveness review of a licensing board initial decision: any such decision would deal with contested issues concerning empliance with Ccanission regulations and/or Ccmnission interpretations of its regulations. In any effectiveness decision, therefore, the Ccmnission would necessarily both " consider" and "re-solve" - to the same preliminary, nonbinding extent it did in CLI-85 questions involving the ccmnission's regulations and opin-ions.

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Ebrthernore, this case presents unique legal, factual and proce-dural issues involving an unprecedented exemption frczn GDC 17, and the pub-lic's interest in permitting a nuclear plant to be contaminated, in the ab-sence of regulatory empliance, when it is likely that full power operation will never be authorized. 'Ihe exemption proceeding, and the portiona of ALAB-800 at issue here, thus involve inportant matters affecting the pub-lic's health and safety, the Ccunmission's procedures, and the public's in-terest.

In order to provide the State and County, and the public they represent, with the due process guaranteed by the Ccmnission's own regula-tions, and to enforce ccznpliance with CLI-85-1 and 10 CFR {2.764(g), the Ccmnission must: (1) reverse the Appeal Board's decision on the public in-terest, exigent circumstances, and "as safe as" issues; and (2) order the Appeal Board to conduct a full appellate review of the Miller Board's deci-sion.

Respectfully subnitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788

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e rtl H. Brown / ~

Herbr Lawrence Coe Ianpher Karla J. IAttsche KIRKPATRICK & IDCKHART 1900 M Street, N.W.

Washington, D.C. 20006 Attorneys for Suffolk County

Fabian G. Palcuttno Special Counsel to the Governor i

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of the State of New York Executive Chamber, Rocm 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cumo, Governor of the State of New York Dated: March 8, 1985 0

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

)

In the Matter of )

) '

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

) Low Power (Shoreham Nuclear Power Station, )

Unit 1) ,

)

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CERTIFICATE OF SERVICE I hereby certify that copies of Suffolk County and State of New York Petition for Review have been served on the following this 8th day of March, 1985 by U.S. mail, first class, except as otherwise noted. -

James L. Kelley, Chairman Edward M. Barrett, Esq.

Atomic Safety and Licensing Boar.d Long Island Lighting Company U.S. Nuclear 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. Nuclear Regulatory Commission H. Lee Dennison Buildi.ng Washington, D.C. 20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Fabian G. Palomino, Esq. #

P.O. Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor Executive Chamber, Room 229 Herzal Plaine, Esq.* State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W., 10th Floor Washington, D.C. 20555 W. Taylor Reveley, III, Esq.fi -

Anthony F. Earley, Jr., Esq.

Edwin J. Reis, Esq.

• Robert M. Rolfe, Esq.

Bernard M. Bordenick, Esq. Hunton & Williams Office of Exec. Legal Director 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C. 20555

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Mr. Martin Suubert James Dougherty, Esq.

c/o Cong. Willi m Carney 3045 Porter Street, N.W.

1113 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 Veter. ins Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.

Docketing and Service Branch New York State Energy Office Offic<; of the' Secretary. Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C. 20555 Albany,1:ew York 12223 Nunzio J. Palladino, Chairman

• Ccr.m. Frederick M. Bernthal*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1114 Room 1156 1717 M' Street, N.W. 1717 H Street, N.W.

Washington, D.C. ,

20555 Washington, D.C.

20555

. Commissioner Lands W. Zech, Jr.* Comm. Thomas M. Roberts

• 70.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1113 Room 1103 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 -

t Commissioner James K. Asselstine* Stephen B. Latham, Esq.

U.S. 1;uclear Regulatory Commission John F. Shea, Esq.

Room 1136 '

Twomey, Latham and Shea .

1717 H Street, N.W.' '

33 West Second Street l Washington, D.C. 20555 Riverhead, New York 11901 -

t f Alan S. Rosenthal, Chairman ,

Mr. Howard A. Wilber .

Atomic Safety and Licensing Atomic Safety and Licensing i Appeal Board. Appeal Board l U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Washington, D.C. 20555 l

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a Mr. Gary J. Edles MHB Technical Associates Atomic Safety and Licensing 1723 Hamilton Avenue Appeal Board Suite K U.S. Nuclear Regulatory Commission San Jose, California 95125 Washington, D.C. 20555

/

Karla J.' Letsche f KIRKPATRICK & LOCKHART 1900 M Street, N.W.

Washington, D.C. 20036 DATE: March 8, 1985 By Hand I

.. By Federal Express

'I0 By Federal Express (Saturday delivery)

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