ML20091E266

Petitioner Opposition to NRC Staff Motion to Dismiss.* Petitioners Urge NRC to Deny Staff Motion or Defer Action Until Petitioners Have Fully Developed Petitions & Supplied Detailed Contentions.W/Certificate of Svc

ML20091E266
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/20/1992
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY
To:	NRC COMMISSION (OCM)
References
CON-#292-12772 CLI-90-08, CLI-90-8, CLI-91-02, CLI-91-08, CLI-91-2, CLI-91-8, DCOM, NUDOCS 9204140042
Download: ML20091E266 (4)

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NUCLEAR REGULATORY. COMMISSION MNd

. BEFORE THE COMMISSION g y gg 34

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) 'hatrJ UNG A W VKI In the Matter W NO'

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LONG ISIAND LIGHTING COMPANY ) Docket No. 50-322

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(Shoreham Nuclear Power Station, ) (Decommissioning) DC()M Unit 1) )

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PETITIONERS' OPPOSITION TO NRC STAFF MOTION TO DISMISS On February 5, 1992, the Nuclear Regulatory Commission

("NRC" or " Commission") Staff filed "NRC Staff's Motion to Dismiss Intervention Petitions" (" Staff Motion") in the above-captioned proceeding. Petitioners Shoreham-Wading River Central School District (" School District") and Scientists and Engineers for Secure Energy, Inc. ("SE2 ") hereby oppose that notion for the reasons given below.

First, collateral estoppel does not bar further argument that Shoreham's resumed operation must be considered as

.an alternative to decommissioning because that issue has not "been determined by a valid and final judgment." gig, Staff Motion at 5 and decisions cited therein. The Staff itself admits that, as to some rulings, " Petitioners' appeals from these decisions are pending before the commission." Staff Motion at-6 n.7. And the Commission decisions relied on principally by the NRC Staff (CLI-90-08, CLI-91-02, and CLI-91-08) are currently under review by.the U.S. Court of Appeals for the District of 9204140042 920220 PDR G

ADOCK 05000322 PDR- p5D 3 ,

-N-Columbia Circuit together with related Commission final orders, gag, Shoreham-Wadina River Central School District v. U.S.N.R.C.,

U.S. App.D.C. Docket Nos. 91-1140 & 91-1301. Egg Staff Motion at 2, 6-8. Without a " valid and final judgment," collateral estoppel does not apply by the Staff's own admission. It is necessary for the School District and SE2 to maintain its position that the proper scope of inquiry under the National Environmental Policy Act ("NEPA") includes the alternative of resumed operation while the administrative and judicial processes prvceed. Further, even if Petitioners were estopped from raising this single alternative, that fact would not call for dismissal of the petitions, but only limitation on the scope of NEPA review sought by Petitioners in the proceeding.

Second, the petitions do not address matters outside the scope of the Federal Reaister notice and, alternatively, even if they do address some issues outside the scope of the Federal Recister notice that does not call for dismissal but a limitation of the scope of the proceeding. For example, the NRC argues that "the petitiona referenced the alternative of operating Shoreham and the consegoonces of its non-operation -- matters outside the scope of the licensing action . . . . " Staff Motion at 9. The Staff misses the point. "The consequences of its non-operation" are " effects" or " impacts" of the proposal which must be considered in any NEPA analysis of the proposal, even if it is not necessary to consider renewed operation as an " alternative."

San 40 C.F.R. 5 1508.8 (definition of ' effects"); 40 C.F.R. 5

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s' .y.

'1508.9_(even an environmental assessment must address "the environmental impacts of the proposed action").

Third, the objections to the lack of detail in the initial-petitions are premature since Petitioners have an unfettered'right to supplement those petitions before the Atomic ,

Esa 10 C.F.R. 5 2.714 (a) (3) & (b)

Safety and Licensing Board.

(1991). E.g.,; Staff Motion at 3 n.3 & 9 n.8.

Petitioners are proceeding to develop the appropriate affidavits and petition amendments with particularized contentions for consideration in the commission licensing process..

CONCLUSION WHEREFORE, Petitioners urge the Commission to deny the Staff Motion or to defer action on it until Petitioners have fully developed their petitions and supplied detailed contentions supported by affidavits in line with the process promised by 10

-C.F.R. $ 2.714.

Respectfully submitted, February 20, 1992 L f. C eE ~k  ; '

_ aines P. McGranery73r.

'W, LOHNES & ALBERTSON Suite 500 1255 Twenty-Third Street, N.W.

Washington, D.C. 20037 (202) 857-2929 Counsel for Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.

.- -N- ,yg UsNht UNITED STATES OF AMERICA 92 FEB 24 A11:14 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION [jcy;$3%[yyy ORANCH

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In the Matter )

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LONG ISLA"D T.IGHTING COMPANY ) Docket No. 50-322

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(Shoreham Nuclear Power Station, ) (Decommissioning)

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the Petitioner's Opposition to the NRC Staff's Motion to Dismiss in the above-captioned proceeding have been served on the following by first-class mail, posted prepaid on this 20th day of Februtry, 1992:

W. Taylor Reveley, III, Esq. Samuel A. Cherniak, Esq.

Donald P. Irwin, Esq. NYS Department of Law Hunton & Williams Bureau of Consumer Frauds Riverfront Plaza, East Tower and Protection 951 East Byrd Street 120 Broadway Richmond, Virginia 23219-4074 New York, New York 10271 Nicholas S. Reynolds, Esq. Carl R. Schenker, Esq.

David A. Repka, Esq. O'Melveny & Myers Winston & Strawn 555 13th Street, N.W.

1400 L Street, N.W. Washington, D.C. 20004 Washington, D.C. 20005 John T. Hull, Esq.

l Office of the General Counsel I

U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 i

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nl w J@es P. McGranerykfGr.

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C'ounsel for Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.

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