ML20100R086

Motion for Leave to Reply to Util Request for Commission to Ignore Statement That Plant Capacity Will Not Be Needed for More than 10 Yrs.Commission Must Remain Impartial & Delay Licensing.Certificate of Svc Encl

ML20100R086
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/14/1984
From:	Lanpher L, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	NRC COMMISSION (OCM)
References
CON-#484-640 OL-4, NUDOCS 8412170305
Download: ML20100R086 (7)

Text

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DGtgi y USNRC 12/14/84

UNITED STATES OF? AMERICA! M E N P5sp_

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LNUCLEARIREGULATORY COMMISSION

.Before the? Commiss' ion- rSggg

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InMthe M.atter=of- -)

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1 LONG'ISLANDiLIGHTING-COMPANY' -) Docket No. 50-322-OL-4'

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.(Shoreham Nuclear Power' Station,. ~)

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-NEW YORK' STATE AND'SUFFOLK-COUNTY MOTION FOR LEAVE

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JTO REPLY TO LILCO'S REQUEST'FOR:THE-COMMISSION TO .

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' IGNORE STATE ENERGY OFFICIAL'S' SWORN STATEMENT THAT- ,

.SHOREHAM'S' CAPACITY WILL NOT BE NEEDED FOR~MORE THAN TEN YEARS 1 qe -

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On: November 29,.New York State'and Suffolk: County requested

-the Commission,'. inter.alia, to permit oral arguments as to

.whether'LILCO should be is' sued a Phase III and IV license for 4 Shoreham. sHolding'such arguments would require the Commission:.

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'(1)? to remain' impartial for'the-time being-as:to whether LILCOT should be issued such a license; and (2) to delay a decision on the-: license for a.few days or weeks. Surely,.this're, quest is ,

freasonable.  ;

In support of this request, the State and County filed the affidavit of the Director of the Energy Planning Bureau of the New: York State Energy Office. This affidavit states conclusively 1.that Shoreham's-capacity will not be needed for 13 years. There-fore,~it follows.that'a delay of days or weeks to accommodate

. . oral 1 arguments -- when there is at least a 10 year leeway -- ,

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r; "9-would not in.any.way harm the public interest. Indeed, holding.

E Lsuch-arguments would clearly serve the public interest by

' affording the Commission the opportunity to hear from the very governments whose views the Commission has previously claimed deserve:" great weight." See' Commission's Brief before U.S. Court of Appeals in-the Diablo Canyon case, p. 34.

'LILCO, however,.has asked.the Commission to' ignore the affidavit of New York State's Director of Energy Planning._ See

'LILCO's Objections to Suffolk County and State of New York Supplementary Affidavit, December 12, 1984. There is no legiti-mate basis for LILCO's request. Further, LILCO's pleading con-tains several serious misstatements. Accordingly, for reasons set forth below, Suffolk County and the State of New York seek leave to reply to LILCO's pleading.

First, LILCO's statement that "there is a very real need for

.Shoreham in the short term" (Pleading, p. 3) directly contradicts what LILCO told Governor Cuomo's Shoreham Commission. Indeed, LILCO's own voluminous filings with the Governor's Commission purported to demonstrate -- with extensive analyses and testimony

-- that replacement capacity for Shoreham will not be needed for 10 years. See Report of the New York State Fact Finding Panel on the Shoreham Nuclear Power Facility, p. 33. Thus, relying on LILCO's own evidence and other relevant data, the Shoreham Commission concluded in its final report:

The projections for Long Island's future electrical energy needs on which the Shoreham construction schedule was originally based were obviously over-estimates. The Panel is persuaded that

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s-ample LILCO' generating capacity currently

' exists-to satisfy probable demand for at

'least the next decade,'and probably long-er. ..Such estimates are.of course. subject to the same uncertainties that-cause the

.' original ~ projections to be_so. wrong. But at-this time, it is difficult to see how

.the demand for electricity could be so great-as:toirequire a Shoreham-sized.

plant within a decade or-more.

_Id.J at'.;37.-(emphasis; added) .

Second, LILCO asserts that the "need for power issue" is not .

an appropriate factor for the Commission-to consider at this time.. (Pleading, p. 2). In so asserting, however, LILCO is again asking-the Commission to ignore'the rule of law. Indeed, we remind the Commission th'at the issue here is whether to grant an' exemption from'NRC regulations. This is thus a proceeding governed'by the particular rules applicable to an exemption decision. The NRC's own precedents establish beyond any doubt that~the need for power is relevant to decisions on exemption requests. See United States Department of Energy (Clinch River Breeder--Reactor Plant), CLI-83-1, 17 NRC 1, 4-(1983), Washington Public Power Supply System (WPPSS Nuclear Projects Nos. 3 and 5),

CLI-77-11, 5 NRC 719 (1977).

-Finally, LILCO criticizes the County and State for allegedly failing to proffer the need for power evidence "before the Licensing Board during the nine days of evidentiary hearings."

(Pleading, p. 2). It is shocking that LILCO has made this statement. As LILCO itself well knows, the State of New York did proffer testimony to the Miller Board which established that there is no'need for Shoreham's power for at least 10 years.

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However,-at LILCO's urging, the Miller Board refused to admit

-this New' York testimony. See Tr. 2902-03.

Given the extraordinary nature and. misdirection of LILCO's pleading of' December 12 and the LILCO affidavit attached there-with, the State and County request leave to file a reply. The grant of suchfleave would contribute to a factually accurate record on the. subject matter. Indeed, the Commission should not deny itself the common knowledge of everyone else that Shoreham's 1 capacity is not now needed, and that there is no acceptable reason for.the Commission to rush to judgment or; otherwise pre-judice the interests of the State and County in this proceeding.

The record is clear that LILCO is now simply asking the Com- ,

mission for a favor at public expense. This is no basis for NRC action. Indeed, it is the public alone that must benefit from NRC action.

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

' Herbert H. Brown 7~

Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County

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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-'

December. 14,.1984 -

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UNITED STATES OF' AMERICA

' NUCLEAR' REGULATORY COMMISSION Before the Commission

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EIn 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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CERTIFICATE OF SERVICE-

.I hereby certify that copies of NEW YORK STATE AND SUFFOLK COUNTY MOTION FOR LEAVE TO REPLY TO LILCO'S REQUEST FOR THE COMMISSION TO IGNORE STATE ENERGY OFFICIAL'S SWORN STATEMENT THAT SHOREHAM'S CAPACITY WILL NOT BE NEEDED FOR MORE THAN TEN YEARS, dated December 14, 1984, have been served on.the following this -

14th day of December 1984 by U.S. mail, first class, except as otherwist indicated.

Judge Marshall E. Miller, Chairman Edward M. Barrett, Esq.

Atomic Safety and Licensing Board' Long Island Lighting Company

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U.S.-Nuclear Regulatory Commission 250 Old Country Road Washington, D.C. 20555 Mineola, New York 11501 Judge Glenn O. Br'ight Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S. Nuclear Regulatory Commission H. Lee Dennison Building-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 Eleanor L.* Frucci, Esq. State Capitol Atomic Safety and Licensing Board Albany, New York 12224 lU.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.#

Anthony F. Earley, Jr., Esq.

-Edwin J. Reis, Esq.

• Robert M. Rolfe, Esq.

Bernard M. Bordenick, Esq. Hunton & Williams E Office of Exec. Legal Oirector 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212

. Washington, D.C. 20555 i

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t lir. Martin Suubert James Dougherty, Esq.

c/o Cong; William 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 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 l?223 Nunzio J..Palladino, Chairman

• Comm. Frederick M. Bernthal*

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

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

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

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

.U.S. Nuclear Regulatory Commicsion 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 Commissioner James K. Asselstine* Stephen B. Latham,.Esq.

U.S. Nuclear Regulatory Commission John F. Shea, Esq.

Room 1136 Twomey, Latham and Shea 1717 H Street, N.W. 33 West Second Street Washington, D.C. 20555 Riverhead, New York 11901 Herzal Plaine, Esq.

U.S. Nuclear Regulatory Commission 10th Floor 1717 H Street, N.W. .'/

Washington, D.C. 20555

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Lawrence Coe Lanpher #'

KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: December 14, 1984

• By Hand

1. By Federal Express