ML20106E481

Motion for Stay of Miller ASLB 841029 Initial Decision Due to Violation of Process Rights.Low Power Testing Nowhere Near Critical Path to Justify Extraordinary Action. Certificate of Svc Encl

ML20106E481
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/12/1985
From:	Lanpher L, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20106E444	List: ML20106E440 ML20106E481
References
OL-4, NUDOCS 8502130323
Download: ML20106E481 (13)

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UNITED STATES OF AT:RICA NUCLEAR RB3UIATORY CDPNISSION R~ ED Before the Atcmic Safety and Licensing Appeal Bo'ard

) 12 P3:37 In the Matter of )

)

IANG ISIAND LIGfrING CDMPANY ) Docket No. 50-322-OL ) (Iow Power)

- (Shoreham Nuclear Power Station, )

Unit 1) )

)

)

SUFEOLK (IXNrY AND STATE OF 1H YORK HOfrION FOR STAY OF MILLER IDARD DECISION On February 12, 1985, the Ccmnission ruled that the Miller Board's October 29, 1994 Initial Decision (" Decision"), could bectne effective. Suffolk County and the State of New York mwe this Board to stay the Miller Board authorization for the grant of an exemption pending a decision on the merits of our a3 peal by the Appeal Board.

I. THERE IS A STRONG PROBABILITY THAT DE CDUNTY Atm STATE WILL PREVAIL ON DE MERITS OF UEIR APPEAL In the County / State Brief subnitted on Dw.Ler 11, 1984, the County and State denenstrate that the Decision must be reversed because their due process -

rights were violated in the proceeding conducted by the Miller Board, and be-cause the Decision violates the Carrtission's rulings and regulations. Because of these errors, the State and County subnit they will prevail on the merits of theirappeal.Il if Tnis Board is familiar with the bases for our argunent, particularly since the Board heard oral argunent on February 11, 1985. Therefore, due to the Section 2.788 page limitation, we only sunmarize those errors herein.

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r First, there is no possible basis upon which the Miller Board could have made the public interest findings mandated by Section 50.12(a) (see discussion Section IV, infra) or found that the circumstances of the case were so "ex-traordinary" (May 16 Order, fn. 3) as to justify a special exer.ption. Indeed, given the fact that los power testing is nowhere near the " critical path" (as-suming this Board uses that concept), there is no circumstance at all that could justify this extraordinary action.

Second, the Miller Board denied due process and a fair hearing to the Coun-ty and State by refusing to admit evidence submitted by the County and State on the issues identified by Section 50.12(a) and the Ccruission as being central to a decision on whether to grant an exemption, with acconpanying rulings that LIIID and Staff evidence on precisely the same issues was admissible. This de-nial of the right to subnit evidence on critical issues was made even more prej-udicial by the Miller Board's subsequent reliance upon the one-sided LI14D and Staff evidence in its Decision. See County / State Brief at 4-14, 16-18, 25-29, 32-36, and Attachments 1-4.

Third, the Miller Board also denied Intervenors' right to a hearing on physical security issues which pertained to both the security and the public healthandsafetydeterminationsrequiredbySection50.12(a).2/ The County and State, then supported by the NRC Staff, had subnitted focused contentions on why the alternate AC power equirrnent needed to be treated as " vital equipment."

2f See Ione Islard Lighting Co. (Shoreham Nuclear Power Station, Unit 1), NRC Mercranitrn and Order, July 18, 1984 (slip op. at 2-3).

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Without legal or factual basis, the Miller Board denied admission of the contenticns, thus refusing to permit any evidentiary record to be ccmpiled.

Thereafter, in violation of Intervenors' rights, the Miller Board purported to make substantive " findings of fact" - without any evidentiary record - cn the precise security and safety issues which Intervenors had sought to litigate, including a " finding" that LILOO's new emergency pwor equigraent did not have to be designated or protected as " vital equirraent." See County / State Brief at 18-25.

Finally, the Miller Board also misapplied the Comission's May 16 Order in finding that lw power cperation with the alternate AC power configuration would be as safe as low power operation with a fully qualified power source, despite its admission that with the alternate configuration "there is unquestionably a lessor margin of safety." Decision at 24. In approving the exemption request in light of that finding and other evidence of record that the margin of safety with the alternate configuration would be substantially less than with a quali-fled system, the Miller Board violated the Camission's May 16 Order and 10 CFR

$ 50.47(d). See County / State Brief at 36-42.3_/

The Miller Board's errors denied Intervenors their due process right to a fair hearing.M This Board must find that there is a strong probability that 3/

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See also County / State Brief at 43-62, 14-16, 29-32, and 42-43 for discus-sion of other Miller Board rulings which violate Ccrmission precedent and regulations.

y See, e.g., Morgan v. U.S., 304 U.S. 1 (1939); Ohio Bell Telephone Co. v.

Public Utilities ccrm., 301 U.S. 292 (1937); ICC v. Inuisville & Nashville g., 227 U.S. 88 (1912); Union of Concerned Scientists v. NRC, 735 F.2d (Footnote cont'd next page)

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the County and State will prevail en the merits of their appeal.

II. 'nE COUNTY AND STATE WIII SUFFER IRREPARABM INJURY IF 'nE STAY IS DENIED The irreparable injury standard is satisfied. First, a denial of due pro-cess or other deprivation of a constitutional right constitutes irreparable harm g se. No further showing of " harm" is required to support imediate injunctive relief. Cuomo v. NRC, Civ. No. 84-1264 (D.D.C. April 25, 1984) (slip op.at7).5/ Since the State and County have deconstrated constitutional viola-tions by the Miller Board, the irreparable harm criterion is satisfied here just as the U.S. District Court held it had been in issuing a Tecporary Restraining Order to stcp the unconstitutional actions of the Miller Board in April 1984.6f Second, if the stay is not granted, the County / State appeal of the Decision will be rendered root by the carriencement and probable cxrpletion of the Phase III/IV testing program prior to an Appeal Board decision on the merits of the appeal. LIIID stated yesterday at a Staff briefing that it will catplete Phase (Footnote cont'd fran previous page) 1437 (D.C. Cir. 1984), cert. denied, 53 U.S.L.W. 3484 (Jan. 8, 1985):

Carnation Co. v. Sec. of Labor, 641 F.2d 801 (9th Cir.1981); Dowden v.

McKenna, 600 F.2d 282 (1st Cir.), cert. denied, 444 U.S. 899 (1979).

5/ United Church of the Medical Center v. Medical Center, 689 F.2d 693 (7th

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Cir.1982); Lewis v. Kugler, 446 F.2d 1343 (3d Cir.1971); Henry v.

Greenville Airport Ccmn., 284 F.2d 631 (4th Cir.1960) O' Conner v.

Mowbray, 504 F. Supp. 139 (D. Nov. 1980).

6f Further, an agency's failure to follow its cwn rules, such as the Miller Board did here, constitutes an independent basis for finding a due process violation. See Vitarelli v. Seaton, 359 U.S. 535 (1959); Hupart v. Bd. of Higher Ed., 420 F. Supp.1087 (S.D.N.Y.1976).

II today, and thus is ready to begin Phase III. It also stated yesterday that even if problems are experienced during Phases III and IV, it expects to etn-pleteallsuchtestinginlessthan42 days.7/ Absent a stay, the Phase III/IV testing and inevitable radioactive contamination of the plant will occur. 'Ihere will be a definite change in the status quo and LIIDO will have been permitted to carry out the very activities the county and State have sought to prevent.  ;

No subsequent Appeal Board decision would be able to tnio that factr even a de-cision reversing the Miller Board would have no effect unless a stay is granted.

Even the potential rooting of an appeal can constitute irreparable ham justi-fying a stay.9/ See, e.g., Inng Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), AIAB Meerandtn and Order, NRC , (May 24, 1984) (slip op. at 7-8) (FEMA would be irreparably hamal if appeal nooted by denial of stay).

III. 'tHE GRMir OF A STAY WILL NT !!AIN LIIG The activities to be stayed can be ccrpleted in only 23.6 to 42 days. Ac-cordingly, even if Phase III/IV testing were on the critical path tcward achievenent of full power operation (which it is not), the possible delay in achieving full power would be minor. T h ever, it is clear that a halt to Phase -

7] Before the Miller Board, LIIG's schedule provided for a total of 23.6 days for Phases III and IV: 6.9 days to ccuplete Phase III, and 16.7 days to cm plete Phase IV. (SC LP Exhibit 2, and Tr. 767-69, 776, 790 (Gunther)).

8/ .Scripps-Howard, Inc. v. FCC, 316 U.S. 4 (1942); Zenith Radio corp. v.

United States, 710 F.2d 806 (Fed. Cir.1983); Public Utilities Ccmn. v.

Capital Transit Co., 214 F.2d 242 (D.C.cir.1954)r Township of fewer _

Allownys Creek v. NRC, 481 F. Supp. 443 (D.N.J. 1979).

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O III/IV activities sufficient to pennit this Board to address the merits of the appeal will have no impact whatsoever on the timig of LIIID's full power ascen-sion assuming, arguendo, that a full power license were eventually issued.

First, assuming an Appeal Board decision on the merits of the appeal were issued in April 1985, and that the decision were in LIICO's favor, LIIID would o

suffer no hann fran a delay of Phase III/IV testing because no full power 11-cense likely could be issued before January 1986 (assuming arouendo that LIILO prevails on all full rower issues).9/ If Phase III/IV testing were state 1 in April 1985, there would be ample time between April and Decenber to conduct the Phase III/IV testing. Thus, the grant of a stay would not result in any delay of the plant's ultimato operation, or hann to LIIID..l.0/

9/ Several proceedings and decisions must be conpleted, conlucted, and re-solved in LII4D's favor, before a full power license could be authorizol. A Brenner Board decision on TDI diesel issues appears unlikely before May 1985. A Board decision on anergency planning issues which have been liti-gated so far is not expectal before April 1985. No proceedings have yet boon scheduled on the new issues raise! by LIID0's notion to reopen the record, which was grantal. See ASLB Merorandum ani Order Granting LII/r's Motion to Reopen Record, Jan. 28, 1985. f\irther, an anergency planning ex-orciso must be held. 'Ihe County ant State oppose the conduct of an exer-cise and neither the NRC nor FD4A has agreet even to scheiule one. FENA nonnally requires 120 days to prepare for an exercise once schaluloi and then several nonths to prepare its fin 11ngs. If an exercise were hold, the County and State would then be entittel to a hearing regarding its adequa-cy/outconor time will be requirnt to prepare for the hearing an! have a Board decision thereafter. There also must be a decision in the peniing Stato court case challenging LIILO's authority to inplomont its enurgency plan. It appears unlikely that final resolution of all outstaniing issues could possibly cono before Deconber,1935. After that, again assuminy arguenta all issues were resolvoi in LItco's favor, another nonth nist in added for innediato effectiveness review. 10 CFR $ 2.764(f)(2)(iii).

Thus, the earliest a full power authorization en Id be issued in January 1986.

10/ In addition, LItro han statal that there is no prohlom in halting the low power testing program after it has begun. See, e.g. , LIIID's Substitute (Footnoto cont'd next pige)

IV. HIE PUBLIC INTEREST FA\ ORS IS TANCE OF A STAY In this case the public interest mandates the issuance of a stay. First, the public interest cannot possibly favor a drastic change in the status quo --

contaminating the reactor - which simply is not needed. It is undisputel that low power testing startling alone produces no benefits and serves no purpose ex-copt as a step toward full pwer operation.l.l./ The public interest does not favor a rush to contaminate Shoreham arxl moot parties' appeal rights in the face of serious due process violations, particularly since even if the appeal were decided in LIICO's favor, there would still be a long delay after the activities sought to be stayed were empleted before any full power ascension could possiblybeauthorized.).2/

Seconrl, both Suffolk County anr1 New York have urged that the public inter-est requires, at a minimum, rnintenance of the status quo. This Daard must give great weight to the views of the State and County. In its brief before the U.S.

(Footr.ote cont'd frcm previous page)

Ccreents Concerning Intellate Effectiveness of Irw Power Initial Decision, Novereber 29, 1994, at 13. hus, by LIID0's own admission, a stay of Phases III arvi IV, even though Phases I anri II will have been campletei, would not be harmful. Further, LII40 should not be heard to orplain about isstance of a stay because ainest every tillier Board niling which denimi the County and New York due process was made at LI!40's urging. See County / State Drief at 10, 12-13, 16, 18, 24, 25-29, 29, 33.

IJ1/ Se'o NRC Staff Respnse to County / State Appeal Drief (January 22, 1985), at 3T" J_2/ Wat the public interest favors a stay is further nunifestal by the fact, uncontrovertal in the evidentiary recorri, that electric output fran Shoreham is not needed for 10 years. Suffolk County Ex. LP 20, at 37.

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l Court of Appeals, following the NRC's reinstatement of a license for Diablo l' canyon, the camission, citirn the vital interests in nuclear power issues that l

the Supreme Court of the United States has recognized to rest with the States, argued for the legitimacy of its action by citing the " great weight" it gives to l

the views of a State govemment ,

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l (T3he Supreme Court has noted that the debate over nuclear

!: power is one in which the States have a vital stake. In this case the Governor of California, as representative of the people and the public interest, has indicated in hear-ings before the NRC Appeal Board that he does not oppose this action. We views of the chief elected representative l of the people of California should be accorded, great weight in fixing Where the public interest lies.f.d/

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! In Diablo, the Governor supported the NRC's action. In the Shoreham case, the

! chief elected representative of the people of New York and the elected govern-( ment of the pecple of Suffolk County oppose the granting of the exerption be-

! cause f.uch actions are not in the public interest. This Board rmist accord the l

l views of the public's representatives " great weight" here just as the camission l

I did in pleading before the Court of Appeals. W e " great weight" rule requires,  ;

at a minirm,- maintenance of the status quo for the brief period necessary to i allow the merits of the State / County appeal to be decided. _

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,13/ Respondent U.S. Nuclear Regulatory Ca mission's Opposition to Ehergency No-tion for Stay, Neverter 10, 1983, filed in sen Luis Obispo Mothers for l Peace v. NRC (Civ. Action Nos. 81-2035, 83-1073, 81-2034) (D.C. Cir.) at 34 (er.phasis supplied, citations anittM).

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b Third, Section 50.12(a) - the basis of the license at issue - expressly requires a determination whether the public interest favors the grant of an ex-enption to LIIID. However, the Miller Board refused to admit the evidence on that issue which was subnitted by the public's representatives; views of the public were essentially shut out by the Miller Board. This makes even nere e pelling the need for this Boari to accord the public interest the weight it de-serves in deciding this notion.

Fourth, while granting the stay would harm no one, denying the stay will have a direct inpact upon the State, County, and the public they represent. It is they who will have to live with and overcme the envirncmental and econcrtic costs of permitting mntamination of a reactor that may never produce carmercial power.

Finally, frce the outset of this proceeding, there has been substantial cause for concern whether precedural and substantive rules would be followed.

Serious questions were raised about Chairman Palladino's actions, the U.S. Dis-l trict Court issued an injunction to halt the Miller 3 card's first round of due j process violations, and two Ccr:rtissioners stated that the Miller Board should havebeenreplaced.l.4/ The inproper and prejudicial rulings by the Miller Board continued without abatement, however, despite the District Court injunction. As held in the April 1994 TRO rulings

& Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

CLI-84-9,19 NRC 1154,1159-61 (Views of Cermissioners Gilinsky and Asselstine).

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'1he public interest is furthered by a careful and full adju-dication of LILOD's proposal for a low power license; no benefit can result frcm an unfair hearing on this proposal.

Cumo v. NRC, supra, slip op. at 7. Clearly, in light of the unfair hearing which followed that ruling, the public interest once again requires the nest careful scrutiny of the Miller Doard's actions before any reliance on that Board'sDecision.15,/

For the foregoing reasons, this Doard should maintain the status quo by granting the request <vi stay.

Respectfully subnitted, Martin Bradley Ashare Suffolk Cecnty Department of Lw Veterans Memorial Highway Hauppauge, New York 11788 b "

flerbert H. Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & IOCKFRRI' 1900 M Street, N.W., Suite 800 Washington, D.C. 20016 Attorneys for Suffolk County kJ0 N Fabian G. Palcrnino Special Counsel to the Governor of the State of Nw York ,

,15/ See Union of Concerned Scientists v. tmC, 735 F.2d at 1447; Zenith Radio Corp. v. U.S., 505 F. Supp. 216 (Ct. Int'l Trade 1980); Tmnship of Lower Alloways Creek v. NRC, 481 F. Supp. 443 (D.N.J. 1979).

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Executive Charter, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuano, Governor of the State of New York February 12, 1985 S

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

)

In the Matter of )

)

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

) Low Power (Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR STAY OF MILLER BOARD DECISION, dated February 12, 1985, have been served on the following this 12th day of. February 1985 by U.S. mail, first class, except as otherwise indicated.

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

Atomic Safety and Licensing Board Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old Country Road Washington, D.C. ,20555 Mineola, New York 11501 Judge Glenn O. Bright Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S. Nuclear Regulatory Commission H. Lee Dennison Building ^

Washington, D.C. 20555 Vef.erans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B.-Johnson

. Oak Ridge National Laboratory Fabian G. Palomino, Esq. #

P.O. Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830. Governor Executive Chamber, Room.229 Herzal Plaine, Esq.* State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W., 10th Floor

' Washington, D.C. 20555 W. Taylor Reveley, III, Esq.f8 Anthony F. Earley, Jr., Esq.

Edwin'J. Reis, Esq.

• Robert M. Rolfe, Esq.

Bernard M. Bordenick, Esq. .Hunton & Williams Office of. Exec. Legal Director 707 East Main Street

-U.S. Nuclear Regulatory' Commission Richmond, Virginia 23212 Washington, D.C.. 20555

7.

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Mr. Martin Suubert James Dougherty, Esq.

c/o Cong. William Carney 3045 Porter Street, N.W.

1113 Longworth House Office Washington, D.C. 20008 Building Washington, D.C. 20515 Mr. Brian McCaffrey Long Island Lighting Company Martin'Bradley Ashare, Esq. Shoreham Nuclear Power Sta.

Suffolk County Attorney P.O. Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.

Docketing and Service Branch New York State Energy Office Office of the Secretary Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C. 20555 Albany, New York 12223 Nunzio J. Palladino, Chairman

• Comm. Frederick M. Bernthal*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1114 Room 1156 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Lando W. Zech, Jr.* Comm. Thomas M. Roberts

• U.S.-Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1113 Room 1103

'1717 H Street,_N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Commissioner James K. Asselstine* Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Commission John F._Shea, Esq.

Room 1136 Twomey, Latham and Shea 1717 H Street, N.W. 33 West Second Street

~ Washington, D.C. 20555 Riverhead, New York 11901 Alan S. Rosenthal, Chairman

• Robert M. Rolfe, Esq.*

Mr. Howard A. Wilber c/o Richard Goldman Mr. Gary J. Edles Hunton &' Williams Atomic' Safety and Licensing 2000 Pennsylvania Ave., N.W.

Appeal Board Washington, D.C. 20036 4350 East-West Highway North Tower,;4th Floor Bethesda, Maryland -20814 Awtod Lawrence Coe Lanphbr KIRKPATRICK 8-LOCKHART 1900 M Street, N.W., Suite 800

'*~ By Messenger

1. By Federal' Express DATE: February 12, 1985

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