ML19261A675
| ML19261A675 | |
| Person / Time | |
|---|---|
| Site: | 05000516, 05000517 |
| Issue date: | 01/08/1979 |
| From: | Like I SUFFOLK COUNTY, NY |
| To: | |
| References | |
| NUDOCS 7902060040 | |
| Download: ML19261A675 (13) | |
Text
{{#Wiki_filter:. NC MLIC DOCUMDIT ROOM U:IlTED STATL. OF MIERIC A INCLEAR REGUL A"_'OPi CO: IIISS IO:i 3: ?O. .~ i nu ATO' iC S. ~ 5. '. . a L.- . m .4 s u b. L h . . D _ t In the !.:atter of )
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LOI.0 ISLAiiD LIGli"'ING CCIGA'IY ) an:i ) Docket !!on . 50-516
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COUNTY OF SUFFOL/'S APPLICATIO!! FOR STAY M ,,,,,, PURSUANT TO 10 CFR SECTION 2.788 \ eg., *, . ,,g p YA On December 27, 1978, the Licensing Board issue ' s an Initial Decision (I.D.) on the cost / benefit issues raised by these proceedings and therein granted Applicants a construction permit for the proposed Jamesport nuclear power station. The County seeks to stay the effectiveness of that decision, including issuance of a construction permit to Applicants, pending final NRC appellate review of it and of the Licensing Board's May 9, 1978 Partial Initial Decision (P.I.D.)*. The Commission has codified in its Rules of Practice (see, 10 CFR, Section 2.788), the requirements of a motion seeking a stay of decision. 'lhile this regulation sets forth a number of procedural requirements, the substance of the regula-tion is the adoption of the standards for a stay identified in Virginia Petroleum Jobbers Association v. Pederal Po'.:er Commission, 259 F2d 921 (D.C. Ctr. 1958). These standards include: The issues co'/cred t, the PlD have been briefed and argue;d am: a'.la t aectalon by this Board. 7 9 0 2 0 6 Occ-{ c-
(1). Whether the ~.: ting party has made a strong nhouir.; . at it in likely to prevail on th2 ~ = r i '. 3 ,
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(2) Whether the party .till be irreparablf injured unless a stay is grar.ted; (3) Whether *he rr r o t i.m- o f a s t s;. could harm other pSr:ies; anu (4) Where the outli: interest lie.,. Virginia Petroleum Jobbers ..ssoc. /. FPC, sunra, 259 F2d at 925; see also, In the 'atter of Consolidated Edison Co. (Indian Point Station, Unit No. 2), ALAB-414, 5 NRC 1425, 1429 (June 23, 1977); Florida Power and Licht Com-pany (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-415, 5 NRC 1435, 1436 (1977). '1 demonstrated belou, the County fully satisfies each of these requirements and is thus entitled to a stay of the Licensing Board's decision. A. Strong Likelihood Exists That the County Will Succeed on the Merits In its appeal from the Licensing Board's PID the County raises many substantial issues, any one of which, in its view, will require this Board to reverse the PID, or, at a bare minimum, remand the cLse for further hearings. Chief among these is the County's claim that the Licensing Board committed error in holdinc that the Applicants had denonstrated , a need for the Jamesport plants (Tr. of Oral Argument, 8-47; County's Findines of Fact and Conclusions of Lau, paras. 1-6.19, 45.1-45.22; County's Prief ir suonor of Excention.: (here , rt.c c c . p . ) pp. 6-31). The County sho.:en tn;t fre. both a factual and legal standpoint th2 Li c e n s i.m- Board errea in basinq lta r.eed findings on oil substitution grounds (C.B., pp. 23-32), and on the power needs of .'IYSE1 (C.B., 3-12, 13-27). In addition, the County showed that the Lic_.ui.y. Baa:d, in th? ta;;e of 1.policant'n January 23, 1979 ennou.0 ent o' , 44 w th d;21ay in the co.Taercial operating dates for Jar.esport, had a duty but failed to issue and circulate a supplenental EIS and to evaluate the four year deferral and its relation to the need, impacts, alternatives and cost / benefit issues (C.B., 12-13, 64-70). The correctness of the County's position that LILCO's deferral of the Jamesport plants mat- : ally changed the conditions and issues required to be considered by the Board in the exercise of its licensing responsibility thereby. vitiating the integrity of the hearing record, has been substantiated by the recent decision of the State Siting Board in Case 80003 to remand the Jamesport appli-cation for further hearings to consider the impact of the delay on the need, economics and alternatives issues *. In reaching this decision, the Siting Board made the following observation: 9er.and in an Art:icl- VIII procen l '. n q is the proper procedur thc.nover th2rn is o s t ron; nhoN 1.m t'~ ' coistderation of i a fo: atien not m .iable un t. il a f- e :-
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the close . - > e "e ;o m :ca d r 'r ! 1' ' / affect a SIL_ -.L"d's ;lti One acr.:1u.: ion - with regard t' - Dendir applicat!on. That showing han b2 ' ' S " e r -: ? or Ter - the va rl o a c, n e. .. -~' . r. . .a refer to the r"arked sir d;. n i .1 g r o t '. 1: -J e r a n -i o r electricity c- d the revised in-service datea for the nropare: facilities. Crjer Directir-Romand, Case 3:::3, p. 5 (12/22/75). The Siting Paard :"> 3 ":- cEnized ' hat 'he subste . tial revisions to the cor2 .s t s of bc h the demna for and cupply of electricity throu;t. the 1930's, in tne state and in the franchised service territories of LILCO and NYSEG, had vast effect on the Jamespert application and made un-avoidable'either dismissal of the application (Order Directine Remand, 6) or remand for consideration of the impact of these events on certain issues.* The Ccunty believes that the hearing record in these proceedings likewise fails to provide any basis for concluding that there is a need for Jamesport. The four year delay of the plants' operating dates, an event whose impact on the issues raised in these proceedings went unanalysed by the Licensing Board (see C.B., 12-13), is confirmatory of the County's argur.ent that there has been no demonstration of need for the proj ect , and undermines large portions of the evidentiary record upon which the Board based its PID.
- Two specific events, of :hich the Siting Board took of ficial r. otic e , trir7.ered its concern that the hearirz recari in Case 30003 no longer provided an adequate basis for consideration of various issues in the case. First uns the filin' of the 1973 Report of the Jed: -m o f the : e .- Yori: Power Pool uhich indicated: 't) suts:satial reductions of forecasted r ro::-", state.:Ide and on Lnne. Island, and (ii) long de'sy: 1: ;he installa t. ion o f ge ne r a t i n,", f a c il i t ' - linned 'o supply electricity thrc'ch thr. n n :. v-5. Seco: 1 'c the applicatien by L!.LCD and 1? f~ Jar w. . . f _ it e J environnental compatability an s bli: "eed or t h" pronos ed :le' .
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The County arguea in its appellate brief that if a need for the plants is not p.,s_., .3 j ', . - , not h-r_, t h' Board must perforce dismi c the a;, plica',lon. But eten assuming for purposes of argument that scme showing of need has been made in this case, there is substantial evidence ir. the record bearing on other critical issues, and legal deficiencies assec-atel with i. : . e applic m oc i,s2_. 2r . T S;aff'.,:;/'.e.. hhereof, which also make reversal of the Licensing Board's PID likely.- Similarly, th; Licensing Board's I.D. on radon and cost / benefit issues is marked by errors of fact and law which will likely lead to Board. a reversal by this/ For example, the failure of the Jamesport EIS to contain and c'irculate the cost / benefit analysis which is the subject of this I.D. violates NEPA, as does Staff's failure to prepare and circulate a Supplemental EIS evaluating the com-parison of health effects related to the coal and nuclear cycles and ultimate cost / benefit issues. Moreover, the Licensing Board erred in excluding the County's health effects testimony because, among other reasons: 1) the evidence presented on " generic" design deficiencies'(I.D., 8) was ripe for adjudication since no rulemaking proceeding was pending or completed which addressed these issues, see NRDC v. NRC, 347 F2d 633, 9 ERC 1149,1154-55,
- n. 17 (D.C. Cir, 1976), rev. on other grounds sub nom., Vermont Yankee Nuclear Power Como. v. NRDC, 8 ELR 20238 (4/3/78); and E) the W - -~'-~ see, for e xanple , the A.uity's appe11.at.e brlef .
demonstratinr,the Licensing Board's erroneous findings (or absence of findinns) on the following, issues: alternatives (C.B., 3?-36), economics (C.B., 37-41), comonrative an21V313 of h0*lth> s a re Ey , anci environ ?ntal 'f% ets of the nuclear and co'll fuel c:/ e le s (C.B., 41-40), me t e o"o loF.V (c.H., 50-53' w r mnCr ', nonne p1 saninn :nd e v:, ^ u a t, l o u D .
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e.wluded evidence deaU ng '.iith in2;u:quate raclation prot.ect. ion
- . ; a n d a r u c (I.D., 8-12) was adniceible because it is directlj relevant to the Licensing Eonrd's cicrnll baln".cinr of the plant's tenefits and costs, and is regaired to be considere2 by IiEP A, Committee for IIuclear Rese. :siillig, , Inc. v. Seaborg, 463.
F2d 783, 787 (D.C. Cir. 1971). Finally, the County contends, and will demonstrate on appeal, that the Licensing Ecard's findings en 9 2 health effec ts of ra inn re: e'.ses 2nsac hted .M the opera-tion of Jamesport are in error because they fail to gisc adequate weight to the testimony of County witness Tamplin on this issue.* In sum, the County contends that the Licensin5 Board's decisions are' clearly erroneous and that there is a substantial likelihood of reversal upon completion of appellate review by this Board. B. The County Will Suffer Irreparable Harm Unless the Stay Is Granted The County has argued on appeal that the Licensing Board's treatment of various issues -most prominently the need issue - constituted a clear violation of NEPA (eg., C.B., 13-27), and that it erred in failing to find that NRC Staff had a duty under that Act to prepare and circulate a supplemental EIS (C.B., 10-21). In this regard, a-line of liEPA case law authority has developed which holds that the denial of the right of the citisenry to have federal projects E See, eg., " Col ty of Suffolk's Proposed Supplementary Findings of cact eni Cenclusiona of La'" der..onsttatir.g that such health effects alone are of sufficient mag-nitude to tilt the cost / bene fit ba]m.cc away from construction o f the plants G-
e:hich r f rect the environnen*, proce:d onl:/ on t. n o basi:. of "e c a re ru an:i informed decisinn :1.v proccu" pro.lu-fa surfi . cien' irraparable in.iury tn '; a r n o r *, iscu'.ce of a prelf::inar:/ i r d m.c ". l o n . See eg., Scho-r J -.. I n , 466 F?d 1927, 1934, L ERC 1435 (7th Cir. 1972), Envirenr7ntal De fense Fun 1 v. 2 n - 3.:eu */a;]ey Authority, : { 3 t'2d 1154, 1134. 4 ERC, 1350 (6th Ci.r. 1972), Isaak :a' ton Leacue v. Sp lesi:. er,
- T'~ " pp. 'S7, 293, 3 l'1 ~ i? fD D.C. 19'l) Ci<, '
- .v:
York v. United States, 337 F.Supp. 150, 160,3 ERC 1570 (E.D.
- 1. Y . 1972); Lathan v. Volne, 455 F2d 1111, 1117, 3 ERC 1362 (9th Cir. 1971).
In EDF v. TVA, the Sixth Circuit upheld the lower court's preliminary injunction against the further construc-tion of the Tellico Dam on the Little Tennessee River finding that the project was one s u bj e c t' to NEPA and thus required preparation of an EIS. EDF v. TVA, supra, 4 ERC at 1859-60. As to the issue of irreparable harm, the Court, in addition to detailing the harm to the environment and the surrounding environs caused by the continuation of construction activities, stated:
" Sufficient irreparable harm, even apart from the considerations discussed above, can be found in the continuing denial by Appellants of Appellees' right s under :IF,PA , Isaak -: alton Lavue
- v. Schlesinger, 337 F.Supp. 287, 295 (D.D.C.
1971), C_ifg or New Yorji v. United States, suora, 337 F. Supp. at 160, and this is enough to justify issuing the injunction. Lathan v. Voloe, supra, 455 F2d at 116-17". EDF v. TVA, sunra, 4 ERC at 1362. - C ilus , the Cou:, , / c W onds that the '!E?A I' o lat io.": documented in its briers tc this scard a..d the Licensin:
- P haard a m ;Itute nor e. e irre:a r+ 10 'nr
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rrn't issuance of the stay . In connection :1:" its annrr.cerent of still another eclay of Jamesport's c c: er '11 operatire datas t: 1988/93, '.ILCO stated as follo. ,-
" ..According1/, encineering and procurement for Jamesport .are beir:- larcely s u s p e r :. w a , ar.d they are not likely to resur.e until the station has received firm regulatcry approval". " Commercial Operating Dates and Peak Load Projections", p. 1 (1/28/78) (Emphasis supplied).
Implicit in this statement is that some engineering and pro-curement for Jamesport has continued since the time of the January, 1978 announcement, and that the Company has retained the option to resume certain payments which it then suspended. The County is an intervenor in proceedings before the NY Public Service. Commission on LILCO's application for electric and gas revenue ir.areases (Case Isos. 27374 and 27375). During the course of these proceedings, LILCO's counsel, by letter dated November 30, 1978, provided the County with estimates of the Jamesport capital budget through 1980 (Letter of Edward J. Walsh attached as Exhibit "A"). In this letter it is stated that the estimated progress payments to be made to Westinghouse for Jamesport is $5.4 million in 1979 and $12 million in 1980, with one-half of these amounts to be paid by NYSEG. The letter _8_
also states that these amountn are estirutes based unon the Company's anticip1 tion thIt the nresent n a '/ r.e n t schedule re-quired under the Westinnhouse contract w'll be renegotiated. Under the present contract, the oayrant schedule requires an incrcase in the total payments to $1.t nillion per conth, in June through October 1979, and $1.3 nillion fran lovenbar, 1979 through lovember, 1980, exclusive of escalation. Shoulu LILCO not be succea:"ul in renecot iat! n ~ it:, contract :i t " '
- e s t i n e;'r o u s a , the Jamesport progress paynents will run $7 n1111on during June through October, 1979, and $15.6 nillion from November, 1979 through 1980.*
It thus appears from evidence adduced during the rate proceedings that LILCO is seeking to increase its rates at least in part to pay for Jamesport engineering, licensing and fabrication. If the decisions of the Licensing Board are not stayed and LILCO proceeds with more Jamesport expenditures (the effect of the Licensing Board's decision may well affect LILCO's negotiations with Westinghouse and result in an increase in these expenditures), the incremental investment will tilt the cost / benefit balance towards proceeding'with Jamesport regardless of whether it is needed (See, C.B., 56, and cases cited therein), During the rate proceedings, the County was given access to the progress reports submitted to LILCO's Board of Directors on the Jamesport project. The March, 1978 report (dated April 15, 1978) mentions discussions with Westinghouse to define the cost of-project delcyo on all components and of services of the :Jaclear Steam Supply System (:!SSS ) . The May, 1973 report (dated June 16, 1973) notes that Westing-house submitt.ed a propon 1 for deli costa associated with the deferral of J2 no0M J ' c Un *ntion is made in the f o ll o .ci n , p e r a t i n i- d T; t e s . raports o the outconc of the 'lc s tin Mu se ne m' ons.
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and create the risk of L1LC's be'n; perr.ittea to a total of Sl.3 billior fac Shorehar an; 33.~t ~ i _ '- . s : J t. 23;crn, which may be more than it can arror'., ann .:111 lend t_ mare requests for " construction work in progress" and grate nardship for LILCO's ratepayers (C.B., 66-68). 3 a _ _ For the above reasons, the County contends that a stay of the Licensing Board's decision is clearly in the public interest. While continued incremental investments in the James-port project may threaten to bias the ultimate outcome of the project, a halt to all Jamesport-related activities will do minimal harm to the Applicants, especially in view of the con-tinuing pattern of reduced statewide demand, and the Applicants own recognition of same as evidenced by their voluntary defarral of the plants' commercial operating dates. Respectfully Submitted,
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Irving Like Spec $al Counsel for the County of Suffolk Dated: January 8, 1979 T /Jg@D LONG ISLAND LIGHTING COMPANY sa .- EXECUTIVE OFFICES: 250 OLD COUNTRY ROAD FAIN EOL A. N EV/ YORK 11501
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EDWA40 M. ESARRETT f 586( 228 - 2 r1* HERBERT H. LEIM AN ct=cn*6cov=stt JAM E S J. STO4E R. EI EDWAA3 J. WASH.JR. ROEBERT C. RICH ARDS c t =.tn.k af fo*=8 5 ARTHUR Q. FUNN P9 ANCIS M. WALSH ROY E. MON ACO cr atmas chai=5 af fea'*t e CALVIN E. RAFU S E. JR. RICHARD A. FRECOM AN JEFFREY L.FurTEn VolLLIAM R. HUMBURG M AtO A J. ORINCH ER November 30, 1978 rnANCis J. coONOuoM AT* Op% f (S waster'S De#TCT 0446 reuMenem (516) 228-2147 Irving Like, Esq.
.Reilly, Like & Schneider '
200 West Main Street Dabylon, NY 11702 Re: PSC Case 27374-75 -
Dear Mr. Like:
At page 6587-8 or the transcript for November 13, 1978 you requested that I provide you with the. estimated progress pay-ments to be made to Westinghouse included in the Jamesport capital budget between now and the end of the rate year. I am advised that the estimated amount for 1979 is approximately $450,G00 per month and a total annual payment of SS.4 million. However, one half of these payments wilL be made by New York State Gas and Electric Company (NYSEG).
. In 1980 the Company estimates the payments will be $1 million per month and a total of $12.million. Again, one half of the amount will be paid by NYSEG. -
The above amounts are estinates based upon the. Company's anticipation that the present payment schedule required under the contract will be renegotiated. Under the present contract the. ' payment schedule requires an increase in the total payments to
$1.4 million per month in June throur.h October 1979, and $13 million fro.m Hovember 1979 through November 1980, exclusive of escalation.
Very truly yours, ( n .
',. cb A_I r.
Edward J. Walsh, Jr. l.Ji /j 1; O o * *% *ae. e
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U:!ITED S~: T ~'~ nr _ En
, 'C JUCLEAR RE1LL AT 3R'. Ci :ISCI]:! 'g; JAN 111573 X1' c.%ss % .
BEFORE THE ATOMIC SAFETi & LICE::SI:!1 APPEAL ~:
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In the 'iat ter of )
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LO!IG ISLAIID LIGHTI:!O C03:PA: Y )
'nd ) Doct:et 'for 50-516 J D Rt ST ATE ELECTRI 1 L. a s -;-517
'J O R POR ATIO.'I )
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(Jamesport Nuclear Power Station, ) Units 1 and 2) ) CERTIFICATE OF SERVICE I hereby certify that on January 8, 1979, copies of COUNTY OF SUFFOLK'S APPLICATION FOR STAY PURSUA!iT TO 10 CFR SECTION 2 788 were sent to the following by postage pre-paid, first class mail: Jerome E. Sharfman Bernard M. Bordenick, Esq. Chairman U.S. IJuclear Regulatory Comm. Atomic Safety and Licensing Washington,, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Comm. Edward J. Halsh, Jr., Esq. Washington, D.C. 20555. Long Island. Lighting Company 250 Old Country Road Rici'ard S. Salzman Mineola, New York 11501-Member Atomic Safety & Licensing Appeal Sheldon J. Wolfe, Esq. Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Conn. U.S. :Iuclear Regulatory Comm. Washington, D.C. 20555 Hashington, D.C. 20555 Dr. H. Reed Johnson Dr. Ralph S. Decker Member Route 1 Atomic Safety and Licensing P.O. Box 190 D Appeal Board Cambridge, Maryland 21613 U.S. Nuclear Regulatory Comm. 'e!as hingt on , D . C . 20555 Dr . E . Leonard Cheatum Route #3, Box 350A Nuclear Regulatory Commission Watkinsville, Georgia 30677 U.S. Office of the Secretary Washington, D.C. 20555 Mrs. Jean H. Tiedke 1035 ':ctart Road Box 1103 Docketinr & Service Sect'on Southold, New York 11971 Orrice of the Secretary U.S. Nuclear Regulatory Conn.
- ac h i n c.t o n , J.C. 20555
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Mrs. Laetitia deK. F"adle7 Joseph C. Graner, Esq. 144 quaker Path Local 25, International Brotherhood Setauket, '!ew York .11733 o f Elec t rical 'lorke rs , AFL-CIO 425 Broadhollow Road Ira Lee Zebrak. Esq. 'Ielville, :e:: York 11746 Huber, .lagill, Lawrence
& Farrell, Esgs. Jeffrey C. Cohen.. Esq.
99 Park '.venu ?
- e.> la r. S b o. ' e .. " : r ,:; .
.; Y C'T A , . i O '.- Ye r'; .L : 016 Offica Swan Otreet Bldg. - Core 1 W. Taylor Reveley, III, Esq. Enotre State Plaza Hunton & Williams Albany, '!ew York 12223 P.O. Box 1535 Richmond, Virginia 23212 Frederick H. Lawrence, Esq.
Huber, Magill, Laurence & Dr. Harris Fischer Farrell, Esqs. Suffolk County Department of 99 Park Avenue Environmental Control New York, New York. 10016 1324 '<1otor Parkway Hauppauge, New York 11787 5 Irs . Shirley Bachrach Dayton Road Southold, New York 11971
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