ML20065U359

Lilco Opposition to Petitioner Appeal from Board 901119 Order.* Petitioner 901205 Appeal Should Be Denied Due to Stds for Obtaining Review Not Addressed.W/Certificate of Svc

ML20065U359
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/19/1990
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#191-11211 OLA, NUDOCS 9101020253
Download: ML20065U359 (17)

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LILCO, DecemberikY[i990

'90 DE 21 P2 :39 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Conmission

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In the Matter of )

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 -O

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(Shoreham Nuclear Power Station, )

Unit 1) )

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LILCO'S OPPOSITION TO PETIT 70 NERD' APPEAL FROM THE LICENRING DOARD'8 NOVEMDER 19 ORQEB I,_ Introduction On December 5, 1990, Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc. submitted what they styled as a notice of appeal, ostensibly filed "[p]ursuant to 10 C.F.R. S 2.714a," from the Licensing Board's November 19, 1990 Memorandum and Order (Novem-bor 19 Order) rejecting Petitioners' request for a restraining order and other relief. Accompanying Petitioners' notice of appeal was a six-page supporting brief (together, the December 5 pleading).

i Long Island Lighting Company (LILCO) opposes Petitioners' i

December 5 pleading. Petitioners may not proceed under 10 C.F.R.

l S 2.714a, which pertains solely to appeals from Licensing Board 9101020253 901219 PDR 0

ADOCK 05000322 PDR j So 5 l

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decisions granting or denying petitions for intervention and requests for hearing. What Petitioners actually are seeking here is interlocutory review of the November 19 Order, but they have not addressed -- much less satisfied -- thi standards for obtaining such review under the Commission's Rules of Practico.

Moreover, even if Petitionert ad satisfied the standards for obtaining interlocutory review, they have failed to demon-strate that the Board's November 19 Order should be reversed. To the contrary, the Daaro's ruling that it did not havo juris-diction to consider Petitioners' request for a restraining order and other relief is clearly correct.

II. Dackaround On November 9, 1990, Petitioners filed with the Licensing Board established to rule on six pending intervention petitions' 1 a " Motion for Restraining Order and Other Relief" (November 9 Motion), in which they requested the Board to issue an "imme-diately effective order" that would have (1) enjoined Commissioner Curtiss' imminent visit to the shoreham facility I'

The Licensing Board, chaired by Judge Margulies, had been appointed on October 18, 1990 by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel " pursuant to the provisions of a Memorandum and Order issued by the Commission on October 17, 1990." 55 Fed. Reg. 43,058 (Oct. 25, 1990). In its October 17 ruling, Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC (Oct. 17, 1990), the Commission forwarded to the Board Petitioners' six hearing requests, with instructions to review and resolve the requests consistent with the guidance the Commission had provided concerning the applicability of the National Environmental Policy Act to Shoreham's decommissioning.

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3 (scheduled for November 13), and (2) granted other, longer-term relief.I' Petitioners filed their November 9 Motion after the close of business on Friday, November 9, without giving prior notico either to LILCO or the Licensing Board.

On November 12, 1990, LILCO filed its " Opposition to Emer-i gency Aspects of Motion for Restraining Order and Other Relief by Petitioners for Intervention (November 12 Opposition). In its opposition, LILCO addressed only the " emergency" issues raised by the November 9 Motion, as Commissioner Curtiss' visit to Shoreham was scheduled for the following day. LILCO stated that the Board should " summarily deny Petitioners' emergency request that this Board enjoin Commissioner Curtiss' intended site visit tomor-

. row," arguing, inter alia, that (1) the Commissioner's visit was not within the scope of the issues romanded to the Board by the Commission in CLI-90-08, and (2) Petitioners had artificially created a " pseudo-emergency situation" by waiting until the last moment to seek the relief requested. November 12 Opposition at 2-3.

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Specifically, Petitioners sought a order from the Board (1) restraining LILCO and interested persons not party to the Shore-

- ham proceeding from meeting and communicating with any NRC adjudicatory personnel; (2) requiring the restrained persons to submit memoranda describing all Shoreham-related contacts they had had with NRC adjudicatory personnel since July 14, 1989; (3) requiring the restrained persons to-provide Petitioners with copics of certain Shoreham-related papers submitted to the Commission after July 14, 1989; and (4) requiring the restrained persons to provide Petitioners with 14 days notice o'! all upcom-ing meetings between LILCO personnel and NRC personnel regarding Shoreham.

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on the afternoon of November 12, counsel for Petitione s sont counsel for LILCO a telefaxed lottor, in which counsel for Petitionors related the results of a phone conversation he had i

had oorlier that morning with the Licensing Board chairman.

Petitleners' counsel stated that the Board chairman had denied Petitioners' request for an order restraining Commissioner Curtiss' visit to Shoreham, on the basis that the motion was

" untimely."

On November 19, the Licensing Board issued the order that is the subject of the instant appeal. After relating the events that had led the Board chairman the wock before to dony as untimely the request for an order prohibiting Commissioner Curtiss' site visit, the Board rejected the remainder of Petitioners' request for rollof "bocause of the patent lack of jurisdiction of the subject matter." November 19 Order at 8. In so ruling, the Board noted that the issues raised by Petitioners go far beyond the authcrity dologated by the Commission to the Board which was to review and resolve the six petitions to intervono and to hold hear-ings in regard to the subject amendments to the Shoreham operating licenso.

November 19 Order at 9.

The Board, recognizing that the " matter of assuring a fair hearing is a requisite of all adjudicatory hearings," noted that "it is within this Board's jurisdiction to afford due process to parties appearing before it." Id2 at 9-10. But, the Board con-tinued, "thoso issues that Petitioners raise are of another sort." Id. at 10. Such issues " raise the question of whether the

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Licensoa as well as the Commission and its staff are acting in accordanco with tne law and whether they should bo enjoined to 1

comply." Id2 The answer to that question, the Board observed, would require the conduct of an " inquiry of e primary nature."

Id2 The Commission, however, had not "dologated to the Board any authority to conduct an indopondent inquiry of a type necessary to satisfy Potitioners' request." Id2 Given long-settled prin-ciples of agency law establishing that the Board is a "sub-ordinato body without plenary jurisdiction," the Board concluded that the "rolief Petitioners cook is beyond the scopo of our authority." Idt at 11.

In denying Petitioners' November 9 Motion, the Board noted that an "unansworod question is why Potitioners filed its poti-tion for rollof with this Board and not with the Commission, the holder of plenary authority." November 19 order at 11.1/ Explain-ing why it ruled on the remainder of Potitioners' request without awaiting responses from LILCO and the NRC Staff, the Board stated thct it was "donc now . . . to avoid undue delay should Petitioners seek to refile within the Commission." Id1 at 8.

3' In this regard, the Board pointed out that

[ijt would not appear that the conduct of the Commission and staff complained of by Poti-tioners would affect the proceedings before the Commission any differently than that l before this Board, yet that forum was never chosen.

November 19 Order at 11.

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On December 5, 1990, Petitioners, ignoring the Board's ,

1 suggestion that they might refile their motion with the l

, Commission, instead submitted the instant appeal. As explained j below, it should be denied.

i III. Discussion Petitioners' appeal should be rejected. The Licensing Board was correct in its conclusion that it lacked jurisdiction to i

j grant the relief that Petitioners have requested.

Additionally, Petitioners have impronerly invoked 10 C.F.R.

S 2.714a in pursuing what they erroneously. characterize as an l " appeal" of the Board's November 19 Order. In truth, the l- December 5 pleading is an impermissible attempt to gain interlocutory review of the Board's November 19 Order and should be dismissed outright on-that basis. Petitioners' pleading being misfiled, they have not even addressed -- much less attempted to demonstrate that they satisfy -- the standards for obtaining directed certification under NRC practice.

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(- 'A. The-Board Correctly Concluded that the Relief l Renuested-bv Petitioners Was Beyond its Authority I

E Petitioners advance three reasons why the Board's November u

19-Order should be reversed. None are persuasive.

First, Petitioners take " strong issue" with.the Board's determination that, in order to act on Petitioners' request, it

. would need first to conduct an " inquiry of a primary nature."

December 5 pleading at 4. According to Petitioners, there is no

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7 need to conduct any such inquiry, and the relief requested is

" justified as a merely prophylactic measure to protect (Peti-tioners), regardless of whether wrongdoing has previously occur-red." Id1 Petitioners cito no authority for the assertion that isnu-ance of a restraining order is appropriato in the absence of any showing of improper communication between the NRC and LILCO. Nor l do Petitioners confront the important point made by the Board that.the " Commission and its staff communicate with licenseos in more than the single role as adjudicators." November 19 Order at

10. As the Board notes, the Commission is " responsible for the 1

agoney's technical program in addition to adjudication," 14.

Differentiating between those two fundamentally different types of contacts in determining how to impose a restraining order rostricting Staff-LILCO communications would indeed require the sort of " primary inquiry" that the Board properly concluded it had no authority to conduct.

Second, Petitioners allege that the Board failed to make any supporting findings of' fact or reach any conclusions of law in denying Petitioners' request that they be served all papors filed by LILCo, the Long Island Power Authority (LIPA) and/or the New York Power Authority (NYPA) with the NRC, and that they be given at least 14 days notico of any meetings between the NRC and LILCO, LIPA, and/or NYPA. December 5 pleading at 4-5. According to Petitioners, this failure mandatos that the November 19 Order be set aside as " unlawful." Idx at 5.

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Petitioners have simply misread the Board's order. A fair reading of the Order indicates that, in discussing its lack of authority to grant the relief that Petitioners had requested, the Board was referring to all the various elements of the requestod relief. For instance, in characterizing generally the relies i that Petitioners were seeking, the Board stated that "(ijn essence, . . . Petitioners' motion inextricably involves behavior of NRC officials with that of the Licensee," adding that, "(ajs a consequence, Petitioners seek to restrain any future violations and to obtain renorts of contacts that may evidence any viola-tions." November 19 order at 9. Plainly, the Board here had in mind Petitioners' request that they be served with all papers exchanged between LILCo and the Staff and that they be provided advanco notice of any scheduled meetings.

Finally, Petitioners complain that, after determining that it lacked authority to act, the Board should have "certif(iod) the question to the Commission for its determination pursuant to 10 C.F.R. S 2.718(i)." December 5 pleading at 5. Citing the Commission's Statement of Policy on Conduct of Licensino Pro,,-

ceedinos, CLI-81-8, 13 NRC 452, 456 (1981), as authority, Peti-tioners assert that the Board's failure to so certify

" constituted'an abuse of discretion." Idi

Petitioners err. In the first place, as the Statement o[

j Eqliqy makes evident, the Board cannot plausibly be said to have abused its discretion ',n declining to certify its ruling to the commission. In relevant part, the Statement of Policy pre ides:

9 If a significant legal or policy question is presented on which Commission guidance is needed, a board should promptly refer or cetatfy the matter to the Atomic Safety and Licensing Appeal Board or the Commission. A board should exercise its best judgment to L:p 'o anticipate crucial issues which may rr ro such guidance so that the reference or certification can be made and the response received without holding up the proceeding.

CLI-81-8, 13 NRC at 456-57. The Board, having found that its lack of jurisdiction over the matters presented by Petitioners' November 9 Motion was " patent," appropriately declined to refer the question to the Comm.ission. No "significant legal or policy question" is presented by the November 9 Motion, and resolution of the matter required only the most straightforward application of NRC precedent.

Moreover, Petitioners' complaint that the Board should have

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certified the matter to the Commission rings pa.ticularly hollow given that, inexplicably, Petitioners themselves have thus far declined to request such certification.U ,\s ',he Board noted, an "unarswered question is why Pet'tioners filea its petition for rel'ef with this Board and not with the Commission." November )

Order at 11. This question han become all thh more baffling .n light of Petitioners' strange insistence in pursuing an obviously invalid S 2.714a " appeal."

9 In this regard, if and when Petitioners seek to refile with the Commission their motion for a restraining order and other relief, LILCO will address the merits of Petitioners' request.

In the meantime, suffice it to say that Petitioners' allegations are without narte communications. basis and misconstrue the NRC's restrictions on eX See 10 C.F.R. S 2.780.

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10 B. - Petitioners Are Pursuing an Imoroner-Interlocutory Appeal In addition to being wrong on the merits, Petitioners' December 5 pleading should be rejected as an improper. attempt to obtain interlocutory review of the Board's November 19 Order. As shown below, Petitioners may not proceed under 10 C.F.R.

S 2.714a, but, instead,-must satisfy the standards for discre-tionary interlocutory review (i.e..., directed certification) under i

S-2.718.- Petitioners have not and cannot satisfy those standards, t

1. Petitioners Cannot Proceed under'10 C.F.R. E 2.714a In their. December 5 pleading, Petitioners assert that the CoI& mission has jurisdiction to review the Atomic Safety .

and Licensing Board Panel's ("ASLBP") Order  :

of November 19, 1990 . . . pursuant to 10 C.F.R. S 2.714a(a) as "an order of the presi- 3 ding officer-or the atomic safety and licens-ing board designated to rule on petitions for

' leave to-intervene and/or requests for hear-ing."!

December 5 pleading at 1-2.

Petitioners have badly misconstcued the meaning and purpose of S 2.714a. As the1section's plain language makes evident,U -j U In relevant part, ~S 2.714a'providea:

(a) Notwithstanding the provisions of S 2.730(f), an order of the presiding officer or: the atomic safety ~and licensing board-(continued...)-

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4 11 this provision is the avenue by which a person may take an appeal from a decision by the Licensing Board either granting or denying a petition for intervention or request for hearing. It is Dgt a mechanism by which a petitioner may obtain interlocutory review of any other sort of order or ruling by the Licensing Board.

E22, e.o., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-898, 28 NRC 27 (1988);0' sag algp Philadel-E'

(... continued) designated to rule on petitions for leave to intervono and/or requests for hearing may be appealed, in accordance with the provisions of this section . . . Within ten (10) d ;;:

after service of the order s . . . No othet appeals from rulings on petitjnns and/or requests for hearing shall be allowed.

(b) An order wholly denying a petition for leave to intervene and/or request for a hearing is appealable by the petitioner on the question whether the petition and/or nearing request should have been granted in whole or in part.

(c) An order granting a petition for leave to intervono and/or request for a hearing is appealable by a party other than the petitioner on the question whether the petition and/or the request for a hearing should have been wholly denied.

10 C.F.R. S 2.714a(a)-(c).

I' In Seabrook, the Appeal Board was faced with an appeal of the Licensing Board's rejection of a " suggestion of mootness" filed by intervenors with respect to certain environmental qualification issues in the Seabrook operating license pro-coeding. The Licensing Board had ruled that, contrary to the intervenors' position, those issues were not yet moot. Claiming an " entitlement to appeal" under S 2.714a, the intervenors sought (continued...) ,

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12 nhia Electric Co. (Limerick Generating Station, Units 1 and 2),

19 NRC 1020, 1075 (1984);;, Texas Utilities Generatina Co. (Coman-cheLPeak Steam Electric Station, Units 1 and 2), ALAB-621, 12 NRC 578, 579 (1980); Houston Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-585, 11 NRC 469, 470 1 (1980)..

Thus, Petitioners cannot invoke S 2.714a to pursue an appeal of the November 19 Order. Instead, Petitioners should have requested directed certification of the Board's ruling pursuant.

to 10 C.F.R. S 2.718 and then tried to demonstrate that their request met the. applicable standards for directed certification.

As shown below, however, even if Petitioners had pursued the F

(.... continued)'

"immediate appellate examination of this resw;L." ALAB-896, 26 NRC at 29. The Appeal Board rejected the intervenors' attempt to proceed under S 2.714a, stating:

It-scarcely could be more obvious that the provisions of 10 C.F.R. 2.714a have no appli-cation in the circumstances of this case. As the single exception to the-general proscrip--

tion against interlocutory appeals contained elsewhere in the Commission's Rules of Prac-tice, section 2.714a permits an appeal, on certain limited and precisely defined ques-tions, from an order on a petition for leave to intervene in a proceeding. . . . The Licensing Board ruling here under attack has nothing at all to do with the grant or denial of1the . . . intervention petition - 'which was filed and acted upon many-years ago.

Nor, as it~happens, does the ruling bear upon the -(intervenors) right to participate in this operating license proceeding. . . . In

-short,_the_ absolute condition' precedent to

-the resort to section 2.714a is simply not present.

28 NRC at 30 (footnotes omitted).

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4 13 correct procedural course, they still would not havo mot the standards for directed cortification.

2. Petitioners Havo Not Mot the Standards for Directed certification With the single exception, noted above, of the appeal from a grant or total denial of a petition to intervono, interlocutory appeals are prohibited by NRC regulation.U San, e.q., Public Servico Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-370, 5 NRC 131 (1977). The only permissible way one may seek to obtain interlocutory appellato review is by roguesting " directed cortification" pursuant to 10 C.F.R. S 2.718(i).

The standards for directed certification are high. As stated by the Appeal boord:

Almoct with excor, tion in recent timos, we have undertaken discretionary interlocutory review only whero the ruling below oither (1) throatoned the party adversely affected by it with immediato and serious irreparable impact which, as a practical matter, could not be alloviated by a lator appeal or (2) affected the basic structure of the proceeding in a porvasive or unusual manner.

Public Service Co. of New Hamnshiro (Seabrook Station, Units 1 and 2), ALAB-916, 29 NRC 434 (1989), auctina public Service Co.

af Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). Petitioners could not have met either prong of this co-called " Marble Hill standard,"

even if they had tried.

Specifically, 10 C.F.R. S 2.730(f) providea, in portinent part, that "[njo interlocutory appeal may be taken to the Commis-sion from a ruling of the presiding officer."

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-First, in their November 9 Motion, Petitioners do not claim that s restraining order _or any of the other relief they request-is necessary to protect them from "immediate and serious irrep-arable" injury. Rather, Petitioners state that such relief is needed to secure adherence to . . . the Commission's gx parte rules and . . . the Government in <

the Sunshine Act, . . . (and] also . . . to protert Petitioners' due process rights under the Constitution and to . . . avoid the ap-pearance of giving preferential treatment to any person, losing complete independence or impartiality, making a government decision outside official channels and/or affecting adversely the confidence of the public in the integrity of the government.

November 9 Motion at 3. Even if these claims were true (and they are not), Petitioners' concerns do not rise to the level of a tb 9atened injury that is "immediate," " serious," or "irrep-acable." Petitioners themselves do not even allege as much.

Second,-it is evident that Petitioners could not plausibly

, argue that the Board's denial of their November 9 Motion has L .

affected the " basic structure" of the Shoreham in a " pervasive" or " unusual" manner. To the contrary, the immediate practical

'effect of the Board's ruling has been to maintain'the status quo with respect to the1NRC Staff's practice in dealing with LILCO, Petitioners, and other interested perscas such as LIPA and NYPA.

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15 IV. Conclusi_gn For the reasons given above, Petitioners' December 5 appeal Thould be denied.

Respectfully submi ted, I '

W." Taylor Reveley, III Donald P. Irwin David S. !!arlow Counsel for Long Island Lighting Company 11unton & Williams 707 East Main Street Richmond, Virginia 23219 (804) 788-8200 DATED: December 19, 1990 l

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F LILCO, December 19,1990 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission I4 ( i in the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50 322

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(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copics of LILCO'S OPPOSITION TO PETITIONERS' APPEAL FROM THE LICENSING BOARD'S NOVEMBER 19 ORDER were served this date upon the following by Federal Express, as indicated by r0 asterisk, or by first class mail, postage prepaid.

Commissioner Kenneth M. Carr, Chairman

• The Honorable Samuel J. Chilk Nuclear Regt_aory Commission The Secretary of the Commission

. One White Flint Nor'h 9uilding OfFce of the Secretary 11555 Rockvin e Pi' L.S. Nuclear Regulatory Commission Rockville, Marylanc' /2 Washington, D.C. 20555 Commissioner Kenneth C. Rogers' Administrative Judge

• Nuclear Regulatory Commission Morton B. Margulics, Chairman One White Flint North Building Atomic Safety and Licensing Board 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 East-West Towers, Fourth Floor 4350 East-West Highway Commiss+0ner James R. Curtiss* Bethesda, MD 20814 Nuclear Regulatory Commission

- One White Flint North Building Administrative Judge' 11555 Rockville Pike Jerry R. Kline l Rockville, Maryland '20852 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Commissioner Forrest J. Remick* East-West Towers, Fourth Floor Nuclear Regulatory. Commission 4350 East-West Highway i Cr "'hite Flint North Building Bethesda, MD 20814 t'7 'tockville Pike L Rc: v.ile, Maryland 20852 L

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-2 Administrative Judge

• Carl R. Schenker, Jr., Esq

• Atomic Safety and Licensing Board Counsel, Long Island Power Authority George A. Ferguson O'Melveny & Myers 5307 Al Jones Drive 55513th Street, N.W.

Columbia Beach, Maryland 20764 Washington, D.C. 20004 i

Michael R. Deland, Chairman Stephen A. Wakefield, Esq.

Council on Environmental Quality General Counsel Executive Office of the President U.S. Department of Energy 722 Jackson Place, N.W. 1000 Independence Avenue, S.W.

Washington, D.C. 20503 Washington, D.C. 20585 Mitzi A. Young, Esq.* Charles M. Pratt, Esq.

Office of the General Counsel Senior Vice President and General Counsel U.S. Nuclear Regulatory Commission 22nd Floor One White Flint North Power Authority of State of New York 11555 Rockville Pike 1633 Broadway

- Washington, D.C. 20852 New York, New York 10019 James P. McGranery, Jr., Esq

• Dow, Lohnes & Albertson

.- 1255 23rd Street, N.W., Sui % 500 Washington, D.C. 20037

% Tbs w/~

David S. Harlow l

l Hunton'& Williams l 707 East Main Street

l. P.O. Box 1535 L Richmond, Virginia 23212

! DATED. December 19, 1990 L

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