ML20009C072
| ML20009C072 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/13/1981 |
| From: | Latham S SHOREHAM OPPONENTS COALITION, TWOMEY, LATHAM & SHEA |
| To: | |
| Shared Package | |
| ML20009C073 | List: |
| References | |
| NUDOCS 8107200240 | |
| Download: ML20009C072 (6) | |
Text
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BELATED CORRESPONDD,',7
- DOCKET NUMBER PROD. & UTIL FAC..N,f.b. . . . . .t.:
UNITED STATES COURT OF APPEALS j /
c'OR THE SECOND CIRCUIT
___________________________________x 7//3/El HOP.EHAM OPPONENTS COALITION, :
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Petitioner, : IN SUPPORT OF PETITION N -
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Respondents. :
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D 4 STEPHEN B. LATHAM, being duly sworn, deposes and says:
I am a member of the firm of Twomey Latham & Schmitt, attorneys for the Shoreharn Opponents Coalition (" SOC"),
petitioner herein. Since the filing of SOC's petition with this Court, there have been certain developments at the agency level, which petitioner wants to bring to the Court's attention. 9 The Nature of the Petition Before this Court SOC has petitioned this court for injunctive relief pending juidicial review of agency action by federal 8107200240 810713 gDRADOCK05000 gp
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respondents. More specifically, SOC has applied to the federal respondents for a) a hearing on the Long Island Lighting Company's request for an extension to its construction permit for a auclear reactor at Shoreham, New York, and b) a proceeding to determine whethec the existing permit should be modified, suspendm1 0: revoked. SOC's petition described a set of issues which it proposed to raise in both the hearing on the coristruction permit extension and the proceeding requested by SOC to determine whether the existing permit should be modified, suspended or revoked.
SOC had filed applications with the Nuclear Regulatory Commission ("NRC") on December 31, 1980 and January 23, 1981.
Thereafter, LILCO filed two responses in opposition to SOC's requests. LILCO continued construction under an automatic extension of its NRC permit. After receiving no action from federal respondents, SOC wrote again to the NRC on April 14, 198s, demanding a ruling on its applications. On June 18, 1931, after two more months of inaction by federal respondents and continued construction by LILCO, SOC filed its petition with this Court seeking injunctive relief pendente lite and also filed an action for mandamus in the United States District Court seeking an order directing the federal respondents to rule on SOC's applications before the NRC.
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i Subsequent Developments Below On July 7, 1981, SOC received copies of two NRC documents prepared on June 26, 1981 in response to SOC's petition before the agency. Copies are submitted herewith as Attachments 1 and 2.
The first of these documents is a memorandum f rom the NRC's Executive Director to the Commissioners ("SECY 81-395"). The Executive Director, on behalf of the NRC Staff, recommended that* SOC's request for a hearing on LILCO's request for a construction permit extension be referred to the Atomic Safety and Licensing Board ("ASLB"),
which is considering LILCO's operat.ng license application.
The memorandum further recommends that, after yet another cpportunity for the Applicant and Staff to respond to SOC's six month old hearing request, the ASLB should be instructed that, if SOC's request meets certain criteria, the hearing on the construction peemit extension should be granted but
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l deferred and consolidated with the proceeding on LILCO's application for an operating license (Attachment 1, page 2).
l l NRC Staff has projected that hearings on the operating f license will not be scheduled until January, 1982, one year l
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after SOC's request for a nearing on the construction permit extension. (Letter of H. Denton, NRC, to W. Uhl, LILCO, dated March 13, 1981.)
The NRC memorandum states that now, because of SOC's federal court litigation concerning its petition to the NRC, "early action [on SOC's request for a hearing] is appropriate" (Attachment 1, page 3).
The second NRC document is a " Director's Decision Under 10 CFR_2.206" denying SOC's December 31, 1980 and January 23, 1981 requests for a proceeding to determine whether the LILCO construction permit should be modified, suspended or revoked.
The decision states in part that "Even where unresolved safety questions are raised af ter issuance of the construction permit, institution of proceedings to suspend the permit is not required, because permitting continued construction of the plant despite unresolved safety questions does not of '.t s e l f pose any danger to the public health and safety."
(Attachment 2, page 4.)
Implicit in the decision's reasoning is that a proceeding would never be instituted to modify, suspend or revoke a construction permit, despite the specific provision of NRC regule.. ions establishing such relief, since construction work does not endanger the public.
The brief decision by the Director would normally become a final NRC order until 25 days after the date of issuance.
However, on July 7, 1981, the Commission extanded its period for review of the Director's decision until August 4, 1981 (Attachment 3). Thus, the order will not become reviewable until August 4, 1981.
Reasons For Granting The Writ The petitioner, SOC, will not repeat the reasons and citations of authority Eor granting the requested relief which are set forth in the original petition. The documents recently issued by the NRC have not changed the situation i described in SOC's application to this Court. ,
The belated ruling by the Director of Nuclear Reactor Regulation on SOC's petition under 10 CFR Section 2.206 will finally becot..e reviewable by this Court in August. However, construction of the Shoreham plant under the old construction f
permit continues apace while the NRC drags out even further its response to SOC's request for the statutorily required hearing on LILCO's application for a co.nstruction permit extension'. See 42 U.S.C. Section 2239; Sholly v. NRC, F2d ; 15 ERC 1231 (D.C. Cir., 1930); reh. denied, No.
M 80-1784 (March 4, 1981) (en banc;, cert. granted U.S.
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, 4 9 U.S . L.W. 3882 (May 26, 1981).
SOC believes that, at a minimum, 3*.c request for a proceeding should have been granted under 10 CPR Section 2.206 to investigate whether the construction permit should be modified, revoked or suspended. SOC will seek review of that decision, which denies all relief under 10 CPR Section 2.206, after the order becomes final.
More important, the NRC's ongoing failure to take any action on SOC's request for a hearing on the construction permit extension currently deprives petitioner of due process and, as expedited construction proceeds toward completion, the NRC's continuing failure to act causes further irreparable injury to petitioner's right to due process.
A hearing on LILCO's application for an ext.ension to its permit will be meaningless once remaining construction has been completed in whole or substantial part. At that poi nt ,
this Court's review of final agency action on any of SOC's requests would be a moot exercise. For the foregoing reasons and those stated in the petition for injunctive and other relief, the petition should be granted.
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Step (p'n B. Latham Sworn to before me this 13th day of July, 198
// JAN!CE M. OLSEN Ad ' // f;CITRY PJBLIC, State of Nea York
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. UNITED STATES Wb NUCLEAR REGULATORY COMMISSION W A SHINuTON, D. C. 20555 e
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June 29, 1981 Stephen B. Latham, Esq. W. Taylor Reveley, III, Esq.
Twomey, Latham & Schmitt liunton & Williams 33 West Second Street 707 East Main Street P.O. Box 398 Richmond, Virginia 23212 Riverhead, New York 11901 In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)
Docket Ho 50-322 Gentlemen:
Enclosed find copies of the following HRC Staff documents which were prepared in response to the " Petition of the Shoreham Oppor, ants Coalitior (SOC) to Institute Proceedings on Whether Good Cause Exists to Extend the Completion Date of the Shoreham Nuclear Power Station, Unit 1."
- 1. Director's Decision Under 10 C.F.R. 2.206 (77-81-9)
- 2. SECY 81-395 Since you already have copies of Enclosures 1 and 2 to SECY 81-395, I have not forwarded additional copies. Enclosure 3 to SECY 81-5b5 is the Director's Decision, a copy of whicn is enclosed.
Sincerely, M i Bernard M. Bordenick ,
Counsel for NRC Staff
Enclosures:
As Stated cc: (w/ enclosures)
See Page ?
l fJ ATTACIIMENT 1
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_2 cc: Louis J. Carter Dr. Oscar H. Paris Mr. Frederick J. Shon Edward 11. Barrett, Esq.
Jeffrey L. Futter, Esq.
Ralph Shapiro, Esq.
Howa d L. Blau, Esq.
Jeffrey Cohen, Esq.
Irving Like, Esq.
Energy Research Group, Inc.
Joel Blau Esq.
David H. Gilmartin, Esq.
Atomic Safety and Licensing Board Danel Docketing and Service Section Mr. J. P. liovarro ,
MHB Technical Associates Hon. Peter Cohalan Ezra I. Bialik, Esq. ,'
Atomic Safety and Licensing Appeal Board
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June 26, 1981 For: The Commissioners From: William J. Dircks Executive Director for Operations .
Subject:
Disposition of Petition Of The Shoreham Opponents Coalition (SOC) To Institute Proceedings On Whether Good Cause Exists To Extend The Completion Date Of The Shorehem Nuq1 ear Power Stetion, Unit 1 Puroose: This paper: (1) transmits a Director's decision denying a request made pursuant to 10 C.F.P. 2.206 to suspend the Shoreham Nuclear Powe- Station, Unit I construction permit pending a hearing on Permittee's application to extend the latest completion date specified in the construction permit, and (2) requests a Co rnission decision on the SOC request for a hearing.
Issue: Whether, and if so under what circumstances, 50C's request for a hearing should be granted.
Discussion Long Island Lighting Company is the holder of a and construction permit iss'ed on April 14, 1973, for con-Recommendation: struction of the Shoreham Nuclear Power Station, Unit 1.
This facility is pres;'.tly under construction (approxi-mately 87% complete) on the north shore of Long Island in the Town of Brookhaven, Suffolk County, New York.
On November 26, 1980, the Applicant timely requested an extension of the latest completion date (from December 31, 1980, to March 31,1983). Applicant asserted that construction has been delayed by the following events beyond its control:
CONTACT:
J. Wilson /B.Bordenick/S. Burns, NRR/0 ELD 28408/28648/27268 -
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, 1. Nes regulatory requirements.
- 2. Evolving Interpretation of Existing Regulatory Requirements.
- 3. Late Delivery of Ecuipment.
- 4. Unexpected Difficulties in Completion of Required Plant Modifications.
On January 23, 1981, S0C filed with the Director, Nuclear Reactor Regulation, a document entitled " Petition of the Shoreham Opponents Coalition (SOC) to Institute Proceedings on Whether Good Cause Exists to Extend the Completion Date of the Shoreham Nuclear Power Station, Unit 1." (Enclosure 1). The Petition asks for a hearing on the Applicant's construction permit extension request.
Additionally, it seeks to have ' the Shoreham construction permit . . . suspended" and then " revoked" or "in the alternative re-issue (d) . . . subject to . . .
conditions. . . ." Applicant on February 4 and February 27, 1981 responded to the Petition setting forth its opposition to the 50C requests (Enclosure 2). The stcff later determined to hold the petition in abeyance when Applicant and SCC undertook discussions for purposes of reaching a settlement of 50C's intervention as to the OL application. These settlement discussions subsequently proved fruitless. For the reasons set forth in the Director's Denial of the suspension or revocation aspects of the petiti,on (Enclosure 3), the petition has been denied as to the 10 C.F.R. 2.206 aspects. With respect to SOC's request for a hearing on the construction permit extension, the staff recommends that this request be referred to the Atomic Safety and Licensing Board (ASLB) which is considering the operating license application to which SOC has been admitted as a late intervenor. After an opportunity for the Applicant and the staff to respond to the SOC hearing request, the ASLB should be instructed that, if it finds that the petition neets the requirements of 10 C.F.R. 2.714, the two proceedings (on the CP extension and on OL issues) should be consolidated for hearing. The use of this procedure will conserve staff and Licensing Board resources and avoid the possibility of separate hearings being conducted concurrently.
Schedulino: On June 17, 1981, SOC filed a "Complair,t for Declaratory Relief and for Writ of Mancamus" in the United States District Court for the Eastern Di.,trict of New York and a
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" Petition for Extraordinary Injunctive Relief Pendents Lite Pursuant to the All Writs Act" in the United States Court of Appeals for the Second Circuit. Both suits involve the SOC Petition discussed in this paper.
Accordingly, early actior, is appropriate.
[
William J. Dircks Executive Director for Operations
Enclosures:
- 1. Petition Of The Shoreham Opponents Coalition (SOC) To Institute Proceedings On Whetner Good Cause Exists To Extend The Completion Date Of The Shoreham Nuclear. Power Station - Unit 1 *
- 2. Pemittee's Responses To 500 Pleading Of January 23, 1981
- 3. Director's Decision Under 10 C.F.R. 2.206 1
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50 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY CCt' MISSION OFFICE OF NUCLEAR REACTOR REGULATION Harold R. Denton, Director In the Matter of ) Docket No. 50-32;
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LONG ISLAND LIGHTING COMPANY ) (10 C.F.R. 2.206)
(Shoreham Nuclear Power )
Station, Unit 1)
DIRECTOR'S DECISION UNDER 10 C.F.R. 2.206 In filings dated December 31, 1980, and January 23,1981, the Shoreham Opponents Coalition (SOC) requested pursuant to section 189 ,
of the Atomic Energy Act of 1954, as anenced, and 10 C.F.R 2.206 of the NRC's Rules of Practice that the Director cf Nuclear Reactor Regulation institute a proceeding to determine whether good cause exists to extend _
the construction pemit for the Shoreham Nuclear Power Station, Unit 1.
SOC also requested "that, to protect public health and safety, the Shoreham construction pemit be suspended pending the outcore of the hearing [on the construction permit extension]." Fetition at 1 (Jan. 23, 1981). The Long Island Lighting Company (LILCO) had requested on ilovember 25, 1980, an extension of Construction Pemit No. CPPR-95 to Marcn 31, 1983. E By separate memorandum, the NRC staff has made recomendations to the Commission with respect to 50C's request for a hearing on the extension if See Attachment A to Petition (Jan. ?3.1981). The construction pemit would have expired on December 31, 1980. Under 10 C.F.R. 2.109, which derives from section 9(b) of the Administrative Procedure Act, 5 U.S.C.
558(c), the pemit remains in effect until the application for its renewal nas been finally detemined.
ATTACHMENT 2
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of the construction pemit. El The remainder of this decision is corcerned with SOC's request that I respend construction of the Shoreham facility pending the outcome of the proceeding on extension of the construction pe mi t, 50C c' aims that suspension of the permit should be ordered "to protect public health and safety". At no point in the petition does SOC give reasons why pub' ' healta and safety would be threatened imminently if permit suspension were no, ordered. To be sure, S0C lists a number of matters which it believes should be considered in connection with the application for pemit extensi6n. 3/ Th'ese matters cuncern, however, pricarily issues that go to the cuestion of whether LILC0 should be granted an operating license for the Shoreham plant. Whether or not these natters are litigable in a proceeding on perm't extension, they do not reveal any threat to public health and safety that stems from the facility's construction. Rather, 50C
-2/ A copy of this memorandun has been served with this decision en SOC and LILCO. 50C's petition lists a number of items which SCC believes should be litigated in a hearing on the construction pemit extension or should be imposed as conditions on any permit extension. Because SOC has requested that these matters be litigated in the pemit extension pro-ceeding, the Staff will respond to these matters in the proceeding on pemit extension, not under 10 C.F.R. 2.206. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 31 ant, Units 1 & 2), CL!-el-6 (May 8, 1981).
3J In part, the petition styles these matters as arguments for " revocation" of the construction pemit. petition at 4-20 (Jan. 23,1981). However, 50C wants these matters litiaated in the construction pemit proceeding.
If these matters are litigable in that proceeding and if SOC's views prevail, extension would ba denied and thereby the permit <uld be teminated.
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has alleged only that operatig of the facility would be unsafe or environ-centally unsound, because of the facility's siting, the risk of severe accidents, and the need for additional saf*.ty systems and analyses. Thus, the petition does not raise a' legations that mignt provide a basis for suspension, pernaps even imrediate suspension, of construction: e.c.,
construction of the facility has been inproper under existing requirements or implementation of the quality assurance program has been inadequc te. O The only nexus between any of tne matters raised by 50C and its recuest for irrediate suspension of the pemit is 50C's recuest that saspension of the pemit be ordered pending $ determinatien of the feasibility of evacuation after a severe accident during operation of the facility.1 50C's citation to a recent Appeal Board decision is inapposite as a basis for SOC's request. Northern Indian $ Public Service Co. (Bailly Generating Station, Nuclear 1), ALAS-619,12 NRC 5E8, 569-70 (1980). The Bailly decision suggests only that it may be apprcpriate to consider site suit-abil *.y contentions in a proceeding on construction semit extension, not that suspension of construction pending resolution of such issues in tne pemit extension proceeding is appropriate. The feasibility of evacuation, as it relates to emergency planning, is relevant to the assessment of whether the plant should operate. Althougr. that issue must ce resolved 4/ See Prcoosed General Statement of Policy and _ procedure for Enforce ent Actions, 9 IV.C., 45 Fed. Reg. 66,7ba, 66,s :/ (bt
- 7,1980).
j/ Petition at 20 (Jan. 23, 1981).
before operation of the fa' ility, evacuation considerations pose no imminent threat to public health and safety that would warrant irrediate suspensio.i of construction.
Suspension of construction is not mandated, therefore, by law or Commission policy.
As noted above, a construction permit or any other Commission license generally remains effective under a timely application for renewal until the Commiss 'on has finally deternined the application b The permittee pursues construction work under a construction pemit at its own risk pending approval of permit extension or of the application to operate the plant. 2/Even where unresolvec safety questions are raised after issuance of the construction pemit, institution of proceedings *,o suspend the permit is not required, because "pemitting continued construction of the plant despite unresolved safety questions does not of itself pose an danger to the public health and safety". U Before LILC0 may receive an operating license, it will be required to do anything necessary to ensure safe operation of the plant. The cost or difficulty associated with implementing needed actions to ensure safety .
are not relevant consideration to this :gency. The safety standards which an applicant must meet to obtain al operating license are unconditional. U I
y 10 CFR 2.109; 5 U.S.C. 558(c) .
)) dee Power Reactor Develocment Co. v. International Union of
_ITict 1 cal, Raolo & Macnine Workers, 367 U.S. 396 (1961).
y Porter 606 County F.2c i363,Chapter of the i369 (D.C. Cir.Izaak Walton League, Inc. v. tRC, 1979).
y Public Service Co. af New Hamoshire (Seabr0ok Station, Units 1 & 2),
ALAS-623, 12 NRC 670, 677-73 (1980).
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To the extent that S0C has raised natters which require resolution before an extension of the construction pemit is granted or before an operating license is issued, these matters will be given appropriate consideration in those proceecings. I do not find further consideration of these matters appropriate at this time under 10 C.F.R. 2.206. E As 50C's petition does not provide an adequate basis for incediate suspension of construction, 50C's petition to suspend is denied. The remaining matters in the petition concerning 50C's request under section 189 of the Atomic Energy Act for a hearing on permit extension are before tne Commission for action. A
- copy of this decision will be filed with the Secretary for the Commission's review in accordance with 10 C.F.R. 2.206(c).
In accordance with 10 C.F.R. 2.206(c), this decision will constitute the final act wo of the Connission 25 days after the date of issuance, unless the Comission on its own action institutes review of this decision within that time.
Ar Y $
Harold R.' Denton, Director Office of Nuclear Reactor Regulation Cated in Bethesda, fiaryland this 26th day of June ,1981 10/ See Pacific Gas & Electric Co., (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6 (iiay 8,1981), affirming 00-81-3, Pt. 1 (March 26,1981); Commonwealth Edison Co. (8yron Station, Units 1 & 2),
00-81-5, Slip Op. at 2-4 (Itay 7,1981) .