ML20083Q424

Response Opposing Various Suffolk County/State of Ny Requests Dtd 840416.Requests Fail to Put Forth New Arguments.Certificate of Svc Encl

ML20083Q424
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/19/1984
From:	Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20083Q413	List: ML20083Q410 ML20083Q424
References
OL-4, NUDOCS 8404230066
Download: ML20083Q424 (25)

Text

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. LILCO, April 19, 1984 UNITED STATES OF AMMRICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S RESPONSE TO VARIOUS SUFFOLK COUNTY /NEW YORK STATE REQUESTS DATED APRIL 16 AND RECEIVED APRIL 17, 1984 I.

r One month ago, on March 20, 1984, LILCO served by hand its " Supplemental Motion for Low Power License." That motion stated in pertinent part:

As a practical matter, LILCO believes that whether Shoreham is entitled to such a license is a question that only the Nuclear Regulatory Commission itself can decide. The intensely political environment that now en-velops Shoreham makes virtually certain that the NRC's highest tribunal must act before the plant will be allowed to conduct any op-erations, even loading fuel. Recognition of this reality prompts LILCO to request:

1. That this Board promptly refer the present supplemental motion to the Commission for decision, pursuant to 10 CFR S 2.718;

2. That if the Board decides against im-mediate referral, it then consider and decide this supplemental motion in an expedited fashion and thereaf-ter certify its decision to the 8404230066 840419 1 PDR ADOCK 05000322 9 PDR

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Commission, pursuant to 10 CFR S 2.730.

14. at 3-4.

Suffolk County (SC or County) responded six days'later, vigorously rejecting any thought of referring LILCO's motion to

the Commission. SC said

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LILCO has requested that this Board

(Judges Brenner, Ferguson and Morris] refer ,

the Motion directly to the Commission pursu-ant to 10 C.F.R. 5 2.718. . . . The County preliminarily believes that such referral i vould be gsoecially inacoropriate in this case. This Board has extensive f amiliarity with the matters at issue and has set stan-dards for an anticipated low power proposal by LILCO. LILCO's attempt to circumvent this Board ignores the plethora of factual and technical issues which the proposal raises, and which can only be adequately addressed after investigation and testimony in a sepa- ,

i rate " collateral" proceeding. Moreover, 1 LILCO's arguments for referral or cer-

tification . . . contain numerous assertions '

l of alleged facts which the County maintains i are false and misleading. An inquiry into

these assertions should be required before i j any determination is made to circumvent this Board and a factual hearina on the merits.

Suffolk County's Preliminary Views on Scheduling Regarding LILCO's New Motion at 10-11 (March 26, 1984) (emphasis l supplied).

1 j Now comes the sea change. The County, having failed to i

get its way "on scheduling regarding LILCO's new motion," has had a complete change of heart about the value of immediate l

Commission action.1 1 Perhaps SC wanted to avoid the Commission only if the Li-censing Board remained the precise ASLB to whom LILCO submitted (continued)

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Thus, "the County . . . emphasize (s) that there is a

, pending request of the Suffolk County Executive, Peter F.

Cohalan, that the present Licensing Board with jurisdiction over LILCO's low power license request be promptly dises-tablished by the Commission and a further Commission order be issued to assure no further Licensing Board violations of due process of law." Joint Request of SC/NYS for the Commission to

, Direct Certification at 1 (April 16, 1984).I And the County (continued) its March 20 motion. That Board was replaced upon its " advice

. . . that two of its members (were] heavily committed to work on another . . . proceeding . . . . " 49 Fed. Reg. 13612 (April l 5, 1984). Those members, however, sat in the massive evidenti-ary proceeding that led to the equally massive Partial Initial Decision on Shoreham of September 21, 1983. That decision

! found strikingly little substance to the County's claims and was, at times, severely critical of SC's misuse of the record.

j See cenerally Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445 (1983). In short, LILCO did not reluctantly file its March 20 motion with the s

Brenner Board; the motion contemplated that that Board might well choose to act on the request and, had-it done so, LILCO believed then and still believes that the result would have been fair and timely.

l 1 This so-called "pending request" of Mr. Cohalan is appro-

! priately disregarded. ~It is nothing other than a letter from him to Chairman Palladino. As such, it was not a request filed

, by Mr. Cohalan's NRC counsel, who exhaustively represent his j interests in the OL proceeding. Presumably that is why the i letter was improperly sent only to the Commission and not also '

to this Licensing Board, which has active, immediate ju-l risdiction over the matters in question. And presumably that

is why the letter was impermissibly sent as an ex parte commu-

nication. The letter went to Chairman Palladino, with copies to Governor Cuomo and the four other Commissioners, on April

11; LILCO was not copied on the letter, and it did not receive (continued) i l

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, . -4 says that the Board should immediately vacate the Low Power Order. If the Board fails or

> refuses to vacate the Low Power Order, the Board should immediately stay the Low

. Power Order and certify these issues to l the Commission for its prompt decision.

If the Board rules against the Joint Ob-jections, such ruling and the Low Power Order should be referred forthwith to the Commission and the Low Power Order should be stayed pending a determination by the Commission. By service of these Objec-tions on the Commission, the County and the State are requesting the Commission to direct the certification of these is-sues to it.

SC/NYS Joint Objections at 4 (April 16, 1984).

There are two short answers to SC's desires. First, the County offers no significant new arguments why, in SC's words, "the Board should immediately vacate the Low Power Order;" the County simply repeats arguments it made in detail to the Board prior to its decision.

Second, the County makes no meaningful attempt to explain why it meets the criteria for a stay of the order pend-ing the extraordinary appeal it seeks; indicatively, SC does not even mention these criteria, which are set forth in the Commission's regulations at 10 CFR S 2.788(e).1 In this (continued) a copy from the County until April 16. The inflamed tone of Mr. Cohalan's argument, his total disregard of the jurisdiction

, of this Board, and his ex parte overture, all make clear that the letter was meant for political not legal purpose 1.

1 The criteria for a stay pending appeal, which are applica-ble to any decision or action of a Licensing Board and are de-(continued)

regard, it is well to be clear what is at issue here -- at issue is not a decision authorizing fuel load, but simply an interlocutory scheduling order setting the beginning of another phase of hearings in a proceeding that has already had over 150 days of hearings since May 1982. Scheduling -- totally inde-pendent of any request for a stay -- is a matter committed to Licensing Board discretion, 10 CFR S 2.718, with which the Ap-peal Board has expressed a " natural and deep seated reluctance" to interfere. Consumers Power Company (Midland Plant, Units 1 i

and 2), ALAB-J44, 4 NRC 207, 209 (1976). Licensing Board schedules should not be interlocutorily reviewed absent a "truly exceptional situation." Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-293, 2 NRC 660 (1975). See also Public Service company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-393, 5 NRC 767 (1977).A Such orders are not even subject to (continued) rived from the seminal case of Vircinia Petroleum Jobbers v.

FPC, 921, 925 (D.C. Cir. 1958), are as follows:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.

10 CFR S 2.788(e).

1 In Harble Hill, the Appeal Board denied an interlocutory appeal by the Commonwealth of Kentucky, as intervenors, com-(continued)

O interlocutory appeal as of right, 10 CFR S 2.730(f), much less i

to stays pending appeal.

(continued) plaining that it was deprived of due process by a Licensing Board schedule giving it nine days to respond to testimony which had taken two months to prepare. The Appeal Board stat-ed:

As we have observed on previous occasions, during the course of lengthy proceedings l licensing boards must make numerous inter-locutory rulings, many of which deal with the reception of evidence and the procedur-al framework under which it will be admit-ted. It simply is not our role to monitor i these matters on a day-to-day basis; were we to do so, "we would have little time for anything else." Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC 98, 99 (1976). What we said there applies equally to this case (3 NRC at 100):

In the last analysis, the potential for an appellate reversal is always present whenever a licensing board (or any other trial body) decides signifi-cant procedural questions adversely to the claims of one of the parties. The Commission must be presumed to have been aware of that fact when it chose to proscribe interlocutory appeals (10 CFR S 2.730(f)). That proscription thus may be taken as an at least im-i plicit Commission judgment that, all factors considered, there is warrant to assume the risks which attend a de-ferral to the time of initial decision of the appellate review of procedural rulings made during the course of trial. Since a like practice obtains in the Federal judicial system, that judgment can scarcely be deemed irra-tional. (footnote omitted).

5 NRC at 768. Ett A112 Public Service Company of Indiana (Mar-ble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188-89 (1978).

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As an application for a stay, Suffolk County's papers are fatally defective both procedurally and substantively.

4 Taking the procedural defects first:

1. The Commission's rules require that applications for stays be filed within ten days after service of the deci-1 sion or action sought to be stayed. 10 CFR S 2.788(a). The

> County's papers are dated April 16, ten days after the Licens-ing Board's April 6 Memorandum and Order. LILCO is informed, although it has not yet received a certificate of service from the County, that the Certificate states that the April 16 pa-pers were timely served that day on the Commission and Licens-ing Board by hand. LILCO, however, did not receive the April 16 papers until April 17, by Federal Express. If the Commis-sion and Board were in fact served on April 16, then the County violated S 2.788(c), which requires that service of an applica-tion for a stay on the other parties be by the same method as that used for filing the application with the Commission.

2. The regulations require that an application for a stay be no longer than ten pages, exclusive of affidavits, and that it contain concise summaries of the decision or action re-quested to be stayed and of the grounds for stay, with specific reference to the four-fold substantive test for a stay (Egg S 2.788(e) and note 3 above). SC's papers are, of course, 49 pages long exclusive of supporting materials, not ten; and they do not contain any reference to, much less focused discussion of, the four-fold test.

. Substantively, the application for a stay is equally defective. First, aside from its already rejected legal argu-ment on General Design Criterion 17, at no point does the Coun-ty attempt to make any, much less a strong, showing that it is likely to prevail on the merits -- i.e., that on the merits, LILCO will not be able to show that its proposed backup power configuration is acceptable for fuel loading and low power testing.E Instead, the bulk of the County's presentation con-sists of complaints about how it will be unprepared to present any case whatever in the time allowed.

Second, the County has not attempted any showing of ir-reparable injury to itself from the development of the record in hearings as scheduled. The reason may be obvious: there is no potential for such injury. Two weeks of hearings are not irreparable injury for a party such as Suffolk County, with its significant resources and voracious appetite for hearing after hearing. If Suffolk County is correct -- though LILCO firmly believes it is not -- in its conclusory assertion that LILCO's l motion is hopelessly flawed, then surely two weeks of hearings will lay bare at least the outline of certain defects, thereby giving the County a factual predicate now lacking for the argu-ments it wants to make to the Commission and, quite possibly, 1 The requirement of a strono showing on the merits was de-liberately chosen when the Commission promulgated the stay reg-ulations. 42 Fed. Reg. 22128, 22129 (cols. 2-3) (May 2, 1977).

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. 1 the courts.5 Two weeks of hearings, in other words, cannot hurt the County if it is actually interested in engaging the merits.1 Third, the County's papers do not discuss whether the granting of stay would harm other parties. It would, of course, be grievously harmful to LILCO and its customers.

Daily debt service on Shoreham is approximately $1,300,000, and LILCO remains wholly dependent on foreign oil to fuel its ex-isting power plants. The sooner Shoreham operates, the sooner these burdens will be lessened.

Fourth, the County's April 16 papers do not address the question of where the public interest lies. Once again, the public interest lies in developing efficiently the narrow fac-4 tual issues posed by LILCO's pending low power motion. Any 6 Predictably, these arguments will include claims that the hearing record established the need for further evidence on particular points.

2 This reality should not be obscured by the County's tac-tics. It has become clear that these tactics hinge on pro-longing the litigation of Shoreham until no life remains in LILCO. Thus, SC seeks to avoid any consideration of the facts of specific issues for as long as possible and, along the way, reargues over and again procedural rulings with which it dis-agrees. These tactics often involve claims that threshold legal issues preclude reaching the facts -- e.a., SC's claims that " law" precluded conducting prehearing evidentiary deposi-tions and that " law" precluded consideration of a utility-only emergency plan. See generally Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-82-107, 16 NRC 1667 (1982); LBP-82-115, 16 NRC 1923 (1982). Now, the County

. claims, GDC 17 precludes holding any hearings whatsoever on LILCO's current low power motion.

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difficulties with the motion that require further consideration would no doubt be exposed during the two weeks of hearings now

! scheduled and any necessary readjustments in schedule, if war-ranted, could be made at that time. The public interest is not served by arbitrarily delaying the beginning of these vital hearings.

In short, the County's application for a stay deserves summary rejection.

One final point bears mention. LILCO has already indi-cated its belief that action by the Commissioners themselves will be required, as a practical matter, before Shoreham may load fuel. If LILCO's March 20 motion had been referred di-rectly to the Commission, as the Company requested, LILCO be-lieves that the NRC might well have acted on at least Phases I

, and II of Shoreham's low power request on the basis of affida-vits and argument alone.E It is also quite possible that the l Commission would have directed the holding of just the sort of l

hearings now scheduled, in order to provide a predicate for Commission action on Phases III and IV. Accordingly, at least as to Phases I and II, LILCO believes that the present proce-dural arrangements give Suffolk County more than due process 8 Phase I entails fuel load and precriticality testing; Phase II involves cold criticality testing. See LILCO's March 20, 1984 motion at 5-11, citino Pacific Gas and Elec. Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-83-27, 18 NRC 1146 (1983).

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_11-requires. And by any balanced view of due process, two weeks of hearings will give the County reasonable opportunity to focus the issues and sharpen the facts in its image if they can, in fact, be so shaped. The Commission will then have ample, prompt occasion to hear and consider the views of all parties, most vocally the County's.

j In sum, SC has offered no reasons that justify sus-pending the scheduled hearings. To repeat, first, the County's arguments for vacating the Board's order simply reiterate claims already heard by the Board and rejected in its April 6 order. Second, even assuming immediate interlocutory review of j the order by the Commission, SC has failed to make the showings necessary to stay the order (and thus the hearings it sched- .

uled), pending Commission review; SC could not have made these showings even if it had tried, which it didn't. Third, the hearings vill obviously not preclude, or materially delay, Com-mission consideration of all relevant matters. The hearings will simply provide a factual background against which the re-view can more productively be conducted.

II.

What has been said above is dispositive of the pending requests, in LILCO's judgment. In an excess of caution, howev-er, the Company responds to certain of the County's more promi-nent assertions.

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A. Time to Prepare Suffolk County complains extensively that the time con-templated by the April 6 order is inadequate to permit it to prepare for litigation of low power issues. The County's com-plaint is groundless: it understates the time available to SC to gain knowledge concerning matters relative to this litiga-tion; overstates the scope of the litigation and hence the breadth of matters to be inquired into; and ignores the Coun-ty's own dilatoriness in using its available time.

The County attempts to depict the Board's Order of April 6, 1984 as providing the first indication that low power proceedings involving emergency power sources other than the TDI diesels would be conducted. But SC was on explicit notice of LILCO's exact proposal as of March 20, when it was served on all parties. That proposal was supported by four detailed af-fidavits, with attachments, sponsored by LILCO's experts.

Moreover, the County knew nearly a month earlier, as of the February 22, 1984 prehearing conference, that LILCO vould like-ly be filing proposals for low power operation using backup power sources in addition to the TDI diesels, when Judge Brenner indicated that on the basis of the record then before the Board, low power operation could not be approved before litigation of the TDI diesels.2 2 The County has repeatedly mischaracterized the Atomic Safety and Licensing Board's action at the February 22 (continued)

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Further, the County has been on notice for years of the existence of virtually all of the factual issues it now por- I t

l trays as being newly created. The same provision -- General j Design Criterion 17 -- which the County now says prevents hear-ings on LILCO's power motion, also applied to Shoreham back in j l 1977-81, when the County was formulating its safety conten-tions. GCD 17 applies to the capacity of offsite as well as onsite electric power systems to support the performance of I specified safety functions in the event of postulated acci-dents. GDC 17 also requires that provisions be made to mini-mize the probability of losing electric power supplies. 133 10 l CFR Part 50, Appendix A, Criterion 17, first and last para-graphs. In short, the same offsite power sources that Suffolk County now demands extended periods to examine were used in the  !

l Chapter 15 FSAR analyses for Shoreham and were available for litigation, with the required assumption that onsite power was lost, when Suffolk County was framing its safety contentions years ago. The only development since then concerning the j reliability of offsite power sources is their enhancement by (continued) prehearing conference. The Board did not then reject Ang spe-cific proposal on the merits for fuel load and low power; nor did it decide generally the concept of low power operation for Shoreham prior to litigation of the TDI diesels. All it ob-served was that what was then before it did not, in its view, afford a basis for a low power license.

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the addition of certain new power sources, a 20 MW gas turbine l

and four mobile diesel generators physically located on the l Shoreham site (though not deemed "onsite" for regulatory pur-l poses). The time to have raised GDC 17 issues (with the limit-ed exception of the new sources) was years ago, not now.

Second, the scope of issues properly before the Board is narrowly limited. Motions pursuant to 10 CFR S 50.57(c) do not provide an occasion for the litigation of new, unrelated contuntions. Pacific Gas and Electric Comnany (Diablo Canyon 1 1

Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NP.C 77 (1983).12 111 1112 southern California Edison comoany (san 12 There the Appeal Board stated:

When an applicant for an operating license files a motion for authority to conduct low power testing in a proceeding where the ev-identiary record is closed but the !!cens-ing board has not yet issued an initial de-cision finally disposing of all contested issues, the board is obligated under 10 CFR 50.57(c) to issue a decision on all out-standing issues ( M ', contentions previ-ously admitted and lftigated) relevant to '

low power testing before authorizing such testing. But such a motion does not auto-matica11y present an opportunity to file ,

new contentions (1232, contentions not pre-  ;

l viously filed in response to the Commis-ston's original notice of opportunity for ,

hearing) specifically aimed at low power testing or any other phase of the operating license application. A party may, of course, identify for the Board those previ-ously filed and litigated contentions that

, it contends must be decided before authort-zation of low power testing.

17 NRC at 801 note 72.

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onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 186 ("the low power motion context is not a free oppor-tunity to bring in new aontentions.")

Suffolk County's papers raise at least four issues that have no place in this litigation need for power, LILCO's fi-nancial qualifications, its technical qualifications, and secu-rity. Need for power is definitionally not an issue in op-erating license proceedings; it cannot be raised in the guise i of a complaint about the pace of an OL proceeding. Financial qualifications, though potentially a subject on which the Staff must make a finding,11 have not been raised in any fashion that requires expansion of this proceeding. LILCO's technical qual- .

ifications are also a matter about which the County has never filed contentions, despite its public discussion of these qual-ifications for years. Security issues are governed generally by an extensive settlement agreement dated November 22, 1982 among LILCO, Suffolk County and the NRC staff, which resolved all outstanding County security contentions and which governs the relations of the parties on security prospectively.

11 on rebruary 7, 1984, the u.s. Court of Appeals for the D.C. Circuit issued its decision in New England Coalition on Nuclear Pollution v. NRC, F re-manding to the commission Ten ru.2d ___, No. 82-1581 (1984),le excluding c financial qualification in operating license proceedings. The court issued its mandate on April 16. Commission imple-mentation of the court's order is expected soon.

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Even as to issues properly before this Board, the Coun-ty has not taken advantage of the time available to it. As outlined above, SC was aware of potential factual issues that would be developed well before the Board's April 6 order'. At the very latest, the County could have begun inquiring actively into LILCO's exact case on March 20, the day LILCO's supplemen-tal low power motion was served on it. The County has often seized the opportunity for formal or informal discovery with alacrity in other aspects of this proceeding; its failure to do j so here must be taken as deliberate.12 Notwithstanding the County's contrary desires, this l'

4 Board's intention .taa move quickly was signaled unquestionably by its telephone notice of March 30 setting an April 4 oral ar-gument, its remarks at the ensuing conference, and its April 6 order. Still LILCO did not receive any discovery requests from Suffolk County until April 12, eight days after the conference and six after after the Board's order.11 Even at that, the SC discovery requests, though extraordinarily burdensome, were of the boilerplate type that could have been formulated on a first reading of LILCO's March 20 motion and affidavits.

12 The County did capitalize on'one opportunity for. free dis-covery during this period: its representatives attended an open meeting,. convened by the NRC Staff, on Ma'ech 29 to discuss

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LILCO's low power motion.

13 One discovery request was dated April 11 but not received until April 12 because sent by Federal Express rather than telecopier;.the request dated April 12 was telecopied and re-ceived that evening.

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The County's pursuit of the document discovery actually requested has been equally desultory. LILCO, following receipt of the County's first discovery request, had documents assem-bled for examination and copying in Long Island the next day, 1

April 13, and offered to make them available around the clock.

Suffolk County responded to the invitation by sending one law-l yer and two paralegals; they spent between three and four hours going through some of the available documents, requested exten-sive copying (which was performed overnight), and departed, not to return.li Further, despite knowledge since March 20 of LILCO's potential witnesses' identities and of the gist of their proposed testimony Suffolk County neither took nor re-quested depositions.1E And while proclaiming an intent to re-tain expert witnesses, the County has not yet indicated to LILCO that such consultants have been retained, despite LILCO's repeated requests that SC inform the Company of their identity.

The County, of course, has had at least since March 20 to en-gage its consultants.

14 Documents responsive to the second request were also as-sembled and made available for review on Long Island by April 14; Suffolk County forvent this opportunity but chose instead to have them copied and sent to its attorneys' offices in Washington, which was accomplished by April 16.

15 The County's diffidence about taking depositions here is in marked contrast to its conduct in other phases of the case, where the County, according to LILCO records, has taken deposi-tions of at least 51 of LILCO's and other parties' experts and noti'ce,d .( but not taken, for one reason or another) _many more.

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The inescapable conclusion is that the County's pro-fessed unpreparedness to proceed at this point is substantially if not entirely of its own making. SC has deliberately chosen not to bestir itself.

B. Waiver Suffolk County argues at length that, under its con-struction of GDC 17, LILCO was required to seek a waiver of that regulation pursuant to 10 CFR S 2.758. This argument, of course, merely reclamors an issue that the County raised, and lost, on April 6. For the reasons outlined in this Board's April 6 Memorandum and Order at 4-7, GDC 17 cannot be read in isolation, but rather must be harmonized with other applicable regulations including 10 CFR S 50.57(c), which requires a Li-censing Board to make findings on any contested issues with re-spect to the contested activity sought to be authorized.

Ignoring relevant differences between requirements for op-eration at full power and at, e.o., 5% power, as the County urges, would, as the Board recognized, read 5 50.57(c) out of the regulations. Thus the County's argument is both untimely and incorrect.

Even if a waiver or exception as to GDC 17 were thought to be required, however, S 2.758 is not the sole vehicle; the provisions of 5 50.12(a), permitting the granting of exceptions

< from the requirements of the regulations in Part 50, are also applicable.15 Further, under the full adjudicatory procedure now contemplated, including evidentiary hearings and the high likelihood of referral to the Commission, any procedural re-quirements of SS 2.758 and 50.12 can, as a practical matter, be more than satisfied.11 C. Expedition Shoreham's operating license proceeding is now eight years old; it has been underway since April 1976. With few in-terruptions, these eight years have involved constant, complex licensing activity. Hundreds of issues have been raised by a large array of intervenors. Immense informal and formal dis-covery has taken place -- e.o., hundreds of thousands of pages of documents have been formally produced or made available for 11 If, hypothetically, a S 50.12 exception were necessary, the required testimony on the factual issues posed by 5 50.12(a) would closely match the affidavits filed by LILCO on March 20 and the testimony to be filed by it on April 20.

17 Section 2.758 contemplates initial examination of propos-als for waivers by a Licensing Board on the basis of pleadings and affidavits, and certification of any orima facie showing to the Commission, which makes the ultimate determination. Sec-tion 50.12 contemplates decision by the " Commission," which in-the context of Part 30, applies both to the Commission itself and "it's duly ~ authorized representatives," 10 CFR S 50.2(h),

i.e., Licensing Boards in the case of licensing proceedings.

l . No direct involvement by the Commission is necessarily contem-plated by 5 50.12.

- inspection; the depositions of over 100 people have been taken in places from New York to California; scores of issues have been settled after the informal exchange of great amounts of information and extended discussion and negotiation. Since the beginning of formal evidentiary sessions two years ago, over 10,000 pages of prefiled direct testimony have been served; over 150 days of hearings have been held; and the transcript has passed 28,000 pages. Since 1976, rulings by the various Licensing and Appeal Boards involved in the proceeding, as well as by the Commission itself, have exceeded 2,700 pages.

As suggested by the vast amount of time consumed and verbiage generated, the licensing process has often moved at a glacial pace. Along the way, due process pressed down and overflowing has been provided to those who wished to question and challenge the Shoreham application.1E Confronted by this situation, LILCO has been driven to ask for expedition on numerous occasions. The request accompa-nying the Company's March 20, 1984 motion is only the latest in a long series of attempts by the Company to obtain rudimentary fairness for the applicant, including an end ultimately to the licensing proceeding.

18 With rare exception, and none pertinent to low power op-eration, all questions and challenges to date -- once tested during sworn adjudicatory hearings -- have been systematically and persuasively answered or refuted.

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t While LILCO does ask for expedition now, as often in the past, by no stretch of imagination has this operating li-cense proceeding involved a rush to judgment. The proceeding's place in history is secure as one of the most protracted, in-tense adjudications in American administrative practice. Expe-dition now to bring one phase of the proceeding to a conclusion will not offend due process. Thr: obverse would; it has long since ceased to be either fair as a matter of law or desirable as a matter of public policy to compel LILCO to devote tremen-dous human and financial resources to service litigation that has already gone beyond the outer bounds of that which would be deemed tolerable in virtually any other judicial or administra-tive setting.

Expedition is also appropriate because low power testing of Shoreham's systems and operators ought to begin as soon as is feasible in the interests of rational energy poli-cy.12 LILCO's current generating plants are wholly fired by foreign oil. Common sense dictates that Shoreham, a large baseload unit not dependent on foreign oil, be available to 5

19 Contrary to SC's suggestion, counsel for LILCO did not fu-tilely " attempt" to discuss the need for Shoreham during the April 4, 1984 oral argument before the Board. Counsel for LILCO, having sat through the County's erroneous litany of anti-need arguments, offered to respond if the Board believed ,

the litany was relevant to pending issues. The Board correctly did not; nor did LILCO. Brief discussion here of need occurs lest continued silence be mistaken as support for SC's claims.

generate electricity as soon as it can be brought on line. If foreign oil supplies to Long Island were interrupted -- a risk far more likely than any of the nuclear accidents analyzed for NRC licensing purposes -- a new sort of political uproar would arise concerning Shoreham, replacing the species currently fashionable. The new uproar would focus on how it could possibly be that steps were not taken to have Shoreham avail-able for use during an imminently foreseeable oil crisis.22 One final point: SC implies that a meeting between LILCO's new chairman, Dr. Catacosinos, and Chairman Palladino has some bearing on present matters. The implication is false.

When Dr. Catacosinos briefly introduced himself to the Chair-man, there was no discussion whatsoever pertinent to Shoreham litigation.

20 It also bears mention that by 1985 LILCO vill begin to ex-perience a deficit in its reserve capacity unless Shoreham is ~'

on line. Thus it is flatly wrong to claim, as SC does, that Shoreham will not be needed to meet load growth for another de-cade or so. Beyond load growth, Shoreham is also needed well before the mid-1990s to permit the retirement of aging units on LILCO's system. And, of course, given the extreme difficulty of finding sites in southeastern New York State that might be licensable for power plants, the existence of a completed baseload plant on a licensable site at Shoreham provides south-eastern New York with a rare addition to its indigenous energy resources. To provide another such addition in the future, if in fact a large new baseload power plant can ever again be built in Consolidated Edison's and LILCO's service territories,

, would take years, plus political and legal machinations of sweeping dimensions.

i III.

For the reasons stated, the present requests should be denied.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY a

L' *n _ fY?-2 4.Citt/N fr gaylor Reveley, f(f' ~

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Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: April 19, 1984

i LILCO, April 19, 1984 DOLKETEC CERTIFICATE OF SERVICE T4 NH 19 PS:25 I

l In the Matter of LONG ISLAND LIGHTING COMPANY t- 0F SLUFt IAn f

.0 (Shoreham Nuclear Power Station, Unit s'1}TggC (Low Power) Docket No. 50-322-OL-4 I hereby certify that copies of LILCO'S RESPONSE TO VARI-OUS SUFFOLK COUNTY /NEW YORK STATE REQUESTS DATED APRIL 16 AND RECEIVED APRIL 17, 1984 (Before the Commission and Before the Atomic Safety and Licensing Board) were served this date upon the following by U.S. mail, first-class, postage prepaid, and in addition by hand (as indicated by one asterisk) by Federal Express (as indicated by two asterisks).

Judge Marshall E. Miller, Edward M. Barrett, Esq.

Chairman

• Long Island Lighting Company Atomic Safety and Licensing 250 Old Country Road Board Mineola, New York 11501 U.S. Nuclear Regulatory Commission Honorable Peter Cohalan**

Washington, D.C. 20555 Suffolk County Executive County Executive /

Judge Glenn O. Bright

• Legislative Building Atomic Safety and Licensing Veteran's Memorial Highway Board Hauppauge, New York 11788 U.S. Nuclear Regulatory Commission Fabian G. Palomino, Esq.**

Washington, D.C. 20555 Special Counsel to the Governor Judge Elizabeth B. Johnson Executive Chamber, Room 229 '

Oak Ridge National Laboratory State Capitol P.O. Box X, Building 3500 Albany, New York 12224 Oak Ridge, Tennessee 37830

. Alan R. Dynner, Esq.*

Eleanor L. Frucci, Esq.* Herbert H. Brown, Esq.

Atomic Safety and Licensing Lawrence Coe-Lanpher, Esq.

Board Kirkpatrick, Lockhart, Hill U.S. Nuclear Regulatory Christopher & Phillips Commission 1900 M Street, N.W., 8th Floor Washington, D.C. 20555 Washington, D.C. 20036

,Edwin J..Reis, Esq.* Mr. Martin Suubert Office of the Executive c/o Congressman William Carney Legal Director 1113 Longworth House Office Bldg.

U.S. Nuclear Regulatory Washington, D.C. 20515 Commission Washington, D.C. 20555 e

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t ,

James Dougherty, Esq.* Martin Bradley Ashare, Esq.**

3045 Porter Street, N.W. Suffolk County Attorney Washington, D.C. 20008 H. Lee Dennison Building Veterans Memorial Highway Mr. Brian R. McCaffrey Hauppauge, New York 11788 Long Island Lighting Co.

175 East Old Country Rd. Jay Dunkleberger, Esq.

Hicksville, New York 11801 New York State Energy Office Agency Building 2 Docketing and Service Branch Empire State Plaza Office of the Secretary Albany, New York 12223 U.S. Nuclear Regulatory Commission Chairman Nunzio Palladino*

Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Commissioner James K. Asselstine* 1717 H Street, N.W.

U.S. Nuclear Regulatory Washington, D.C. 20555 Commission 1717 H Street, N.W. Commissioner Frederick M. Bernthal*

Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Commissioner Victor Gilinsky* 1717 H Street, N.W. 20555 U.S. Nuclear Regulatory Washington, D.C. 20555 Commission 1717 H Street, N.W. Commissioner Thomas M. Roberts

• Washington, D.C. 20555 U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

% $) utN '/nu'

~ *

' Donald P. Irwin Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: April 19, 1984 I

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