ML20127A886

Motion for Stay of Facility Low Power License Based on NRC Violations of NEPA Due to Authorizing Low Power Operation W/O Supplementing 1977 EIS & Irreparable Injury to State of Ny & Suffolk County

ML20127A886
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/20/1985
From:	Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	NRC COMMISSION (OCM)
Shared Package
ML20127A864	List: ML20127A861 ML20127A886 ML20127A893
References
ACAB-810, ALAB-810, LBP-85-18, OL, NUDOCS 8506210284
Download: ML20127A886 (10)

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5 UNITED STATES OF AMERICA NUCLEAR REGULA'IORY CCNMISSION

'SNYC Before the Otunission Y JU$20 P2:38

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In the Matter of ) SRN$['-

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ILNG ISLAND LIGTING CmPANY ) Docket No. 50-322-OL

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(Shoreham Nuclear Power Station, )

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SUFEULK OJUNTY AND STATE OF NEW YORK MOTICN EUR STAY OF ILW POWER LICENSE On Friday, June 14, 1985, the Atcmic Safety and Licensing Board issued a decision (LBP-85-18) in which it authorized issuance of a license permitting operation of Shoreham at up to 5% of rated power. Yesterday, the Appeal Board denied a stay request filed by Suffolk County and the State of New York but continued an interim stay in effect to permit the filing of this stay motion with the Ocmnission. See ALAB-810. We demonstrate below that the 10 CFR 52.788(e) stay criteria are met.1 I. PROBABILITY OF SUCCESS CN THE MERITS

'Ihe NRC violated NEPA by authorizing low power operation of Shoreham without having supplemented its 1977 EIS. 'Ihe EIS was premised upon the assumption that full power operation of Shoreham would occur, and the NRC

'Ihe (bninission s uld refer to the (bunty/ State stay motion before the Appeal Board, filed June 17, and ALAB-810 for details regarding the stay request filed with the Appeal Board.

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) concluded that the environmental impacts and costs of Shoreham operation were outweighed by one benefit: the generation of electricity. In 1983, however, it W = reasonably foreseeable that LILCO could not satisfy the NRC's emergency planning requirements and, therefore, that Shoreham could not be licensed to operate at full power. Wus, frm that time on, it was foreseeable that the environmental costs of low power operation would not be offset by any benefits. Wis significantly changed circumstance required the NRC to supplement the EIS before deciding whether to issue a license which authorized only low power operation of Shoreham.

We NRC's NEPA violation is made even more clear cut by recent court and ASLB decisions. First, on February 20, 1985, the New York State Supreme Court held that LILCO lacks legal authority under the (bnstitution and laws of the State of New York to implement the offsite emergency response plan it had proposed as the basis for its full power license application.2 Second, on March 18,1985, the U.S. District (burt for the Eastern District of New York ruled that Suffolk County's determination not to adopt or implement an emergency plan for Shoreham was rational and reasonable, and was not preempted by federal law as LILCO had argued.3 Wird, on April 17, 1985, the Licensing Board charged with review of LILCO's proposed emergency plan ruled that "the LILCD Plan cannot and will not be implemented as required by regulation."4 Wis ruling, which flowed frcm the Board's conclusion "that the activities

[LILCO] seeks to perform . . . are unlawful," (PID at 426), constitutes an absolute bar to the issuance of a full power operating license for Shoreham.

2 Cuomo v. LILCO, No. 84-1264, slip op. (N.Y. Sup. Ct. Feb. 20, 1985).

3 Citizens for an orderly Energy Policy, Inc, v. County of Suffolk, No. CV 4966, slip op. (E.D.N.Y. fttrch 18, 1985).

4 Partial Initial Decision on Dnergency Planning, LBP-85-12, April 17,1985, at 426.

e s W ese consistent and conclusive findings make clear that there is no basis for the NRC to persist in its view that the denial of a full power license for the Shoreham plant is "too speculative" or " uncertain" to merit consideration.5 In failing to prepare a supplemental EIS, the NRC violated each of its legal duties under NEPA.6 W e NRC failed to identify, much less to balance, the costs and benefits attributable to low pwer operation that is not follwed by full power operation. In fact, there are no benefits; there are only substantial and irreversible environmental costs.7 W e NRC also failed to consider in an EIS an alternative to authorizing low power operation which is cmpellingly reasonable: to decline to authorize low power operation of 5 See, also, NRC Staff Response to Suffolk County and State of New York Petition for Reconsideration of CLI-85-1 (May 13,1985) at 17-18 ("[T]he recent decisions make it far less speculative that a full power license will not issue in the near future"). Further, the Brenner Board in its June 14 PID states that at this point in time, the NRC's licensing board "has effectively found against LILC0" on emergency planning issues. See LBP-85-18, at 5. bbreover, the recent action of Suffolk County Executive Cohalan in issuing Executive Order 1-1985 does nothing to change the NRC's obligations under NEPA. Wat Order was " rescinded, annulled and set aside" in a June 10, 1985 Order of the New York Supreme 07urt (entered in In re the Town of Southampton v. Cohalan, No. 85-10520) based upon the (burt's finding that Cohalan's actions were beyond his authority and in violation of County law, and that the policy and position of Suffolk (bunty concerning Shoreham is as stated in the duly enacted resolutions of the Iagislature.

6 E.g., Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983); Calvert Cliffs' (bordinating Corrm. , Inc. v. AEC, 449 F.2d 1109,1123,1128 (D.C. Cir.

1971); Scientists Institute for Public Information v. AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973); Alaska v. Andrus, 580 F.2d 465, 473-74 (D.C. Cir.), vacated in part on other grounds, 439 U.S. 922 (1978); Conservation Law Foundation v.

Watt, 560 F. Supp. 561, 571 (D. Mass.) aff'd, 716 F.2d 946 (1st Cir. 1983).

7 See Affidavit of Dale G. Bridenbaugh and Gregory C. Minor, Attachment 1 hereto. See also the affidavit filed by Messrs. Bridenbaugh and Minor in support of the County / State Petition for Reconsideration of CLI-85-1, dated May 7, 1985. Even if the Ommission were to speculate that there are benefits of low power operation standing alone, it would need to consider those purported benefits in an EIS prepared in accordance with NEPA -- that is, any such alleged benefits would have to be weighed against the undeniable costs of low power operation.

Shoreham unless and until LILCD demonstrates that it can satisfy the NRC's energency preparedness regulations. Finally, the cost-benefit balance in the 1977 EIS has been substantially undercut by the fact that Shoreham will likely never be licensed to operate at power levels at which electricity can be generated.

In addition, the license should be stayed pending review by the Appeal Board of the administrative appeal the (bunty and State intend to file with respect to the substance of the June 14 ASLB Partial Initial Decision.8 II. 'IEE COUNIY AND STATE WIIL SUFFER IRREPARABLE INJURY IF THE STAY IS DENIED

'Ihe irreparable injury standard is satisfied here. First, if the stay is not granted, the pending County / State appeal in the U.S. Cburt of Appeals will be effectively mooted by connencement of Phase III/IV testing prior to a decision on the merits of the appeal. See NRC Staff Response to Petitions for Review of ALAB-800 (March 18,1985) at 8 ("the Staff fails to see how issuance of a license could do anything other than moot the very issue involved (in the appeal]"). Although the merits of County / State appeal of the NEPA issue will be fully briefed in the Court of Appeals by July 1,1985, clearly, any judicial decision reversing the NRC can have no meaningful effect unless a stay is 8 Time nd space constraints do not permit us to enumerate in detail here the specifics of the issues to be appealed, but, -in sumnary, they involve serious substantive and procedural violations resulting from the Board's handling of the Transamerica Delaval, Inc. ("TDI") diesel litigation. Major errors of the Brenner Board included inter alia, the following: the Board erroneously interpreted the requirements of GDC 17 and arbitrarily excluded evidence proferred by the County and State which would have demonstrated that GDC 17 requires a maximum permitted emergency diesel generator load high enough to absorb loads above the maximum emergency service load added by possible operator errors; the Board also erroneously applied the single failure criterion of GDC 17 to permit the use of inadequately sized emergency diesel generators.

t granted, because an irreversible change in the status quo, and irreversible adverse environmental impacts including substantial irradiation of fuel and reactor cmponents will have ocwed.9 Indeed, the Phase III/IV testing may be entirely cmpleted prior to review on the merits unless a stay is granted.

Contrary to the Appeal Board's statement in ALAB-810 (at p.6), the potential mooting of an appeal constitutes irreparable harm justifying a stay,10 and here, in addition, irreparable and unnecessary environmental damage would also occur.

Second, there is a strong presumption that an injunction should issue when NEPA has been violated. See Realty Incme Trust v. Eckerd, 564 F.2d 447, 456 (D.C. Cir.1977) . 'Ihe repeated NRC refusal to take the "hard look" mandated by NEPA eliminates any doubt regarding the balance of equities in this case.

III. THE GRANT OF A STAY WILL NOP HARM LILCO A stay could harm LILOD only if it impacted the timing of Shoreham's full power ascension (assuming, arguendo, that a full power license eventually were issued). Such impact is not possible here: even if the emergency planning ASLB decision were to be reversed -- merely the first of several prerequisites to the Occmission's even considering the issuance of a full power license --

such a reversal, plus achievement of all the other prerequisites to full power

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9 See Affidavit of Dale G. Bridenbaugh and Gregory C. Minor, Attachment 1 hereto, at 5-11, 15-16.

10 Scripps-Howard, Inc. v. FCC, 316 U.S. 4 (1942); Zenith Radio corp. v. United States, 710 F.2d 806 (Fed. Cir.1983); Public Utilities Com. v. Capital Transit (b., 214 F.2d 242 (D.C. Cir.1954); Township of Iower Alloways Creek v.

NRC, 481 F. Supp. 443 (D.N.J.1979) . See also, Iong Island Lighting (b.

(Shoreham Nuclear Power Station, Unit 1), ALAB Memorandum and Order, slip op.

(May 24,1984) at 7-8 (FENA irreparably harmed if appeal mooted by denial of stay).

• authorization, clearly could not occur until well into 1986.11 hus, the grant of a stay cannot result in any delay of the plant's ultimate operation, since such operation, if it over is authorized, could only take place far in the future.12 Furthermore, other alleged " harms" which in the past have been asserted by LILOO cannot support a denial of the stay.13 First, as the NRC Staff stated in rejecting LIICO's arguments on this matter:

LIICO also included an affidavit from John Leonard i explaining how delay would prejudice LIICO. Much of this prejudice flows from the delay in proceeding to Phases III and IV after having ccepleted testing at Phases I and II. If this affidavit is being offered to justify reauthorization of the license, the short answer is found in the Ommission's Order of November l

21,1984 (CLI-84-21) authorizing issuance of a license for Phases I and II. We Comission there indicated

. that issuance of a license for Phases I and II was I without prejudice to any later decisions. (Order at 6). In proceeding with operation at Phases I and II, LIICO proceeded at its own risk that later licenses might not issue.

11 h e following events / decisions must occur, and all must be resolved in LIIID's favor, before a full power license could be issued: a reversal of the April 17 ASLB Dnergency Planning PID (the Appeal Board argument on the legal authority issues is scheduled for August 12, 1985); a reversal of the New York l

Supreme Court's Feb. 20, 1985 decision; and a decision on recently reopened l energency planning relocation center issues. In addition, and only after the occurrence of these events, the following are also prerequisites to issuance of a full power license: the conduct of an emergency planning exercise (it normally takes 120 days for FDiA to prepare for an exercise once scheduled, and several months to prepare and submit findings to the NRC); a hearing regarding the adequacy /outoame of the exercise, assuming an exercise is held; a decision on the exercise litigation; and a 30-day innediate effectiveness review.

l 12 We (bunty and State intend to ask the Court of Appeals to expedite its l decision on the merits of the county / State appeal. Based upon events related to the recent (burt of Appeals Diablo Canyon decision, an expedited schedule in this case may result in a judicial decision on the merits before the end of l 1985.-

13 See, e.g., Affidavit of John D. Ieonard, Jr. filed with LILCO's Petition for i Review of ALAB-800 (March 4, 1985).

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Response to Petitions for Review of ALAB-800 (March 18,1985) at 8, n.5. Thus, it was LILCO's decision to risk the incurrence of such costs, and they cannot be asserted as " equities" to support a denial of a stay.14 Second, there are few, if any, " testing" benefits to be gained from Phases III and IV that would l

not have to be repeated if and when full power operation were authorized.15 IV. THE PUBLIC INTEREST FAVORS ISSUANCE OF A STAY W e public interest does not favor a rush to substantially contaminate Shoreham and moot parties' appeal rights in the face of serious legal issues.

%e Ocnnission has steadfastly refused to acknowledge that what it originally labelled as " speculation" has now been confirmed in federal ocurt, state court, and by its own licensing board. %e NRC's NEPA violation is a serious issue which merits meaningful judicial review; however, without a stay, judicial review would be meaningless. %ere is no need to conduct Phase III/IV testing at this time because LILCO's inability to satisfy the NRC's emergency planning regulations operates as a bar to issuance of a full power license.16 14 Not only did LILCD choose to risk the delay or non-issuance of a Phase III/IV license, but the alleged " costs" of delay -- e.g., need to purchase new neutron sources, and loss of personnel -- have already been incurred and were solely the result of the Appeal Board's vacation of the February 12 license authorization. %erefore, such " costs" cannot be attributed to a stay, nor can they be considered as equities weighing against the grant of a stay. In addition, as noted in the Affidavit of Dale G. Bridenbaugh and Gregory C. Minor dated March 15, 1985, which was attached to the Suffolk County and State of New York Response to LIIE's Petition for Review of ALAB-800 (March 18,1985), the costs alleged by LILCD are substantially overstated.

15 See Affidavit of Dale G. Bridenbaugh and Gregory C. Minor, Attachment 1 hereto, at 11-15.

16 See also NRC Staff Response to Suffolk (bunty and State of New York Petition for Reconsideration of CLI-85-1 (May 13,1985) at 18 ("it is clear that the benefits of low power operation stem from preparing the plant for eventual full power operation . . . . The recent [ court and NRC] decisions . . . indicate (footnote continued)

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Accordingly, there is no countervailing interest to outweigh that of the public.

Second, both Suffolk (bunty and New York have urged that the public interest requires, at a bare minimum, maintenance of the status quo. We NRC's own practice requires that in considering where the public interest lies, great weight should be given to the views of the State and (bunty who represent the people and the public's interest.17 here is no conceivable public interest in permitting the further contamination of a plant that will never produce electricity or any other benefit to the public. We application of the " great weight" rule requires, at a minimum, the maintenance of the status quo for the period necessary to allow the merits of the State / county appeal to be decided.

V. AT A MINIMUM, THE LICENSE SHOULD BE STAYED

'IO PERMIT COURT OF APPEALS REVIEW OF THE COUNTY / STATE STAY MOTICN AS PROVIDED IN THE COURT'S RULES Even if the Ommission were to find that the traditional stay criteria are not satisfied and therefore refuses to stay the license to permit administrative, or even judicial review of the merits of the County / State appeals -- a decision we subnit would be clearly erroneous -- at the very least, the Ctanission must recognize the (bunty's and State's right to judicial redress on the question of the stay itself. LII4D was prepared to ccmnence Phase III/IV operations on the morning of June 20, 1985, and according to NRC counsel, the Staff was prepared to issue the license on June 19. Since license that there may well,be little or no benefit to low power testing at the present time (and] . . . at this stage [it] . . . would appear to have no real value.")

17 See Respondent U.S. Nuclear Regulatory Comnission's Opposition to Dnergency Motion for Stay, November 10,1983, at 34, filed in San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir.1984).

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• issuance and operation with its resulting substantial irradiation and contamination are iminent, without sane kind of stay -- at least on an interim basis -- even the Court will have no opportunity to act to protect the rights of the State and County, other than on an ex_ parte emergency basis. Werefore, even if the Cbmission decides to deny this stay motion on the merits, at a minimum, the Ocmnission should stay the license for the time necessary to permit the Oaurt of Appeals to act upon the Cbunty's and State's Bnergency Stay Motion.

We D.C. Circuit looks with disfavor on Dnergency Motions seeking a decision in seven days or less. See D.C. Cir. Rule 6(j ) . Indeed, under the D.C. Circuit rules, there is normally a 7-day period for filing responses to motions and then a 3-day period thereafter for filing a reply. D.C. Cir. Rule 6(b) and (c).

Shoreham low pwer testing is not on any " critical path" toward any later operation of the plant. Werefore, there is no justification for the Ocmnission to refuse to stay the license -- as it has in most other contested cases where court appeals are expected -- so that the normal Court of Appeals briefing schedule for motions can be follwed. Accordingly, we suggest that the Comission, at a minimum, stay the license for two weeks following its rulilng. Wis would permit the Court of Appeals' normal briefing rules to apply, and provide three days for a Court ruling.

By staying the license for two weeks, the NRC would allow careful judicial consideration of the views of all parties on the Dnergency Motion.

Were is no public benefit to be gained from, nor is it seemly for the NRC to

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Respectfully subnitted, t

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Herbert H. Brown Lawrence (be r Karla J. Ietsche KIRKPATRICK & IOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk Cbunty int vt)

Fabian G. Palomi'no Special (bunsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Covernor of the State of New York June 20,1985