ML20005A777

Decision DD-81-9,denying Shoreham Opponents Coalition (SOC) 810123 Petition to Suspend CP Pending Outcome of Hearing on Permit Extension.Soc Does Not Provide Adequate Basis for Immediate Suspension

ML20005A777
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/26/1981
From:	Harold Denton Office of Nuclear Reactor Regulation
To:
Shared Package
ML20005A767	List: ML20005A777
References
DD-81-09, DD-81-9, NUDOCS 8107010237
Download: ML20005A777 (5)

Text

7-0 J

. i.

/*~ T b

DD 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0FFICE OF NUCLEAR REACTOR REGULATION Harold R. Denton, Director In the Matter of Docket No. 50-322 LONG ISLAND LIGHTING COMPANY

)

(10 C.F.R. 2.206)

(Shoreham Nuclear Power

)

Station, Unit 1)

DIRECTOR'S DECISION UNDER 10 C.F.R. 2.206 In filings dated December 31, 1980, and January 23, 1981 the Shoreham Opponents Coalition (SOC) requested pursuant to section 189 of the Atomic Energy Act of 1954, as amended, and 10 C.F.R 2.206 of the NRC's Rules of Practice that the Director of Nuclear Reactor Regulation institute a proceeding to deterrine whether good cause exists to extend the construction permit for the Shoreham Nuclear Power Station, Unit 1.

S0C also requested "that, to protect public health and safety, the Shoreham construction permit be suspended pending the outcome of the hearing [on the construction permit extension]."

Petition at 1 (Jan. 23, 1981).

The Long Island Lighting Company (LILCO) had reauested on November 26, 1980, an extension of Construction Pemit No. CPPR-95 to March 31,1983.1/

By separate memorandum, the NRC staff has made recommendations to the Commission with respect to 50C's request for a hearing on the extension 1/

See Attachment A to Petition (Jan. 23. 1981). The construction pemit would have expired on December 31, 1980.

Under 10 C.F.R. 2.109, which derives from section 9(b) of the Administrative Procedure Act, 5 U.S.C.

558(c), the pemit remains in effect until the application for its renewal nas been finally detemined.

8107010237 810629 PDR ADOCK 05000322 G

PDR h.

.a

, of the construction permit. 2/ The remainder of this decision is concerned with SOC's request that I suspend construction of the Shoreham facility pending the outcome of the proceeding on extension of the construction permit.

SOC claims that suspension of the permit should be ordered "to protect public health and safety". At no point in the petition does S0C give reasons why public health and safety would be threatened imminently if permit suspension were not ordered.

To be sure, SOC lists a number of matters which it believes should be considered in connection with the application for permit extension. 3/ These matters concern, however, primarily issues that go to the question of whether LILCO should be granted an operating license for the Shoreham plant. Whether or not these matters are litigable in a proceeding on permit extension, they do not reveal any threat to public health and safety that stems from the facility's construction.

Rather, SOC 2/

A copy of this memorandum has been served with this decision on SOC and LILC0.

SOC's petition lists a number of items which SCC believes should be litigated in a hear'79 on the construction pennit extension or should be imposed as conditions on any permit extension.

Because S0C has requested that these matters be litigated in the pennit extension pro-ceeding, the Staff will respond to these matters in the proceeding on permit extension, not under 10 C.F.R. 2.206.

See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6 (May 8, 1981).

3/

In part, the petition styles these matters as arguments for " revocation" of the construction permit.

Petition at 4-20 (Jan. 23,1981).

However, SOC wants these matters litigated in the construction permit proceeding, If these matters are litigable in that proceeding and if SOC's views j

prevail, extension would be denied and thereby the permit would be terminated.

1 i

. has alleged only that operatign_ of the facility would be unsafe or environ-mentally unsound, because of the facility's siting, the risk of severe accidents, and the need for additional safety systems and analyses.

Thus, the petition does not raise allegations that might provide a basis for suspension, perhaps even immediate suspension, of construction: e.g.,

construction of the facility has been inproper under existing requirements or implementation of the quality assurance program bas been inadequate. O The only nexus between any of the matters raised by S0C and its request for immediate suspension of the permit is SOC's request that suspension of the pemit be ordered pending a detemination of the feasibility of evacuatior, a Fter a severe accident during operation of the facility. E SOC's citation to a recent Appeal Board decision is inapposite as a basis for SOC's request.

Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619,12 NRC 558, 569-70 (1980).

The Bailly decision suggests only that it may be appropriate to consider site suit-ability contentions in a proceeding on construction pemit extension, not that suspension of construction pending resois tion of such issues in the pemit extension proceeding is appropriate.

The fe,sibility of evacuation, as it relates to emergency planning, is relevant to the assessment of whether the plant should operate.

Although that issue must be resolved 4/

See Procosed General Statement of Policy and Procedure for Enforcement Actions, 5 IV.C., 45 Fed. Reg. 66,754, 66,757 (Oct. 7,1980).

5/

Petition at 20 (Jan. 23, 1981).

l

e

~

4-before operation of the facility, evacuation considerations pose no imminent threat to public health and safety that would warrant immedi;te suspension of construction, y

Suspension of construction is not mandated, threefore, by law or Commission policy.

As noted above, a construction p\\rmit or any other Commission license generally remains effective under a timely application

.for renewal until the Commission has finally detemined the application. O The pemittee pursues construction work under a construction permit at its own risk pending approval of pemit extension or of the application to operate the plant. E ven where unresolved safety questions are raised E

after issuance of the construction permit, institution of proceedings to suspend the permit is not required, because "pemitting continued construction of the plant despite unresolved safety quet. ions does not of itself pose any danger to the public health and safety". E Before LILC0 may receive an operating license, it will be required to do anything necessary to ensure safe operation of the plant.

The cost or difficulty associated with implementing needed actions to ensure safety are not relevant consideration to this agency. The safety standards which an applicant must meet to obtain an operating ' license are unconditional. U y

10 CFR 2.109; 5 U.S.C. 558(c).

7f See Power Reactor Development Co. v. International Union of TTectrical, Radio & Machine Workers, 367 U.S. 396 (1961).

8]

Porter County Chaotar of the Izaak Walton Leacue, Inc. v. NPC, 606 F.2c 1363,1369 (D.C. Cir.1979).

t y

Public Service Co. of New Hamoshirr (Seabrook Station, Units 1 & 2),

ALAB-623, 12 NRC 670, 677-73 (1980).

l r

O

. To the extent that SOC has' raised matters which require resolution before an extension of the construction permit is granted or before an operating license is issued, these _atters will be given appropriat consideration in those proceedings.

I do not fina further consideration of these matters appropriate at this time under 10 C.F.R. 2.206.10/

+

As SOC's petition does not provide an adequate basis for immediate suspension of construction, 50C's petition to suspend is denied. The remaining matters in the petition concerning SOC's request under secticn 100 of the Atomic Energy Act for a hearing on pe.'mit extension are before tne Commission for action.

A copy of this decision will be filed with the Secretary for the Commission's review in accordance with 10 C.F.R. 2.206(c).

In accordance with 10 C.F.R. 2.206(c), this decision will constitute the final action of the Commission 25 days after the date of. issuance, unless the Commission on its own motion institutes review of this deciFion within that time.

Af Y f n

Harold R.' Denton, Director Office of tiuclear Reactor Regulation t

Dated in Bethesda, Maryland this 26th day of June,1981 i

l l

1 l

~~10/ See Pacific Gas & Elactric Co., (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6 (f tay 8,1981), affirmina DD-81-3, Pt. i l

(f ta rch 26, 1981); Commonwealth Edison Co. (Byron Station, Units 1 & 2),

DD-81-5, Slip Op. at 2-4 (May 7,1981).

l l

l

-