ML20106F924

Motion Opposing Suffolk County & State of Ny 850212 Motion for Stay of Phases III & IV of License.Intervenors Fail to Pursue Remedies in Timely Manner.Certificate of Svc Encl

ML20106F924
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/13/1985
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#185-555 OL-4, NUDOCS 8502140151
Download: ML20106F924 (6)

Text

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. LILCO, February 13, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r.

' s: -

Before the Commission *B3' fig 73 P3:17 L g y.-

In the Matter of ) DCl[h 2f C6 7

) Wj-[$ 5 !

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

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit'1)

)

LILCO'S OPPOSITION TO SUFFOLK COUNTY

. AND'NEW YORK STATE MOTION FOR STAY OF PHASE III AND IV LICENSE Yesterday following the Commission's decision on immediate.

effectiveness of Phases III and IV of LILCO's low power. license application, Suffolk County and New York State filed a motion for a stay of the Commission's decision based on alleged violations of

'the National Environmental. Policy.Act and on Chairman Palladino's refusal to recuse himself - in this matter. The Commission should summarily deny.this' motion.

Suffolk County and New York State argue that the Commission's authorization of a Phase III/IV license must be stayed because'the

. Commission.has assertedly violated the National Environmental LPolicy Act (NEPA) by not preparing a supplemental environmental impact statement (EIS) dealing with low power. operation. Inter-venors assertion is premised on legal arguments that have already-L-

3 303

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been considered and rejected by the Commission over 8 months ago

-in:CLI-84-9. Lona Island Lichtina Co. (Shoreham Nuclear Power B Station, Unit 1), CLI-84-9, 19 NRC 1323 (1984). The Commission's

. decision _not to supplement the Shoreham EIS was a final agency Lorder that Intervenors could have appealed. See Aberdeen &

Rockfish R. Co. v. Students Challencino Reculatory Acency Procedures (SCRAP), 422 U.S. 289, 319 (1975);1/ cf. People Acainst Nuclear Energy v. NRC, 678 F.2d 222 (D.C.Cir. 1982),

rev'd, 460 U.S. 766 (1983) (judicial review of Commission decision not-to admit contentions on alleged environmental effects during

.TMI-1 restart proceeding). They did not do so. Nor did they take -

any_ steps.to seek timely reconsideration from the Commission

'itself. None of the operative facts on this issue have changed since the Commission's decision in CLI-84-9. Intervenors' request Lfor a stay should be summarily denied.

1/ In SCRAP, the Supreme Court clearly' stated:

NEPA does create a discrete procedural oblig'a-tion on Government-agencies.to give. written' consideration of environmental ~ issues.in con-nection with certain major federal actions and a right of action-in adversely affected par-ties to enforce that obligation. When agency-Jor. departmental consideration ~of_ environmental

-factors in connection with-that1" federal ac-tion" is-complete, notions of finality and ex-haustion do not stand-in the way of judicial-review of the adequacy of'such consideration,.

even though other aspects.of thel (proceeding) are.not; ripe for review.

422'U.S. at 319.

v G  :

Intervenors' argument with respect to Chairman Palladino's refusal to recuse himself is similiarly untimely. The Chairman issued his decision on this issue on September 24, 1984, nearly five months ago. Intervenors did not seek any reconsideration of that decision at the time, nor did they do so at any point in the ensuing half year prior to the Commission's reaching its final decision on this matter. Parties cannot sit on disqualification claims until the posture of a case makes it tactically advanta-geous, but.must do so promptly. As the D.C. Circuit stated in Marcus v. Director, Office of Workers Compensation Programs,;

The general rule governing disqualification, normally applicable to the federal judiciary and administrative agencies alike, requires that such a claim be raised as soon as practi-cable after a party has reasonable cause to believe that grounds for disqualification exists. It will not do for a claimant to sur-press his misgivings while waiting anxiously to see whether-the decision goes in his favor. A contrary rule would only countenance and en-courage unacceptable inefficiency in the admin-istrative process. The APA-mandated procedures afford every party ample opportunity to enforce and preserve its due process rights. Under the present circumstancas, however, petitioner must be deemed to have waived his claim.

548 F.2d'1044, 1051 (D.C. Cir._1976) (citations omitted). . Accord,

'Lono Island Lightino Company (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 NRC 21, 32 note'33. ' Petitioners knew of Chairman Palladino's refusal to' disqualify himself-nearly five months ~ago.

. Had they wished to protect their claim withoutstotally disrupting

{

.the Commission's process,fthey should have' acted promptly on that m- ,. -

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2 knowledge rather than waiting until after they had lost the low power decision and their request lost any practical v$1ue. Their failure to timely pursue their remedies requires that their re-quest for a stay be summarily denied.

CONCLUSION For the foregoing reasons, the joint motion of Suffolk County and New York State for a stay of the Phase III and IV license should be summarily denied.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY M'

D'oha~1d P. Irwin g Robert M. Rolfe Hunton & Williams P.O. Box 1535

- Richmond, Virginia 23212 DATED: February 13, 1985 P

9

a J LILCO, February 13, 1985 CERTIFICATE OF SERVICE 7

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 OPPOSITION.TO

- SUFFOLKL. COUNTY AND NEW YORK STATE MOTION FOR STAY OF PHASE III LAND IV LICENSE were served this date upon the following by U.S.  ;

mail, first-class, postage prepaid or by hand or telecopier (as indicated by.one asterisk) or by Federal Express 4as indicated by two asterisks).-

Chairman'Nunzio J. Palladino* Gary J. Edles**

United States Nuclear Atomic Safety and Licensing

' Regulatory' Commission Appeal Board, United States 11717 H; Street Nuclear Regulatory. Commission

- -Washington, DC 20555 Fifth Floor (North Tower)

' East West Towers

. Commissioner James K. Asselstine* 43501 East-West Highway

. United States Nuclea'r- Bethesda, Maryland 20814

-RegulatoryiCommission 11717;H Street, N.W. Howard_A. Wilber**

Washington,:DC 20555 Atomic Safety and Licensing; Appeal Board, United States

, .CommissionerLFrederick 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 ,,

Washington,:DC 20555 Bethesda, Maryland .20814"Y T Judge Marshall: E. Millery**"

^

-C'ommissioner Thomas M.; Roberts *

?L ' KUnited States Nuclear ~

Chairman,-Atomic SafetyI'

Regulatory. Commission and Licensing Board-1

.1717.H Street, N . W. - United States Nuclear >

,~.

Washington, DC,:20555' Regulatory Commission Fourth' Floor ~

m

CommissionerELando W.;Zech, Jr.* East-West. Towers (WestiTower)~

United States Nuclear; 4350' East-West Highway Regulatory Commission =

Bethesda, Maryland :20814J cl717'H Street, N.W.'

Washington,JDC1: 20555

• Judge Glennf0. Bright **

Atomic.Safetyfand Licensing

. Alan S. Rosenthal,- Chairman *R ' Board, United-States-

-Nuclear-Regul'a tory.Commissioni

! Atomic Safety lan'dJLicensing Appeal 1Bo'ard,--United States- >

bt Fourth' Floor-

[' Nuclear 1 Regulatory Commission: LEast-West; Towers:(West. Tower)

.FifthiFloorn(North Tower)-

3(4350. East-West Highwayt

. East?WestiTowers e'Bethesdg, Maryland 20814-

- L4 3 50 . East-West 'Hi'ghway-

~

.g 4 fBethesda, Maryland 20814 a  :

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t T J *r J2 " i < - 7g'

4 Judge Elizabeth B. Johnson ** Martin Bradley Ashare, Esq.  ;

Oak Ridge National Laboratory Suffolk County Attorney Building 3500 H. Lee Dennison Building P.O. Box X Veterans Memorial Highway i . Oak-Ridge, TN 37830 Hauppauge, NY 11788

. Edwin J. Reis, Esq.* Stephen B. Lathar. Esq.**

Bernard M. Bordenick, Esq. John F. Shea, Esq.

Office of the Executive Twomey, Latham & Shea Legal Director 33 West Second Street United States Nuclear Riverhead, NY 11901 Regulatory Commission

- Maryland National Bank Building The Honorable Peter Cohalan 7735 Old Georgetown Road Suffolk County Executive Bethesda, MD 20814 County _ Executive /

Legislative Building Herbert H. Brown, Esq.* Veterans Memorial Highway

- Alan R. Dynner, Esq. Hauppauge,'NY 11788 Lawrence Coe Lanpher, Esq.

Kirkpatrick & Lockhart Jay Dunkleberger, Esq.

8th Floor- New York State Energy Office 1900 M Street, N.W. Agency Building 2 Washington, DC 20036 Empire State Plaza Albany, NY 12223 Fabian Palomino, Esq.**

Special Counsel to the Governor Mr. Martin Suubert Executive Chamber, Room 229 c/o Congressman William Carney m

State Capitol 1113 Longworth House Office L] Albany, NY 12224 Building Washington, DC 20515 James B. Dougherty,'Esq.**

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3045 Porter Street Docketing and Service Washington, DC 20006 ' Branch (3)

Office of the Secretary United States 1 Nuclear Regulatory Commission-Washington, DC 20555

% a ff fh Donald F. Irwin-Hunton &-Williams-

. Post ~ Office Box 1535 e: Richmond,_ Virginia 23212

. . DATED: February 13, 1985

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