ML20154E237

Govt Brief in Response to Staff Brief of 880420.* Staff Brief Contradicts Earlier Positions in Case,Contravenes Board Orders,Proposed Procedure Violating Due Process.Brief Must Be Rejected.W/Certificate of Svc

ML20154E237
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/05/1988
From:	Case D, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6264 OL-6, NUDOCS 8805200138
Download: ML20154E237 (14)

Text

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Before the Atomic Safety and' Licensino d$dt((iiNc5'[ l i

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In the Matter of ) s

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL ) (25% Pover)

(Shoreham Nuclear Power )

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i GOVERNMENTS' BRIEF IN RESPONSE TO THE STAFF BRIEF OF APRIL 20, 1988 '

i INTRODUCTION On April 20, 1988, the NRC Staff submitted a pleading styled i

!' "NRC Staff's Response to LILCO's and Intervenors' Briefs of April 1, 1988 on Motion to Authorize Operatic.) at 25% of Full Power." (hereafter "Staff Brief"). The Staff Brief manifests the Staff's cavalier attitude toward the procedures established by the Board by advancing arguments that completely disregard the

! Board's Orders. l The Board's February 26, 1982 Order directed the parties to '

file briefs addressing the "impact of pending emergency conten- i

! tions (sic) on a reasonable assurance finding authorized by 10 j C.F.R. 50.57(c)." Despite this Board directive, however, the I

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i Staff did absolutely nothing in response to the Board's order except to file a two page document unilaterally declaring that the Staff would not file the brief requested by the Board.1/'

Having failed to comply with the Board's Order requiring-the parties to brief the relevance of pending contentions by April 1, 1988, the Staff now has the temerity to file the Staff Brief, which asserts that the Governments "ignore" the Board's direc-tions, suggests that the Governments are acting improperly by not having completed a review of the technical bases for LILCO's 25%

power Request, and argues that the Governments should not be permitted to submit new contentions challenging the technical l bases for LILCO's Request at the appropriate time. Staff Brief at 2-3.

The Staff chose to ignore the Board's Order requiring the

, parties to file briefs addressing the relevance of pending emer-

! gency planning contentions to LILCO's 25% power Request. Having done so, it cannot now use the reply procedure set up by the i

e Board to advance new arguments to which the other parties, par-l l ticularly the Governments, cannot respond. The Staff Brief I

should be summarily rejected, in light of the Staff's failure to i comply with the Board's Order and with the procedures established by the Board.

I 1/ On March 9, 1988, the Staff announced that the Staff review ,

l of the LILCO 25% power PRA would not be completed until "late i

spring," and that the Staff would not be able to ascertain

! "whether pending contentions are substantively relevant to opera-i tion at a 25% power level" until early fall. Ett NRC Staff Re-sponse to Board Order on Relevance of Pending Emergency Planning

Contentions to Operation 25 Percent Power (sic) (March 9, 1988);

i Staff Brief at 1.

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t Should the Board choose to consider the Staff Brief, how-ever, the Governments (Suffolk County, the State of New York, and the Town of Southampton) submit this response to the arguments made in the Staff Brief, consistent with the Board's provision for replies to briefs submitted pursuant to the February 26 Order. The Staff arguments must be rejected because they ignore the Board's Orders governing the 25% power proceedings, they ignore the contents of the Governments' April 1 Brief, and they advocate a procedure contrary to fundamental due process.

I. THE STAFF IGNORES THE BOARD'S RULINGS CONCERNING THE GOVERNMENTS' RIGHT TO DISCOVERY AND TO REVIEW LILCO'S AND THE STAFP'S TECHNICAL ANALYSES The Staff Brief ccmpletely ignores the Board's statement that the Governments are entitled to review the Staff Safety Evaluation kgigig undertaking any technical analysis. Indeed, the Board's language on this point could not be clearer. The Board held that the technical issues raised by LILCO's Report cannot be addressed "without some cooortunity for the Governments to review both LILCO's oricinal recuest and the Staff's analysis thereof."2/ The Board also held that statements concerning the relevancy of pending contentions "would necessarily await the oublication of the Staff Safety Evaluation and a reasonable ceriod for review by the Governments' exoerts."1/ In the February 26 Order, the Board reiterated the point:

2/ Memorandum and Order (In re LILCO Request for Authorization to Operate at 25% of Full Power) (January 7, 1983) (hereafter, "January 7 Order") at 11 (emphasis supplied).

2/ 14. (emphasis supplied).

3-

If the Staff's technical review of the Appli-cant's motion is not completed or made avail-able in a timely manner, the parties will be afforded an additional opportunity to respond to such review.1/

On April 1, the Governments submitted a brief discussing in detail why the pending contentions prevented the reasonable assurance finding required under Section 50.57(c), precisely as directed by the Board's Orders. Because the Staff's review was not completed and no discovery schedule has yet been set, the Governments could not and did not address the technical bases of LILCO's Request. They explained, however, why such technical analysis is not necessary to respond to the Board's February 26 filing.

Given the Board's specific language postponing technical analysis until the publication of the Staff Evaluation, the pro-priety of the Governments' approach is beyond cavil. In fact, the Governments' inability to address the technical issues raised by LILCO's Request is no different from that announced by the Staff on March 9. Unlike the Staff, however, the Governments did respond to the Board's February 26 directive by demonstrating why, for non-technical reasons, the pending emergency planning contentions (1) are relevant to LILCO's proposed 25% power opera-l tion, (2) preclude the reasonable assurance finding required under Section 50.57, and (3) require the denial of LILCO's 25%

Power Request.

i/ Order, dated February 26, 1988.

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0 II. THE STAFF BRIEF IGNORES THE SUBSTANCE OF THE GOVERNMENTS' I APRIL 1 BRIEF l

The Staff Brief essentially ignores the contents of the  !

Governments' April 1 Brief. For example, the Staff's assertion that the Governments' have not shown whether the pending emer-gency planning issues, including Igg iudicata decisions by the [

OL-5 Licensing Board, are substantially relevant to the issuance of a 25% power license, is ridiculous. Egg Staff Brief at 3-4.

In fact, the Governments' April 1 Brief included extensive dis-cussion, with detailed citations to LILCO's Request, to the pending contentions, and to the OL-5 Board's decisions, which demonstrated the relevance of the outstanding emergency planning l issues to the matter identified by the Board as the issue in this proceedings whether there can be a finding of reasonable assur-ance that adequate protective measures can and will be taken, t based on the LILCO Plan and the purportedly "trained" LERO organ- {

ization. The Staff's suggestion that the Governments failed to  !

i address the subject of the Board's inquiry is without basis.  !

III. THE STAFF IGNORES THE GOVERNMENTS' RIGHT TO CHALLENGE THE BASES OF LILCO'S 25% POWER REQUEST AND THE BOARD'S ORDERS l TO THAT EFFECT  ;

There are two layers of issues which must be addressed in l resolving LILCO's 25% Power Request according to the Board's i

j Orders interpreting Section 50.57. First, issues concerning j whether pending emergency planning contentions are relevant to [

l the 251 power proceeding must be addressed. Second, if it is [

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determined that no pending emergency planning contentions are relevant, then iscues concerning the validity of the technical analyses supporting the 25% power Request and whether the analy'ses permit the finding required under the regulations must be addressed.

LILCO's 25% power Request makes abundantly clear that that Request rests on two bases: (1) a 25% power limitation; and (2) an adequate Plan and LERO. Because issues concerning the adequacy of the LILCO Plan and the LERO are the only issues ripe for discussion, they are the issues which the Governments have addressed to date. They alone require the denial of LILCO's Request.

Should the Board rule (erroneously, in the Governments' view) that LILCO's Request can be considered despite the relevant pending emergency planning contentions, it is clear tha+. the technical issues raised by LILCO's Request must be addressed.

The Board has stated that such issues are critical to LILCO's application and must be fully developed in "the analytical crucible of litigation." January 7 Order at 9. The Staff has acknowledged the importance of the technical issues as well.5/

5/ The significance of the technical issues was acknowledged by the Staff when it stated:

As the Staff does, LILCO recogni:es that action in its request to operate at 25% power requires an analysis of the validity of its projections of differences in accident sequence progressions at a 25% power level in contrast with operations at full power.

Staff Brief at 2.

Yet, because of the complicated nature of these technical mat- l ters, the Staff has not completed its analysis of the technical issues. As noted, the Governments are in a similar position in that they have yet to complete a review of the technical issues, and in fact are not required to complete that review until a .

reasonable time after the publication of the Staff Evaluation.

As the Governments have repeatedly stated, they d2 a21 con-cede the validity of LILCO's technical analysis. At the time deemed appropriate by the Board, and after the completion of the r Staff Evaluation and any necessary discovery, the Governments will file contentions addressing the validity of LILCO's tech-nical analyses or conclusions. The Staff's argument that the Governments cannot file contentions challenging the validity of LILCO's assumptions, analyses and conclusions (agg Staff Brief at 3, n.1), suggests that the Board could address LILCO's 251 power Request without affordine the Governments the richt to challence the bases of LILCO's license recuest. Such a procedure would be a pross deprivation of the Governments' due process right to a hearing which is guarr.iteed by the Atomic Energy Act and the U.S.

Constitution. There is no conceivable basis for the suggestion that this Board could consider LILCO's unprecedented license application and consider or rely upon LILCO's submitted technical analyses and conclusions without providing the Government an j opportunity to challenge the LILCO submittal.5/

f/ The Staff has cited two authorities in attempting to truncate the Governments' rights to file contentions: Duke Power Co.

l (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983) and Statement of Policy on Conduct of Licensino Pro-i l

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On November 6, 1987, the Staff appeared to recognize the two separate areas of inquiry involved in LILCO's Request by advocat-ing a procedure which contemplated a three step process for re-solving 25% power issues: (1) eendino emeraency olannina conten-tions would be analyzed for relevance to the Request; (2) after the pending contentions were analyzed, any party would have an opportunity to demonstrate that new contentions are relevant; and (3) the Board would then make determinations with respect to the matters placed in controversy by the opposing party.1/ Thus, ceedinos, CLI-81-8; 13 NRC 452, 454 (1981) (hereafter "ERC Statement of Policy"). Neither of these authorities are rele-vant. The Catawba case concerns late filed contentions -- a subject which is irrelevant in this proceeding. In particular, under NRC regulations, the Governments are required to file contentions no later than 15 days prior to the first prehearing conference. 10 C.F.R. S 2.714(b). No such conference has been scheduled for 25% power, and there is therefor no requirement to file contentions. Indeed, in the 25% power proceeding, the Board has directed that pending contentions be addressed before new contentions are analyzed for relevance.

The Staff's citation to the NRC's Statement of Policy is similarly inapposite. The Staff cites to the Statement of Policy section concerning a party's obligations in NRC proceedings. The Governments have fulfilled their responsibilities as defined by I

the Board, and it is indeed ironic that the Staff, which has yet to complete its analysis, would make unfounded alle gations about

, another party's failure to fulfill their responsibilities.

1/ In particular, the Staff analyzed the way the requirements

! of 10 C.F.R. S 50.57(c) should be applied to the 25% power pro-ceedings, and concluded as follows:

This language indicates that the Board should l (1) consider whether oendino contentions in the

, proceeding are relevant to the request for au-l thorization of the activity (here 25% power I operation); (2) allow any carty with conten-I tions the opportunity to show that those con-tentions are so relevant; and (3) make findings on the application of the Section 50.57(a) criteria to the activity sought to be licensed with respect to those criteria olaced into con-i

O under the procedure earlier advocated by the Staff, new conten-tions concerning the technical bases for the 25% power applica-tion would not be heard until after pending emergency planning contentions were analyzed. That proposed procedure was particu-larly appropriate for structuring the 25% power proceedings, for, as the Board has observed, a determination that a pending emer-gency planning contention is relevant by itself requires the denial of LILCO's 25% power application.1/

The Board essentially adopted the Staff's earlier recom-mended procedure of first determining the relevance of pendino emercenev olannino contentions.1/ Moreover, the Board ordered that even before the relevance of pending contentions could be addressed, the Governments are entitled to review the Staff Safety Evaluation at the outset.lE/ Given the fact that the troversy by an ecoosino carty.

I NRC Staff Response to Board Memorandum Requesting Parties Views on Questions Raised by LILCO's 25% Power Authorization Motion

, (November 6, 1987) (emphasis supplied) at 6.

$/ Januiry 7 Order at 15.

1/ The Board stated the followingt l Furthermore, we agree with the Staff that the plain wording of 50.57(c) requires that we

, "(1) consider whether cendino contentions in

, the proceeding are relevant to the request

. . .: (2) allow any carty with contentions the opportunity to show that those contentions are so relevant; and (3) make findings on the ap-plication of the Section 50.57(a) criteria to the activity sought to be licensed" with re-spect to the matters in controversy.

January 7 Order at 7.

lE/ The Board stated that the Governments' statements on the O

Staff had not yet completed its review, the Governments followed precisely the course directed by the Board when it addressed the non-technical reasons why the pending emergency planning conten-tions are relevant at 25% power.

The Governments, pursuant to the Board's Orders, have fol-lowed the procedure previously advocated by the Staff and adopted by the Board. Yet, in a reversal of its earlier position, the Staff now contends that the Governments should not be allowed to submit new contentions challenging the technical basis of LILCO's Request. The motive for the Staff's about face is difficult to fathom, but the Staff's new position clearly contravenes the Board Orders and fundamental notions of due process. The Board must therefore reject the Staff arguments.

CONCLUSION In conclusion, the Staff Brief contradicts earlier Staff positions in this case, contravenes the Board's Orders, and proposes a procedure which violates due process. The Staff Brief must therefore be rejected.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County complex Veterans Memorial Highway Hauppauge, New York 11788 relevance of pending contentions "would necessarily await publi-cation of the Staff Safety Evaluation and a reasonable period for review by the Governments' experts." January 7 Order at 11.

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Lawrence Coe Lanpher Karla J. Letsche David T. Case KIRKPATRICK & LOCKHART 1800 M Street, N.W. l South Lobby - Ninth Floor  ;

Waf)hington, D.C. 20036-5891 i Attorneys for Suffolk County l0i'C.-

Fabian G. Palomino Richard J. Zahnleuter ,

Special Counsel to the Governor "

of the State of New York Executive Chamber, Room 229 i Capitol Building Albany, New York 12224 i 4

Attorneys for Mario M. Cuomo, Governor of the State of New York  ;

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$ b b. D Stephen B. Latham '

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Twomey, Latham & Shea l Post Office Box 398 'l a 33 West Second Street F Riverhead, New York 11901 Attorney for the Town of

• Southampton l L

May 5, 1988 i

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- May 5, 14 MY -9 P8 :06 l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f0CM b G GRANCH b ik  !

1 Jefore the Atomic Safety'and Licensino Board -

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-6 '

) (25% Power) L (Shoreham Nuclear Power Station, ) I

. Unit 1) ) i

. )  :

CERTIFICATE OF SERVICE i

l l I hereby certify that copies of GOVERNMENTS' BRIEF IN RESPONSE TO f THE STAFF BRIEF OF APRIL 20, 1988 have been served on the [

following this 5th day of May, 1988 by U.S. mail, first class, i except as otherwise noted, i i

I i James P. Gleason, Chairman

• Mr. Frederick J. Shon*

i Atomic Safety and Licensing Board Atomic Safety and Licensing Board -

513 Gilmoure Drive U.S. Nuclear Regulatory Commission [

Silver Spring, Maryland 20901 Washington, D.C. 20555 t Dr. Jerry R. Kline* William R. Cumming, Esq.*  ;

Atomic Safety and Licensing Board Spence W. Perry, Esq. l i

U.S. Nuclear Regulatory Commission Office of General Counsel  !

1 Washington, D.C. 20555 Federal Emergency Management Agency !

500 C Street, S.W., Room 840  !

Judge David L. Hetrick** Washington, D.C. 20472  !

(Alterr. ate Board Member) .

Atomic Safety and Licensing Board l l Washington, D.C. 20555 L l

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Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq.**

Richard J. Zahleuter, Esq. Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq. Anthony F. Earley, Jr., Esq.

Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New Ycrk 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555

. Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-118 Veterans Memorial Highway New Ycrk, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider >

1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231  ;

San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J. Reis, Esq.

New York State Energy Office Richard G. Bachmann, Esq.

Agency Building 2 U.S. Nuclear Regulatory Comm.

Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 1

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David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay . Federal Emergency Management Agency Town Hall 26 Federal Plaza Oyster Bay, New York 11771 New York, New York 10278 Adjucatory File

• Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• By Hand (on May 6, 1988) David T. Case

• • By Taderal Express KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 l

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