ML20101M577
| ML20101M577 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/31/1984 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#185-905 OL-4, NUDOCS 8501030158 | |
| Download: ML20101M577 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO 3
'RV-2 AlI:22 Before the Commission,,...,,
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket.No. 50-322-OL-4.
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(Low Power)
(Shoreham Nuclear Power Station, )
Unit 1)
)
LILCO'S PRELIMINARY RESPONSE TO INTERVENORS UNAUTHORIZED DECEMBER 19 MOTION Since the Licensing Board's October 29 Initial Decision was referred to the Commission for an immediate effectiveness review, Suffolk County and the State of New York (the Intervenors) have filed 8 motions or other papers with the Commission, not including their excessively long November 29 comments.2 Their December 19 They include the Request of Suffolk County and New York State 1
to Present Written Briefs and Oral Arguments on the Licensing Board's Low Power Decision (October 31, 1984); Motion to Strike LILCO's Unauthorized Pleading Dated November 8 and Motion for Commission Attention to the Suffolk County and New York State Request to File Written Briefs and Present Oral Arguments (November 9, 1984); Suffolk County and State of New York Motion to i
Exceed Page Limit (November 29, 1984); New York State and Suffolk County Request for Reconsideration of Commission Denial of Oppor-tunity for Oral Arguments (November 29, 1984); New York State and Suffolk County Supplementary Affidavit in Support of romments Filed November 29 and Request for Oral Argument Filed November 29 j
(December 5, 1984); Notice of Suffolk County Legislative Resolu-tion Demanding Oral Arguments before the Commission on Pending Shoreham Low Power Issues (December 13, 1984); 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 (footnote continued) i h
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' " Motion for Commission Declaration That 10 CFR $ 50.47(d).Does Not Apply In This Case If the Miller Board's 'As Safe As' Ruling Is Approved" (December 19 Motion) is the latest in this chain of unauthorized filings.
Because it is unauthorized and grossly abu-cive of the Commission's administrative processes, LILCO objects to its filing and urges the Commission to strike it.
1.
The low power matter is pending before the Commission solely for an immediate effectiveness review for Phases III and IV of the proposed low power testing.
Parties may not supplement the record below as of right on immediate effectiveness review.
Nev-ertheless, as an incident to that review in response to Interve-nors' request, the Commission permitted written comments, limited to 15 pages, from all parties.
Order, November 19, 1984.
In ad-dition to filing 31 pages of comments rather than the 15 autho-rized, the Intervenors have now filed six motions or other papers i
since the November 19 Order.
See note 1 supra.
This frantic stream of unwarranted, sfauthorized and improper pleadinas is rem-iniscent of the Intervenors' similar ploy following issuance of 1
the Commission's May 16 Order, CLI-84-8, when the Intervenors I
(footnote continued) that Shoreham's capacity Will Not be Needed for More than Ten Years (December 14, 1984); Suffolk County and State of New York Motion for Commission Declaration that 10 CFR S 50.47(d) Does Not Apply in this Case if the Miller Board's "As Safe As" Ruling Is Approved (December 19, 1984).
V bombarded the Commission with separate papers on May 21, May 22, May 24, May 30, May 31 and June 1, though there was nothing left pending before the Commission and all matters had been referred to the Licensing Board.2 2.
The unauthorized December 19 Motion is nothing more than an additional brief attacking the Initial Decision.
No such addi-tional briefing is permitted by the regulations and none has been solicited by the Commission.
The Intervenors offer no explanation as to why the argument contained in their unauthorized December 19 Motion comes so late.
The argument is solely a legal one.
The Intervenors have been aware of the factual predicate for LILCO's low power motion and exemption request since the March 20 filing of LILCO's Supplemental Motion for Low Power Operating License.
Yet, the Intervenors totally failed to raise this argument in their November 29 comments and have offered no explanation for
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that failure.
Those papers included Request for Clarification of Commis-sion's Order of May 16, 1984 (May 21, 1984); Request by the State of New York for Clarification of Commission's Order of May 16, 1984 (May 22, 1984); Joint Motion of Suffolk County and the State of New York to Strike LILCO's Three Unauthorized Pleadings Enti-tied "LILCO's Motion for Summary Disposition on Phase I Low Power Testing;" " Motion for Summary Disposition on Phase II Low Power Testing;" and " Motion for Prompt Response to LILCO's Summary Dis-position Motions" (May 24, 1984); Joint Suffolk County and New York State Supplement to Requests for Clarification of Commis-sion's May 16 Order (May 30, 1984); Joint Request of Suffolk Coun-ty and New York State for Prompt Clarification of the Posture of this Proceeding (May 31, 1984); and Joint Motion of Suffolk County and the State of New York for the Commission's Prompt Attention to and Ruling on Pending County and State Motions and for Stay of In-consistent ASLB Orders in the Interim (June 1, 1984).
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3.
The Intervenors similarly offer no explanation as to why this newly contrived argument is so urgent as to warrant a com-plete disregard for the Commission's orderly procedures.
They have made the same argument, in one paragraph instead of ten.
pages, in their recently filed brief before the Appeal Board.
Suffolk County and State of New York Brief in Support of Appeal of October 29, 1984 ASLB Decision on LILCO's Exemption Request, p.
37, December 11, 1984.
Thus, presumably, the issue will be decid-ed in due course.
Significantly, however, the Intervenors have not timely sought a stay from the Appeal Board of the Initial De-cision as provided by 10 CFR $ 2.788.'
Having waived their right to seek a timely stay of the Initial Decision, the Intervenors should not now be allowed to abuse the Commission's processes by filing unauthorized pleadings in an effort to delay and thwart the purpose of the immediate effectiveness review.
4.
The real issue raised by the unauthorized December 19 Motion is not the substantive issue argued by the Intervenors.
Instead, the real issue is whether the Commission will allow par-ties vigorously represented by counsel and fully aware of proper procedures to flout the Commission's orderly processes by repeti-tive, unauthorized filings causing distraction, delay and unwarranted effort and expense to the Commission, Staff and other l
Section 2.764 makes clear that this immediate effectivness l
review is no substitute for seeking a stay.
l
1 parties in responding to such procedural antics.
See Gulf States Utilities Company (River Bend Station Units 1 and 2), ALAB-317, 3 NRC 175, 180 n.7 (1976) ("an ' interested state' is not re-lieved of the obligation of complying with all procedural rules
.").
LILCO urges that the Commission not tolerate such behavior and requests that the Commission dismiss and disregard the unauthorized December 19 motion.
5.
If, however, the Commission intends to consider the argu-ments raised in the December 19 Motion, LILCO requests that the Commission advise the parties of such intent and afford them an opportunity to respond substantively.
If LILCO were to respond, it would demonstrate that the Intervenors' argument has no merit because:
(a)
The basic assumptions underlying 10 CFR $ 50.47 have not been undermined by the Licensing Board's "as safe as" determination.
See December 19 Motion at 4.
First, the fission product inventory during low power operation is not affected by LILCO's proposal; it remains substantially lower than at full power.
Second, there is still a reduction in the required capaci-l ty of syste:as designed to mitigate accidents.
Those systems are l
simply powered by different sources to the extent they are needed 1
at all.
Third, there remains more time available to react to a low power accident.
Indeed, the record establishes that absent a LOCA, AC power is not needed for at least 30 days.
l l
a
-1 (b)- "As safe as" is not an established legal standard; it is the basis for LILCO's case and was proposed by LILCO as a description of'its proof.
The standard for granting the exemption is and has always been whether there is any danger to life or property.
10 CFR $ 50.12(c).
(c)
The Intervenors' semantic quibbling.should not obscure the Board's finding of reasonable assurance that the plant will-operate within regulatory limits.
Section 50.47(d) does not spec-ify any lower limits for low power and none can be presumed.
(d)
The Board's comment about a " lesser margin of safety" (Low Power decision at 24) has been taken misleadingly out of con-text by Intervenors.
It referred only to the difference between the $ 50.46 limits and possible core temperatures under the proposed mode of low power testing and with onsite AC power.
In both cases, the plant would operate well below those limits.
All testimony -- including the Staff's -- was that there was no sub-stantial difference in safety.
(e)
The Board did not apply a " safe enough" rationale.
It i
determined that the proposed testing would be as safe as at a plant with qualified onsite diesels.
It simply refused to be swayed by inconsequential differences.
If necessary, LILCO would show how each of the Intervenors' specific factual examples dis-torts the record in terms of its significance.
That is a consideration properly for the Appeal Board, however.
- O
-7 CONCLUSION LILCO requests that the Commission disregard the unauthorized December 19 motion and notify the parties that, absent changed-circumstances, further unsolicited submissions relative to its im-mediate effectiveness review will be struck.
In the event the.
Commission determines to consider the December 19 motion and de-sires substantive comment, LILCO requests the opportunity to pro-vide such comment expeditiously.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY 1
^'
l By i
W.
Taylor Reveley, III l
Donald P.
Irwin Robert M.
Rolfe Anthony F.
Earley, Jr.
1 f
Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
December 31, 1984 l
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LILCO,-D;ccabar 31, 1984 7
CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station,-Unit 1)
Docket No. 50-322-OL-4 (Low Power)
I hereby certify that copies of LILCO'S PRELIMINARY RESPONSE TO INTERVENORS UNAUTHORIZED DECEMBER 19 MOTION were served.this.
date upon the following by U.S. mail, first-class, postage prepaid or by hand (as indicated by one asterisk) or by Federal Express (as indicated by two asterisks).
Chairman Nunzio J.
Palladino*
Gary J. Edles*
United States Nuclear Atomic Safety and Licensing Regulatory Commission Appeal Board, United. States 1717 H Street Nuclear Regulatory Commission Washington, DC 20555 Fifth Floor (North Tower)
East West Towers I
Commissioner James K. Asselstine*
4350 East-West Highway United States Nuclear Bethesda, Maryland 20814 Regulatory Commission 1717 H Street, N.W.
Howard A. Wilber*
Washington, DC 20555 Atomic Safety and Licensing I
Appeal Board, United States Commissioner Frederick M. Bernthal*
Nuclear Regulatory Commission United States Nuclear Fifth Floor (North Tower)
Regulatory Commission East West Towers 1717 H Street, N.W.
4350 East-West Highway i
i Washington, DC 20555 Bethesda, Maryland 20814 Commissioner Thomas M. Roberts
- Judge Marshall E. Miller,*
United States Nuclear Chairman, Atomic Safety i
Regulatory Commission and Licensing Board 1717 H Street, N.W.
United States Nuclear Washington, DC 20555 Regulatory Commission Washington, DC 20555 Commissioner Lando W.
Zech, Jr
- J United States Nuclear Judge Glenn O.
Bright
- Regulatory Commission Atomic Safety and Licensing i
1717 H Street, N.W.
Board, United States Washington, DC 20555 Nuclear Regulatory Commission i
Washington, DC 20555 i
Alan S. Rosenthal, Chairman
- l Atomic Safety and Licensing Judge Elizabeth B.
Johnson **
i Appeal Board, United States Oak Ridge National Laboratory I
Nuclear Regulatory Commission Building 3500 Fifth Floor (North Tower)
P.O.
Box X East West Towers Oak Ridge, TN 37830 4350 East-West Highway l
l Bethesda, Maryland 20814
(
b t Eleanor L.
Frucci, Esq."
Stephen B.
- Latham, Esq.**
Atomic Safety and Licensing John F.
Shea, Esq.
Board, United States Twomey, Latham & Shea Nuclear Regulatory Commission 33 West Second Street Washington, DC 20555 Riverhead, NY 11901 Edwin J.
Reis, Esq.*
The Honorable Peter Cohalan Bernard M.
Bordenick, Esq.
Suffolk County Executive Office of the Executive County Executive /
Legal Director Legislative Building United States Nuclear Veterans Memorial Highway Regulatory Commission Hauppauge, NY 11788 Washington, DC 20555 Jay Dunkleberger, Esq.
Herbert H.
- Brown, Esq.**
New York State Energy Office Alan R. Dynner, Esq.
Agency Building 2 Lawrence Coe Lanpher, Esq.
Empire State Plaza Kirkpatrick & Lockhart Albany, NY 12223 8th Floor 1900 M Street, N.W.
Mr. Martin Suubert Washington, DC 20036 c/o Congressman William Carney 1113 Longworth House Office Fabian Palomino, Esq.**
Building Special Counsel to the Governor Washington, DC 20515 Executive Chamber, Room 229 State Capitol Docketing and Service Albany, NY 12224 Branch (3)
Office of the Secretary James B.
Dougherty, Esq.**
United States Nuclear 3045 Porter Street Regulatory Commission Washington, DC 20008 Washington, DC 20555 Martin Bradley Ashare, Esq.
Suffolk County Attorney H.
Lee Dennison Building Veterans Memorial Highway Hauppauge, NY 11788 f
k Donald P.
Irwin l
Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 l
DATED:
December 31, 1984 l
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