ML20076G897

Response Supporting Citizens for Orderly Energy Policy,Inc Appeal from ASLB 830728 Memorandum & Order LBP-82-42 Denying Citizens Petition to Intervene.Relevant Factors Offset Citizens Untimeliness.Certificate of Svc Encl

ML20076G897
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/24/1983
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, LBP-82-42, NUDOCS 8309010182
Download: ML20076G897 (32)

Text

1 BYsTE 33 pm 31 NO 38 t n. , - c r r ec'

~

V UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the ATOMIC SAFETY AND LICENSING APPEAL BOARD d,

Administrative Judges:

e y Alan S. Rosenthal, Chairman Gary J. Edles

• Howard A. Wilber k

y ', In the Matter of )

)

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

, )

(Shoreham Nuclear Power Station, )

Unit 1) )

RESPONSE OF LONG ISLAND LIGHTING COMPANY TO APPEAL OF CITIZENS FOR AN ORDERLY ENERGY POLICY I

August 24, 1983 Hunton & Williams

)- P. O. Box 1535 Richmond, Virginia 23212 8309010182 830024 PDR ADOCK 05000322 0 PDR ~

L \

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Gary J. Edles Howard A. Wilber In the Matter of )

)

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

)

(Shoreham Nuclear Power Station, )

Unit 1) )

RESPONSE OF LONG ISLAND LIGHTING COMPANY TO APPEAL OF CITIZENS FOR AN ORDERLY ENERGY POLICY August 24, 1983 Hunton & Williams P. O. Box 1535 Richmond, Virginia 23212 J

d

TABLE OF CONTENTS Page

. TABLE OF CASES.............................................. 11 ARGUMENT i I. Background.......................................... 1 II. Issues and Conclusions.............................. 2 III. Standing............................................ 2

A. Precedent from the Shoreham Construction Permit Proceeding.................. 2 B. Injury in Fact. ................................ 5

1. Injury in tl'e Form of a Less y Satisfactory Emergency Plan................. 6

2. Injury in the Form of Losing the Benefits of Nuclear Power in the Area................................. 7 C. Zone of Protected Interests.................... 10 t

1. Interest in Having Nuclear Energy..................................... 10

2. Interest in Adequate Emergency Planning................................... 12 IV. Timeliness......................................... 13 j

V. Section 2.714(a)(1) Balancing...................... 14 I

A. Good Cause for Failure to File on Time........................................ 14 B. Availability of Other Means Whereby Citizens' Interest Will Be Protected........... 16 4 C. Extent to which Citizens' Participation Will Assist in Developing a Sot:nd Record. . . . . . . 17 D. Extent to which Citizens' Interest Will Be Represented by Existing Parties............. 18 E. Extent to which Citizens' Participation l will Broaden the Issues or Delay the Proceeding..................................... 19 F. On Balance..................................... 20 ATTACHMENT: Petition for Intervention of Suffolk Scientists for Cleaner Power and Safer Environment, dated April 15, 1970.

TABLE OF CASES Page Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970)................. 4 Consumers Power Co. (Palisades Nuclear Power Facility),

LBP-81-26, 14 NRC 247 (1981)............................... 6 Consumers Power Co. (Palisades Nuclear Power Facility),

ALAB-670, 15 NRC 493 (1982)........................... 11, 17 Long Island Lighting Co. (Shoreham Nuclear Power Station), LBP-73-13, 6 AEC 271 (1973)...................... 3 i

Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631 (1975)................................................ 11, 20 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13, 17 NRC (May 12, 1983)............................................ 15 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC (June 22, 1983)........................................ 15-16

.i Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Appeal Board Order of Aug. 10, 1983...... 1 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Licensing Board Order of Aug. 19, 1983........... 16 Nuclear Engineering Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 7 3 7 ( 19 7 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 - 9 , 12 Portland General Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976)..... 4, 12 Virginia Elec. and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98 (1976)........ 12 Virginia Elec. and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631 (1976)........ 4 j Virginia Elec. and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979)......... 6 i Washington Public Power Supply System (WPPSS, Nuclear Project No. 3), ASLBP No. 83-486-01 OL, slip op.

I (Apr. 21, 1983)............................................ 6

-ii-I

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

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

)

i (Shoreham Nuclear Power Station, )

Unit 1) )

l RESPONSE OF LONG ISLAND LIGHTING COMPANY TO APPEAL OF CITIZENS FOR AN ORDERLY ENERGY POLICY I. BACKGROUND As the Appeal Board stated in its Order of August 10, 1983:

Citizens for an Orderly Energy Policy, Inc.,

has appealed under 10 CFR 2.714a from the Licensing Board's July 28, 1983 memorandum and order, LEP-83-42, 18 NRC , denying its petition for leave to intervene in this operating license proceeding. The denial was founded on the untimeli-ness of the petition and the Licensing Board expli-citly did not reach the issue, among others, of Citizens' standing to intervene. Although it is i uncertain at this juncture whether we will find it necessary to reach that issue, the other parties

( to the proceeding should address it in their re-( sponses to the appeal.

II. ISSUES AND CONCLUSIONS We speak to three issues:

1. Does Citizens have standing to intervene?

2. Was Citizens' intervention petition timely?

3. If untimely, should the petition nonetheless be granted after a balancing of the S 2.714(a)(1) factors?

In the judgment of the Long Island Lighting Company, 1

l Citizens has standing to participate in this proceeding.

Equally clear, its petition for intervention was filed years late. Whether sufficient grounds exist to excuse the untimeli-ness is a finely balanced question. In LILCO's view, the bal-ance tips in Citizens' favor. Thus, the Company supports the present appeal.

III. STANDING A. Precedent from the Shoreham Construction Permit Proceeding On April 15, 1970, the Suffolk Scientists for Cleaner Power and Safer Environment petitioned to intervene in the Shoreham CP proceeding. A copy of the petition is attached.

It is similar in many respects to the petition now in question, l in particular, in its indication that the members of the peti-l

[ tioning group were largely people who were knowledgeable about radiation and reactors, lived near Shoreham, believed their health, safety and general welfare would be threatened if

l l nuclear power were rejected at Shoreham, and wished to intervene in order to support the plant. As the initial deci-c_,n of the Licensing Board indicated some years later the t

Suffolk Scien:ists " petitioned to intervene in favor of the ap-l plication and P.his petition was . . . approved." Long Island Lighting Co. (Shoreham Nuclear Power Station), LBP-73-13, 6 AEC 271, 274 (1973).1/

There is some overlap in the membership of the Suffolk Scientists and the Citizens. For instance, Dr. Vance L. Sailor has been a leader of both groups. Part of his limited appear-nnce before the Shoreham ASLB on April 13, 1982, bears quoting:

Good evening your Honor. My name is Vance Sailor. I live in East Patchogue, New York. I am a Senior Physicist on the Scien-tific Staff at Brookhaven National Laborato-ry. . .

When I came to Long Island 33 years ago, my first assignment was to supervise the col-lection of nuclear data . . . for the startup of the first nuclear reactor in Suffolk Coun-ty. This reactor operated safely for 17 years until it finally become obsolete for experimental purposes.

Subsequently, I worked on various other reactors and I conducted physical research for the past 33 years. During this time, my pay has come entirely from the Federal bud-get, the taxpayer, the people. I feel

( compelled therefore to make my professional f judgment about some of these matters known to the public [and] to the Board.

I l

1/ This precedent was not pointed out to the present Licens-ing Board by any party, an oversight we regret.

I followed the Shoreham Plant with con-siderable detail, since the start of the AEC construction permit in 1970 and through the actual construction up to its present status.

As a matter of fact, I served as Chairman as a private citizen of a group, Suffolk Scien-tists for Cleaner Power and Safer Environ-ment, which intervened in the AEC construc-tion permit hearings in support of the appli-cation. We presented some expert witnesses.

We cross-examined a few witnesses. We filed briefs and so on, but mainly we sat through the 90 or more sessions of those hearings in a state of shock and astonishment at the broad scope that the licensing board gave the intervenors in opposition to this permit.

Tr. 578-79.

The Suffolk Scientists were admitted to the Shoreham CP proceeding after the Supreme Court's seminal standing decision l

in Association of Data Processing Service Organizations v.

Camp, 397 U.S. 150 (1970).2/ The Atomic Energy Commission's view in 1970 that the Suffolk Scientists had standing to par-ticipate in the Shoreham CP proceeding seems to be dispositive l of whether Citizens now has the requisite interest to partici-pate in the Shoreham OL proceeding. The two situations cannot be meaningfully distinguished.

But even without the precedent of the Suffolk Scien-tists' successful intervention, it is clear that Citizens has 2/ In NRC practice intervention as a matter of right is governed by the judicial standing doctrines laid down in Data Processing. See, e.g., Virginia Elec. and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 632-33 (1976), citing Portland General Elec. Co. (Pebble Springs Nu-clear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).

(

alleged the injury in fact necessary for standing and has fallen as well within the zone of interests protected by the Atomic Energy Act.

B. Injury in Fact At issue in this phase of the Shoreham proceading are decisions whether to grant or deny Shoreham an operating li-cense on offsite-emergency-preparedness grounds and, if to grant it, on what emergency-preparedness terms and conditions.

Citizens claims essentially two ways in which its mem-bers will be injured in fact if the NRC decides not to grant the license or grants it in an inappropriate fashion. First, assuming that, if licensed, Shoreham will operate in compliance with "all appropriate NRC rules and regulations,"3/ Citizens alleges injuries to its members' general welfare, health and safety if the plant is not licensed, thereby depriving the com-l munity in which they live and work of the " clean, safe, effi-cient energy" Citizens believes is more available from nuclear power than from alternative fossil-fired units.4/ Second, Cit-izens further alleges injuries to its membere if, though the plant is licensed to operate in the community in which they 3/ See Citizens' Intervention Petition, dated June 14, 1983, I

at 4 [ hereinafter cited as Petition).

s/ See Petition 5-6; Citizens' Reply to the NRC Staff, dated July 12, 1983, at 2-3 [ hereinafter cited as Reply).

I

live and work, its offsite emergency preparedness is not as well conceived as it might have been.5/

1. Injury in the Form of a Less Satisfactory Emergency Plan Citizens' members live near Shoreham. Affidavits sub-mitted with its intervention petition show the distance that each affiant lives from the plant: 1 mile (Hull), 3 miles (Morris), 4 miles (Miltenberger), 12 miles (Weinstock), 15 miles (Sailor). By dint of geography, accordingly, Citizens' members are more directly affected by decisions about the plant than are the general public.

NRC case law establishes that close proximity to a plant, without more, is enough to confer standing, at least where the petitioner asserts concerns about radiological health and safety. Virginia Elec. and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979);

Washington Public Power Supply System (WPPSS, Nuclear Project No. 3), ASLBP No. 83-486-01 OL, slip op. 3 (Apr. 21, 1983);

Consumers Power Co. (Palisades Nuclear Power Facility),

LBP-81-26, 14 NRC 247, 254-55 (1981). We can think of no de-

) fensible reason why a neighbor of a plant who wants to litigate t

the adequacy of its emergency plan in order to prevent the 5/ See Petition 10-11; Citizens' Brief to the Appeal Board, dated Aug. 9, 1983, at 10 [ hereinafter cited as Brief].

I

plant from operating should be held to have standing while a neighbor who wants to litigate the adequacy of the emergency plan to make sure the plant operates safely should be held not to have standing.

2. Injury in the Form of Losing the Benefits of Nuclear Power in the Area The second injury alleged by Citizens is the denial of

" clean, safe, efficient" nuclear energy. This is clearly a real injury for the purposes of standing. The question is whether it is merely a generalized injury, no different from that suffered by the population as a whole.

Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978), is distinguishable. The application in that case was for the renewal and amendment of a license to operate a low-level radioactive waste burial site. Two organizations petitioned for leave to intervene. The first group (Mid-America) alleged that the burial facility had "a direct effect upon the cost and availability of virtually all facilities and services involving radioactive materials, particularly in the mid-America region." It claimed that its interest in the benefits to the general public utilizing goods and services pro-vided by users of the Sheffield facility will be adversely affected by the denial or limitation of a license for [that] fa-cility without a proper and knowledgeable balance of concerns for the protection of the public health, welfare and safety,

l and environmental protection in accordance with the Atomic Energy Act and the National Environmental Policy Act.

More specifically, Mid-America, as a pub-lic interest foundation, is concerned with both the benefits accruing to the general public from the use of radioac-tive materials and with the disposal of waste products in a safe manner with re-spect to persons and the environment.

Id. 740. The group went on to allege that it had provided legal representation and been active in other actions involving the public interest in matters of energy and the environment.

Id. 740-41.

The second group (Chicago Section) said that many of its members lived in northern Illinois, were involved in work that used the Sheffield facility and had particular interest and expertise in matters that might be involved in the proceed-ing. Id. 741.

The Commission found that neither petitioner had iden-tified, let alone particularized, any specific injury that it or its members would or might sustain should the Sheffield li-cense renewal and amendment application be denied or, alterna-tively, granted subject to burdensome conditions upon the li-cense. Id. Rather, both petitioners sought intervention in order to vindicate broad public interests said to be of partic-ular concern to them.

The Commission continued:

The mere fact that some of the members of the Chicago Section may be engaged in work which utilizes the facility does not establish that those members would be harmed were the license

_g_

to be terminated or freighted with additional conditions. This would depend upon, among other things, the nature of the work being performed and the availability of other facilities for the disposition of low-level radioactive wastes.

Id. 741 n.3.

The petitioners in Sheffield made the mistake of citing the interest of the " general public" and even " mankind." Id.

740-41. By contrast, in this case Citizens has alleged a very specific injury to people in the vicinity of Shoreham -- name-ly, their being deprived of benefits of electric power from the facility. Unlike the Sheffield petitioners, who failed to dis-cuss the nature of the work being performed that depended upon the Sheffield facility and the availability of other facilities for the disposition of low-level radioactive wastes, Citizens has specifically alleged that coal-fired alternatives to Shoreham would require the dredging of new harbors or the building of new railway lines and would generate solid waste and contribute to air pollution problems. These injuries would affect the people on Long Island, not the population of the United States generally.

In short, the members of Citizens have direct, personal interests, distinct from those of the general public, that Cit-( izens alleges could be seriously injured by the way in which the NRC resolves the issues now pending in the offsite-i emergency-preparedness phase of the Shoreham proceeding.

C. Zone of Protected Interests Citizens has established, then, two species of particularized " injury in fact." The question remains whether either injury is within a zone of interests protected by the Atomic Energy Act. Two issues are raised: (1) did Congress when passing the Atomic Energy Act mean to protect people's in-terest in having nuclear power available in their community in l

l order to serve the general welfare and to minimize the impact on local health and safety from the generation of electricity, and (2) did Congress intend in the Atomic Energy Act to protect the health and safety of people who, though in favor of nuclear power, wish to ensure the highest standard of radiological pro-tection reasonably available from a nuclear plant operating in their community?

1. Interest in Having Nuclear Energy The language of the Atomic Energy Act makes unavoidably apparent that among the interests protected by it is the avail-ability of nuclear power in appropriate circumstances. Thus, section 1 of the Act indicates that it is "the policy of the United States" that:

a, the develvpment, use, and control of atomic energy shal. be directed so as to :aake i the maximum contribution to the general wel-fare . . . .

b. the development, use, and control of atomic energy shall be directed so as

( to . . .

improve'the general welfare [and) increase the standard of living . . . .

i Section 3 of the Act, in turn, states that "[i]t is the purpose i

I of this chapter to effectuate the policies set forth above by providing for"

d. a program to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes . . . .

42 U.S.C. $$ 2011, 2013.

It is settled that threatened economic injury (e.g.,

the possibility of increased utility bills) does not confer standing under the Atomic Energy Act in NRC proceedings concerned with other than antitrust issues. Consumers Power Co. (Palisades Nuclear Power Facility), ALAB-670, 15 NRC 493, 507 (1982) (Rosenthal, J., concurring). But Citizens does not assert an interest in the economic benefits of the Shoreham plant alone, but also an interest in the benefits of " clean, safe, efficient" energy, including tne avoidance of the

( undesirable impacts on health of coal-fired alternatives. The oplicy of encouraging nuclear energy, cited above, must protect some interest and must contemplate that nuclear energy has ben-efits. If it does not protect the interest of having inexpen-sive energy, it must protect the interest of having clean, safe, efficient energy.6/

6/ The " zone of interests" protected or regulated by the Atomic Energy Act includes a policy "to make certain that this country would continue to lead all other countries in the re-search, development and application of atomic energy" and prob-ably other interests as well. Long Island Lighting Co.

(Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 638 (1975) (Rosenthal, J.).

2. Interest in Adequate Emergency Planning As for Citizens' interest in adequate emergency pre-paredness, it is well established NRC jurisprudence that the protective zone of the Atomic Energy Act includes "an interest in the avoidance of a threat to health and safety as a result of radiological releases from the nuclear facility (either in normal operation or as the result of an accident)." Virginia l

Elec. and Power Co. (North Anna Power Station, Unite 1 and 2),

ALAB-342, 4 NRC 98, 105 (1976). Obviously, an intervenor who favors the licensing of a nuclear plant may also have a keen interest in ensuring that appropriate steps are taken to mini-mize the potential for radiological harm to nimself and his family from that plant. Citizens' interest in optimum emergen-cy preparedness at Shoreham reflects this reality.

In sum, standing is not a problem for Citizens 7/ Its difficulty lies elsewhere.

7/ If, contrary to our view, Citizens is not thought to have standing as a matter of right, then the resulting deficiency may be cured as a matter of judicial discretion. In determin-ing whether to permit intervention as a matter of discretion, the most important factor is the extent of the contribution that might be expected of the petitioner. Nuclear Engineering Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste f Disposal Site), ALAB-473, 7 NRC 737, 743-44; see also Portland l General Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616-17 (1976). As noted in Part V.C below, Citizens' capacity in this regard is striking. Also im-portant to discretionary standing is the potential impact on the would-be party's " property, financial or other" interests.

See Pebble Sprinas, above, at 616. Citizens alleges signifi-cant potential impacts on its members as a result of the Shoreham proceeding. See' Petition 9-10.

IV. TIMELINESS Citizens' petition is not timely. This proceeding began over seven years ago, and emergency-preparedness issues were raised at its outset. The case has involved constant, complex activity since its beginning. At no point has there been a hiatus in its flow. Admittedly, there have now been three different Licensing Boards empaneled to hear various phases of the case (plant security, offsite emergency prepared-ness, and everything else), and nine different judges have sat so far on the principal Board; this division of responsibility and these changes in personnel have very likely been unavoid-able, however, given the extreme length and scope of the pro-ceeding. Accordingly, there has been no occasion for the Com-mission to provide a new opportunity for timely intervention, and it has not done so.

When Suffolk County and the Shoreham Opponents Coali-tion filed untimely intervention petitions in this proceeding, LILCO opposed them.@/ Timeliness in intervention is a virtue the Company has stressed.

p/ LILCO pointed out the untimeliness of, but did not oppose, the Town of Southampton's request to participate as an inter-ested municipality; this request was filed as recently as February 23, 1983.

V. SECTION 2.714(a)(1) BALANCING Five factors must be weighed. They follow.

4. Good Cause for Failure to File on Time While emergency-preparedness issues have been in this proceeding for years, they assumed their present dimensions --

and radically new dimensions -- only last February, when Suffolk County suddenly announced its refusal to help ensure offsite emergency preparedness for Shoreham and launched a drive to deny the plant an operating license. As the County has acknowledged:

It was not until February 17, 1983 . . .

that the County Legislature adopted [a resolution] which disapproved the draft County offsite plan and determined that Suffolk County would not adopt or imple-ment any offsite emergency plan. . .

Thus, only in February 1983 did it become clear that one of the fundamental assump-tions of the Phase I litigation -- that the County would participate in overall emergency preparedness for the Shoreham plant -- was no longer valid.

Suffolk County Motion for Leave to File Contentions Regarding Onsite Emergency Preparedness, dated June 27, 1983, at 4-5.

By the same token, since February the County has waged i

a motions campaign in an effort to prevent any hearings whatso-ever on offsite emergency preparedness. One such motion still remains outstanding,9/ although the Commission's ruling of May 9/ Motion for Rejection of LILCO Transition Plan and for Cer-tification to the Commission, dated Aug. 4, 1983.

12, 1983, should have been dispositive.10/ The result has baen to leave uncertain, at least to those not intimately involved in the process, whether there would or would not be hearings.

See Petition 12-13; Reply 4-5; Brief 5.

It is also true that, as the principal Licensing Board has recognized, issues concerning offsite emergency prepared-ness have long " constituted a separate, later segment of the case." Memorandum and Order Ruling on Suffolk County's Motion to Admit New Contention, LBP-83-30, 17 NRC __, slip op. 9 n.6 (June 22, 1983). A further passage from this memorandum and order is instructive:

The current situation may be readily dis-tinguished from our recent ruling permitting the Town of Southampton to enter belatedly the Phase II emergency planning case as an interested governmental entity. LBP-83-13, 17 NRC (March 10, 1983). Southampton was not belatedly advancing contentions, but was seeking to enter the case in order to be able to participate in issues and perhaps advance its own contentions on the same time schedule as all other parties. As discussed above, Phase II emergency planning issues are a sep-arate segment of the case. Contentions on these issues were not filed or even scheduled to be filed by any party at the time Southampton was admitted. Consistent with our view just expressed above, we noted in LBP-83-13, issued in the context of the per-tinent segment of the hearing not having l

l commenced, that there is no explicit time re-quirement for a request to participate pursu-ant to Section 2.715(c).

(

10/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-13, 17 NRC (May 12, 1983).

Id. 11.

Citizens, of course, filed its intervention petition before the deadline had run for submitting contentions concern-ing offsite emergency preparedness; Citizens submitted proposed contentions on time. A hearing schedule for this phase of the Shoreham proceeding was not set until last week. Hearings will not begin until November 14, 1983.11/ While Citizens cannot benefit from the procedural generosity of 6 2.715(c), it is difficult to see much functional difference between its and Southampton's belated arrivals to this phase of the proceeding.

Both Southampton and Citizens, while late, have reached the scene before the final battle began.

In context, there is more than a modicum of good cause for Citizens' failure to join the fray in April 1976.

B. Availability of Other Means Whereby Citizens' Interest Will Be Protected None come to mind. The pending proceeding, and it alone, is where the adequacy of Shoreham's offsite emergency preparedness will be fully and fairly litigated.

It would be quixotic to suggest that Citizens might successfully petition the current Suffolk County government for redress of grievances.

11/ See the Shoreham Emergency Planning Board's Special Prehearing Conference Order, slip op. 1-2 (Aug. 19, 1983).

C. Extent to which Citizens' Participation Will Assist in Developing a Sound Record It is here that Citizens' claim is strongest. Its mem-bers are expert in pertinent matters, and their expertise is sharpened by its application to circumstances that directly im-pinge on themselves and their families. Their conclusions, ac-cordingly, would be both informed and fastidious. As indepen-dent experts, whose conclusions if wrong would threaten the health and safety of their families and themselves, Citizens' members could surely provide valuable testimony.

Citizens did not provide specificity to buttress its general claim that:

Most members of Citizens are recognized au-thorities in the field of nuclear power and could address the adequacy of an emergency plan with respect to specific radiological events which could occur at [Shoreham). Some members of Citizens work professionally in radiological emergency planning, participate in emergency planning drills in the north-eastern United States, and/or are members of federal radiological emergency response teams.

Petition 8. But all material allegations in the petition to intervene are accepted as true for purposes of Appeal Board re-view. Consumers Power Co. (Palisades Nuclear Power Facility),

ALAB-670, 15 NRC 493, 500 (1982). If further specificity is needed, Citizens' offer to provide it stands, and NRC practice usually provides several opportunities for would-be intervenors to cure their pleading deficiencies.

It is useful to quote again from a limited appearance before the Shoreham ASLB. This one was by another of Citizens' affiants, Andrew P. Hull, who said in part:

Following the accident three years ago in March 1979 at Three Mile Island nuclear power station, emergency planning seems to be an aspect which has greatly preoccupied the Nu-clear Regulatory Commission, and which has greatly worried the public. As a part of my duties I was a team captain at the Department of Energy's Radiological Systems Plan for Re-gion 1 covering the northeastern U.S. I was at Harrisburg within a few hours after the accident, and shortly thereafter became re-sponsible for the interpretation of the ex-tensive environmental monitoring data that was obtained in the following several weeks.

Tr. 970 (Apr. 14, 1982).

Detail to support Citizens' expertise is available.

Its members' contribution to a sound record would be notable.

D. Extent to which Citizens' Interest Will Be Represented by Existing Parties Citizens' members are experts in pertinent disciplines.

They live and work near Shoreham. No one can represent their interests with the same informed acuity that they can.12/

12/ Like the requirements of standing, this factor must be sensitively applied so as not to become a burden that applies 4 unevenly against petitioners who favor a nuclear plant. Since the applicant has the burden of proof as to every litigable issue, it could always be argued that the applicant represents the interest of anyone who favors licensing the plant. But it is unlikely that the Commission intended 6 2.714(a)(1)(iv) to be biased in this manner against proponents of nuclear plants.

It is gaite possible, further, that LILCO and Citizens may not reach the same conclusions on all important details of offsite emergency preparedness, much less share the same views on how best to articulate and defend even points of agreement.

The dual facts that Citizens' members are highly knowledgeable people with a direct personal stake in the outcome of this pro-ceeding precludes co:2fidence that some other party can tend l their interests.13/

l l

E. Extent to which Citizens' Participatien Will Broaden the Issues or Delay the Proceeding Obstruction is not Citizens' objective. Citizens' ar-rival on the scene, though late, still comes before the main storm and fury. The Licensing Board has ample means to police the behavior of all participants, especially untimely entrantc.

And LILCO's concern to get on w2th, and through with, this seemingly interminable proceeding has not lessened. Had we 1

l thought Citizens' participation would materially slow the pace, we would not have supported the present petition. It is likely l that Citizens' participation, if permitted, will be of high ev-l l

identiary caliber, celective in its application, and little cause for delay.14/

l 13/ It is useful te compare Southampton's and Citizens' situa-I tions in this regard. Southampton's present counsel repre-i sented the Shoreham Cpponents Coalition until the filing of I

Southampton's petition, at which point new ccunsel was found for SOC and its counsel switched to Southampton. Citizens has no similer community of representation with an existing party to this proceeding. s 14/ It is curious that two of the 6 2.714(a)(1) factors --

l ability to contribute to the record and likelihood of delaying (footnote cont'd)

F. On Balance For the foregoing reasons, LILCO believes that all rel-evant factors work to offset Citizens' untimeliness. In par-ticular, we find the considerations in Part V.C above persua-sive. Accordingly, LILCO supports Citizens' petition.

Respectfully submitted, LONG ISLAND LIGHTING COMP'NY

%' . Tfylo Re'vele9, III Jamds N Christman Hunton & Williams P. O. Box 1535 707 East Main Street Richmond, Virginia 23212 DATED: August 24, 1983 8

I (footnote cont'd) the proceeding -- appear to conflict. The greater the contri-bution a would-be Intervener has to make, the longer it may take to hear his evidence. It does not seem sound to interpret the " delay" factor to refer to the presentation of that evi-dence, however. In the opinion of the Chairman of the Appeal Board Fanel, the test to be used for gauging the delay factor is only t:.e delay that could be attributed directly to "the tardineos of the petition." Long Island Lighting Co.

(Jamesport Nuclear Power Station, Units 1 and 2), ALAB-252, 2 NRC 631, 650 n.25 (1975) (Rosenthal, J.). In the instant case, there is no such delay at all. The petitioner takes the pro-ceeding as it finds it.

p s _ _ _ _ _ _ _ _ _ _ . . _ . . . . _

e .

Attachment UNITED STATES OF AMERICA f

ATCMIO ENERGY COMMISSION In the Matter of LONG ISLAND LIGHTING COMPANY  :

• l (License Application, Docket # 50-322 Shoreham Nuclear Power Station **

Plant Unit Number One}

1 PETITION FOR INTERVENTION Suffolk Scientists for Cleaner Power and Safer Environ-ment, on its own behalf, and on behalf of its members, hereby petitions the ATOMIC ENERGY COMMISSION for leave to intervene

( '

in the above captioned proceeding.

The Petitioner is an unincorporated membership organiza-tion comprised of approximately forty (40) scientists, educa-tors, and conservationists specializing in one or more of the nuclear, chemical, radiological, metallurgical, medical, biolo-gical, ecological, or engineering sciences. These members, working together so as to ovaluate the problem from many tech-

! nical and environmental aspects, have been studying the impact f

• of the construction of additional electric power plants on Long

• Island and elsewhere. The organization was formed as a conse-t quence of the concerns of the individual members regarding the i

'( subject.r.pplication. Attached hereto and made a par. hereof is i

8 o a 4

• a list of the Petitioner's membership.

A. The interests of the Petitioner are as follows:

1. Members of the Petitioner organization have been pr6fessionall-y engaged in nuclear research, reactor research, the protection of the public from the effects of ionizing radi-ation, and the effects of ionizing radiation on biological and-ecological systems, and thereby have a spe'cial concern that the American people and the citizens of Suffolk County benefit from the most advanced technology consistent with public safety and security.

2. Members of the Petitioner organization have for many years been engaged in and concerned with various conservation

activities on Long Island and elsewhere, and thereby have spe-cial awareness of the necessity and urgency of limiting and re-ducing all tources of environmental pollution.

3. Members of the Petitioner organization are residents and/or work in Suffolk County, New York, and thereby will be af-fected in many practical respects by the decision of the Atomic l

Safety and Licensing Board.

4 Members of the Petitioner organization are customers of the LONG ISLAND LIGHTING COMPANY, and are now and will be in the future dependent upon that company for electrical power,

( both in their homes and in their business establishments, and l

l as such, have a real money interest in the business aspects of I

l _ _ _ _ .

.J I.

k providing electrical power.

5. Members of the Petitioner organization an~d their families have in the past and shall in the future participate in various recreational activities such as boating, fishing, and swimming in the waters surrounding Long Island, including those waters in the vicinity of the proposed installation and are thereby affected by the use of these waters.

B. Effect of the Atomic Energy Commission decision on the interests of the Petitioner.

1. The Petitioner believes that the decision taken in this matter will affect decisi es taken in regard to additional

( power plants in the future, not only on Long Island, but also elsewhere in the State of New York, and throughout the United States. The decision of the Atomic Energy Commission will de-termine whether the members of the Petitioner Organization and

- their families, as well as their fellow citizens will be al-lowed to enjoy the fruits and benefits of the most modern tech-nology in safety and security.

2. The decision taken by the Atomic Energy Commission in this matter will have a significant impact on the environ-ment and ecology of Suffolk County and will thereby affect the members of the Petitioner organization.

( 3. ,

The decision taken in this matter will affect the cost of electricity which must be born by the members of the

o 9

• _ .I .

'~

i

(

i Petitioner organiz.ption.  ;

4 The decision taken in this matter will affect the health and safety of the members of the Petitioner organization and their 5amilies. In particular, if the license is denied, l

the proposed plant will probably be replaced by a fossil-fueled plant somewhere in Suffolk County, and such an installa-tion because of its noxious emissions into the atmosphere, and surrounding waters will jeopardize the health and well-being of the members, their families and their fellow citizens.

5. The decision taken in this matter will affect the

. quality of the waters surrounding Long Island, and thereby af-(

fect the recreational pursuite of the members of the Petitioner organization and their fellow citizens. Specifically, if the I application for a license is denied, the waters surrounding Long Island will be subjected to dhe possibility of additional oil pollution as a consequence of transporting liquid fuel to an oil burning plant which would be a necessary substitue for a re-jected nuclear plant.

C. Contentions of the Petitioner:

1. The Petitioner believes that the proposed nuclear po-wer plant is safe, and does not constitute a threat to the sur-rounding residents of Suffolk County.

(

~2 The Petitioner believes that radiations and radioact-ive effluents from the proposed plant will not jeopardize the

-S-

i e

j health and well-being of the residents of Suffolk County, nor the ecology, nor the marine " food chain".

3. The Petitioner believes that existing radiation-l i

standards and regulatory practices are adequate to pr.otect the i

health and safety of the public.

4. The Petitioner believes that the transport of fuel to the pl' ant, and the transport of radioactive wastes, and spent fuel elements from the plant.will not endanger the public.

5. The Petitioner believes that a nuclear power plant and will

- will produce less atomospheric and water pollution, cause less disruption to the natural surroundings, and less risk i'

to the health and welfare of the public than any alternative means for producing electricity.

6. The Petitioner believes that the proposed nuclear po-wer station will meet the requirements of the State of New York However, regulating discharge of heat into " Coastal" waterways.

the Petitioner is gravely concerned about the general importance of the problem.of disposal of waste heat, and urges that this problem receive a concerted nationwide research effort aimed at establishing scientifically sound standards leading to wise re-gulation of all sources of industrial thermal effluents.

7. The Petitioner is concerned about the discharge of

( heavy metal ions into the waterways from the proposed installa-tion, and is currently subjecting this problem to intensive study. Pending the conclusions of this study, the Petitioner

l l

will recommend further research and/or standards pertaining to ,

ouch discharges.

The Petitioner is prepared to present expert testimony on orch "of the above contentions, avoiding repetitious testimony and testimony on matters of " official notice" except where chal-longed by other intervenors.

Based upon the professional experience of its membership, the Petitioner concludes that it is in its best interest, and in the best interest of all citizens of Suffolk County that the -

Board render a favorable decision in this matter, and grant a license for construction of Shoreham Nuclear Power Station Plant,

(

Unit Number One, to the Long Island Lighting Company.

D. Appeal for favorable consideration of this post-deadline petition:

United States Atomic Energy Commission Rules and Regulations, Title 10 - Atomic Energv. Part 2, Paragraph 2.714 (a) permits the presiding officer to determine whether a post deadline petition mny be admitted, and your Petitioner is basing this filing upon the presiding officer's authority to do so. Your Petitioner is

~

requesting leave to intervene because it believes that it can of-for scientific evidence and expert opinion not otherwise avail-oble which will be helpful to the Bocrd in determining the is-cuec raised by the parties, and, further, to refute misleading

,l .

cnd incorrect allegations set'forth in pleadings already before the Board.

6 t

~

l ._

~ '

4

-)

i Your Petitioner did not file in a timely manner and pur-suant to the deadline established in the public notice for the following reasons:

1 The individuals who are members of the Petitioner Or-ganization were not aware of the existence of, or the contents of the petition of the intervenor known as "The Lloyd Harbor Study Group, Inc.", until the time of the pre-hearing confer-ence on March 13th, 1970 and it is the various contentions of the Lloyd Harbor Study Group which Petitioner herein seeks an opportunity to refute. -

2. Members of your Petitioner organization required a i

period of time subsequent to reading the Lloyd Harbor Study Group petition in order to ascertain the validity and merit of the conclusions stated therein.

3. Kambers of your Petitioner organization believed that there would not be sufficient time to submit the necessary docu-ments and prepare written testimony for the originally scheduled hearing date; however, the MOTION granted by the Board for a l sixty (60) day postponement now makes such preparation feasible.

In filing this post-deadline petition, your Petitioner a- ,

grees to observe the May 15th, 1970 deadline for serving pre-pared testimony on all parties. Your Petitioner seeks no further

(

delay in'the hearings.

The name and address of the person on whom $ service may be made:

)-

ALFRED A. NOLKMANN, ESO. of ,

EWISSLER, DIEDOLF & VOLKMANN, ESQS.

One South Ocean Avenue Post Office Box 504

. Patchogue, New York 11772 WHEREFORE, Petitioner respectfully requests the Commission to issue an Order permitting its intervention as a party in this Proceeding.

Dated: Patchogue, New York April 15, 1970 SUFFOLK SCIENTISTS FOR CLEANER POWER SAFER EN IRONMENT Bya did'e&Ld.< w

( ALFlfED A. VOLKMANN, ESO.

J ZWISSLER, DIEDOLF, VOLKMANN, ESQS.

Attorneys for Petitioner Office and Post Office Address One South Ocean Avenue - Box 504 Patchogue, New York 11772 b .

l  :

. _ . _ . . . _ _ . _ _ _ _ . _ _ _ _ - . _ - _ _ _ _ _ _ . .. _ _ _ _ _ _ . _ _ _ _ ____ _ __ _ _.._ _. __ _ __ ._ _ __