ML20071E553

Motion to Strike Portions of NRC & Util Proposed Opinion & Findings of Fact & Util Reply to NRC & Suffolk County Proposed Opinions & Findings.Findings Based on Evidence Not in Record.Certificate of Svc Encl

ML20071E553
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/08/1983
From:	Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8303100286
Download: ML20071E553 (10)

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UNITED STATES OF AMERICA p0CKETED NUCLEAR REGULATORY COMMISSION :r :

Before the Atomic Safety and Licensing Board 83 GR -9 P2:11 In the Matter of ) 1

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LONG ISLAND LIGHTING COMPANY )

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) Docket No. 50-322 (OL)

(Shoreham Nuclear Power Station, )

Unit 1) )

SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF THE NRC STAFF'S PROPOSED OPINION AND FINDINGS OF FACT, LILCO'S PROPOSED OPINION AND FINDINGS OF FACT, AND LILCO'S REPLY TO THE PROPOSED OPINIONS AND FINDINGS OF SUFFOLK COUNTY AND THE STAF" Suffolk County moves to strike the portions listed below, of the NRC Staff's Propcsed Opinion, Findings of Fact and Con-clusions of Law, LILCO's Proposed Opinion, Findings of Fact and Conclusions of Law in the Form of a Partial Initial De-cision, and LILCO's Reply to the Proposed Opinions, Findings and Conclusions of Suffolk County and the Staff.

Each item to be stricken is separately identified and discussed briefly below. The grounds of this motion are the same for all the items, however; each one refers to, and has the Board draw conclusions based upon data that are not in evidence on the record of this proceeding. 10 CFR S 2.754-(c) provides:

Proposed findings of fact shall be clearly and con-cisely set forth in numbered paragraphs and shall be confined to the' material' issues of fact presented on the record, with exact citations to the transcript of record and exhibits in support of each proposed finding. Proposed conclusions of law shall be set forth in numbered paragraphs as to all material issues  !

of law or discretion presented on the record. '

83031002B6 830308 PDR ADOCK 05000322 O PDR

Y (emphasis added). The portions of the Staff's and LILCO's proposed findings listed below are all based upon either extra-record correspondence between LILCO and the Staff, or actions allegedly taken by LILCu subsequent to the close of the record on the pertinent contention. Accordingly, such findings fail to comply with S 2.754(c), are improper, and should be stricken.*/

Staff Opinion'and Findings

1. Findings 22/28:20 and 22/28:22, and Opinion at Volume la page 29.

The last sentence of each of the referenced findings, both relating to Suffolk County Contention 22, makes reference to a LILCO submittal to the Staff contained in a letter from J. L.

Smith to H. R. Denton (SNRC-812, December 15, 1982). Similarly, in the carry-over paragraph at the top of page 29 of the Staff's proposed Opinion, the following statement is made with a cita-tion to proposed finding 22/28:20:

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• / In the introductory portion of its Reply to the proposed Tindings of Suffolk County and Staff, LILCO makes reference to the official notice provision of 10 CFR S 2.743 to support its assertion that "[t:he~ Board sua sponte may, for instance, take notice of the existence of a document that has been served on all parties, or of which the parties are legally on notice (or of other facts of which parties are on actual or legal notice),

without relying on the document's substantive content or taking the procedural steps necessary for formally supplementing the evidentiary record." LILCO Reply, Volume I, page 11 and fn. 6.

Neither that provision nor LILCO's assertion, justifies the statements that are the subject of this motion because the in-formation relied upon is not " technical or scientific fact with-in the knowledge of the Commission as an expert body," (S 2.743 (i)) nor have LILCO or the Staff invoked the official notice provision in connection with those statements. Furthermore, the findings objected to do rely on the substantive content of the extra-record materials.

N' The Applicant submitted the stress analysis results on Deccmber 15, 1982, and concluded that the loads at Shoreham from liquid discharge events would be lower than for the design basis steam condition.

The referenced LILCO submittal is not in evidence in this proceeding. It was submitted 1.ong after the completion of litigation on SC Contention 22. As a result, neither the proposed finding nor the proposed Board opinion may properly be based upon it or its contents.

2. Finding' 22/28:38, and Opinion ~at' Volume 1, page 30.

The referenced finding, which deals with Suffolk County Contention 28, makes reference to a January 7, 1983 letter-from J. L. Smith to H. R. Denton (SNRC-816 ) . Similarly, at the bottom of page 30, the NRC Staff's. proposed opinion states "on January 7, 1983, the Applicant submitted a commitment to make this change at Shoreham. Findings 22/28:37, 22/28:38."

The referenced LILCO correspondence is not in evidence. It is not in the record and therefore neither proposed findings nor proposed opinion may properly be based upon that document or its contents.

3. Opinion at Volume 2, pace '6, footnote 13.

This footnote relates to * . :u on 7B, and discusses "certain extra-record correspc..__nce between Applicant and the Staff." Specifically, a December 16, 1982 letter from LILCO to the Staff and a January 10, 1983 letter from the Staff to LILCO are discussed, clong with certain conclusions drawn by the Staff from such correspondence. Suffolk County recognizes that the record on Contention 7E has been reopened

F and that, accordingly, it is possible that all parties' findings relating to that Contention may be amended. Nonetheless, at this stage, the discussion contained in footnote 13 is expli-citly based on extra-record information and thereforr. s improper.

LILCO FINDINGS li Finding.G-14 This proposed finding relates to Suffolk County . Contention

21. It states:

LILCO submitted its preliminary responses on the Humphrey concerns to the Staff on August 25, 1982 and its final responses in early Decembe.. All but two of the issues were addressed in that report. The two remaining responses that relate to the RHR heat ex-changer relief valve discharge lines will be submitted to the Staff in January 1983. Those responses may

' involve a commitment by LILCO not to use the RHR steam

. condensing mode'during normal plant operation until it can be demonstrated that the hydrodynamic loads resulting from oper~ation of the RHR heat exchanger in this mode are acceptable.

The proposed finding contains no citation to the record. It refers to a LILCO " report," that apparently was submitted to the Staff in December, 1982,.as well as one anticipated in January 1983, and discusses the contents of the submittals.

Clearly, none of the discussion contained in proposed finding G-14 is based on facts in evidence. The proposed finding is therefore improper. See also discussion below under LILCO Reply, paragraph 2.

2 Finding H-23.

.The last sentence of this proposed finding states "the results of these [ piping] analysos, submitted in SNRC-812 on 4

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December 15, 1982, demonstrate that Shoreham complies with the requirements of NUREG-0737, Item II.D.l." In referring to SNRC-812, which is not in evidence in this proceeding, and drawing conclusions from the contents of that document, this proposed finding is improper.

3. Finding H-37.

The last sentence of this proposed finding states: "LILCO indicated to the Staff recently that LILCO intended to imple-ment the lowered MSIV set point at the first refueling outage (letter, Smith (LILCO) to Denton (NRC) , January 7, 1983 (SNRC-816))." In referring to correspondence between LILCO and the Staff which is not in evidence, this proposed finding is L

improper.

LILCO REPLY

1. Volume 1,.page 193,. footnote 37.

This tootnota is contained in LILCO's general reply to Suffolk County's proposed opinion and findings on Suffolk County Contention 21. The footnote references certain "quali-fication tests" which, at the close-of the record on this con-tention had not yet been performed. The footnote states:

"These qualification tests have now been successfully completed, and the results of these tests will soon be forwarded to the Staff." Because information concerning the performance of the referenced tests or the test results is not in evidence, it is not appropriate either to cite the test completion, or draw  !

conclusions concerning the results in the proposed findings or i

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opinion. Therefore this portion of LILCO's reply should-be stricken.

2. . Volume'1, pages 196-197,'and~ footnote 38, page 196.

The entire discussion contained on page 196 and page 197 up to the subheading "2. Shoreham Confirmatory Analysis, relates solely to documents submitted and actions taken subse-quent to the close of the record on SC Contention 21. These portions of the LILCO Reply refer to LILCO submittals to the Staf f on December 9, 1982 (S'NRC-80 8) and January 28, 1983 (SNRC-h.1), and discuss the contents of those submittals.

Similarly, footnote 38 on page 196, discusses the contents of SNRC-824 and also requests that LILCO's initial proposed finding G-14 (see discussion above in paragraph 1 under LILCO Findings) be replaced with a new proposed finding. The new one contains references to and conclusions drawn from the referenced extra-record correspondence from LILCO to the Staff. Furthermore, LILCO uses both its textual and footnote discussion of these extra-record materials to support its conclusion that "there is no basis in the record for SC's request for submittal of Humphrey responses." The Board cannot properly make the findings or draw the conclusions proposed by LILCo. They are based solely on data which are not in evi-dence. Accordingly, none of this LILCO discussion can properly be considered by the Board.

3. Volume 1, page 203, footnote 39.

This footnote is also contained in LILCO's reply to Suffolk County's propesed opinion and findings related to SC Contention

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21. This footnote. refers to a reevaluation allegedly under-taken by LILCO subsequent to the close of the record on SC Contention 21. The~ footnote states "the reevaluation,'which has now been completed and will soon be forwarded to the Staff, confirms that'no code-allowables have been exceeded." Unlike items 1 and 2 above, this statement by LILCO does not even refer to a submission that has been made to the Staff; it refers to, and. asserts the conclusions supposedly contained in, a study which has not even appeared yet.- As is the case with items 1 and 2, however, LILCO's statement is based cn1 information that is not in evidence. Accordingly, this state-ment must be stricken.

4. Volume 1, page 212, last portion of last' sentence.

This sentence is contained in LILCO's reply to Suffolk County's proposed opinion on SC Contention 22. In stating that "[the confirmatory piping analysis] has already been submitted to the Staff in SNRC-812 dated December 15, 1982.

LILCO Finding H-23," this statement improperly references a document that is not in evidence. See also discussion in paragraph 2 above under LILCO Findings.' Therefore, it cannot properly be considered by the Board.

5. Volume 1, page 218.

In the full paragraph contained on this page of LILCO's response to Suffolk County's findings on SC Contention 22, LILCO references the completion of a review and a LILCO commitment,

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both of which occurred subsequent to the close of the record on SC Contention 22. The second and third sentences of this paragraph cite LILCO Finding H-37 as the basis for its con-clusion;'that finding is discussed above in paragraph 3 under LILCO Findings. Because these statements by LILCO are based on information that is not in evidence, they must be stricken.

6. Volume l', page 220, reply to'Suffolk County Finding 22:16.

The last sentence of this reply cites LILCO Finding H-23 and a LILCO submittal, not in evidence and made subsequent to

, the close of the record on SC Contention 22 (SNRC- 812) , and draws conclusions based on the alleged contents of that docu-ment. Such statement is improper and cannot form the basis for a Board finding or opinion.

CONCLUSION For the foregoing reasons, Suffolk County submits that the statements and findings listed herein should be stricken from the proposed findings and reply of LILCO and the Staff.

Respectfully submitted, David J. Gilmartin Patricia A. Dempsey

Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788

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Ldwrence C. Lanpher >

, , i Karld J. Letsche  !

KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N. W.

Washington, D. C. 20036 Attorneys for Suffolk County March 8, 1983

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SA'?ETY AND LICENSING BOARD In the Matrer of )

)

.LONG ISLAND LIGHTING COMPANY )

) Docket No. 50-322 (0.L.)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the Suffolk County Motion to Strike Portions of the NRC Staff's Proposed Opinion and Findings of Fact, LILCO's Proposed Opinion and Findings of Fact, and LILCO's Reply to the Proposed Opinions and Findings of Suffolk County and the Staff were served on the following on March 8,1983, by first class mail postage prepaid.

Lawrence J. Brenner, Esq. Ralph Shapiro, Esq.

Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street U.S. Nucitar Regulatory Commission New York, New York 10016 Washington, D.C. 20555 _

Howard L. Blau, E s q '. '

Dr. James L. Carpenter 217 Newbridge Road Administrat~ive Judge Hicksville, New York 11801 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission W. Taylor Reveley III, Esq.

Washington, D.C. 20555 Hunton & Williams P.O. Box 1535 707 East Main St.

Mr. Peter A. Morris Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear R'egulatory Commission 'Mr. Jay Dunkleberger Washington, D.C. 20555 New York State Energy Office Agency Building 2 Edward M. Barrett, Esq. Empire State Plaza

, General Counsel Albany, New York 12223 Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Stephen B. Latham, Esq, Twomey, Latham & Shea Mr. Brian McCaffrey P.O. Box 398 Leng Island Lighting Company 33 West Second Street 175 East Old Country Road Riverhead, New York 11901 Hicksville, New York 11801

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Marc W. Goldsmith Mr. Jeff Smith l Energy Research Group, Inc. Shoreham Nuclear Power Station 1 400-1 Totten Pend Road P.O. Ecx-618 Waltham, Massachusetts -02154 North Country Road Wading River, New York 11792 Joel Blau, Esq. MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza A'bany, New York 12223 Hon. Peter Cohalan Suffolk County Executive David J. Gilmartin, Esq. County D:ecutive/ Legislative Suffolk County Attorney Building County Executive / Legislative Bldg. Veterans Memorial Highway Veterans Memorial Highway Hauppauge, New York 11788 Hauppauge, New York 11788 Ezra I. Bialik, Esq.

Atomic Safety and Licensing . Assistant Attorney General Board Panel Environmental Protection Bureau U.S. Nuclear Regulatory Commission New York State Department of Washington, D.C. 20555 Law 2 World Trade Center Docketing and Service Section New York, New York 10047 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 2G555 . Appeal Board

? U.S. Nuclear Regulatory Bernard M. Bordenick, Esq. Commission David A. Repka, Esq. Washington, D.C. 20553 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Matthew J. Kelly, Esq.

Staff Counsel, New York Stuart Diamond State Public Service Comm.

Environment / Energy Writer 3 Rockefeller Plaza NEWSCAY Albany, New York 12223 Long Island, New York 11747 Stewart M. Glass, Esq.

Daniel F. Brown, Esq. Regional Counsel Atomic Safety and Federal Emergency Management Licensing Board Panel Agency -

U.S. Nuclear Regulatory Commission 26 Federal Plaza Washington, D.C. 20055 New York, New York 10278 r/

Kafla J. Let/ch'e KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS DATE: March 8, 1983 1900 M Street, N.W., 8th Floor Washington, D.C. 20036

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