ML20205D610
| ML20205D610 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/21/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20205D615 | List: |
| References | |
| CON-#488-7327 ALAB-902, LBP-88-24, OL-3, NUDOCS 8810270155 | |
| Download: ML20205D610 (21) | |
Text
7?37 utCO, 0ctoder 21,1988
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Opkdk W
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M rmma a al Before the Commission l
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OCT 21EdE'i
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< g,e -n x In the Matter of ) f.
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL s (Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S REQUEST TO RESUME IMMEDIATE EFFECTIVENESS REVIEW OR. IN TIIE ALTERNATIVE. FOR A STAY OF ALAB-902 LILCO hereby requests the Commission to immediately resume its immediate effec-tiveness review of LBP-88-24 pending any review of the Appeal Board's decision in ALAB-902.
In a Memorandum and Order dated October 18, 1988, the Appeal Board summarily re-jected LILCO's October 14 Request for a Stay of ALAB-902. Memorandum and Order, October 18,1988.M LILCO had sought an immediate stay of ALAB-902 in order to remove any perceived obstacle to the Commission's continuation of its immediate offectiveness re-view of LGP-88"24.
The Appeal Board dism!Med LILCO's Request because, in the Appeal Board's opinion, "LILCO does not need a atay of ALAB-902 to achieve the linilted objective it claims to 1/ ALAB 902 reversed, on "jurisdictional" grounds. the Licensing Board's Concluding Ini-tial Decision on emergency planning matters (LDP-88-24) irdof ar as it dismissed the Inter-venors from the Shoreham proceeding. It also vacated the Licensing Board's full po.ver 11-cense authorization. ALAB-!)02, slip op, at 4.
2/ LILCO learned from a letter from Counsel for Suffolk County to Peter Crane of the NRC's Offlee of General Counsel ("OGC") that the Commission had ceased its immediate ef-fcctiveness review in light of ALAB-902 and, further, that the OGC had halted its prepara-tion of an analysis of issues pertinent to the Commission's review. See LILCO's Request for Stay of ALAB-902 at 5 (Oct.14,1938) and A tt.1. (For the Commission's convenience, LILCO's October 14 Request is appended to tils pleading),
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seek." Memorandum and Order at 3. The Appeal Board opined that ALAB-902 did not dic-tate suspension of the Commission's immediate effectiveness review and that, in fact, the i Commission has the discretion to continue its review of LBP-88-24 despite ALAB-902. M.
at 5-6. The Appeal Board stated that "LILCO's recourse is to ask the Commission to resume its immediate effectiveness review pending the outcome of any petition LILCO may file for review of AL AB-902." M. at o.
i Accordingly, LILCO respectfully requests that the Commission and its Staff immedi-4 ately resume their immediate effectiveness review of LBP-88-24. In addition (or in the al-ternative), if (contrary to the Appeal Board's opinion) the Commission deems it necessary to i
stay ALAB-902 as a prerequisite to continuing its immediate effectiveness review, LILCO i ,
hereby asks the Commission to stay nLAB-902 for the reasons set forth in LILCO's stay re-quest to the Appeal Board.S Discussion '
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- 1. The Commission Should Resume its immediate Effectiveness Review In LBP-88-24 the Licensing Bmrd resolved in LILCO's favor all matters remaining in controversy before it and dismissed the Intervenors (Suffolk County, the State of New York ;
and the Town of Southampton) from the Shoreham proceeding. Long_ Island L12hting Co.
(Shoreham Nuclear Power Station, Unit 1), LB P-88-2 4, 28 NRC (Sept. 23, l j 1988)("Conducing Initial DecL91on"). The Licensing Board authorized the Director of the l Office of Nuclear Reactor Regulation, upon making any requk.te findings en matters not embraced in the Concluding Initial Decision, to issue a full power operating license for
' Shoreham. Puwant to 10 C.F.R. S 2.764(f)(2), and with the aid of tne p3rties' comments.N i
3/ LILCO is filing with the Commission today its Petition for Review of ALAB 902.
3/ The Appeal Board did not pass on the merits of LILCO's showing on any of the four stay f actors in 10 C.F.R. S 2.788(e). It dismissed LILCO's Request solely because it felt a stay was unnecessary to grant LILCO the relief it socks. Memorandum and O' W at 2-3
- (Oct.18,1988).
1 5/ See LILCO's Comments on the immediate Ef fectiveness of LDP-88-24 (Oct. 3.1988);
Suffolk County, New York State, and Town of Scuthampton Comments Concerning Immedi-ate Ef fectiveness Review (Oct. 3,1988).
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the Commission began its immediate effectiveness review upon receipt of LBP-88-24. ,
The Appe&l Board reversed LBP-88-24, on what it termed "narrow jurisdictional" ;
grounds, insofar as it dismissed the Intervenors from the entire Shoreham proceeding, in-cluding matters (such as any potential issues arising from the 1988 exercise) not then pend- :
ing before the Licensing Board. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-902, 28 NRC , slip op. at 4 (Oct. 7,1988). The Appeal Board also va-cated the Licensing Board's full power license authorization, concluding, in its "narrow ju- ;
risdictional" opinion and contrary to the holding in LBP-88-24, that emergency planning is-sues remain to be resolved in this proceeding. M. at 4,20.
Subsequent to the Appeal Board's issuance of ALAB-902, LILCO learned that the !
Commission apparently has halted its immediate effectiveness revicw as a result of ALAB-t 902. S_ee_ letter, Lawrence Coe Lanpher to Peter Crane, Oct. 12,1988 (the Oct.12 letter is Att. I to LILCO's Request for Stay of ALAB-902, dated October 14,1988, which is itself ap-pended to this pleading). That letter also indicated that OGC had ceased preparation of its ,
analysis of issues for the Commission's review. M. Bellovhtg that these effects of ALAB- t i
902 were unwarranted, unnecessary, and irreparably harmful to its interests, LILCO filed i
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l Its Request for Stay of ALAB-902 on October 14 and roted its intent to seck prompt Com- i j mission review of that decision. LILCO's Eequest for $tay cf ALAtk902, October 14, i 19M.V The Appeal Board has now summarily rejected LILCO's request for a stay. The Ap- i
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} peal Boird did not consider the substaneo of 1,lLCO's request, but rather dismisred it be- [.
l cause the Appeal Bnard deemed a sicy unneces/ary: ,
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- 6/ It should be noted that 10 C.F.R. S 2.788(f) requires that stay requests of Appeal l
) Board decisions be filed initially with ths Appeal Board, rather than the Commission. In ;
! light of LILCO's compliance with this directive, LILCO was surprised that the Appeal Board l
considered its stay request to be "improvidently filed." Memorandum and Order at 7. l l
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LILCO does not need a stay of ALAB-902 to achieve the limited objective it claims to seek. For that reason, we summarily dis-miss the motion, thus leaving LILCO free to pursue its objective elsewhere without further delay.
Memorandum and Order at 3. Noting that "it is not difficult to understand the logic behind a determination to suspend the (immediate effectiveness) review" in light of ALAB-902, the Appeal Board nonetheless determined that ALAB-902 did not dictate that result:
It scarcely follows, however, that the Commission lacks the dis-cretion to proceed with an immediate effectiveness review in the unusual circumstances of this case if (1) it is asked to do so by one of the parties, and (2)it agrecs with that party that such a step is, in fact, required to avoid irreparable harm. To the contrary, it is manifest to us that the Commission possesses that authority, at least to the extent of determining whether there are any obsta-cles other than our determination in ALAB-902 that stand in the path of a full power Shoreham license.
Id. at 5 6. The Appeal Board concluded that "LILCO's recourse is to ask the Commission to 12sume its immediate effectiveness review pending the outcome of any petition LILCO may file for review of A LAB-902." Id. at 6.
In keeping with the Appeal Board's advice, LILCO requests the Commission to exer-cise its discretion and immediately resume its immediate effectiveness review of LBP 24. There is ample Justification to resume that review, and no reason not to. First, LILCO is irreparably hormed !! the Commission continues its suspension. If the immediate effec-tiveness review is suspended until review of ALAB-312 is complete, then even if ALAB-902 is mt nside (as LiLCO believes it will be), LILCO cannot be granted a full power oce.ating license until the Commission resumes and completes its immediate effectivenes review.
Each day of such delay costs LILCO about it million in car.*ying charges for Shoreham.
These costs can be avoided if the Commission coMucis its immoc 'te effectiveness review during, instead of following, its review of A LAD-902.
Second, resumption of the immediate effectiveness review will not harm the Inter-venors. As the Appeal Board notes, completion of that "eview cannot result in the issuance of a full power license unless the result in ALAB-902 is overti ed. Memorandum and
4 Order at 6. LILCO is filing its petition for review of ALAB-902 today. The Intervenors do not have a right to have the Commission's immediate effectiveness review suspended pend-ing the outcome of Commission review of ALAB-902, and thus will suffer no legal harm if I
, the immediate eifectiveness review is renewed.
Moreover, if ALAB-902 is set aside and the Licensing Board's license authorization is I
, i re.'nstated, the Intervenors will file a stay motion of their own within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />. See Gov-ernments' Motion for Tolling of Time Period Within Which to File Motion for Stay of LBP*
88-24 (Oct.11,1988); hppeal Board Memorandum and Order (granting the Intervenors' mo-tion)(Oct. 12, 1988). Thus, the Intervenors will have an opportunity to protect their )
interests without the need to suspend the Commission's immediate effectiveness review.
In short, the Commission can and should determine now whether any obstacles other 4 :
than ALAB-902 stand in the way of a full power operating license for Shoreham. The Com-i l q mission should resume its immediate effectiveness review of LBP-88-24 pending any Com- .
y t
mission review of ALAB-902.
- 2. The Commission Should Stav ALAB-902 If Necessary ;
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, if, contrary to the Appeal Board's opinion, the Commission deems it necessary to i
1 stay the effect of ALAB-902 es a procedural prerequisite to resuming its immediate of fec- l 1 i tiveners review, LILCO respectfully asks the Commission to do so, for the reasons set fortn i :
i in LILCO's Request (to the Appeal Board] for Stay of ALAB-907. In that Request, which is !
L I attached to this paper for the Commission's convenience, L1LCO arklrbssed the four stay !
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i factors in 10 C.F.R. S 2.788(e) and demonstrated why they commend a stay of ALAB 902. -
- I LILCO lncorporates by reference the arguments made there, and briefly summarizes them ;
! t 1 below. t I
1 The first factor is "whether the moving party has made a strong showing that it is f f
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likely to prevail on the merits." 10 C.F.R. S 2.788(o)(1). LILCO believes it has made such a
! strong showing for at least three reasons. First, ALAB-902 disagrecs, without support from ;
- Commission policy or precedent, with the independent opinions of two separate licensing l t
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f boards: the OL-5 Board's unappealed decision in LBP-88-7 thet it did n_o1 have continuing Ju-risdiction over Shoreham exercise matters, and the OL-3 Board's opinion in LDP-88-24 that it did have authority to dismiss the Intervenors as parties. Second ALAB-902 is inconsis-tent with previous Appeal Board pronouncements that the establishment of separate licens-ing boards to hear discrete sets of issues is merely an administrative case management tool, not the creation of separate, distinct proceedings that limits the jurisdiction and discretion of the preexisting, presumptively general jurisdiction licensing board. Third, ALAB-902 is unpalatable because it contravenes the Commission's policy of maintaining the efficiency and integrity of NRC licensing proceedings, and places an undue burden on the party who has been prejudiced by gross misconduct rather than on the party who engaged in it. For these reasons, and others set forth in LILCO's Petition for Review of ALAB-902 LILCO be-lieves it has made a sufficiently strong showing that it will succeed in having ALAB-902 re-versed.
The second factor Ls irreparable injury to the moving party in the absense of the re-quested stay. 10 C.F.R. S 2.788(e)(2). LILCO discussed this f actor in part 1 above. It is sufficient to note here that LILCO will be irreparably and unnecessarily harmed, to the tunc of about $1 million a day, for every day that Shoreham licensing is delayed. Given that no reson exists to postpone completion of the Conimission's immediate effectiveness re-view until any review of ALAU-902 is finished, any such expenditures necessitated u> post-ponement are unjusuflablo.
The third stay lactor f3 "wnether the granting of a stay would harm other partles."
10 C.F.R. 5 2.788(e)(3). LILCO discussed above why the Interveriors will not be harmed by resumption of the immediate of fectiveness review. In essence, the Intervenors will not suf-fer any legally-cognizable harm by the elimination of undue delay in the Commission's con-sideration of remaining issues. A stay of ALAB-902 would not effect the immediate issu-ance of a full power operating license; it would merely allow the CommLssion's sua spon_to review of the licensing authorization to go forward. Even if the Commission completes its
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i immediate effectiveness review, and ALAB-902 is set aside, the Intervenors can attempt to protect their interests by moving for a stay of the licensing authorization.
The final stay factor is "where the public interest lies." 10 C.F.R. S 2.788(e)(4).
LILCO has argued this factor at length in its October 3 immediate effectiveness comments and in its Request for Stay of ALAB-902. In short, the public interest dictates that a safe plant should be allowed to operate without unnecessary delay. The NRC's licensing boards have found, with FEMA's recommendations and af ter the most extensive and bitterly-contested hearings in NRC history, that Shoreham is safe. The public interest -- and the in-tegrity of the NRC regulatory process -- require that these findings be given legal effect by allowing Shoreham to operate. Accordingly, the public interest requires that ALAB-902, which apparently stands as a temporary barrier to completion of the Commissions immedi-ate effectiveness review, be stayed if necessary to allow that review to proceed.
Conclusion For the reasons set forth above, LILCO respectfully requests the Commission to im-mediately resume its immediate effectiveness review of LDP-88-24. In addition, if the CommLssion deems it necessary, LILCO requests the Commission to stay ALAB-902 for the reasons set forth above and in LILCO's Request for Stay of ALAB-902.
Respectf ully submitted.
- A Donald P. Irwin James N. Christman J Scott D. Matchett Counsel for Long Island Lighting Company lit.nton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 21,1988
0 Attachment A 6
, LILCO, October 14.1988 UNITED STATES OF AMERICA NUCLEAR REGULA TO"Y COMMISSION Before the Atomic Safety and Licensing Acceal Board In the Matter of )
)
LONO ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S REQUEST FOR STAY OF ALAB-902 LILCO hereby requests, pursuant to 10 C.F.R. S 2.788, a stay of ALAB-902,28 NRC (Oct. 7,1988).
ALAB-902 reverses LBP-88-24, on "jurisdictional" grounds, insofar as it dismissed the Intervenors from the entire Shoreham proceeding. ALAB-902 also vacates the Licensing Board's full power license authorit.ation. ALAB-902, slip op. at 4. As a result of ALAB-902, the Commission apparently has halted its immediate effectiveness review of LBP-88-24. and Intervenors attempted to pressure the NRC Staff to cancel a previously-scheduled meeting with LILCO concerning readiness fur Shoreham full power operatJon. See Letter, Lawrence Coe Lat.pher (counsel for Suffolk County) to Peter Crane (NRC office of defietal Counsel),
- Oc t.12,1988
- Letter, Mortert H. Brown to A. Randy Blough, Chlef Reactor Projects Section i No. 38, NRC Region I(Oct. 11,1988)(Botn letters are attached to this request).
LILCO willimminently a;x the Commisrton to review ALAB 902 along with ALAR 900 l and ALAB-901. ALAB-902 should De stayed pending the ComrqMsioTs review of '.hese deci-slons.
Section 2.788(e) provides that in determining whether to grant or deny an application for a stay, the Appeal Board will consider the following factors:
- 1. Whether the moving party has made a strong showing that it is likely to prevail on the merits:
- 2. Whether the party will be irreparably injured unless a stay is granted:
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- 3. Whether the granting of a stay would harm other parties; and
- 4. Where the public interest lies.
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' 10 C.F.R. 5 2.788(e) (1988). LILCO submits that these factors justify the stay requested here-l In.
l With the resolution - at long last - of all planning issues remanded or reopened af ter l the Licensing Board's 1985 initial decisions, the only remaining obstacle to a full power license is the possibility that the Intervenors will both remain parties to the OL-5 proceeding and suc-l coed in convincing a licensing bord that the 1988 exercise reveals a "fundamental flaw" in ,
the LILCO offsite emergency plan 1111ght of FEMA's finding of no "deficiencies"in the June 1988 exercise and its finding of "reasonable assurance" based on the exercise and the LILCO ;
Plan, this possibility is slight. In a case of unprecedented length and thoroughness like this one, tra suspension of the Commission's "immediate effectiveness" review apparently
- prompted by ALAB-902 is unjustifiable and irreparably harmful to LILCO, as described infra.
l 1. LILCO has made a strong showing that it is likely to prevail on the merits
! As detailed below, LILCO believes it has made a strong showing that it will succeed in i
t i having ALAB-902 reversed. The issue in ALAB-902 is whether the OL-3 Board had the auuoN '
ity to dismiss a party from the entire emergency planning proceeding. IILOO has argt.ed the !
Board clearly had ruen authority. Although the Appoal Board rejected L!LCO's argument. l LILCO cubmits it sh uld nevertheless conclude there is a strong 11kel!nood LILCO will prevall f on appeal.1/
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1 First, the Appeal Board's decision disagrees with the Indepandent opitdore of Lwg 11-1 1 censing beat 'the OL-3 Boartts unappealed decision that it did Dol have contirag j 1/ At the same time, LILCO recognizes the inherent difficulty in persuading the Appeal Board that it decided ALAB 902 incorrectly. In cases such as th3: however - Lg3, where a i party seeks a stay .r.m the very tribunal that issued the disputed order - the first stay f actor r (strong showing tt ' f,aving party will likely win on the merits) becomes the least important of the four. leg Commonwealth Edison Co. (Byron Nuclear Power Station Units 1 and 2),
LBP-83 40,18 NRC 93,97 (1983).
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O jurisdiction over exercise matters. LBP-88-7. and the OL-3 Board's opinion that it djd have au-thority to dismiss the Intervenors as parties. LBP-88-24.
Second, ALAB-902 appears to be inconsistent with earlier Appeal Board pronounce-ments in this very case. The conclusion in ALAB-902 - that when the Chairman of the ASLB Panel appoints a second board he strips both boards of the power to dismiss a party entirely -
is difficult to justify, particularly given the Appeal Board's past pronouncements on the sub-l ject of multiple boards:
]
Manifestly, that announcement (that a separate board was being es- <
i l tablished] did not give rise to a separate and distinct proceeding on the Shoreham application. Rather, it simply added a new dimencion ,
to the emergency planning issue that had long been an ingredient of '
the proceeding that commenced in 1976.
Lonz Island Lighting CO 2 (Shoreham Nuclear Power station Unit 1), ALAB-743,18 NRC 387, i 397 (1983). In a footnote the Appeal Board elaborated: i Needless to say, the fact that a separate !! censing board was
, recently established to consider the emergency planning issues does
- not suggest the institution of a new proceeding. That action was taken for administrative reasons only la, because of the other de- i mands on the time of the members cf the Licensing Board that had '
.' been previously assigned to hear al! issues in controversy. Leg, in '
this connection,10 C.F.R. Part 2, Appendix h, S !(c)(1). '
L id. 397 n.38. l Tnfrd, the ren).I reached in ALAB f,02 can be expected to be unpalatable to any te viewer who is concerned about the integrity of the NRC process. ALAB 902 finds that every licensing board in a multi-teard proceeding lacks the power to dismiss a party that has defied l r
j the boards' orders and otrstrNetad the agencys factfinding procesc in bad faith. The suggested j solution, which is that some other party (in particular, the party wh's has been prejudiced by i
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i such bad faith obstruction) go from board to board and ask that the sanction be imposed by :
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each separ,ite board, is both cumbersome and unsupported by Commission regulation or !
l caselaw, until ALAB-902. Moreover, it burdens the party who has suffered injury rather than j
! the party who caused it, j The result of ALAB 902 is particularly onerow when it is recognized that the subject j i
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matter of the litigation before the OL-3 (Gleason) Board and the previously terminated OL-5 (Frye) Board concerns the same subject matter - LILCO's emergency plan. A reading of ALAB-902 gives r.o apparent consideration to the intrinsic link of the subject matter before
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both boards. This is not a case where one licensing board was considering seismic issues and j the other board considering emergency planning issues.
Finally, it is clear that ALAB-902 reiles substantially on the existence of another "pro-ceeding pending before the OL-5 Board," as an important basis for reversal of the sanction ,
i posed by the Oleason Board af ter substantial evidentiary hearings on the bad faith obstruction I
of the proceeding engaged in by Intervenors over a significant time period. There is substan-tial doubt that the Appeal Board's granting, in part, of Intervenort motion that any 1988 exer- [
cise iltigation be conducted in the OL-5 docket, coupled with the Chief Administrative Judge's conclusion that as of October 6,1988, there were no "matters to be adjudicated in connection ;
with the r,acteam plant within the jurisdiction of this (Licensing Board] panel 2# constituted a 'pending proceeding" under the Atomic Energy Act of 1954, as amended. Thus, the "pending proceeding" aegument in ALAB-902 is of doubtful yalidity.
j f Obviously, the Appeal Board believes it is right and that LILCO, the NRC Staff, and the I l
j two licensing boards were wrong. But for the purposes of applying the stay criteria of }
S 2.788(e) the Appeal Board snould put to one s;de its decision on the merits and look at the case objectively, as a reviewing Commissicn would look at it. Viewed in that manner, the
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2 issue should be seen as one as to which LILCO has made a strong showing. ;
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- 2. LILCO will be irreparably [
injured unless a stay is granted !
LILCO will be irreparably harmed if a stay is not granted. The harm !!es in further f
l delay of this proceeding, at a critical time period. LILCO hrs documented the costs of delay c any times in this proceeding. As is again stated in the Affidavit of Adam M. Madsen, the
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l 2/ "Memorandum and Order," A3LBP 89-580-01 Misc., p. 3 (October 6,1988).
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cost of carrying Shoreham as an unproductive electric generating plant is roughly 30 m!!!!on dollars a month, or a million dollars each day. See attached Affidavit of Adam M. Madsen, dated October 14, 1988. !
The effect of ALAB-902 has been, apparently, to suspend the Commission's immediate effectiveness review, notwithstanding the fact that both the Intervenors and LILCO had f!!ed their comments on that review.E/ nI a letter dated October 12, 1988, to Peter Crane of the NRC's Office of General Counsel, counsel for Suffolk County says that the NRC "has ceased its immediate effectiveness review for Shoreham" due solely to ALAB-902. Counsel for Suffolk County asserts, further, that the Office of General Counsel has ceased preparation of its anal-
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ysis of issues for the Commission's review. Letter, Lawrence Coe Lanpher to Peter Crane, {
i Oct.12,1988. j Moreover, Suffolk County has written to the NRC Staff requesting "confirmation" that I
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a scheduled meeting between the Staff and LILCO to discur,s Shorcham operation has been canceled. Letter, Herbert H. Brown to A. Randy Blough, Chief, Reactor Projects Section No.
3B, NRC Region I(Oct. 11,1988).M Thus the Intervenors have sought to use ALAB-902 to stay not only the Commission's, but also the Staff's review. !
1 In the circumsta'nces of this case, the suspension of the ordinary immediate effec-I
- tiveness process caused by ALAB-902 is harmful and unjustifiable. As LILCO's comments on l immediate effectiveness pointed out, the Shoreham proceeding has been going on for almost two decados; the emergency planning issues have been in full-scale iltigation since the spring e I
of 1982 - over six years now. See LILCO's Comments on the immediate Effectivenss of LBP' (
{
88-24, filed with the Commission October 3,1988. Hundreds if not thousands of emergency i
j planning issues have been litigated and adjudicated.
i 3/ Such reviews involve the Commission's supervisory as well as its adjudicatory functions. l i See Proposed Rule. "Power Reactor License or Permit Following initial Decision," 52 Fed. Reg. ;
i t.442 (Feb. 4,1987). Thus, LILCO suffers irreparable harm greater than the scope of ALAB-902.
l l 4/ This demand has been refused by counsel for Region 1. See Letter, Jay M. Gutierrez to
- Herbert H. Brown, Octobar 14.1983 (attached),
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- As a result of this exhaustive review, all emergency planning issues have been resolved by licensing boards in LILCO's f avor, with the exception of exercise-related issues. As to exercise-related issues, FE51A has found that the exercise of June 1988 had no "deficiencies."
FEMA has also found, based on its review of the exercise and the LILCO plan, that the plan provides reasonable assurance that adequate protective actions can and will be taken in an emergency. FE51A's findings are entitled to a rebuttable presumption of correctness. See 10 C.F.R. S 50.47.
Given the exhaustive review that has already taken place, and given that all issues have been found in LILCO's favor either (in most cases) by licensing boards or (in the case of the exercise) by FEMA, a delay in this proceeding, as will flow from ALAB-902,is unjustifiable.
In deciding whether to stay a decision, it is appropriate to consider economic harm to LILCO from further delay in an already-delayed proceeding. The Commission, for example, considered this factor in the Waterford case:
By letters dated Starch 8 and 11,1985, Intervenors have re-quested a 2-week stay of the effectiveness of this Order. The utili-ty, by letters of Starch 12 and 14,1985, has opposed this request, in our view, the utility has offered persuasive reasons why the Commission should not delay the ef fectiveness 01 this Order. Ascen-sion to full power is a gradual process. During the first 12 days of this process, Waterford will not exceed 20% of its full power level of operation. The public health and safety risks of these low levels of power are f ar less than the theoretical risks of full power operation.
Nor is the level of contamination which results from such levels of operation significantly different than those associated with, and al-ready reached as a result of. Waterford's low-power operation.
Storeover, in the event that a stay is sought and ordered by a court the utility can reverse thd process and reduce power levels to below the 5% level. Finally,it appears that every day of delay in commer-cial operation of Waterford will cost the Applicant and the public it serves 1 million dollars.
Intervenors have offered little to balance against these f acts.
Nor have they presented the Commission with a formal request to stay Waterford full-power operation. Thus, they have not offered to the Commission any legal arguments which would support a stay and they have not made us aware of any significant legal issues that a reviewing court might have to resolve with regard to any judicially requested stay, I
Accordingly, this Order is being made immediately effective by the Commission.
Louislana Power & Light Co. (Waterford Steam Elec. Station, Unit 3) CLl-85-3. 21 NRC 471, 476-77 (1985). The Appeal Board likewise considered the economic impact on the licensee in L!merick. Philadelphia Electric Co. (Limerick Generating Station Units 1 and 2), ALAB-308, 21 NRC 1595,1602-03 (1985).
The Appeal Board should weigh this f actor in f avor of a stay in this case.EI
- 3. The granting of a stay would not harm the Intervenors The only effect of a stay would be to allow the Commission's immediate effectiveness review to continue and potentially shorten the time until a full power license can be issued following its completion. A stay of ALAB-902 would not effect the issuance of a full power 11-eense. It would, however, prevent the Intervenors from using ALAB-902 to attempt to sus-pend the Commission's and NRC Staff's immediate effectiveness review. Elimination of such delay does not constitute a legal"harm" to the Intervenors.
Moreover, if the Appeal Board stays the eifect of ALAB-902 and reinstates the Licens-ing Board's license authorization in LBP-88-24, the Intervenors have already stated that they will file a stay application of their own within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />. Appeal Board Memorandum and Order (Oct. 12,1988)t Governments' Motion for Tolling of Time Period Within Which 'o File Motion for Stay of LBP-88-24 (Oct.11,1988). Thus, the Intervenors will have an opportunity to protect their interests, la, to prevent the issuance of a full power operating license for Shoreham pending appellate review, without unnecessarily delaying the Commission's immedi-ate effectiveness review. Intervenors will not be harmed by the relief LILCO now seeks.
!/ The Intervenors likely will challenge LILCO's showing of irreparable harm on the grounds that, undar the pending settlement agreement between LILCO and New York State.
LILCO has agreed not to take Shoreham above 5% power while the proposalis pending. That much is truet however, it does not justify continued delay in the Commission's immediate ef-fectiveness review. If the settlement collapses, LILCO intends to operate Shoreham at full power as soon as possible. LILCO is entitled to expeditious review and issuance of a full power operating license.
_g.
- 4. The public interest requires a stay The fourth stay criterion is what the "public interest" requires. Here it requires a stay of ALAB-902.
In the Diablo Canyon case about three years ago the Commission applied the stay criteria of 10 C.F.R. S 2.788(e) in denying a stay of the Diablo Canyon opersting license.
Paeffic Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177,180 (1985). There the intervenors asked for a stay of effectiveness of a full power license, in part because of questions about seismic design. The Commission declared that the "public interest"lay in the use of the plant:
In sum, the Joint Intervenors have not established that they are likely to demonstrate a lack of reasonable assurance that the seismic design is adequate. With respect to the other factors of the stay criteria, Joint Intervenors assert that they will suffer irrepara-ble injury because they are put at risk by full-power operation and because it may become more difficult or more costly to adopt any necessary modifications to the plant Mere exposure to risk, howev-er, does not constitute irreparable injury if the risk, as here, is so low as to be remote and speculative and any difficulty or expense in adopting necessary modifications is not an injury to Joint Interva-nors. Moreover, the harm to others posed by even a short delay in permitting operation of a fully constructed and tested nuclear power plant is not de minimis in terms of its eccnomic effect on the licens-ee and its ratepayers. The Commission has determined that there is reasonable assurance that the activities authorized by the operating license can % conducted without endangering the health and safety of the public, and that such activities will be conducted in comp 11-ance with Commission regulations and the license. In these circum-stances, the public interest lies in the use of thLs plant and in the or-derly functioning of the regulatory proces. Accordingly, the request for a stay is denied.
Similarly,in the low power phase of this case, the Commission held as follows:
Finally, the State and County have not demonstrated that the public interest will be hartr.M by the grant of a license for Phases I and II (of low power testing). We are obligated under the Admints-trative Procedure Act and under principles of fair and efficient ad-ministration to act with reasonable dispatch on r? quests for a 11-cense. The hearing litigation in this case has been long and difficult, and where parts of it have been concluded and findings made, we be-lieve the public interest requires that we accord those findings the legal etfeet they deserve.
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.g.
Long Island 1.!rnting Comoany (Shoreham Nuclear Power Station, Unit 1), CLI-84-21,20 NRC 1441 (1984).
The emergency planning litigation likewise has been long and difficult, and the Licens-ing Board in LBP-88-24 has decided its last remaining vestiges in LILCO's favor. These ex-haustive findings should be given the legal effect they deserve. In short, Shoreham has been adjudged safe, and the public interest dictates that a safe plant should be allowed to operate.
Accordingly, the Appeal Board should stay ALAB-902 to permit the Commission to continue its immediate offectiveness review.
- 5. The Aoceal Board should immediately trant LILCO a temporary stay l LILCO asks the Appeal Board to temporarily stay the effect of ALAB-902 pending its determination of whether to grant the full stay requested in this application. Under 10 C.F.R.
S 2.788(g), the Appeal Board may grant a temporary stay in extraordinary cases "to preserve the status quo without waiting for filing of any answer."SI This is an extraordinary case. The Appeal Board has reversed a Licensing Board decision that resolved all remaining emergency planning issues in LILCO's f avor on the merits, and, due to a six year pattern of bad f aith ob-struction and de!!ance of Board orders, dismissed the Intervenors from the Shoreham proceed-ing. Moreover, the Appeal Board has vacated the Licensing Board's lleense authorization,6f-fectively putting a halt to the Commissian's immediate effectiveness review. Yet the Appeal Board based its reversal not on safety grounds, but on what it terms "jurisdictional" grounds.
LILCO requests a temporary stay to provide LILCO the interim relief it needs to avoid further unnecessary delay in consideration of LILCO's license application.
Conclusion For the above reasons, the Appeal Board should stay ALAB-902 pending the Commis-sion's decision whether to review it. LILCO requests prompt action on this request, so that it may apply to the Commission for a stay, pursuant to 10 C.F.R. S 2.788(f), if the instant request is denied.
!/ The other parties have 10 days, exclusive of additional service days, to file an answer to LILCO's stay request.10 C.F.R. 5 2.788(d)(1988).
4 Respectfully submitted, i
dM Q Donald P. Irwin !
James N. Christman "
Scott D. Matchett Charles L. Ingebretson Counsel for Long Island Lighting Company :
Hunton & Williams 707 East Main Street P.O. Box 1535 (
Richmond, Virginia 23212 DATED: October 14.1988 I
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- LAn5Ncs ces w.neA ma men t 1 con nten October 12, 1988 [
VIA TELECOPY I i
Peter Crane, Esq. l Office of General Counsel U.S. Nuclear Regulatory Commission ,
Washington, D.C. 20555 i
Ret Docket No. 50-322-0J !
i Dear Mr. Cranet This letter will confirm our telephone conversation of this morning. You advised me that in view of ALAB-902, in which the Appeal Board vacated the Licensing Board's authorization for a full power license for Shoreham, the Nuclear Regulatory Commis-sion has ceased its immediate effectiveness review for Shoreham.
You advised specifically that in the normal immediate effective- [
, ness review, the Office of General Counsel ("OGC") prepares an i analysis of issues for transmission to the Commission as part of !
- *'.te immediate effectiveness review and that, given ALAB-902, the i cdC has ceased preparation of any such analysis for Shoreham. j rou dima advised me that in your opinion, there probably ,
j would not be any official notification to the parties that the !
I immediate effectiveness review process has been terminated. It i is for that reason that I am writing this letter to confirm my i l
- understanding that notwithstanding lack of official notice, such [
]
termination has occurred.
If any of my understandings are incorrect in any respect, or i if there are any changes in circumscances, please advise me [
immediately. [
t Sincerely yours, [
W Lawrence Coe Lappher l 1 l
. cc: Donald P. Irwin, Esq. [
d Edwin J. Reis, Esq. i
- William R. Cumming, Esq. !
1 Richard J. Zahnleuter, Esq.
j Stephen B. Latham, Esq. !
i Docketing and Service Section i I
i Service List i
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OCT 15 '88 10:32 HRC KING OF PRUSSIA-2 P02 Attachmont 2
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Uwrivo atATss NUCLEAR REGut.ATORY COMMtS$ TON 4 RE0@Nl S
xtwo or EuNYnMovYv"mea vence October 14, 1988 BY TELECOPIER Herbert H. Brown X1rkeatrick & Lockhart South Lobby - 9th Floor 1800 M Street N. W.
Washington,Dd 20036-5891 Dear Mr. Srgwn; .
This is to advise you that the October 17, 1988 meeting between the NRC staff and Long Island Lighting Company is not cancelled as a result of A(AB 902. At this time, the NRC staff deems it appropriate to better under-stand the status of various tu:hnical issues relevant to the licensee's readiness for operation, notwithstanding the fact that thwrv are issues in the hearing process that need to be resolved prior to the deterwination of whether 4
or not to issue a full power operating license.
Sincerely, a
y . ct.f
<A M ay M. tierrez Regional Counsel cc: F. G. Palomino, Esq. (by Telecopier)
S. D. Latham, Esq. (by Telecopier)
D. P. Irvin, Esq. (by Telecopter)
E. J. Reis, Esq. (by Telecopier)
Shorthae Service List (Regular Mail) g W k'
. Attachment 3 KIRKPATRICK & LOCKHART xunnoen.mnoon I m W rTlast,N.T.
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,. gm M We M MT? M ads 4 74 luaking NIsamtKEscTN ma abesse can roam October 11, 1988 BY TELECOPIER Mr. A. Randy Blough, Chief Reactor Projects Section No. 3B U.S. Nuclear Regulatory Commission, Region I King of Prussia, PA 19406 Dear Mr. Blought I am writing on behalf of our client, Suffolk County, to request your confirmation that the Region I meeting with the Long Island Lighting Company scheduled for October 17, 1988, is cancelled as a result of ALAB-902, which vact.ted the licensing board's authorization for the staff to issue a full-power operating licens's fer Shoreham.
Please respond by telecopier and as promptly as possible.
Sincerely, y
Herbert H. Brown l
l i
cc Fabian G. Palomino, Esq. (by telecopier)
Stephen B. Latham, Esq. (by telecopter)
Donald F. Irwin, Esq. (by telecopier)
Edwin J. Reis, Esq. (by telecopier) f i
y/b W N4
. . 00T 061888 i
No.88-161 U.S. Nuclear Regulatory Consission ;
Region ! !
= NOTICE OF $!GN!FICANT LICENSEE HEET!NG l l
Licenses: Long Island Lighting Company l Facility: Shoreham Nuclear Power Station Cocket No.: 50-322 Time and Date: 10:00 a.m., October 17, 1988 t.ocation: Region ! Office Division of Reactor Projects (ORP)
Conference Rocs, King of Prussia, Pennsylvania
Purpose:
Meeting to 01scuss Licensee Schedule and Readiness for l Startup Activities at Shoreham Perding Issuance of a Full Power Operating License NRC Attendees: W. Kane Of rector Olvision of Reactor Projects (ORP)
- 7. Martin, Director, Division of Reactor Safety (OR$)
- 5. Ebneter Of rector, Division of Radiation Safety and Safeguards (CR55) '
- 5. Collins, Caputy 01 rector, CRP V. Johnston, Ceputy Ot ractor, ORS J. Wiggins, Chief, Reactor Projects Branch No. 3. CAP J. Curr, Chief. Engineering 3 ranch, CR5 A. 81cugh, Chief Reactor Projects Section No. 38, CRP P. Espen, Caief, special Test Progrews, CRS L. Coerflein, Project Engineer, CRP F. Crescenzo, Senior Resident Inspector, Shorehaa W. Butler, 01 rector, Project Ofrectorate I-2, NRR
- 5. Brewn, Project Manager, PO!-2, NRR '
Licensee Attendees: R. Youngdahl, President LILCo J. Leonard, Vice President-Nuclear LILCo
- 5. Skorupski, Assistant Vice President-Nuclear, LILCo J. Smith, 01 rector. Office of Training, LILCo W. Steiger, Plant Manager, Shorehen J. Notare, Manager, Quality Assurance, Shoreham C. Devario, Manager, Nuclear Operations Support, Shorthas E. Young 11ag, Manager, Engineering Shoreham Note: Attendance by NRC personnel at this meeting should be nede know by 4:00 p.m. , October 14, 1988, via telephone call to A. Blough, Region I, at FT5 346-5146 or (215) 337-5144.
Prepared by: L A. Rancy 51pagn,'Cnief l Reactor Projects Section No. 25 i
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