ML20106E579
| ML20106E579 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/12/1985 |
| From: | Lanpher L, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20106E555 | List: |
| References | |
| OL-4, NUDOCS 8502130355 | |
| Download: ML20106E579 (13) | |
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UNITED STATES OF AMERICA NUCLEAR RIEULATORY COM4ISSION SR' RED Before the Ccmnis tion u
OB 12 p3;37 In the Matter of
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C
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IDNG ISIAND LIGfrItK3 COMPANY
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Docket No. 50-322-OL-4
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(Iow Power)
(Shoreham Nuclear Power Station,
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Unit 1)
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SUFFOLK 000NIY AND STATE OF NEW YORK MC7 PION EUR STAY OF PHASE III AND IV LICENSE On February 12, 1985, the Ccmnission authorized a Phase III/IV license for Shoreham. Suffolk County and the State of New York move the Ccmnission to stay issuance of the license pending judicial review.
I.
PROBABILITY OF SUCCESS ON 'IHE MERITS We_ recognize that the Ccrmission and Chairman Palladino have naled against the County and State on the issues discussed below. However, prior to seeking a Court of Appeals stay, we ask the NRC to rectify its errors, or to stay license issuance pending judicial review.
A.
'Ihe NRC Has Violated the National Environmental Policy Act An agency nust supplement an FEIS when events occur which cast doubt on the continuedvalidityofaprioranalysis.l./ In the Shoreham case, a dramatic 1] - A substantial reduction in the benefits assumed to result from a major fed-eral. action is a changed circumt.tance which requires an FEIS supplement..
See Conservation Law Foundation v. Watt, 560 F. Supp. 561, 571 (D. Mass.),
aff'd,.716 F.2d 946 (1st Cir. 1983).
8502130355 850212 PDR COMMS P5tCC CORRESPONDENCE PDR
e change of circtanstances has occurred since the FEIS was prepared: Suffolk County and the State of New York have decided not to adopt or inplement an offsite emergency plan; and the NRC C&missioners and FEMA have acknowledged that this circumstance means it is foreseeable that LIIID may be unable to sat-isfy requirements for operation beyond 5 percent power. Under these circum stances, while the plant will be operated and environmental inpacts will be incurred, there never will be any offsetting benefits because electricity will never be produced. hus, the changed circumstances pertaining to offsite emer-gency planning result in ccrplete elimination of the benefits assumed to result from Shoreham's operation. his change must be analyzed in the NEPA process.
W e undisputed facts are as follows:
1.
Shoreham's 1977 FEIS does not analyze low power cperation. Rath-er, the FEIS analyzes only the impacts of full power operation and weighs those impacts against the assumed benefit of electricity generation. Iow pcwer operation was not analyzed; low power operation was viewed only as an intennedi-ate, implementing step toward full power operation, not as an alternative to full power operation.
2.
Recent events demonstrate that it now is foreseeable that' low power operation will be followed by abandorynent.of the plant.
(a) -In February 1983, Suffolk County decided it would not adopt or -inplement any emergency plan 'for a Shoreham emergency. ' W e State of New York has supported that decision and has likewise-declined to adopt or implerient any such plan, i
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- g..
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(b) The NRC has issued no decision on whether LIIID's proposed coupensatory plan is adequate. However, the Ccrmissioners have stated that where both State and local governments decline to participate in offsite ener-gency planning, it will be extremely difficult for a utility to qualify for a license above 5 percent power. Indeed, two Ccrrtissioners have stated that it will be impossible for a utility to satisfy the NRC's regulations in those cir-cumstances.2_/
(c) FEMA has stated that a utility plan which lacks both State and local goverrrient involvement cannot satisfy the criteria for adequacy.3/
The foregoing facts are not in dispute: several Ccmnissioners and FEMA have expressed the view that LIIDO cannot satisfy 10 CFR $ 50.47. Wese state-ments have never been repudiated. Were is thus no basis for the unsupported assertion by three Ccstriissioners that " uncertainty about the ultimate disposi-tion of contested emergency planning issues is too soeculative to be cognizable as a charged circumstance for the purpose of finding that a supplementary _evalu-ation is required by NEPA." CLI-84-9, 19 NRC at 1327 (e phasis supplied). It
- is just as " speculative" for the NRC to premise its NEPA analysis on the assump-tion that Shoreham will receive a full power license. hus, -in the ciretestanc-es of this case, the likelihood of licensa denial represents a real possibility thattriggers.theNEPAprocess.4/
2f See ASEB Memorandum' Serving Excerpts frcn Ccmnission Testinony Before Con -
gress, April 26,'1983; Nuclear Emergency Planning: Hearing Before the
, Subcrrn. on Nuclear Regulation of the Senate Ccrn. on Envirornent and Pub-
?'
lic Works, 98th Cong., 1st Sess. 7-12 (April 15, 1983); CLI-84-9, 19 NRC at 1328-29 (dissenting views of extnissioners Gilinsky and Asselstine);
CLI-83-13,17 NRC at 744_ (separate ' views of Carmissioner Gilinsky).-
3]
Hearing, supra note 3, at'21-23.
4j Conservation Law Foundation v. Watt, supra; accord, Essex County
. Preservation Ass'n v. Campbell, 536 F.2d 956, %0-61 (1st Cir.1976); see U
(Footnote cont'd next page) i
- St -
i B.
Chairman Palladino Erred in Failing to Disqualify Himself Chairman Palladino erred in refusing to recuse himself frcyn participating in Ccamission matters related to Shoreham. The evidence establishes-that the Chalanan engaged in improper activities in connection with LIIID's notion for a low power license.
In particular, despite the fact that the Chairman would be called upon to sit in judgment of LII4D's low power mo-tion, the Cha!.anan intruded into the licensing process at the Licensing Board level in a manner that strongly suggested to nonparty observers, including NRC Ccmnissioners, that the Chairman had prejudged LIIID's entitlement to a license (cr at least created that appearance), and was determined to run interference for LIIID irrespective of the impact on the fairness of the licensing process.
The Chairman thus violated the Cinderella standard and nust be disqualified.
See Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C.. Cir.
1970). See also PA'KD v. FLRA, 685 F.2d 547, 592 (D.C. Cir.1982) (Robinson, C.J. concurring).
The pertinent facts are not in dispute. On March 16, 1984, Chairman Palladino personally intervened in the licensing process to work out a way (other than through accepted appeals procedures) for getting around the Brenner Board's February 22, 1994 decision to litigate diesels before considering issu-ace of a low power license. To this end, he held an ex parte meeting with (Footnote cont'd frcan previous page)
Chelsea Neighborhood Ass'ns. v. U.S. Postal Serv., 516 F.2d 378, 388-89 (2d
-Cir. 1975).
'I i
4 t L
s' menbers of the NRC Staff who were substantively involved (as an independent party) in the licensing process and the ongoing license litigation.
Chairinan Palladino has characterized the March 16 meeting as dealing with nothing but benign scheduling matters. He has sought to create the impres-sien that matters of substance were in no way discussed, and that no matter of substance was affected. But this simply is not so.
Movants now have copies of handwritten notes taken by Chairman Palladino and by Judge Cotter at the meet-ing. Read together, these notes confirm that matters of substance, unquestionably adverse to the interests of the County and State, were discussed at the meeting.
The Palladino notes first raise the questions:
"What level of risk is acceptable for lw power?"; and "Is there a need for emergency diesel generators at low power in this plant?" Not only are these matters substantive, they are controlling issues in deciding whether LII4D is entitled to a low power license.
The Palladino notes next describe an extremely abbreviated schedule for scne kind of. low power hearing. The notes conclude:
"Also look at reversing Bd.
decision." This obviously refers to reversing the Brenner Board decision of February 22.
It is important to note that LIIID itself had not asked that the Brenner Board decision be reversed.
It had not appealed that decision and had taken no other action to contest the Brenner Board's decision or the schedule projected by that Board for litigation of the diesci issuea. While there may have been private indications made by LIILD to the Staff that scme kind of new
- LIIID proposal for low pwer operation would be forthecrting, none had been -
presented to the Board or to the Ccrnission by March 16.
It is apparent that Chairman Palladino decided of his own volition, and not in response to any LIlCO motion nude formally on the record, to run with the ball for the Ccmpany.
It is a foregone conclusion in both the Palladino and Cotter notes that the Brenner Board will be reversed. The notes thus speak not of an appeal frcs the Brenner Board's decision (which arguably would have been neutral), but of a reversal of that decision.
If there were no element of prejudgment in these discussions, it is difficult to understand why the words " reversing Bd.
decision" and " reverse Board order" were used. These ccrments also emphasize the substantive nature of the discussion.
In short, Chairman Palladino iluproperly intruded in the licensing pro-cess. Ccmmissioner Asselstine, certainly a " disinterested observer" under the Cinderella standard, has stated that a reasonable person would believe that the Chainnan had beccme an advocate for LIlCO.5] By nevertheless participating in the Shoreham case, the Chairman has violated the State's and County's right to due process of law. See Cinderella, supra, 425 F.2d at 591.
II.
'INE CDUN1Y AND STATE WILL SUFFER IRREPARABLE INJURY IF THE STAY IS DENIED The irreparable injury standard is satisfied. First, a denial of due pro-cess (such as that resulting frcm the Chairman's actions) constitutes irrepara-ble harm per se.'
No further showing of " harm" is required to support the grant 5]
Licensing Process at Shoreham Nuclear Power Plant: Oversight Hearing Be-fore the Subcam. on Energy and The Environment of the H. Cmm. on Interior and Insular Affairs, 98th Cong., 2d Sess. 15-16 (19W ).
Ccrmissioner
.Gilinsky similarly questioned the Chairman's actions. See CLI-84-8, 19 NRC at 1159 (separate views of Ccrrtissioner Gilinsky).,
,,--v.
o of inmediate injunctive relief. Cucmo v. NRC, Civ. No. 84-1264 (D.D.C. April 25,1984) (slip op, at 7).6/
Second, there is a strong presumption that an injunction should issue when NEPA has been violated. See Realty Inccme Trust v. Eckerd, 564 F.2d 447, 456 (D.C. Cir. 1977). The need for injunctive relief is particularly cmpelling in this case since the NRC has been on notice since June 1983 of the need for addi-tional NEPA analyses. "Ihe repeated NRC refusal to take the "hard look" mandated by NEPA eliminates any doubt regarding the balance of equities in this case.
Third, if the stay is not granted, the County / State appeal will be rooted-by ccreencement, and likely empletion, of Phase III/IV testing prior to a deci-sion on the merits of the appeal. LIIDO plans to begin Phase III with a day or two. LIIfD's schedule provides for 6.9 days to cmplete Phase III, and 16.7 daystoccmpletePhaseIV.7./ Contrary to the NRC's speculation about some pur-ported public interest in finding problems early in the testing process, LIIID stated yesterday at a Staff briefing that even allcwing for problems and testing delays, its entire testing program would take no rrore than 42 days. Thus, Phases III and IV could be ccepleted by early March 1985. Judicial review of these issues cannot be cmpleted by March 1985. Therefore, any Ludicial deci-sion reversing the NRC can have no effect unless a stay is granted. 'Ihe poten-tial rooting of an appeal constitutes irreparable harm justifying a stay.8/
6]
Accord, United Church v. Medical Center 689 F.2d 693 (7th Cir.1982); Imwis
- v. Kugler, 446 F.2d 1343 (3d Cir.1971); Henry v. Greenville Airport Cart.,
284 F.2d 631 (4th Cir. 1960); O' Conner v. Mowbray, 504 F. Supp. 139 (D.
Nev. 1980). See also Elrod v. Burns, 427 U.S. 347, 373 (1976).
7]
SC LP Exhibit 2, and Tr. 767-69, 776, 780 (Gunther).
8]
Scripps-Howard, Inc. v. ECC, 316 U.S. 4 (1942); Zenith Radio Corp. v.
United States, 710 F.2d 806 (Fed. Cir.1983); Public Utilities Can. v.
(Footnote cont'd next page) 1 See, e.g., Iong Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
AIAB Matorandtzn and Order, NRC (May 24,1984) (slip op. at 7-8) (FDR would be irreparably harmed if appeal mooted by denial of stay). Were certain-ly is no public interest in causing such nootness when even if one assumes prob-lems may occur, the utility itself predicts no nere than 42 days to orplete testing.
III. ' LYE GRANT OF A STAY WILL NCFP HARM LIIID The County and State seek a stay to permit the Court of Appeals to address the merits of the County / State appeal. We intend to ask the Court of Appeals to expedite its decision. Based upon events related to the recent Court of Appeals Diablo Canyon decision, an expedited schedule in this case may result in a judi-cial decision on the merits by July or August, 1985.9_/ With the NRC's support in seeking expedition, there is every reason to believe that rapid judicial re-view can be achieved.
A stay could harm LIII:0 only if it impacted the tining of LII4D's full power ascension (assuming, arguendo,- that a full power license eventually were issued).- Such impact is not possible here: the esrliest that a full power li-cense could be issued is January 1986.IS/ Thus,- the grant of a stay would (Footnote cant'd from previous.page) -
Capital Transit Co., 214 F.2d 242 (D.C. Cir.1954); Township of Iower Alloways Creek v. NRC, 481 F. Supp. 443 (D.N.J. 1979).
9/
In Diablo, the NRC authorized a full power license on August 10, 1984 and a-final Court of Appeals decision was issued December 31, 1984.--
ly We followirq events / decisions nust occur and all nust be resolved in LIIID's. favor before a full power. license could be issued: a decision on diesel issues; a decision on emergency planning issues litigated to_ dater.a
-(Footnote cont'd next page) s 4
result in no delay of the plant's ultimate operation.
IV.. 'INE PUBLIC INTEREST FAWRS ISSUANCE OF A STAY The public interest does not favor a rush to contaminate Shoreham anci noot parties' appeal rights in the face of serious legal issues. We NRC's NEPA de-cision was on a 3-2 vote and the Chairman's refusal to recuse himself was made in the face of strong contrary views. 'Ihese are clearly serious issues which merit judicial review. Such review nust be meaningful, and without a stay it would be meaningless. Since there is no need to conduct Phase III/IV testing at this time given that emergency planning issues cannot be resolved for many months, there is no countervailing interest to outweigh that of the public.l1/
Second, both Suffolk County and New York have urged that the public inter-est requires, at a mininum, maintenance of the status quo. In considering where the public interest lies, the NRC nust give great weight to the views of the State and County.
'Ihus, in its Diablo brief before the U.S. Court of Appeals, the Ccurtission stated:
(Footnote cont'd fran previous page) decision on recently reopened emergency planning relocation center issues; a decision on the State court case challenging LIIID's authority to inple-ment LIIED's emergency plan; an energency planning exercise cust be held (the County and State oppose the conduct of an exercise, neither the NRC nor FEMA has agreed to schedule one, it normally takes 120 days for FDiA to prepare for an exercise once scheduled, and it normally takes seversi months to prepare and subnit findings to the NRC); a hearing regarding the adequacy /outcme of the exercise, assuming an exercise is held; a decision on the exercise litigation; and a 30-day irnwiiate effectiveness reviw.
11/ That the public interest favors a stay is further nanifested by the fact 1
that electric output fran Shoreham is not needed for at.least 10 years.
Suffolk County Ex. LP-20, at 37.-
[T]he Supreme Court has noted that the debate over nuclear power is one in which the States have a vital stake.
In this case the Governor of California, as representative of the people and the public interest, has indicated in hear-ings before the NRC Appeal Board that he does not oppose this action. 'the views of the chief elected representative, of the people of California should be accorcled great weight in fixing where the public interest lies..L./
In the Shoreham case, the chief elected representative of the people of New York and the elected government of the people of Suffolk County oppose Phase III/IV testing because such operation would be contrary to the public interest. The Ccrrtission'nust-accord the views of the public's representatives " great weight" here just as the Ccmnission did in pleading before the' Court of Appeals. Cer-tainly, the application of 'J1e " great weight" rule requires, at a minirun, the maintenance of the status quo for the period necessary to allow the merits of the State / County appeal to be decided.
Respectfully subnitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 p/ Respondent U.S. Nuclear Regulatory Ccmnission's Opposition to EmenJency Ab-tion for Stay l November 10, 1983, filed in San Luis Obispo Mothers for Peace v. NRC (Civ. Action Nos. 81-2035, 83-1073, 01-2034) (D.C. Cir.) at 34 (enphasis supplied, citations craitted)..
A Y
ferbert H. Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & IOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County F.L L L J)tX Fabian G. Falcruno Special Counsel to the Governor of the State of New York Executive Chamber, Rocri 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cucrir),
Governor of the State of New York February 12, 1995 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-4
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Low Power (Shoreham Nuclear Power Station,
)
Unit 1)
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)
CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY AND ST/.TE OF NEW YORK MOTION FOR STAY OF PHASE III AND IV. LICENSE, dated February 12, 1985, have been-served on the following this 12th day of February 1985 by U.S. mail,.first class, except as otherwise indicated.
Judge Marshall E. Miller, Chairman Edward M.
Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old Country Read 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 Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York. 11788 l 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 1 Washington, D.C.
20555 W. Taylor.Reveley, III, Esq.#
Anthony F. Earley,~Jr., Esq.
Edwin J. Reis, Esq.
Robert M. Rolfe,-Esq.
l Bernard M.
Bordenick, Esq.
Hunton & Williams
-. Office of Exec. Legal Director 707 East Main Street LU.S. Nuclear Regulatory. Commission-Richmond, Virginia
_23212 Washington,.D.C.
20555
a
. t Mr. 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 12223 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, N.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 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 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 Alan S. Rosenthal, Chairman Robert M. Rolfe, Esq.*
Mr. Howard A. Wilber c/o Richard Goldman Mr. Gary J.
Edles Hunton & Williams Atomic Safety and Licensing 2000 Pennsylvania Ave.,
N.W.
Appeal Board Washington, D.C.-
20036 4350 East-West Highway North-Tower, 4th Floor Bethesda,. Maryland 20814 IKwrence Coe Lanphef KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 By Hand Washington, D.C.
20036
- .By Federal Express DATE:
February 12, 1985 m