ML20235J118

Lilco Answer to Intervenor Motion for Reconsideration of Portions of CLI-87-05.* Motion Opposed Due to Intervenors Failure to Offer New Reasons for Reconsideration.Certificate of Svc Encl

ML20235J118
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/13/1987
From:	Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#387-4012 CLI-87-05, CLI-87-5, OL-3, NUDOCS 8707150401
Download: ML20235J118 (10)

Text

4 p LILCO, July 13, 1987 DotKr7En UNC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '

I 87 JUL 14 P3 :08 c ry -

Before the Commission D6cm , .

In the Matter of )

)

LONG ISLAND LIGliTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Uni' O )

LILCO'S ANSWER TO INTERVENERS' MOTION FOR RECONSIDERATION OF PORTIONS OF CLI-87-05 on .it 30,1987, the Interveners filed their Suffolk County, State of New York, and Town of wuthampton Motion for Reconsideration of Portions of CLI-87-05" ("Mo-tion"). For the reasons set out below LILCO opposes the motion.

I Interveners' Motion Should Not be Entertained The Commission should not even consider Interveners' motion. Under 10 C.F.R.

S 2.786(b)(7), petitions for reconsideration of Commission decisions upon review are not tc be entertained. It is true that S 2.786 generally speaks to Commission review of Ap-peal Board decisions, but the reasons for the rule's existence apply equally here. When the Commission promulgated S 2.786(b)(7), it believed that it would "put parties on no-tice not to file petitions for reconsideration" because "at some point there must be an end to litigation before it." 42 Fed. Reg. 22129 (May 2,1977). Although the Interve-nors' motion to reopen was considered in the first instance by the Commission, hearings on the underlying issues had been completed and decisions rendered by the Licensing and Appeal Boards, and the Commission has fully considered Interveners' stated grounds for reopening. No new grounds have been presented here.

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\ II. Interveners' Motion Is Untimely In any case, the Commission should dismiss Interveners' motion outright because it is untimely. The regulations say that any petition for reconsideration of a final deci-sicaII must be filed within ten days af ter the date of decision.10 C.F.R. S 2.771(a).2/

The Commission decision that Interveners ask the Commission to reconsider (CLI-87-05) is dated June 11, 1987. Interveners' motion was not filed until June 30, 1987, almost twenty days af ter the Commission issued CLI-87-05, and the Interveners I

have made no showing of good cause for filing late.

III. There Is No Reason for the Commission to Reconsider CLI-87-05 Interveners seek reconsideration of CLI-87-05 on the grounds that the Commis-sion's decision (1) lacks basis, (2) is contrary to the facts, and (3) violates NRC regula-tions and the Atomic Energy Act. Motion at 2. Each of these grounds is without merit.

Interveners simply disagree with the Commission's conclusions, so they want the Com-mission to reconsider them. But Interveners have offered no new substantive reasons for the Commission to consider the matter again. See Public Service Company of New Hampshire (Seabrook Station, Unitt i and 2), CLI-78-15, 9 NRC 1 (1978) (extraordinary 1/ Section 2.771 is addressed to final decisions, iA, decisions upon appellate review within the Commission of initial decisions. S_e_e Philadelphia Electric Company (Limer-ick Generating Station, Units 1 and 2), LBP-83-25,17 NRC 681 at 685 n.3 (1983).

Arguably, CLI-87-05 is a final decision for purposes of S 2.771 because there is no higher level of review available within the Commission. In any case, the ten day period in S 2.771 is suggestive here because the fact that a brief period is allowed on such a complex matter as a final decision " indicates an analogous period for application to mo-tions concerning the reconsideration of interim matters." Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-110,16 NRC 1895,1896 (1982)(licensing board found NRC Staff's motion to reconsider its earlier de-cision admitting a contention untimely, rejecting the Staff's argument that S 2.771 ap-plied only to final decisions).

2/ Even if the ten days began to run from the time of service of CLI-87-05, Interve-nors' motion would still be untimely. The Commission's decision was served on June 12; adding the requisite five day mail allowance to the ten day period means that Interve-nors' Motion would have been due on June 29.

g circumstances must be shown in order for a post-judgment motion for relief to be granted, because such motions are not f avored by the regulations). Accordingly, Inter-venors' motion should be denied.

A. The Commission Adequately Stated the Basis for Its Decision Interveners complain, with respect to the Commission's order on both the Red Cross and congregate care center issues, that the Commission failed to articulate the basis for its rulings. El Motion at 2,4,8. Although Interveners cite no cases for sup-port, they appear to be making the same type of administrative law-judicial review ar-gument that they made in their April 1986 petition for review of ALAB-832.E This ar-gument should be dismissed.

Interveners' " failure to state a basis" argument is a standard argument made to courts of appeal on review of final agency action, 4, a ' final decision" under 10 C.F.R. S 2.770.0 Upon judicial review, the reviewing court's task is necessarily a 3/ ALAB-832 embodied the Appeal Board's rejection of most of Interveners' claims of error on appeal from the Licensing Board's initial decisions. The Appeal Board found itself confronted with "an uncritical rehearsal of virtually every claim -large or small

- that was advanced to and rejected by the Licensing Board," ALAB-832,23 NRC 135, 143 (1986); accordingly, the Appeal Board confined its opinion to the "relatively few" substantial issues raised, stating that although it had considered each claim there was no reason to freight its opinion with a cataloguing of each and every claim raised in In-tervenors' brief. Id 2Interveners then petitioned the Commission for review, arguing that the Appeal Board had f ailed to adequately state the bases for its opinion, in viola-tion of NRC regulations, the Administrative Procedure Act, and judicial precedents.

S_ee Suffolk County, State of New York, and Town of Southampton Petition for Review of ALAB-832 at 3-9 (April 15,1986). The Commission took review of only three issues, without discussing Interveners' " unexplained basis" arguments. Order of September 19, 1986 (unpublished).

4/ An NRC order refusing to reopen licensing proceedings to take additional evi-dence is not reviewable in federal court because the decision is not a final order. Ohio Citizens Responsible Energy v. NRC, 803 F.2d 258 (6th Cir.1986). Even when the NRC's reopening decision is properly before a reviewing court, however, the court's role is "quite limited." S_ee State of Ohio v. NRC,814 F. 2d 258 (6th Cir.1987), aucting l Mobil Oil Corp. v. ICC, 685 F.2d 654 F2d. 624, 632 (D.C. Cir.1982)("where as here the j agency has taken final action on a matter that is peculiarly within its realm of ex- I pertise, we will not require the agency to reopen its proceedings except upon a clear showing of abuse of discretion or of extraordinary circumstances").

O t narrow one: to determine whether the agency has taken a "hard look" at the salient problems and issues, and to assure that the agency has given reasoned consideration to all the material facts. Greater Boston Television Corporation v. FCC, 444 F.2d 841 (D.C. Cir.1970), cert, denied, 403 U.S. 923 (1971). If the agency has taken such a hard look, and has articulated with reasonable clarity the reasons for its ruling such that its decisional path may reasonably be discerned, the court must exercise restraint and l defer to the agency's determination. E,444 F.2d at 851.

In this case, the Commission plainly did state the bases for its decision. Con-cerning the effect of the August 21, 1986 Oberstebrink letter on Red Cross participa-tion in a Shoreham emergency response, the Commission declined to reopen the record because it found "no implication in the letter that for Shoreham, ARC is disavowing its general policy," mandated by the charter granted to the Red Cross by Congress, to pro-vide support services during "a_ny radiological, or natural disaster." CL1-87-05 at 6. The Commission stated that "the new letter does not appear to erode" the Licensing Board's '

finding of reasonable assurance "that the Red Cross will perform the duties which LILCO relles upon the Red Cross to perform." @ Instead, the Commission found that all the letter was intended to do was to make clear that the Red Cross neither supports nor opposes Shoreham's opening. & Simply put, the Red Cross considers itself bound 1

by policy, not individual agreements. The Commission could hardly have stated its ra- )

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tionale more clearly.

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Concerning the congregate care center issue, the Commission declined to reopen the record for several reasons. CLI-87-05 at 9. Interveners cite only two of them,E and assert that the Commission " inexplicably" concluded that the 1986 ARC letter g/ The two factors Interveners mention are that the Licensing Board was aware of the shelter availability dispute and that most of the letters from facility owners were bound into the record below. Motion at 8. On these points, LILCO refers the Commis-sion to LILCO's October 27,1986 Answer at 6 n. 5, and accompanying text.

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\ "doesn't weaken th[e] basis for the Board's decision . . .". Motion at 8. However, In-tervenors fall to mention the key factor rehed upon (and clearly articulated) by the Commission in denying the motion:

It also appears that the Licensing Board was not relying spe-cifically on listed facilities, but rather on the standards used by the Red Cross to choose and locate facilities, and on the ARC's past success in locating facilities. S_ee PID,22 NRC at 423. The new ARC letter doesn't weaken this basis for the Board's decision, and therefore the motion to reopen does not demonstrate that a materially different result would have been reached by the Licensing Board, even assuming arguendo that the information is new. (emphasis supplied)

CLI-87-05 at 9.S Intervenors' motion overlooks the Commission's fully articulated rea-sons for its decision.

B. CLI-87-05 Is Consistent with the Facts Interveners argue that CLI-87-05 conflicts with the f acts. Motion at 2,4,8. But all Interveners really mean is that they disagree with how the Commission has evalu-ated those f acts.

The relevant facts are these: LILCO relles on the Red Cross to provide certain support services in the event of a radiological emergency at Shoreham. In a July 25, 1984 letter to LILCO, the Red Cross described the role it would play in such an emer-gency. In an August 21, 1986 letter, the Red Cross stated that it had erroneously char-acterized its previous letter as an agreement, and reaffirmed that in fact its earlier letter reflected a Congressionally mandated policy to perform support services "in any radiological, or natural emergency." In ef fect, all the Red Cross said in that second let-ter was that it still intends do all the things it previously told LILCO it would do, but S/ The Commission also referenced the Licensing Board's view that the ARC is ex-perienced in locating shelters using established criteria and procedures, and that "[i]f f acilities become unavailable the Red Cross finds other suitable facilities." CLI-87-05 at 8, citing PID,22 NRC at 421.

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g that its role is driven by Congressionally mandated policy rather than a specific agree-ment with LILCO.

The central issue before the Commission on Interveners' motion to reopen was whether the Red Cross' characterization of its role as a policy instead of an agreement undermined the Licensing Board's finding of reasonable assurance such that "a material-ly different result would be or would have been likely had [the 1986 letter) been con-sidered initially." See 10 C.F.R. S 2.734. The Commission weighed all the facts and de-cided that the 1986 letter did not undermine the Licensing Board's findings. CLI-87-05 does not ignore or conflict with the f acts. Interveners simply disagree with the weight the Commission has given the facts.-

C. The Commission Has Not Violated Its Regulations Again without citing any authority, Interveners assert that the Commission vio-lated 10 C.F.R. S 50.47 (a)(2) by rejecting the RAC panel's findings concerning the ef-fects of the 1986 Red Cross letter. Motion at 6-7, 11-12. Interveners argue that S 4 l

50.47(a)(2) makes FEMA findings rebuttable presumptions, and that the Commission was required to take evidence supporting or rebutting those findings before accepting or re-jecting them. Id. at 7. Interveners' argument is misplaced.

I Interveners ignore the context of the Commission's decision. At issue was a mo-tion to reopen a closed record - a matter totally within the Commission's discretion -

not Commission review of an initial decision. As LILCO noted in its November 21,1986 Answer, the Commission has set "a high, although not insuperable, barrier to respening a closed proceeding." LILCO's Answer to Interveners' Motion to Reopen Record (November 21,1986) at 2, quoting Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-22,24 NRC 685 at 691 n.3 (1986). As part of their burden in moving to reopen the record, Interveners had to show not only that the mo-tion addressed a significant safety issuA but also that "a materially different result

4 6 would be or would have been likely" had the 1986 Red Cross letter been considered ini-tially. See CLI-87-05 at 2-3. The Commission duly considered the parties' and FEMA's views on the "new" facts presented by Interveners and determined that Interveners had f ailed to make the required showing. The Commission was not required in this context to hold a hearing on whether FEMA's views should or should not be adopted.

IV. Conclusion Interveners have offered no new reasons for the Commission to reconsider its decision in CLI-87-05. Instead, they merely ask the Commission to revisit the same facts and arguments presented in their original motion to reopen the record.2/ LILCO respectfully urges the Commission to decline to do so.

Respectfully submitted, NM h. %la4Ais ~

Don"ald P. irwitr 8 James N. Christman Scott D. Matchett Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DA1L Tuly 13,1987  ;

7/ One of the purposes of the NRC's discretionary option to refuse reopening the record is to assure that the party who would reopen the record offers material assis-tance in the analysis of "new" data rather than a mere continuation or rehash of the process ostensibly terminated when the record was closed initially. State of Ohio v.

NRC, 814 F.2d 258 (6th Cir.1987). The facts presented in Interveners' motion to re-open are not "new"; moreover, it is doubtful that Interveners could offer material as-sistance in the analysis of those facts in a reopened proceeding. <

4 LILCO, July 13,198'

'1 CERTIFICATE OF SERVICE 87 JJL 14 P3 :08 In tre Matter of h LONG ISLAND LIGHTING COMPANY s"01 1,

(Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL I hereby certify that copies of LILCO's Answer to Interveners' Motion for Recon" sideration of Portions of CLI-87-05 were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.

Lando W. Zech, Jr., Chairman

• Gary J. Edles, Esq.

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W. Appeal Board

, Washington, DC 20555 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)

Commissioner Thomas M. Roberts

• East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway 1717 H Street, N.W. Bethesda, MD 20814 Washington, DC 20555 Dr. Howard A. Wilber Commissioner Frederick M. Bernthal

• Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)

East-West Towers Commissioner Kenneth M. Carr

• 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.

Washington, DC 20555 John H. Frye, III, Chairman Atomic Safety and Licensing William C. Parler, Esq. Board General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission EEst-West Towers 1717 H Street, N.W. 4350 East-West Hwy.

Washington, DC 20555 Bethesda, MD 20814 Alan S. Rosenthal, Chairman Dr. Oscar H. Paris A tomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor (North Tower) East-West Towers East-West Towers 4350 East-West Hwy.

4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814

3 Mr. Frederick J. Shon Fabian G. Palomino, Esq.

• Atomic Safety and Licensing Richard J. Zahnleuter, Esq.

Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber East-West Towers, Rm. 430 Room 229 4350 East-West Hwy. State Capitol Bethesda, MD 20814 Albany, New York 12224 Morton B. Margulies, Chairman Mary Gundrum, Esq.

Atomic Safety and Licensing Assistant Attorney General Board 120 Broadway U.S. Nuclear Regulatory Commission Third Floor, Room 3-116 East-West Towers, Rm. 407 New York, New York 10271 4350 East-West Hwy.

Bethesda, MD 20814 Spence W. Perry, Esq.

• William R. Cumming, Esq.

Dr. Jerry R. Kline Federal Emergency Management Atomic Safety and Licensing Agency i Board 500 C Street, S.W., Room 840 s U.S. Nuclear Regulatory Commission Washington, DC 20472 East-West Towers, Rm. 427 4350 East-West Hwy. Mr. Philip McIntire Bethesda, MD 20814 Federal Emergency Management Agency Secretary of the Commission 26 Federal Plaza Attention Docketing and Service New York, New York 1G278 Section U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger 1717 H Street, N.W. New York State Energy Office Washington, DC 20555 Agency Building 2 Empire State Plaza Atomic Safety and Licensing Albany, New York 12223 Appeal Board Panel U.S. Nuclear Regulatory Commission Stephen B. Latham, Esq.

• Washington, DC 20555 Twomey, Latham & Shea 33 West Second Street Atomic Safety and Licensing P.O. Box 298 Board Panel Riverhead, New York 11901 U.S. Nuclear Regulatory Commission Washingtoa, DC 20555 Jonathan D. Feinberg, Esq.

New York State Department of Edwin J. Reis, Esq.

• Public Service, Staff Counsel U.S. Nuclear Regulatory Commission Three Rockefeller Plaza 7735 Old Georgatown Road Albany, New York 12223 (to mailroom)

Bethesda, MD 20814 Ms. Nora Bredes Executive Coordinator Lawrence Coe Lanpher, Esq.

• Shoreham Opponents' Coalition Karla J. Letsche, Esq. 195 East Main Street Kirkpatrick & Lockhart Smithtown, New York 11787 South Lobby - 9th Floor 1800 M Street, N.W.

Washington, DC 20036-5891

., Gerald C. Crotty, Esq. Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Box 231 State Capitol Wading River, NY 11792 Albany, New York 12224 l' Martin Bradlev Ashare, Esq. *

/ Eugene R. Kelly, Esq.

Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York- 11787

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csWh MdeM' Scott D. Matetf6tt ' f Hunton & Williams 707 East Main Street P.O. Box 1535  ;

Richmond, Virginia 2321^.

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DATED: J'tly 13,'1987 1

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