ML20112B563

Response Opposing Suffolk County & State of Ny Petition for Review of Portions of ALAB-800.Review Would Serve No Purpose Since Commission Will Not Alter Statements of Law in CLI-85-1.Certificate of Svc Encl

ML20112B563
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/18/1985
From:	Irwin D LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#185-120 ALAB-800, CLI-85-01, CLI-85-02, CLI-85-1, CLI-85-2, OL-4, NUDOCS 8503190239
Download: ML20112B563 (12)

Text

& .

=

1 HLMETE0 t s'4PC LILCO, March 18,.1985 15 MR 18 P4:33 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION URC' . : ![,RE UJ -

00CKfhN3 & SEdviti.

BRANCH Before the Commission In the Matter of )

) w.,_. . . . . .

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

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK PETITION FOR REVIEW Pursuant to 10 CFR S 2.786(b)(3), LILCO files this response opposing the Suffolk County and State of New York Petition for Re-view (Intervenors' Petition) of certain portions of ALAB-800.1/

Intervenors' Petition does not contend that the result reached by the Appeal Board was erroneous. Instead, Intervenors simply argue that in conducting its review of the Initial Deci-sion, the Appeal Board should have paid no heed to the Commis-sion's pronouncements in CLI-85-1 1/ concerning the meaning of its regulations and the meaning of CLI-84-8.2/ Thus, Intervenors al-lege that they have been denied an opportunity for review because the Appeal Board should have been allowed to conjure its own in-terpretations of CLI-84-8 and 10 CFR S 50.12(a), which presumably 1/ Lona Island Lichtina Company (Shoreham Nuclear Power Station, Unit 1), ALAB-800, 21 NRC (Feb. 21, 1985).

2/ Lono Island Lichtina Company (Shoreham Nuclear Power Sta-tion), CLI-85-1, 21 NRC (Feb. 12, 1985).

1/ Lona Island Lichtina Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984).

hy  %. 3 0o 1 I 0 soo 2 groag M $ 2 2

5 would differ from those of the commission. Such a result would be illogical and nonsensical. Intervenors were not denied any oppor-

-tunity for review. The Appeal Board conducted a full review of the record below. In reaching its decision, the Appeal Board merely recognized various of Intervenors' positions on appeal were contingent upon interpretations of CLI-84-8 and S 50.12(a) which the Commission had dispositively rejected. Further review at this juncture would serve absolutely no purpose since there is no rea-son to be believe that the Commission would alter its statements of law in CLI-85-1.

Intervenors Mischaracterize ALAB-800 and the Proceedings Below Contrary to Intervenors' argument, the Appeal Board did not abdicate its responsibility for review. From the Licensing Board's Initial Decision, the appeal process followed its normal course. Briefs were filed by the parties and oral argument was held on February 11, 1985. The Appeal Board's extensive ques-tioning at oral argument clearly indicated that it had fully con-sidered the matters briefed and was familiar with the issues pres-ented on appeal.

Intervenors nevertheless contend that their right to review was foreclosed by the Appeal Board's deference to the legal pro-nouncements in CLI-85-1. Intervenors are wrong: the Appeal Board's application of the law as interpreted by the Commission did not deprive Intervenors of any right to review. The Appeal Board did not simply say the Commission had decided this matter.

i Instead, it ascertained the issues, determined which issues were important,l/ and further ascertained that the cognizable issues essentially involved questions of law which the Commission had de-termined. ALAB-800 at 2-9.

In sum, there was no shortcut in the review process and no review opportunity denied to Intervenors. Had the legal pro-nouncements of CLI-85-1 not been dispositive, the Appeal Board's review would have so recognized.

The Appeal Board Correctly Affirmed the Pertinent Portions of the Initial Decision The Appeal Board carefully examined the issues presented on appeal by Intervenors and determined that the safety and public

~

interest / exigent circumstances issues reduced to legal questions dependent upon the interpretation of CLI-84-8 and S 50.12(a).

ALAB-800 at 2-3. For example, before the Appeal Board Intervenors challenged the Licensing Board's interpretation of the so-called 1/ The Appeal Board categorized the issues it believed important into three areas -- the "as safe as" and "public interest / exigent circumstances" criteria of CLI-84-8 and physical security -- and as to any others said:

Insofar as concerns those appellate claims of the intervenors that do not come within one of the above identified areas, none appears to re-quire specific treatment in this opinion. More particularly, each such claim is either mani-festly without merit or grounded upon licensing board error not having a crucial bearing u whether the grant of the Section 50.12(a) pon exemp-tion should be set aside.

ALAB-800 at 4 n.6. It is noteworthy that Intervenors do not com-plain of the Appeal Board's summary rejection of this large number of other issues.

P "as safe as" test in CLI-84-8 and the Licensing Board's evidenti-ary rulings based upon that interpretation. Intervenors also challenged the Licensing Board's interpretation of public interest and exigent circumstances and, again, the Licensing Board's evi-dentiary rulings based upon that interpretation. In their appeal, Intervenors asked the Appeal Board to interpret CLI-84-8 as it im-pacted on both of those issues and to interpret S 50.12(a). Addi-t'ionally at issue was the applicability of CLI-83-17 E/ and CLI-84-9,5/ where the Commission had determined that uncertainty concerning ultim' ate full power licensing was not germane to low power.

The Commission answered all of these questions in CLI-85-1.

First, it instructed about the meaning of "as safe as." It re-jected Intervenors' argument that CLI-84-8 required a component-by-component analysis of operating characteristics. Instead, it interpreted CLI-84-8 to mean that operation of the plant must achieve a level of safety functionally equivalent to that of a plant with qualified diesels. Second, the Commission reaffirmed the applicability of CLI-83-17 and CLI-84-9 by stating that any ultimate uncertainty about full power operation is irrelevant to low power licensing and, therefore, should not have been consid-ered in the public interest / exigent circumstances determination.

5/ Lono Island Llahtina Company (Shoreham Nuclear Power Station, Unit 1), CLI-83-17, 17 NRC 1032 (1983).

s/ Lono Island Llahtino Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-9, 19 NRC 1323 (1984).

I

s 7

s Third, the Commission weighed the various equities and determined

\

i the public interest, a matter peculiarly within its province.

It would have been simply illogical for the Appeal Board to disregard the Commission's interpretation of its own law in

~

CLI-84-8 and S 50.12(a) or its reaffirmation of CLI-83-l7 and

" To the extent that the law was determined, there was no CLI-84-9.

need for the Appeal Board to determine it anew. The Appeal Board properly recognized the difference between this case and one where the principal issue involved the application of the law to fact, a challenge to factual findings or even a question involving law -

other than the Commission's own orders and regulations. ALAB-800 at 5-8. Indeed, if the Appeal Board had exercised its own inde-

> pendent judgment and had interpreted the commission's regulations

. dif f erently than the Commission, the Appeal Board would have been subject to later reversal by the Commission.

Intervenors arque, in essence, that except as expressly modified by the Commission, 10 CFR S 2.764(g) compels an Appeal is Board totally to ignore any Commission immediate-effectiveness re-view. This argument is inapplicable, as was recognized by the Ap-peal Board and noted above, to the types of purely legal issues determined by the Commission. It is also inapplicable given the

.2 major differences between the detailed Shoreham immediate-effectiveness review and the relatively brief review contemplated l by the structure of the regulations. The normal immediate-effectiveness review is a quick and limited inquiry focusing upon whether the decision should be stayed. 10 CFR S 2.764(f)(2). It

d involves the' filing of only brief comments by the parties within ten days of the Board's decision. 10 CFR S 2.764(f)(2)(ii). The regulations provide for no oral argument. And, immediate-effectiveness reviews are normally not even conducted at low power under the regulations, 10 CFR S 2.764(f)(2)(1); only the Commis-sion's own action in CLI-84-8 brought this particular action be-fore the Commission. Thus in the ordinary case, it may be appro-priate for the Commiss' ion to presume that its immediate-effectiveness comments be given no weight in the regular

' appeal process.

The Shoreham proceeding starkly contrasts with the normal im-mediate effectiveness review, however. First, as a review of a low power license decision involving an exemption application, it is not even clear that the normal constraints on immediate-effectiveness reviews ought to apply. It was only because of the Commission's special order in CLI-84-8 that it conducted such a review. Second, the inquiry here was not limited. When LILCO suggested that the Commission limit its review to the stay-type inquiry contemplated in S 2.764(f)(2)(1), Intervenors vehemently disagreed. On several occasions, they demanded that the Commis-sion conduct a full merits review. See pp. 7-8 infra. The Com-mission essentially obliged them. Third, briefing to the Commis-sion was not limited to "brief comments" filed within ten days of the Board's decision. Instead, Intervenors were afforded the op-portunity to file more than sixty pages of comments over the course of a proceeding lasting from October 29, 1984 (the date of

l i

f i

the Initial Decision) until February 12, 1985. Intervenors at-tempted to exploit and expand even this opportunity by filing a number of unauthorized pleadings in the interim. Finally, con-trary to the normal immediate-effectiveness review, Intervenors demanded and were granted the opportunity for full oral argument before the Commission. In short, the Commission's immediate-effectiveness review process took nearly as long as the Appeal Board's process and afforded opportunity for oral argument and briefing of approximately the same length as before the Appeal Board. Thus this proceeding, which is so much the creature of the Commission's own tailor-making, is a particularly appropriate one for recognition and following of the Commission's construction of its own law. The Commission having set this proceeding in motion by CLI-84-8, its purely legal construction of that decision de-mands attention.1/

Intervenors' contention that the Appeal Board's reasoning de-prived them of meaningful review rings especially hollow since In~

tervenors themselves urged the Commission to disregard its regula-tions calling for only a limited immediate-effectiveness review and, instead, to conduct a full merits review. Examples follows (T]he Commission has only one legitimate options it must summarily reverse the unlawful decision of the Miller Board . . .

i 2/ Surely Intervenors would not contend that if CLI-84-8 had I been so construed in another case, the Appeal Board should ignore that construction; then, all the more, why should it do so where the construction has occurred in the gang case?

t l

l' l

suffolk County and State of New York Comments Concerning Commis-sion Review of LILCO's Exemption Request (November 29, 1984) at 6.I/

(T]his Commission must conduct a complete review of the Miller Board's decision. . . . [T]he Commission, not any licensing board, must grant or deny the exempt:,on request. . . . [T]his Com-mission is now obligated to consider fully the entire record of this proceeding. Thus, LILCO's assertion that the Commission's review is limited to a cursory stay-type review is erroneous, i 14. at 9-10 (emphasis in original).

Aside from improperly attempting to convert the NRC's review into a " stay" inquiry, LILCO mis-

! states the law. . . . The Commission, not any licensingrequest.

emption board, must grant or (footnote deny)LILCO's omitted . Thus, ex-LILCO is incorrect when it asserts that "it is not the Commission's function . . . to conduct a i full review of the merits of the Board's actual l findings." LILCO Comments at 8. Indeed, in this exemption proceeding it is exclusively the com-mission's duly to rule on the merits.

l Suffolk County and State of New Y;ork Reply Comments Pursuant to Commission's January 7 Order at 5 (emphasis in original).

(The Commission] must recognize the interests of the public by thoroughly reviewing and summarily reversing the Miller Board decision.

Id. at 28. Given the extensive deliberation and full merits re-view demanded by Intervenors, it is disingenuous for them now to term the immediate-effectiveness review a limited inquiry and i

l state that itt product ought to be ignored by the Appeal Board.

l In contrast to normal appellants, Intervenors have received not I

i 1/ Intervenors even attached to their comments copies of their proposed findings and briefs to the Licensing Board. 14. at 6 n.1.

I L_--_-___________-__-_-___-_____________________.

J one, but two, full opportunities for appellate review of the Ini-tial Decision.E/ Importantly, Intervenors do not contend that CLI-85-1 was not dispositive or that it was applied improperly.

There Is No Reason to Grant the Petition for Review LILCO strongly disagrees that there was any error in the per-tinent portions of ALAB-800. Nevertheless, even if the Appeal Board technically erred by considering CLI-85-1, that error was harmless to Intervenors and there is no reason for the Commission to grant their Petition for Review. Simply, the merits of the Initial Decision received full review before this commission and before the Appeal Board. Granting the Petition for Review here would only lead to one of two wasteful results. On one hand, the Commission could review only the procedural propriety of the Ap-peal Board's consideration of CLI-85-1 and, if it disagreed with the Appeal Board's reasoning, remand the case for the Appeal Board to determine without reference to CLI-85-1. In that instance, if the Appeal Board applied law inconsistent with CLI-85-1, the Com-mission would then have to grant a petition for review and re-verse, thereby achieving the same result as in ALAB-800. If the Appeal Board applied law consistent with CLI-85-1, the same result 2/ Intervenors also err in arguing that the Appeal Board's logic would apply in any immediate-effectiveness review. Intervenors' Petition at 8 n.4. To the contrary, one would seldom expect the Commission to be invited to and actually perform a full merits re-view under the guise of an immediate-effectiveness review. And, legal interpretations of Commission regulations and precedent may not be dispositive in every case. It cannot be gainsaid that the Shoreham proceeding has been unique.

\

would 1e reached as in ALAB-800. On the other hand, the Commis-sion could treat the Petition for Review as seeking review of the merits of the Initial Decision. In that event, the Commission would simply rehash everything it did in the immediate-effective-ness review and, presumably, reach the same decision again. And, again, the same result as in ALAB-800 would be reached. In either case, the proceedings would be time-consuming, expensive and wasteful.

The Commission's discretionary review process should not be invoked to address academic arguments with no practical signifi-cance to the result. Accordingly, the Intervenors' Petition for Review should be denied.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY By > L4'b d Y '*~

Donald P. Irwin (366W' Robert M. Rolfe Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: March 18, 1985

-t Dt.FETEC l.SiD C LILCO, March 18, 1985 CERTIFICATE OF SERVICE 1Mi MM 18 P4:33 In the Matter of 0FFICE C: tt:RtMH r LONG ISLAND LIGHTING COMPANY 00CMElmG & SERVICE (Shoreham Nuclear Power Station, Unit 1) BRANCH Docket No. 50-322-OL-4 (Low Power) +

I hereby certify that copies of LILCO'S RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK PETITION FOR REVIEF 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 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 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 Washington, DC 20555 Bethesda, Maryland 20814 Commissioner Thomas M. Roberts

• Judge James L. Kelley,*

United States Nuclear Chairman, Atomic Safety Regulatory Commission and Licensing Board 1717 H Street, N.W. United States Nuclear Washington, DC 20555 Regulatory Commission Fourth Floor Commissioner Lando W. Zech, Jr.* East-West Towers (West Tower)

United States Nuclear 4350 East-West Highway Regulatory Commission Bethesda, MD. 20814 1717 H Street, N.W.

Washington, DC 20555 Judge Glenn O. Bright

• Atomic Safety and Licenning Alan S. Rosenthal, Chairman

• Board, United States Atomic Safety and Licensing Nuclear Regulatory Commission j Appeal Board, United States Fourth Floor

~

Nuclear Regulatory Commission East-West Towers (West Tower)

Fifth Floor (North Tower) 4350 East-West Highway East West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, Maryland 20814 l

, 4 Judge Elizabeth B. Johnson ** Stephen B. Latham, Esq.

Oak Ridge National Laboratory John F. Shea, Esq.

Building 3500 Twomey, Latham & Shea P.O. Box X 33 West Second Street Oak Ridge, TN 37830 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 Maryland National Bank Building 7735 Old Georgetown Road Jay Dunkleberger, Esq.

Bethesda, MD 20814 New York State Energy Office Agency Building 2 Herbert H. Brown, Esq.** Empire State Plaza Alan R. Dynner, Esq. Albany, NY 12223 Lawrence Coe Lanpher, Esq.

Kirkpatrick & Lockhart Mr. Martin suubert 8th Floor c/o Congressman William Carney 1900 M Street, N.W. 1113 Longworth House Office Washington, DC 20036 Building Washington, DC 20515 Fabian Palomino, Esq.**

Special Counsel to the Governor Executive Chamber, Room 229 Docketing Branch (and

3) Service State Capitol Office of the Secretary Albany, NY 12224 United States Nuclear Regulatory Commission James B. Dougherty, Esq. Washington, DC 20555 3045 Porter Street Washington, DC 20008 Martin Bradley Ashare, Esq.

Suffolk County Attorney H. Lee Dennison Building veterans Memorial Highway Hauppauge, NY 11788 xjd Donald P. Irwin

&%w /

Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: March 18, 1985 l

!