ML20041B592
| ML20041B592 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/18/1982 |
| From: | Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20041B584 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8202240324 | |
| Download: ML20041B592 (11) | |
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February 18, 19 ffiC%T_ED
'02 E9 22 P1 '6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 (OL)
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(Shoreham Nuclear Power Station,
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Unit 1)
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LILCO'S RESPONSE TO PROPOSED COUNTY CONTENTIONS 1 to 31 I.
On February 16, 1982, Suffolk County (County or SC) submitted a document entitled "Suffolk County Contentions."
The 31 proposed contentions set out in that document are the 1
matters that the County wishes to pursue during the balance of this proceeding.
These contentions are largely the product of extensive discussions and informal discovery conducted by the County, LILCO and the NRC Staff over the last several years.
Pursuant to oral agreement with the County, LILCO raises no objections to the litigability of Nos.
1-5, 8-11, 14-15, 17, 19, 21, 23-28, and 31.
As to Nos. 6-7, 12-13, 16, 18, 20, 22, and 29-30, LILCO does object in whole or part; pursuant to oral 8202240324 B20210 PDR ADOCK 05000322 0
. s agreement with the County, however, r.r objection concerns the timeliness with which the Cound first raised any of the issues in question.
Our objections are organized as follows:
Nos. 6, 7, 29 and 30 No. 12 No. 13 No. 16 No. 18 No. 20 No. 22 II.
Contention 6:
Classification of Structures, Systems and Components Important to Safety Contention 7:
Systems Interaction Contention 29:
IREP Analysis Contention 30:
Documentation of Deviations These proposed County contentions track the Shoreham Opponents Coalition's proposed contentions 7.B(1) to (4), as follows:
SC 6 equals SOC 7.B(4)
SC 7 equals SOC 7.B(2)
SC 29 equals SOC 7.B(1)
SC 30 equals SOC 7.B(3)
County Nos. 29 and 30 repeat verbatim, respectively, the final paragraph of SOC 7.B(1) and all of SOC 7.B(3), except for a change from " SOC contends" to "Suffolk County contends."
County Nos. 6 and 7 are stated in different terms than SOC 7.B(4) and (2), but have the same thrusts.
. Further, County Nos. 6, 7 and 29 -- and thus SOC 7.B(4), (2) and (1) -- move from different perspectives 1/
to the same ultimate claims -- that there must be some sort of event-tree, fault-tree analysis of Shoreham, coupled with some sort of additional physical inspection of plant systems and components.
Neither the desired analysis nor the related in-spection are carefully defined in these proposed contentions.
This lack of particularity is not crucial, however, since even if it were remedied, the contentions would still not be litigable.
The reasons are set out in "L1LCO's Opposition to SOC Contention 7.B," dated December 18, 1981 (Attachment A to this pleading).
See generally pages A2-4 in Attachment A, and more specifically:
As to County No. 6, see A6-7; As to County No.
7, see A5-6; and As to County No. 29, see A4-6.
As regards County No. 30 (so-called " documentation of deviations"), no NRC requirement exists of the sort that the l
County wants.
See Attachment A generally at A2-4 and specifically at A6.
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I.e.,
respectively, classification of structures, systems, and components important to safety, systems interaction, and IREP analysis.
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. Contention 12:
Quality Assurance / Quality Control -- Design and Construction This contention is not adequately particularized.
At first blush, objection on grounds of particularization seems strange, since proposed Contention 12 has 18 subsections, many of them involving their own subparts.
The difficulty is that the contention, once parsed, amounts to nothing but a claim that virtually all aspects of Shoreham's design and construc-tion QA have been inadequate.
That QA program, however, has entailed an effort of massive scope and complexity.2/
Given the great dimensions of the program, it is not feasible, much less useful, to try to litigate in this proceeding whether or not all of its facets have been adequate.
Discovery, summary disposition, testimony, cross-examination, and so forth on all of the allegations in Contention 12 would exceed the capabilities of the present pro-cess.
Moreover, any attempt to engage all of these allegations would surely involve much unproductive inquiry because there is scant likelihood that all -- if indeed any -- of Shoreham's design and construction QA effort has been so inadequate as to merit remedial action oy this Board.
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The documentation that it has produced so far is indica-tive of its magnitude -- hundreds of thousands of pages.
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. Accordingly, if the County seriously wants to engage Shoreham's design and construction QA, it must stop referring solely to categories of alleged flaws (e.g., purported defects in the " control of special processes during construction" or in
" calibration and accuracy of measuring and test equipment"),
and start referring to specifics within these categories (e.g.,
precise aspects of the control of particular special processes that were allegedly inadequate, or precise test equipment that was allegedly flawed in particular fashions.)
It will not do for the County simply to list all the categories into which design and construction QA can be subdivided and then claim that Shoreham's effort has been inadequate in each and every category.
Second, as to the specifics just mentioned, the County must advance some grounds to suggest that a defect might actually exist.
"[T]he bases for each contention [must be] set forth with reasonable specificity."
10 CFR S 2.714(b).
Satisfaction of this requirement seems clearly to be a matter of concern to the present Commission.
- See, e.g.,
46 Fed. Reg.
30349-50 (June 8, 1981) (proposed rule).d!
3/
LILCO has not argued the specificity requirements of 10 CFR S 2.714 as to most of the County's contentions, in the in-terests of gettiag on with this proceeding and with the expec-tation that further discussions with the County will provide whatever specificity may still be missing.
Unlike most of the County's contentions, however, proposed No. 12 combines a (footnote continued)
{
. Third, the reasons advanced by the County to suqqest that a specific QA inadequacy exists must relate to Shoreham.
As presently drafted, Contention 12 is wholly generic -- no more applicable to Shoreham than any other reactor.
It will not do for the County simply to list generic concerns.
This case involves a specific plant.
It is not a forum for grinding generic QA axes.
In sum, the County has yet to approach the formulation of a design and construction QA contention that is admissible under S 2.714.
Contention 13:
QA/QC -- Operation Proposed Contention 13(a) refers in part to "[f]ailure to address.
the guidance in all applicable regulatory guides (Emphasis added.)
To satisfy 10 CFR S 2.714, the regulatory guides that the County has in mind must be spec-ified.
The County may not impose on other parties and the Board the burden of divining (with no certainty of success) which regulatory guides the County thinks are " applicable."
- See, e.g.,
Board Order Relative to Stipulation by the NRC Staff (footnote continued) wholly unmanageable breath with an utter lack of specificity about where, within its sweeping ambit, the issues actually lie.
Thus, S 2.714 must be argued as to No. 12 in order to force at least a minimally tolerable level of particulariza-tion.
and Shoreham Opponents Coalition, dated June 26, 1980, at 2 (regarding the words "such as"); Prehearing Conference Transcript of October 11, 1977, at 63-64 (regarding the words "not limited to" and "etc.").
Contention 16:
Anticipated Transients without Scram The County may litigate in this proceeding whether or not Shoreham meets the NRC's existing ATWS requirements.
The Staff has concluded that Shoreham complies (see SER at S 15.3),
a judgment that the County is free to challenge if it specifies how Shoreham has allegedly not yet satisfied existing law.
The County, however, may not litigate in this proceed-ing what the NRC's ATWS requirements should be.
That is the subject of an ongoing NRC rulemaking, in which the County may participate if it so desires.
See 46 Fed. Reg. 57521 (Nov. 24, 1981).
Under Appeal Board precedent, however, there may not be litigated in individual licensing cases matters that are simul-taneously under direct Commission consideration in rulemakings.
As the Appeal Board recently held:
[W]e would ordinarily expect a more substan-tial treatment of this matter than that set forth in the initial decision.
But, as the Licensing Board observes, the Commission now has under consideration the consequences of the generation of large amounts of hydrogen within the containment following a TMI-2 event.
In this circumstance, we rely on our prior holding that " licensing boards should not accept in individual license proceedings contentions which are (or are about to l
~8-become) the subject of general rulemaking by the Commission."
Potomac Electric Power Co.
t (Douglas Point Station, Units 1 and 2),
4 ALAB-218, 8 AEC 79, 85 (1974).
We thus leave the matter of hydrogen control at Rancho Seco to the Commission's consideration in the ongoing rulemaking and refrain from any ex-plicit comment or judgment on this portion of the Board's decision.
- See, e.g.,
Sacramento Municipal Utility Dist. (Rancho Seco Nuclear Generating Station), ALAB-655, slip. op. at 31-32 (Oct.
7, 1981) (footnote omitted).1/
Contention 18:
Human Factor -- Equipment First, proposed Nos. 18 and 28(a)(ii) are redundant.
Both hinge on the April 1981 control room audit of Shoreham conducted by the NRC's Human Factors Engineering Branch.5!
Subparts 18(a) and 28(a)(ii)(2) raise precisely the same 4/
But see Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP slip op. (Jan.
6, 1982)
(the ASLB admitted an ATWS issue in an OL proceeding, despite the pendency of the ATWS Rulemaking).
This Perry ruling appears to have ignored ALAB-655, quoted above, which reiter-ated quite emphatically the Appeal Board's instruction that
" licensing boards should not accept in individual license pro-ceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission."
The Perry ruling sought to avoid Douglas Point, on which ALAB-655 relied, by juxtaposing the generic fuel disposal matters covered by Douglas Point with the more plant-specific ATWS issue involved in Perry.
ALAB-655 cannot be so avoided, however, since it concerned hydrogen generation within containment, an issue far more akin to ATWS in its plant-specific implications than was true of the fuel disposal issues covered by Douglas Point.
5/
See SER Supp. No. 1 at Appendix C.
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. complaint in different terms.
To permit organized, focused litigation, the redundancy should be eliminated.
Since No. 18 involves far more issues than does No. 28(a)(ii), the most fea-sible remedy would be to merge No. 28(a)(ii)(2) into No. 18(a),
rewriting the mergad text to eliminate redundancy.
- Ideally, the merged text should read like No. 28(a)(ii)(2) since its language has already been admilced for litigation as SOC 7.A(2)(b).
Second, it is not acceptable to state, as the County now does in No. 18(e), that "[m]any other control room and con-trol board problems, originally identified in the audit, have not yet been resolved.
For example:
(Emphasis added.)
The "for example" should be struck.
The County has had more than ample opportunity to specify its concerns.
It may not leave them vague, thereby forcing the Board and other parties to guess at what they may be.
See Board Rulings cited on pages 6-7 above, regarding Contention 13.
In short, for the County's concerns about " Human Factors -- Equipment" to be litigable, they must (a) be grouped together and stated without confusing redundancy, and (b) each of the pertinent claims must be set out, not left to definition during the hearings.
. Contention 20:
Human Factors -- Simulator Training NRC regulations do not require plant-specific simula-tors.
In the absence of a showing of special circumstances pursuant to 10 CFR S 2.758, this contention is not litigable.5!
Contention 22:
SRV Test Program First, proposed Nos. 22 and 28(a)(v) are redundant.
They should be merged into No. 28(a)(v) (already accepted for litigation as SOC 7.A(5)).
Admittedly, County No. 22 is more detailed than No. 28(a)(v), and it cites somewhat different regulations.
The County can correct the citation, however, and the extra detail does not seem essential.
III.
As indicated on page 1 above, LILCO does not seek to exclude County Contention 31, which involves compliance with a regulatory guide.
We do not object solely because of prior Board rulings permitting the litigation of regulatory guides in this proceeding.
It continues to be LILCO's strong view, how-ever, that compliance wih regulatory guides is not appropri-ately considered in licensing cases, since such guides have no legal force.
- See, e.g.,
Applicant's Opposition to SOC's Requests for Renoticing nd Intervention, dated Feb. 8, 1980, at 6/
Though irrelevant to the disposition of this proposed Issue, LILCO is in fact acting to provide a Shoreham-specific simulator for operator training.
1 1 31; NRC Staff's Answer to Motion of Intervenor Shoreham opponents coalition for Acceptance of Particularized Contention 19, dated April 7, 1981, at 3-4.
IV.
For the reasons stated, LILCO urges the Board to rule (a) that proposed County Contentions 6-7, 20, 29 and 30 are flatly inappropriate for litigation in this licensing case, and (b) that Nos. 12-13, 16, 18, and 22 are not litigable unless limited and/or restated in the fashions noted above.
LILCO raises no objection to the other contentions submitted by the County in its February 16th filing.
Respectfully submitted, LONG ISLAN LIGHTING COMPANY MA W.
Tay1 Re v e'le y, III Anthony Earley, Jr.
Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
February 18, 1982
December 18, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 (OL)
(Shoreham Nuclear Power Station, )
Unit 1)
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LILCO'S OPPOSITION TO SOC CONTENTION 7.B I.
On December 10, the Shoreham Opponents Coalition, Long Island Lighting Company and NRC Staff submitted a " Motion for Acceptance of a Stipulation Regarding SOC Contentions dated December 2, 1981.
Among other things, this stipulation includes a proposed SOC Contention 7 dealing with TMI issues, several of which are based on items in NUREG-0660 ("NRC Action Plan Developed as a Result of the TMI-2 Accident") rather than on NUREG-0737 (the Commission's subsequent " Clarification of TMI Action Plan Requirements").
The proposed SOC contentions that stem from NUREG-0660, rather than 0737, include:
7.B.(1) IREP or Probabilistic Risk Assessment, 7.B.(2) Systems Interaction, 7.B.(3) Documentation of Deviations, and i
Al p l __7 ;, :;. -.,13 9
. 7.B.(4) Reclassification of Equipment.
These NUREG-0660 issues may not be litigated in this licensing case, although they may be raised in rulemaking pro-ceedings.
As indicated below, the Commission has made clear that only TMI contentions related to a specific NUREG-0737 requirement may be litigated in an individual licensing case, such as this.
II.
The NUREG-0737 list of requirements was culled by the Commission from the larger list of NUREG-0660 concerns.
As the NRC explained:
Based upon its extensive review and consideration of the issues arising as a result of the Three Mile Island acci-dent -- a review that is still continu-ing -- the Commission has concluded that the list of TMI-related require-ments for new operating licenses found in NUREG-0737 can provide a basis for responding to the TMI-2 accident.
The Commission has decided that current operating license applications should be measured by the NRC staff against the regulations, as augmented by these requirements.
In general, the remain-ing items of the Action Plan should be addressed through the normal process for development and adoption of new requirements rather than through imme-diate imposition on pending applica-tions.
45 Fed. Reg. 85237-38 (1980).
And as the NRC explained further:
The Commission believes the TMI-related operating license requirements list [that is, A2
. NUREG-0737] as derived from the process described above should be the principal basis for consideration of TMI-related issues in the adjudicatory process.
There are good reasons for this.
First, this represents a major effort by the staff and Commissioners to address more than one hundred issues and rec-ommendations in a coherent and coordinated fashion.
This entire process cannot be repro-duced in individual proceedings.
Second, the NRC does not b /e the resources to litigate the entire 1 clon Plan in each proceeding.
Third, many of the decisions involve policy more than factual or legal decisions.
Most of these are more appropriately addressed by the Commission itself on a generic basis than by an individual licensing board in a particular case.
Id. at 85238.
While it is true, nonetheless, that the sufficiency of the NUREG-0737 requirements may be challenged in an individual licensing case, the scope of a permissible challenge is very narrow.
The Commission so indicated in April 1981:
What we had in mind was allowing a party to focus on the same safety concern that formed the basis for th? NUREG require-ment and litigate the issue of whether the NUREG " requirement" is a sufficient response to that concern. Contentions which address a safety concern not considered in NUREG-0694 [ irrelevant in this proceeding] and -0737 shall not be entertained as challenges to the sufficiency of those requirements.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363-64 (1981)
(footnote omitted) (emphasis added).
A3
. The proposed SOC contentions listed above--7.B.(1) to (4)--do not involve safety concerns reflected in NUREG-0737 requirements.
Thus, they are net litigable here since they constitute an impermissible challenge to the NRC's response to TMI.
Absent satisfaction of 10 CFRS2.758 (which SOC has not even tried to satisy), SOC's desire to go beyond NUREG-0737 may be considered only in an NRC rulemaking, not in this individual licensing case. An NRC rulemaking on TMI requirements is, in fact, underway.
See 46 Fed. Reg. 54378 (1981).
SOC's com-plaints belong there.
III.
A.
Against this background, it is useful to review each of the pertinent SOC requests.
As to proposed SOC Contention 7.B.(1), there is no NUREG-0737 requirement that plant-specific IREP analyses be performed.
- See, e.g., Commonwealth Edison Co.
(Byron Station, Units 1 and 2), DD-81-5, 13 NRC 728, 738 (1981):
[T]he League expresses concern that systems interaction evaluation and modifications and an Interim Reliability Evaluation Program (IREP) are not being implemented for the Byron Station.
As explained in the NRC Action Plan, the IREP is a pilot program which utilizes a few typical plants to determine whether changes need to be made in the review of each plant.
There is no pressing reason why Byron should be selected in lieu of another plant as one of the typical plants for the pilot pro-gram.
A4
. The Commission has not mandated that the IREP be applied to plants like Byron [or Shoreham] which are under review for operating license.
The Action Plan describes a gradual implementation of IREP and studies for oper-ating reactors, but IREP is not part of the requirements for new operating licenses out-lined in NUREG-0737, Clarification of TMI Action Plan Requirements.
B.
Nor, as to proposed SOC Contention 7.B.(2), is there any NUREG-0737 requirement for a systems interaction (SI) ana-lysis of OL applications.
See the Byron excerpt just quoted.
C.
SOC's IREP and SI demands are underlain by an insis-tence that Class 9 accidents be litigated at Shoreham.
The Board, however, has already denied such a Class 9 request by SOC.
See ASLB Order of March 5, 1980, at 23.
And the Commission has made clear that inquiries of the sort demanded by SOC are not to occur in plants whose final environmental statements were published by June 13, 1980.
See 45 Fed. Reg. 40101 (1980).
Shoreham's FES appeared in October 1977, over 2-1/2 years before this deadline.
Indeed, Shoreham's entire NEPA phase was concluded in August 1978, well before the dead-line.
See ASLB Order of August 4, 1978, at 6.
Under these circumstances, SOC's insistence on further Class 9 inquiry in this proceeding is flatly precluded by pertinent Commission policy.
A5
o
. If LILCO chooses to investigate Class 9 issues for Shoreham, using IREP and SI techniques, that investigation will be both voluntary and beyond the scope of this proceeding.
D.
SOC Contention 7.B.(3) -- that Shoreham must be docu-mented in terms of current regulatory guides, branch technical positions and standard review plans, as well as regulations --
has no basis in NUREG-0737 or any other NRC requirement.
As to actual regulations, Shoreham must comply with them or receive an exemption.
Regulatory Guides, branch technical positions and so on, however, are merely advisory.
As to them, again, there is no NUREG-0737 or other NRC requirement necessitating documentation of the sort requested by SOC.
And there is a pending rulemaking designed to determine to what extent, if any, there should in fact be such documentation.
See 45 Fed.
Reg. 67099 (1980).
Accordingly, there is no existing regula-tory basis for this SOC request, and the request is preempted in any event by the pending rulemaking.
- See, e.g.,
Sacramento Municioal Utility Dist. (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC (slip op. at 32) (Oct.
7, 1981).
E.
Finally, SOC's request for reclassification of equip-ment, Contention 7.B.(4), is similarly precluded by Commission policy.
SOC suggests that two NUREG-0660 items, I.F.1 A6
, {
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(involving expansion of QA lists) and II.F.5 (involving revision of safety classification), must be completed before fuel load.
As indicated in the Action Plan, both of these items involve long-term research.
The QA list expansion will be based, in part, on IREP results, and IREP's constitute an Action Plan item not required by NUREG-0737.
See III.A above.
The revision of safety classifications depends upon work still being conducted by IEEE and the NRC.
In any event, both tasks envisage the production of regulatory guides, which, of course, will not be legally binding.
When the Commission culled from the Action Plan those tasks of particular importance, it chose not to include any items involving QA lists or the reclassification of equipment in general.
Thus, once again, SOC is seeking to use this licensing case to add new requirements to those contained in NUREG-0737.
As emphasized above, that is impermissible.
IV.
As indicated in the December 2 stipulation, SOC's pro-posed Contention 7 is, in our view, adequately particularized.
For the reasons stated above, however, proposed Contentions 7.B.(1) through (4) are not litigable in this proceeding.
LILCO urges the Board to so rule.
A7
-a-Respectfully submitted, LONG ISLAND LIGHTING COMPANY d.
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F. f&ylor Rep /Eiley,MI
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Anthony F. Mrley, Jr.
V/
Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 DATED:
December 18, 1981 l
i s
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- A8 i
l
'A In the Matter of j
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL)
Docket No. 50-322 (CPA)
CERTIFICATE OF SERVICE I hereby certify that copies of CONSOLIDATED STATEMENT OF CONTENTIONS and LILCO'S RESPONSE TO PROPOSED COUNTY CON-TENTIONS 1 to 31 were served upon the following either by Federal Express (indicated by an asterisk) or by first-class mail, postage prepaid, on February 18, 1982:
Lawrence Brenner, Esq.*
Atomic Safety and Licensing Administrative Judge Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20535 Atomic Safety and Licensing Board Panel Mr. Frederick J.
Shon*
U.S.
Nuclear Regulatory.
Administrative Judge Commission 4
Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U?$. Nuclear Regulatory Bernard M.
Bordenick, Esq.*
Commission David A.
Repka, Esq.
Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Dr. James H.
Carpenter
- Washington, D.C.
20555 Administrative Judge Atomic Safety and Licensing David J.
Gilmartin, Esq.*
Board Panel Attn:
Patricia A.
Dempsey, Esq.
U.S. Nuclear Regulatory County Attorney Commission Suffcik County Department of Law Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11787 Secretary of the Commission U.S. Nuclear Regulatory Mr. Mark W.
Goldsmith Commission Energy Research Group, Inc.
Washington, D.C.
20555 400-1 Totten Pond Road Waltham, Massachusetts 02154
)
e
's MHB Technical Associates Howard L.
Blau, Esq.
1723 Hamilton Avenue 217 Newbridge Road Suite K Hicksville, New York 11801 San Jose, California 95125 Jeffrey C.
Cohen, Esq.
Stephen B..Latham, Esq.*
New York State Energy Office Twomey, Latham & Schmitt Swan Street Building, Core 1 33 West Second Street Empire State Plaza P. O. Box 398 Albany, New York 12223 Riverhead, New York 11901 Mr. Jay Dunkleberger Ralph Shapiro, Esq.*
New York State Energy Office Cammer and Shapiro, P.C.
Agency Building 2 9 East 40th Street Empire State Plaza New York, New York 10016 Albany, New York 12223
,-m drtM W.
(u. OW /
Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED:
February 18, 1982
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