ML20149F168
| ML20149F168 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/02/1988 |
| From: | Irwin D HUNTON & WILLIAMS |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5563 OL-6, NUDOCS 8802120050 | |
| Download: ML20149F168 (18) | |
Text
F 63 LILCO, Ftbruary 2,1988 DOCKETED USNRC UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION N FEB -9 P3 39
(.rr;ce c; -l -r 'f.;,y <
Before the Atomic Safety and Licensing Appeal Board C0CKE4,,~
(
L.
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-6
)
(25% Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S OPPOSITION TO INTERVENORS' MOTION FOR LEAVE TO FILE INTERLOCUTORY APPEAL OF JANUARY 7 ORDER Intervenors, by Motion dated January 21, 1988, seek leave to take an interloc-utory appeal from the Licensing Board's January 7 Memorandum and Order (In Re:
LILCO's Request for Authorization to Operate at 25% of Full Power) (hereinaf ter "January 7 Order"), which ruled that LILCO is entitled to proceed with its request for 25% power operation under 10 C.F.R. S 50.57(c). Specifically, Intervenors argue that the Board improperly allowed LILCO to pursue its 25% request under S 50.57(c) when, i
instead, LILCO should have been required to seek an exemption under S 50.12 or S 2.758. Governments' Motion for Leave to File Interlocutory Appeal at 1 (Jan. 21, 1988) (hereinaf ter "Intervenors' Motion").
While acknowledging that their appeal would be interlocutory and conceding that interlocutory review is permitted "sparingly and only in compelling circumstances," In-tervenors contend that "even the NRC's stringent criteria governing decisions on whether to accept an interlocutory appeal are satisfied in this instance." Intervenors' Motion at 2.
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,, - As is shown below, Intervenors' arguments in support of their motion are devoid of merit. Accordingly, their request for leave to file should be denied.
I. Intervenors Have Not Met the Standards for Interlocutory Review There is no dispute that Intervenors must meet a high standard in order to suc-cessfully press their request for an "interlocutory appeal" (i.A, directed certification)
-T under 10 C.F.R. S 2.718(1) before the Appeal Board. And while this Board is hardly in need of a recital of its prior holdings on this matter, it is sufficient to note that di-rected certification "is to be resorted to only in ' exceptional circumstances."'
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382,5 NRC 603 (1977); see also Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3),
ALAB-742,18 NRC 380, 383 (1983) ("interlocutory appellate review of licensing board orders is disfavored and will be undertaken as a discretionary matter only in the most i
compelling circumstances").
As Intervenors correctly recognize, e.g., Intervenors' Motion at 4-5, the standard 3
which must be met is that established by Public Service Co. of Indiana (Marble Hill Nu-clear Generating Station, Units 1 and 2), ALAB-405,5 NRC 1190 (1977):
l Almost without exception in recent times, we have under-taken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely af-4 fected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the pro-ceeding in a pervasive or unusual manner.
5 NRC at 1192. Intervenors hang their argument in support of their request solely on the second prong of the Marble Hill standard, apparently recognizing that they cannot satisfy the first. See Intervenors' Motion at 5. Intervenors' attempt to meet this sec-ond prong, however, does not withstand scrutiny.
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A.
Intervenors' Motion Mischaracterizes the Significance of the Order Intervenors' Motion is based on a fundamental mischaracterization of LILCO's motion to operate at 25% power, and, as a consequence, misstates the significance of the Board's January 7 Order. In an attempt to show that the Board's decision will, if not overturned on appeal, affect the Shoreham proceeding in a "pervasive or unusual manner," Intervenors assert that the likely result of the January 7 Order is a proceeding which "would differ dramatically from the Shoreham emergency planning litigation to date," one wnich "would throw out the window, and throw open to Shoreham site-specific litigation, the most fundamental element of this - indeed any - Emergency planning proceeding: the definition of the risks for which planning is required." Inter-venors' Motion at 9-10. As Intervenors see it:
Pursuant to the Order, the parties to the Shoreham proceed-ing would no longer be litigating whether the LILCO offsite emergency response plan complies with the emergency plan-ning requirements in Section 50.47, NUREG 0654, and Ap-pendix E, based upon the well-established generic assump-tions about the accident risks, probabilities and offsite consequences of operation above 5% power. Rather, the matter at issue would be whether those regulatory require-ments need to be satisfied at all, in light of LILCO attempts to show that Shoreham-specific accident risks are low enough at 25% power to render those regulations superfluous and thus,its non-compliance with them irrelevant.
Intervenors' Motion at 5-6.
This assessment of the scope of the January i Order is plainly wrong.
It is not the case, and LILCO has never argued, that the emergency planning reg-ulations would be rendered "superfluous" if Shoreham were to operate at 25% power.
Rather, LILCO's position has always been that it has a right to try to der orstrate that, given (1) the lowered risks concomitant with operation at 25% and (2) the existence of the emergency plan and resources developed by LILCO, there is reasonable assurance
that the public health and safety would not be endangered by 25% operation. LILCO's inability to fully satisfy certain aspects of the emergency planning regulations would not be "irrelevant;"instead, the outstanding contentions would be resolved by either the "not significant for the plant in question" or the "adequate interim compensating ac-tions" provisions of 5 50.47(c)(1).M In short, LILCO has sought only the right to attempt to show that Shoreham can be operated at 25% power in conformity with the existing regulatory reauirements, including maintenance of the 10-mile EPZ.2/ The Board, af ter correctly describing LILCO's argument, noted that it "must at least give the request serious consideration."
January 7 Order at 6. Given the extent to which they have distorted the scope of the Board's decision, Intervenors clearly have not satisfied their burden under Marble Hill of demonstrating that the January 7 Order will work a "pervasive" change in the structure of the Shoreham proceeding. For this reason alone their Motion should be denied.
1/
See,_e.g., LILCO's Brief on 25% Power Questions at 8 (Nov. 6,1987) ("In the im-mediate 25% powoc motion, LILCO does not contend that operation at 25% power is a complete substitute for a State, local or utility emergency plan. Rather, LILCO argues that operation at 25% power coupled with the emergency plan submitted and staffed by LILCO will provide adequate protection of public health and safety."); see also LILCO's Reply Brief on 25% Power Questions at 12 (Nov.16,1987)("[T]aken together, LILCO's proposed interim compensating actions of a compensating plan and operation at 25%
are sufficient to meet the standard of S 50.47(c)(1).")
2/
Absolutely contrary to the Intervenors' assertion, Intervenors' Motion at 8-9 n. 8, LILCO's 25% power request is emphatically not an attempt to obtain a "de facto one mile EPZ." As LILCO has already noted,it is simply wrong to suggest that LILCO has proposed a reduc-tion in the size of the Shoreham EPZ. LILCO's proposal ex-plicitly presumes retention of the 10-mile-radius EPZ and of the plan and the organization to meet that planning basis.
Request at 84. What it shows is that at 25% power operation the risk in f act is sufficiently lowered that any deficiencies remaining at 100% operation are either insignificant for Shoreham or have been adequately compensated for.
LILCO's Reply Brief on 25% Power Questions at 10 (Nov.16,1987) (emphasis in origi-nal).
B.
Establishment of a Parallel 25% Power Proceeding Is Not a "Pervasive" Change Even if their characterization of the January 7 Order were accurate, Intervenors still would not be entitled to interlocutory review, Contrary to Intervenors' assertion that "(1}f not reversed, the Order would cause the basic foundation of the Shoreham 11-censing proceeding to change in a most fundamental way,"EI all that the ruling does is allow for the simultaneous litigation of the 25% power issues alongside the other ongoing Shoreham emergency planning proceedings. This is not the sort of "pervasive" change in the structure of the Shoreham case that would satisfy the Marble Hill stan-dard.
There is nothing particularly "pervasive or unusual" about the establishment of a parallel proceeding to consider LILCO's request, which the Board has already decided is permissible under the regulations.
Intervenors' position that LILCO's 25% power request is an attempt to skirt es-tablished emergency planning regulations and obtain a _d_e facto one mile EPZ is analo-gous to the Seabrook case, where intervenors objected to going forward with emergency planning proceedings based on a 10-mile EPZ while the applicant's petition to reduce the EPZ to one mile was pending. The Appeal Board denied the intervenors' request for interlocutory review in that circumstance, stating:
To be sure, the upcoming litigation over the New Hampshire plan will be rendered largely academic if the Commission ul-timately decides to reduce the radius of the EPZ from ten miles to one. But a mere commitment of resources to a hearing that may later turn out _to have been unnecessary does not _ justify interlocutory review of a Licensing Board order.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 3/
Intervenors' Motion at 5.
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NRC 17, 21-22 (1987) (footnote omitted) (emphasis supplied). In other words, simulta-neous litigation in such circumstances is appropriate, and the fact that a Board ruling gives rise to such a ' dual proceeding is no justification for interlocutory review.
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To be sure, litigation of the 25% power questions would raise issues with which l
4 neither the parties nor the Roard have had to deal before in the Shoreham proceedings, and simultaneous proceedings along the OL-3 and OL-6 fronts might well require a redoubling of efforts and resources by all parties. Interlocutory review is not justified, however, by an assertion that an erroneous ruling will lead to increased litigation. See, Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2),
i ALAB-641,13 NRC 550,552 (1981).
1 Intervenors, recognizing this, assert that their request "is not premised on the resource-related impact of the Gleason Order...." Intervenors' Motion at 11 n.11.
f However, their disclaimer rings hollow M For example, while Intervenors claim that "this is not a situation in which the l
sole basis for complaint is simply an erroneous legal ruling, or one which will result in additional expense for the parties,"in the same breath they contend that F
(s]uch results will certainly obtain if the Order is not re-l versed. Indeed, the suggestion by the Gleason Board that re-i a
sources are available to handle, simultaneously with all other j
ongoing Shoreham matters, an additionc) proceeding on such a novel and complex subject, is without basis, j
Intervenors' Motion at 10-11 n.11.
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Intervenors' pending motion is not the only situation in which Intervenors have claimed a lack of resources to carry out litigation they have largely instigated. See, e.g., "Governments' Motion for Extension of Discovery in ti'.e Remanded Proceeding Re-garding Role Conflict of School Bus Drivers" at 3 (Jan. 27,1988)(Docket 50-322-OL-3).
l 2
l l.
Later, without ever directly asking that the Appeal Board stay the Licensing Board's proceeding on the 25% motion, Intervenors argue that even moving forward with "preliminary 25% power-related activities" while their proposed appeal is being heard "would make no sense and could create severe and prejudicial logistic and re-source allocation problems." Intervenors' Motion at 14. Instead, they submit, "it would make far more sense to hold the 25% power proceeding in abeyance while this Board addresses the threshold issue presented on appeal." Intervenors' Motion at 15.
It becomes plain that what Intervenors appear to be seeking in their request for interlocutory review, without even attempting to justify it, is a de facto stay of the 25% power proceeding.EI As the Board stated in its January 7 ruling af ter considering o
evidence on the growing need for power on Long Island:
With today's decision it is no longer open to the parties to argue... that no consideration at all be given its request or that its request be deferred indefinitely. We can and do ad-ditionally consider LILCO's economic concerns in deciding that as a procedural matter LILCO is entitled to explore all possibilities afforded by NRC regulations for obtaining an operating license for Shoreham within a meaningful time frame.
January 7 Order at 12. LILCO'r, efforts to obtain expedited consideration of its 25%
power request have extended for (,ver nine months; the need for power on Long Island has only become more acute; Intervenors' attempts to further delay a prompt resolution 4
of this matter should be rejected.
!/
A stay pending appeal is even more difficult to ju.stify than an interlocutory ap-pealitself. The factors to be considered in granting or denying a stay are provided in 1
10 C.F.R. S 2.788(e). These f actors were adopted by the Commission from the decision 1
in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir.1958). S_ee Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861,25 NRC 129,138 n.33 (1987). Intervenors have barely attempted to demonstrate their likelihood of success on the merits. Equally imprtant, they have ignored the harm to LILCO from a stay - further arrest of substantive review by the Staff and others of a legiti-J mate motion already stalled for nearly a year by preliminary procedural matters. Nor do they talk of the public interest, which plainly favors consideration of the merits of a legitimate motion.
II. The Order Does Not Have "Significant Generic Impilcations" for Other Cases Intervenors further argue misleadingly that directed certification is appropriate because the January 7 Order "presents a legal issue with broad and significant generic implications" that "could well arise in many other cases before the Shoreham proceed-ing ends... and an ordinary appeal could be taken." Intervenors' Motion at 11. This bold assertion, which is based on pure conjecture rather than on any facts, must be dis-missed.
To begin with, Intervenors' reliance in this instance on Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460 (1982), is misplaced. In the Catawba case, the Licensing Board invited review of its interlocutory order. Thus, as the Appeal Board explained its reason for granting review in Catawba in a later case:
(W]e wore asked by the Catawba Licensing Board to resolve a novel and recurring legal _ issue. Although the general stan-dard for interlocutory revjew is the same whether or not un-dertaken on certification or by referral, we are obviously more likely to latercede where a licensing board believes that its ruling has the type of overall impact on the proceeding that warrants our immediate attention.
Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817,22 NRC 470,475 (1985)(footnote omitted)(emphasis supplied). Here, the Licensing Board did not find it useful to refer its ruling to the Appeal Board.
Moreover, given the truly rarefied circumstances of the Shoreham proceeding, it is not surprising that the Board did not share Intervenors' concerns that the January 7 Order presents a legal issue which "could well arise in many other cases." LILCO's 25%
power request is predicated on certain Shoreham-specific technical considerations, and has been prompted by the Shoreham-specific peculiar circumstances surrounding the Shoreham proceeding, b, a wholly completed and approved nuclear power plant that has been barred from operating above 5% power due solely to the refusal of state and
e e
- local governments to participate in an otherwise adequate emergency plan.EI Yntervenors f ail to offer any example of other cases where it is likely that the al-leged "rationale" of the January 7 Order would or could be applied in the future.II Sim-ply put, it is impossible to credit the argument that the January 7 Order presents a legal issue with "broad and significant generic implications" for othtr cases when, on its face, the Board has merely recognized LILCO's right under the regulations to pursue an alternative means, given its virtually unique circumstances, of enabling some part of Shoreham's capacity to be applied to meeting Long Island's urgent power needs.
III. The Order Does Not Allow LILCO to "Impermissibly Challenre" NRC Regulations As shown above, Intervenors' request for leave to file an interlocutory appeal is procedurally fatally deficient, and for this reason alone their Motion should be denied.
Significantly, Intervenors fall to justify interlocutory review even af ter they have seri-ously mischaracterized the issues decided by the January 7 Order.
Intervenors assert that the "straightforward" issue which the Board answered "in the affirmative" is:
Does Section 50.47(c)(1) permit a license applicant to argue that because operation of its particular plant at levels above 5% but below 100% of rated power would involve an alleged-ly lower risk than operation at 100% power, the NRC should issue a license authorizing such operation without applica-tion of Sections 50.12(a) or 2.758, despite (1) the provisions of Section 50.47(d), (11) the NRC's generic accident assump-tions which underlie 10 C.F.R. 5 50.47, and (111) the s/
Thus, for instance, no plant which has been granted a 100% license wotid be within the circumstances posed here, even if state and local governments withdrew f rom emergency planning.
2/
At present,17 nuclear power plants have construction permits but not full power operating licenses. Among these plants are a number that probably will never be com-pleted, but whose applications have not been withdrawn. Seabrook is the only example, other than Shoreham, of a completed plant which has been stymied in its efforts to ob-tain a full power license due to governmental nonparticipation in emergency planning.
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appilcant's lack of compliance with the offsite emergency planning requirements of Section 50.47(a), Section 50.47(b),
and Appendix E7 Intervenors' Motion at 2-3 (Jan. 21,1988). In so characterizing the issue, Intervenors totally ignore the fact that the threshold question which the Board in fact decided in LILCO's favor was this: "[ clan the Applicant rely upon 50.57(c) to obtain authoriza-tion for operation at less than full power by using 50.57(c)(1) to meet the requirements of 50.57(a)7" January 7 Order at 4.E Having thus misstated the issue, Intervenors go on to contend that LILCO's 25% license request constitutes an impermissible challenge to the regulations, and to the ge-neric findings and assumptions concerning accident proba-bilities and consequences upon which the Commission's emergency planning regulations are premised, particularly in light of the Commission's 1982 adoption of 50.47(d).
Intervenors' Motion at 3. Moveover, Intervenors argue, when an applicant concededly does not comply with the emergency planning regulations, a Board may not consider a request for authorization to operate above 5% power based upon site 1pecific accident risk analyses in the absence of an application for an exemption from compilance with those regulations (under Section 50.12), or a waiver of such com-pliance (under Section 2.758).
4 Intervenors' Motion at 3.
Intervenors' Motion is little more than a rehash of arguments that they have made before and lost,EI and their disagreement with having lost these arguments does 3/
Th's is a restatement of a question posed by the Board's prior Chairman, Judge Margulier,in the October 6,1987 Memorandum.
9/
' f., e.g., Views of Suffolk County, the State of New York, and the Town of i
South'.mpton in Response to Licensing Board's October 6,1987 Memorandum Concern-ing LILCO's Request to Operate at 25% Power at 15 (Nov. 6,1987)(LILCO's 25% power request "is a blatant attack on the NRC's generic findings upon which the emergency R
r'.anning regulations are based. In the absence of an exemption request, this LILCO ap-proach must be summarily rejected.") Cf. also Reply of Suffolk County, the State of (Footnote continued) l
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not justify a reques't for. interlocutory review. See, el, Public Service Co. of New g
Hampshire (Seabn>ok 5'tation, Units 1 $nd 2), ALAB-734,18 NRC 11,15 (1903)("the f act that legal error may have occurred does not of itself justify interlocutory appellate re--
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, fvlew in the teeth othe longst1mding articulated Commission policy generally disfav-
. _x y
oring such review."E IndM7bact.th;! Intervenors' reiter uon of the same errone-W ous assertions has onomagain proven unpersuasive speaks less to the need for interlocutory review than it dM to the relative merit of those assertions.
A Intervenors rest,their re c. awed assertion that LILCO's 25% power request is a
. challenge to Commission regulations (a challenge which, in the Intervenors' eyes, has
. hn improperly upheld by the Jaruary 7 Order) on several different grounds. Though s
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fnterrelated, each requires.id4 pendent consideration.
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J Request.for an Ef94th)n UMer N $ 50.12 or S 2.7581s_pqt_ Required r
g?.V hitorvenors have persiste.5dy argued, as a threshold procedural matter, that r
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r S 50.12 or 5 2.758 for an exemptxt.n from Commission regulations. This erroneous claim y
'must. finally be laid to rest. Ir.'the first place, it is simply not true, as the Intervenors s
j, assert, that thd yiitnuary 7 Order fallt.4 to address what Intei/*3 s consider "the sub-l i
- E stance of the dispositive issue: whether the LILCO Motion co. auted an impermissible x
challenge to the regulations...." See Intervenors' Motion at 20. In fact, the parties
("
s fully briefed this issue in responsvto the Board's October 6,1987 Memorandum. Upon (Footnote continued) s.[ '
w New York, and the Town of Guthampton to LILCO's Brief on 25% Power Questions at 8
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(Nov.16,1987) ("LILCO's Motion constitutes an impermissible challenge to the regula-
' tions because in it, LILCO seeks authorization to operate Shoreham at greater than 5%
power absent full compliance with the emergency planning regulatory requirements, without,having first sought and obtained an exemption from such compliance.")
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consideration thereof, the Board concluded that "LILCO's Motion is properly filed and that no exemption from the regulations is needed as urged by the Governments."
January 7 Order at 6.
Moreover, in its June 11, 1987 Memorandum and Order, the Commission, while denying LILCO's request that it consider the 25% power motion, stated plainly "LILCO may refile its request under 10 C.F.R. 50.57(c)...." Memorandum and Order at 2 (June 11,1987). Given this direction from the Commission, it is unquestionable that LILCO's filing under S 50.57(c) is procedurally proper.EI Intervenors try to argue around the plain effect of the Commission's June 11 Order by linking it to a later Commission Order (Aug. 12,1987), in a transparent effort to bolster their feckless claim that both Orders "clearly do not address either the sub-stance or merits of LILCO's Request, nor do they purport to do so." Intervenors' Motion at 17 n.17. Intervenors then conclude, wrongly, that the Commission had "decided nothing beyond the procedural question of whether it was the appropriate adjudicator to address the Request in the first instance." Id.
Under Intervenors' interpretation of the June 11 Order, the Commission's state-ment that LILCO could refile under S 50.57(c) is little more than a glib suggestion having no basis in law. It is difficult to believe, however, that the Commission would have invited LILCO to resubmit its request pursuant to S 50.57(c) without having con-sidered whether or not refiling under that section would be procedurally valid.E M/
Intervenors argued tg the Commission that a 5 50.12(a) or 5 2.758 waiver of an exemption was required.
See Suffolk County, State of New York, and Town of Southampton Response in Opposition to LILCO's Motion for Expedited Commission Con-sideration at 16 (April 27,1987). The Commission obviously rejected this argument in i
granting LILCO permission to file under S 50.57(c).
11/
In the NRC Staff Response to LILCO Motion for Expedited Commission Consid-eration of Request to Authorize Operation of Shoreham at 25% of Full Power at 1 (April (Footnote continued)
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o Indeed, as the Board notes in its January 7 Order, see January 7 Order at 5-6, prior to the promulgation of S 50.47(d) in 1982, several applicants filed requests under S 50.57(c) and in turn S 50.47(c)(1) to operate at 5% power even though they had not yet demonstrated compliance with all the provisions of S 50.47(b). S_ee_ Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3,15 NRC 61, 185-97 (1982); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-21,14 NRC 107,129-30 (1981). As the Board notes, these deci-sions were undisturbed on review.E Thus, the statement in the Commission's June 11 Order that LILCO could refile under S 50.57(c) was entirely consistent with proceding NRC case law. Intervenors' pleading makes no attempt to distinguish these prece-dential cases.
B.
Intervenors Misinterpret the Significance of the S 50.47(d) Rulemaking In support of their contention that LILCO's 25% power request constitutes an at-tack upon the "well-established generic assumptions about the accident risks, probabluties and offsite consequences of operation above 5% power,"El Intervenors rely heavily on a flawed interpretation of the Commission's 1982 rulemaking which r
added subsection (d) to S 50.47. Intervenors interpret the addition of 5 50.47(d) as a de-termination by the Commicion that for operation at all power levels above 5% the lack (Footnote continued) 29,1987), Staff notes that "[allthough not styled as such, the Motion and Request seeks a form of Commission action contemplated by 10 C.F.R. S 50.57(c)...." It is reason-able to assume that in its Jane 11 Order the Commission accepted the Staff's position on this matter.
M/
These proceedings were cited f avorably by the Commission when it promulgated S 50.47(d). 47 Fed. Reg. 30,232, 30,233 n.1 (1982).
M/
Intervenors' Motion at.5.
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of a fully approved offsite emergency plan is "significant," and accordingly, that an ap-plicant cannot make use of the "not significant for the plant in question" test of S 50.47(c)(1) to argue for operation at some power level above 5% but less than 100%.
Intervenors' interpretation is not supported by the record of the 1982 rulemaking and is contrary to basic principles of administrative law.
When the Commission promulgated S 50.47(d), it made a generic determination that, for all plants, the risks of operating at 5% power are significantly lower than the risks of operating at full power. 47 Fed. Reg. 30,232,30,234 col. 3. Thus, rather than continuing to litigate, under S 50.47(c)(1), the issue of whether remaining emergency planning issues were "significant for the plant in question" at power levels less than or equal to 5%, the Commission generically resolved the issue by codifying S 50.47(d). The promulgation of S 50.47(d) thus represents a classic example of an agency promulgating a generic exemption to promote administrative efficiency.
Neither in the notice of proposed rulemaking nor in the final rulemaking notice does the Commission indicate, as Intervenors would have it, that it was also resolving generically that for all (or indeed, any) power levels greater than 5% but below full power, any and all open emergency planning issues were "significant for the plant in question."MI Indeed, the language of the proposed and final notices discusses only comparisons of 5% and full power operation. Had the Commission sought to draw the sweeping conclusion advocated by Intervenors, it would certainly have done so more clearly. Thus,Intervenors' argument is without merit.
M/
Intervenors' quotation of portion of the pref ace to the 1982 rulemaking does not support its argument. See Intervenors' Motion at 6-7 n.6. The quoted language merely indicates that in carving the 5% exemption the Commission did not intend to alter its "high standards" for full power operation. It does not indicate an attempt to preclude u
applicants from an opportunity to demonstrate that a specific plant can meet those "high standards" at power levels above 5%.
IV. Conclusion For the reasons given above, LILCO hereby requests that the Intervenors' Motion for leave to file an interlocutory appeal of the January 7 O r be denied.
/J 0 Donald P. Irwin Lee B. Zeugin David S. Harlow Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATE: February 2,1988 l
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o LILCO, February 2,1988 DXHUED USNHC
- 88 FEB -9 P3 :59 CERTIFIC ATE OF SERVICE
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OCK SRANpi In the Matter of LONG ISLAND LIGHTINO COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-6 I hereby certify that copies of LILCO'S OPPOSITION TO INTERVENORS' MO-TION FOR LEAVE TO FILE INTERLOCUTORY APPEAL OF JANUARY 7 ORDER were served this date upon the following by first-class mail, postage prepaid.
Christine N. Kohl, Chairman Dr. Oscar H. Paris Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)
East-West Towers East-West Towers 4350 East-West Hwy.
4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Mr. Frederick J. Shon Alan S. Rosenthal Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fif th Floor (North Tower) 4350 East-West Hwy.
East-West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Lando W. Zech, Jr., Chairman U.S. Nuclear Regulatory Commission Dr. W. Reed Johnson 1717 H Street, N.W.
Atomic Safety and Licensing Washington, DC 20555 Appeal Board U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts 115 Falcon Drive, Colthurst U.S. Nuclear Regulatory Commission Charlottesville, VA 22901 1717 H Street, N.W.
Washington, DC 20555 John H. Frye, III, Chairman Atomic Safety and Licensing Commissioner Frederick M. Bernthal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
East-West Towers Washington, DC 20555 4350 East-West Hwy, Bethesda, MD 20814 Commissioner Kenneth M. Carr U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, DC 20555
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Commissioner Kenneth C. Rogers Fabian G. Palomino, Esq.
1 U.S. Nuclear Regulatory Commission Richard J. Zahnleuter, Esq.
1 1717 H Street, N.W.
Special Counsel to the Governor Washington, DC 20555 Executive Chamber Room 229 James P. Gleason, Chairman State Capitol Atomic Safety and Licensing Board Albany, New York 12224 513 Gilmoure Drive Silver Spring, Maryland 20901 Alfred L. Nardelli, Esq.
Assistant Attorney General Dr. Jerry R. Kline 120 Broadway Atomic Safety and Licensing Room 3-118 Board New York, New York 10271 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Spence W. Perry, Esq.
4350 East-West Hwy.
William R. Cumming, Esq.
Bethesda, MD 20814 Federal Emergency Management Agency Secretary of the Commission 500 C Street, S.W., Room 840 Attention Docketing and Service Washington, D.C. 20472 Section U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger 1717 H Street, N.W.
New York State Energy Office Washington, D.C. 20555 Agency Building 2 Empire State Plaza Atomic Safety and Licensing Albany, New York 12223 Appeal Board Panel U.S. Nuclear Regulatory Commission Stephen B. Latham, Esq.
Washington, D.C. 20555 Twomey, Latham & Shea 33 West Second Street Atomic Safety and Licensing P.O. Box 298 Board Panel Riverhead, New York 11901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Philip McIntire Federal Emergency Management Edwin J. Reis Esq.
Agency U.S. Nuclear Regulatory Commission 26 Federal Plaza One White Flint North New York, New York 10278 11555 Rockville Pike Rockville, MD 20852 Jonathan D. Feinberg, Esq.
New York State Department of Herbert H. Brown, Esq.
Public Service, Staff Counsel Lawrence Coe Lanpher, Esq.
Three Rockefeller Plaza Karla J. Letsche, Esq.
Albany, New York 12223 Kirkpatrick & Lockhart South Lobby - 9th Floor Ms. Nora Bredes 1800 M Street, N.W.
Executive Coordinator Washington, D.C. 20036-5891 Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787
. 1 Gerald C. Crotty Esq.
Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Box 231 State Capitol Wading River, NY 11792 Albany, New York 12224 E. Thomas Boyle, Esq.
Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 2,1988 l