ML20065C645
| ML20065C645 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/26/1989 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML20065C649 | List: |
| References | |
| 2.206, NUDOCS 8908250191 | |
| Download: ML20065C645 (3) | |
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BY HAND Victor Stello, Jr.
Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Request Pursuant to 10 C.F.R. $ 2.206 U.S.N.R.C. Docket No. 50-322
Dear Mr. Stello:
Pursuant to 10 C.F.R. $ 2.206 (1988), Scientists and Engineers for Secure Energy, Inc. ("SE 2") hereby requests immediately effective orders and the institution of proceedings to the same extent and on the same bases as the Request made July 14, 1989, in U.S.N.R.C. Docket No. 50-322 by the Shoreham-Wading River Central School District (" School District"). SE2 hereby adopts and incorporates herein by reference the School District's Request made on July 14, 1989 as supplemented by that Requestor's letters of July 19, 1989 and July 21, 1989, all of which are attached hereto. SE2 further requests consolidation of its Request with the former Request made by the School District.
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July 25, 1909 Page 2 SE2's Interest SE2 is an incorporated, tax-exempt, nationwide organization formed in the Spring of 1976, whose membership consist of over 1,000 faculty members and researchers from American colleges and universities, boch State and private, and other persons engaged in the sciences. Its purpose is to correct the alarming degree of misunderstanding on fundamental, scientific and technological issues permeating the national energy debate, especially with respect to the balancing of environmental concerns. In pursuing these objectives, SE2 is committed to offering its views based on the considerable knowledge and expertise of its members to the public and to the various governmental agencies with responsibility for the resolution of energy issues, includirig participation in rulemaking and adjudicatory proceedings of the U.S. Nuclear Regulatory Commission. Many of SE2'8 members live and/or work on Long Island in the vicinity of the Shoreham Nuclear Power Plant and rely on electricity from its license, Long Island Lighting Company. Therefore, the organization and its members have a special interest in the safe and environmentally benign operation of the Shoreham plant to provide them with reliable electricity and to avoid the substitution of fossil fuel plants relying on imported oil and gas, which would contribute not only to acid rain, the greenhouse effect and other effects adverse to the physical environmental, but also to our national trado deficit and the endangerment of national energy security and other effects adverse to our society.
Notice Requested SE2 requests that it be nitified of all developments in U.S.N.R.C. Docket No. 50-322 by mail (a) to Professor Miro M. Todorovich, Executive Director, Scientists and Engineers for Secure Energy, Suite 1007, 570 Seventh Avenue, New York, New York 1001L. as well as (b) to counsel at the Washington, D.C., address shown on this letterhead, llol.ine and Intervention SE2 requests to be notified of all actions taken on this Section 2.206 Request and also rec;uests intervenor status in sny proceedings initiated by the Commission pursuant to the consolidated requests of SE2 and the School District.
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July 25, 1989 Page 3 Consent I am authorized to advise you of the Shoreham- I Wading River Central School District's consent to the !
consolidation of its Request with this request by SE 2' !
l RespectfullyJ'>
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Counsel for Scientists and Engineers fcr Secure Energy and Shoreham-Wading River Central School District JPM:jmb Enclosures cc: Dr. Thomas E. Murley (w/o enclosures) bcct Steward W. Brown (w/o enclosures)
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Executive Director for Operations U.S. Nuclear Regulatory Cor.n:.asion ,
- one Whiteflint North 11SLL Rockville Pike Reckville, Maryland 20852 Ret Shoreham-Wading River Central School District I Section 2.205 Pequest Submitted July 14, 1989 L' . S , N . RmC2 Qttip t No. Eft ,. U 2 ,
Dear Mr. Ste11o
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in further support of the above-captioned Request
(" Request"), the Shorehan-Wa: ling River Central School District states as follows:
A. In Para E.(1) oftheRequest[fany, the Requestor additional
. stated that there might he a "very slight, ritrgin of safety provided by the pla:enent of the fuel in the i spent fuel pool, as opposed to its continued residence in a reactor in a cold shutdown condition...." At this time, the i Requestor notes that there may indeed be a reduced margin of i safety.if the Licencee is allowed to conplete that transfer,
, since the public health and safety would no longer be e.i...........: er.: ... in..t. stee u isi.e nei sne..e.: i.e.. m site 186t806.t.iste setelle 11611 8086066
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Mr. Victor Stello, Jr. !
I I July 19, 1989 page 2 1
l protected by a combination of barriers provided by (a) the reactor vessel itself, (b) the primary contaJnment and (c) the secondary containment, but would only be protected by the secondary containment once the fuel is in the spent fuel pool. The Requester also suggests that the Administrator of Region I may recognize that the activities currently being conducted should require prior Commission review and approval in this case, since he has stated that 'In this casa, G o~
circumstances are somewhat dif ferent" and h'es further stated that "there are sono unique elenents to the situation at shoreham". Egg Request para D. (1) .
B. Attachment 1 hereto is an article which' appeared in the New. York Times on July 18, 1989. It provides support for the allegations that LILCO is removing the fuel and destaf fing the plant as part of a single course of action to decommission the plant without applying to the commission .
for permission to decommission, thus depriving the Commission of full and timely safety and environmental review of the proposed course of action. The articie also quotes the Chairman of the New York Etate public Service Commission as calling "the removal of the fuel rods 'one of a continuum of actions that LILCO must take to carryout their obligatiens under the settlement, which include not running the plant and also getting it into the Jenst expensive configuration as pessible'". This further supports the allegation that LILeo, in consort with the Governer of the State of New York and various other entities, is cenducting a single course of action (" continuum of actions"), und tI_.}fpAyeeul at erv asperviston, to unlawfully segment the review required by the National Environmental Po. icy Act of 1969 (*NEPA") .
Further, the artic3e quotes "some bfficials" as stating that the "decommissic>ning process ... began on Friday, as LILCO . . . started the slow procedure for removing the 12-foot-high bundles ....", styling that process as being
- ... virtually unstoppable cnee it is started ...."
This is ,
l a clear indication of concerted activity to evade the Commission's safety and envirennental review which demands an i insediate and temporarily ef fective order to cease and desist ,
and return to the 5191ME EMS! Aa1.3 se that the Commission znay :
exercise its mandated jurir.cietion pursuant to the Atomic Inorgy Act of 1954, as amended ("AEA") and NIpA to conduct a prior review of the proposed "centinuum" of activities.
C. Attachment 2 to this supplement is a 3etter from the Governor of the State of New YorX to th6 people cf !
Long Island, dated March 21, 19E9, Vhich indicates he has n.
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Mr. Victor Stello, Jr.
July 19, 1959 Page 3 '
engineered the " settlement Agreement" (which is currently subject to judicial review in at least two civil suits in New York state courts and is subject to many conditions subsequent) on the basis of the substitution of his judgrant of the risk the Shoreham Huclear Power station poses to the health and safety of the pub 31c for the judgment made by the Coraission in issuing the fu23 power operating license on Apri) 21,1989 in vio3ation of the doctrine of rederal Pre-enption of this area. As the Court said in Mneific can &
rieetrie ce. v. st_a tt_ Enerav Atseuee s__CanttL'a t ion CDEf' e 461 U.S. 190, 213, 103 S.Ct. 1713, 1727 (1983):
"A state moratoriun on nuclear construction grounded in safety concerna f alls squarely within the prohibited field. Morover, a state judgnent that nuclear power is not safe enough to be further developed would conflict directly with the -
countervailing judgment of the NRC, see, inf ra, at 1729-1730, that nuclear construction any proceed
. net withstanding extant uncertainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atenic Energy Act's objective to insure that nuclear technology be safe enough for videspread development and use - aod would be pre-empted for that reason. InfIt,et 1731, In particular, the Governor states in that letter that the proposed settlement will "f orever" renove "(t]he threat of a nuclear accident ... from Long Island's future".
And he states further that the Shoreham plant "... is of questionable reliability and, because it is located in an area where evacuation is impossible, raises overwhelming concerns about safety". That letter also reveals that the Governor intends to "close and dismantle the plant, provide alternative energies sources to repl ace it, and give LILCO customers rates leyr2 than those they would have have to pay if the Shoreham were to operate".
This contradicts the judgments already F.ade by the Coraission in its review of the need for the p3 ant, the alternatives to the plant, er.d the costs and benefits of the plant by the Commission pursuant to NEPA as well as the AIA.
It further demonstrates the reed for a conse and desist order so that a unified NEPA review of the proposed plan of action
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involving the exerejse of the Commission's tenulataty_and licenai no authority can be conducted, i D. Mtachnent 1 also demonstrates that the New York hablic Service Cor.nission and the Licensee are pursuing the current course of conduct in order to put the plant "into the lea st expensive configuration as possible" and "to save about $ 4 3 tillion on Shoreham this year". This further denonstrates the need for a cease and desist order and an order to return to the a.t.s.12a .ga9 Anta ao that the commission pay exercise its regulatory health and safety jurisdiction to the determine whether the econonic objectiven of the New York.
Public service Conmission and the Licensee are consistent with the responsibilities accepted pursuant to the full power operating license, or whether the How York Public Service commission is subjecting the Licensee to unlavful economic pressures that would cause violations of the commitnants the Licenses has made in obtaining its license. -
- 1. In the Request at Para D. (7), the Requestor suggested that any ir. mediately and temporarily effective orders isned pursuant to this Reguest be acconpanied by an announcenent of the Commiss.itn's intention pursuant to 10 C.T.R. 6 2 205 to fine the Licensee a substa:ntial amount per day f or any violation or cor,tinuing violation of the Connissien's orders in an ancunt that would deter any scenomie incentives which the Licensee may have to violate the orciers. That request icentified at least six viol at i ons. Ett Request at Para D. (1)-(6) . It is recognized that "in no instance will a civil pt.nalty for any one violat an exceed $100,000 per day". to C.T.R. Part 2, App.
C. * !:. . (1968) . However, it is also recognited that "If an n /. . tion of such nultiple violation shows that more than one f undanental problem .is 1.nvolved, each of which, if viewed independently, could lead to civil penalty ction by itself, then separate civil penaltion nay be assessed for each such fundamental problem." 10 CJ.R. Part 2, App. C.V.B. 5. (3 (1988) . Given the anticipated "saving" of "about $43 mi)l lion on Shoreham this year" identified in Attachment 1 hereto, it would appear that cumulativo fines of at least $250,000 per day would be necessary to act an an economic deterrent to '
continuing violations.
The Requestor 2coXs forvard to a considere$
response to its Request as :sepplanented herein, but urges prompt orders to cease and desist and reture to the statuc 21Q eaa.s to arrest the Allegal, continuing evasion and l
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, Mr. Victor Stello, 'Jr.
July 19, 1989 I Page 5 erosion of the commission's jurisdiction described in ,
Attachment i hereto. l 1
Resp ctfully submitted
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Ja .es P. McGranary, .
Counsel for the Shorehan-Wading River Central School District JPM a j nb Enclosures ect chairnan Kenneth M. Carr Commissioner Thones M. Roberts .
Cor.missioner Kenneth C. Rogers Commissioner James R. Curtiss 4
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, 1 Dear Long Islandert l I an writing to infern ycu about an agrearent that, once and for all, will provide a cenprehensive so3ution to the agonizing )
saga concerning the nuclear power plant at Sherehan. This agreement will cacse and disrettiv the plant, provide alternative ;
energy sources to replace it, and give L1LCo customers rates 1szgr than those they would have te pay if the ShorChan plant were to operate.
This agreenent is still subject tc approval by the state public service cennission (PSC), the L:ng Island Power Authority, the New Ycrk Power Authority and the shareholders of LILCo.
The agreenent provides for the disnantling of the plant by the New York Power Authority after careful planning and public hearings. The threat of a nuclear accident will be ferever removed fren Long Island's future.
Just think of it. For the first time in nearly two decades, the centroversy surrounding Shorehan vill finally and and we can devote all our energies to solving the other pressing prehlenn ConfrCnting Long Island.
Fegrettably, no patter what course of action is taken regarding Sherehan, L1 Leo's ele:tric raties vill rise in the future. Q.f . all
.the_eetiens aval_lable, thil,JtnIpn ent Y.i R .RI2gide the lowest r_e t e r 22f sih;e -- nuch lower than if Shorehan were to operate. At this 2 have the Executive Director of the state Consumer nonent, Protect ion Board fighting before the pse to assure this result.
< - The lover rates under my agreenent are possible because closing Shorehan will rake it unnecesnary to Epend any additional poney on the plant and will guarantee that LILCo and the federal governnent share the losses with you.
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I Last year ny administration negotiated an agreenent that accorp31shed many of these sane goals. The state Legislature, however, was unwilling to make the hard choices necessary to close i the p3 ant and declined to act on the agreenent. But nov 2 have found a way to do it without the 2egislators.
I share the outrage of many Long Islanders about the vaste associated.vith the Sherehan controversy. For six years I as):ed 1 Lf LCo to step investing taxpayers' and ratepayers' noney. Too {
pueh tin.e and toney was put into a nuclear power plant that is of guestionab2e reliability and, be:ause it is located in an area where evacuation is Jepeor.ib1c, rotses overwhv4 ming coni:crno abnut safety.
Unfortunately, there is ncthing we can do to recover all the losses associated with Shoreham. There is, however, one sure wa to and the vaste and previde Long Island with a reliable energ,,' y future at the lowest rates pessiole. 'That way is the agreenent that 2 have negotiated to close Shercham and n!)ow us to dovet.o .
all cut attentien to building a better future ter Long Is ant.
Sincerely, s -
W.
e e
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y.IA TELECOPY Thomas E. Murley Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 1
' Dear Mr. Murleyt N' Your letter of July 20, 1989 states that a preliminary review of the " concerns expressed in the I Shoreham-Wading River Central School District request )
pursuant Section 2.206 of your regulations does not indicate l "any need" to take immediate action, because i
" .. on the basis of current information, the licensee is currently in compliance with the provisions of its full-power license. The defueling of the reactor vessel is an activity permissible under the terms facility operating license NPT-82 the destaffing of the plant will not be implemented until early August".
You also state that "... defueling the shoreham facility is authorized by the Shoreham operating license and does not constitute a separate federal action subject to NEPA". .
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7UL 2'1 '89 12: 40 FROM D.L.A. WASHINGTON DC pogg,gga t
! Mr. Thomas E. Murley i July 21, 1989 .
page 2 The Requestor urges the need for an immediate reconsideration of your interim decision to address all, not some, of issues raised in that request and to prevent the further deterioration of a valuable electric resource.
The statement that "[t]he defueling of the reactor vessel is an activity permissible under the terms of the facility operating license NPF-82" is, at best, disingenuous.
The Administrator of Region I has openly admitted that this is not.m normal defueling. As .the Requestor stated in its letter of July 14, 1989, the defueling being conducted here is an unreviewed safety question, since it is n2t occasioned by ADy of the events normally initiating a defueling and since it will provide pone of the benefits sought to be achieved by a " normal defueling". Therefore, it presents unnecessary and unreviewsd risks to the public health and safety and to the environment.
Your statement that "[t]he destaffing of the plant will not be implemented until early August" is clearly in error. Attachment 1 to the Requestor's supplemental letter of July 19, 1989 is a New York Times report that "LILCO has also becun to transfer about 150 empicvee.g from its 590 person.vorkforce at Shoreham to other jobs" as of three davs Ass now. (Emphasis added.)
Most revealing, however, is the fact that you could gay (although in error) "destaffing of the plant will not be luolerented until early August". (Emphasis added.) This clearly demonstrates that the Commission is at this time fully aware of what New York State Public Service Commission chairman Bradford styled "a continuum of actions" that has been announced by the licensee to include (a) defueling, (b)
(c) reduction in maintenance, (d) application for destaffing, a reduction in its operating license to a " possession only" license, (e) application-for a transfer of that " possession only" license to a New York State entity (222 , Long Island Power Authority), and then (f) application for a license to decommission the facility (for which LILCo will be fully financially responsible).- The Requestor respectfully suggests that the Commission should not "put on blinders" to this overall plan.
The commission is currently involved in significant reculatory actions regarding the fate of the Shoreham plant.
This is sufficient to trigger NEPA review at this time. Ega 10 C.F.R. 5 51.10(b) (1988). The Commission need not, and certainly should not, wait until the last step of the process
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. , VUL El ' E ti i t : 4 E' FAOM D.L.A. W A E.H ! N G T O N DC PAGE.003 d
Mr. Thomas E. Murley July 21, 1989 ,
Page 3 described above (lugt, application for decommissioning) to i conduct its NEPA review. This would clearly be " locking the
, barn door after the horses are stolen". Lathan v. Volee, 350 T. Supp. 262, 266, af fld 506 T.2d 677 (9th Cir. ) (1974)
(footnote omitted).
The Cor, mission's regulations clearly state that "no person within the United States shall ... transfer, acquire, possess, or use any production or utilization facility except as authorized by a license issued by the Commission." 10 C.T.R. E 50.10 (a) (1988) . Those regulations further provide that: "Anv netions concirning the proposal taken by an applicant which would (i) have an adverse environmental impact, or (ii) limit the choice of reasonable alternatives may be grounds for denial of the license." 10 C.r.R. 6 51.101(a) (2) (1988) (emphasis added). The
, regulations also provide that: "This section does not preclude any applicant for an NRC permit, license, or other form of permission, or amendment to or renewal of an NRC pe rmit , license or ether form of permission, (1) from developing any plans or designs necessary to support an applications or (2) after prior notice and consultation with NRC staff, (1) from performing any physical work necessary to support an application, or (11) from performing any other physical work relating to the proposed action if the adverse environmental impact of thet work is do minimis". 10 C.T.R.
I 51.104(c) (1980). The actions planned and/or taken are not de minimis, do have adverse environmental impacts, and do incrementally limit the choice of reasonable alternatives.
These regulations clearly announce the Commission's intent not to a11QM the applicant to conduct any activities which would either have an adverse environmental impact, limit the choice of reasonable alternatives to the action, or perform any physical work relating to the proposed action unlits the adverse environmental impact of that work is de minimis. The explicitly identified remedy (" denial of the license") is obviounly intended to be a deterrent to a licennee conducting a constructive activity, as opposed to a destructive activity, as in this case. However, the expression of that remedy does not limit th2 Comtission's authority pursuant subpart B of Part 2 of its regulations to impose requirements by order er to take other actions as may be proper against any person subject to the jurisdiction of the Commission. 10 C.F.R. I 2. 200(a) (1988) . In particular, you are authorized to take cuch action if you determine that an emergency exist and that the public health, safety p_I intertal requires a temporarily effective order. The
- dVL dl '89 12: 49 FROM 9.L.A. IJASH]t GTON DC PAGE.00$
Mr. Thomas E. Murley July 21, 1989 ,
Page 4 Requestor suggesto, respectfully, that the situation at shoreham cries out for such orders, as previously requested.
Eighteen years ago (almost to the day), the Court of Appeals denounced the Commission's interpretation of NEpA saying: "We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act." Calvert Cliffs' Coo _rd. Comm. v. U.S.A.E.C<, 146 U.S. App. D.C. 33,
, 449 F.2d 1109, 111') (1971), cert denitd, 404 U.S. 942 (1972). The court said furthert "The word ' accompanied' ...
must not be read so narrowly as to make the Act ludicrous.
It must, rather, be read to indicate a Congressional intent that environmental factors as compiled in the ' detailed statement,' be considered through egency review processees".
146 U.S. App. D.C. at , 449 T.2d at 1117-18 (emphasis in originalt footnote omitted).
The current failure to act appears to be a case of "dhji vu, all over again". Your letter indicates that an agency review process is underway. You are also aware of the " continuum of actions" described above, pursuant to NEPA, orders should be issued to stop those actions, so that an environmental impact statement can be prepared to accompany the proposal through the review process so, among other things, the alternatives can be considered before they are limited or foreclosed with possible adverse effects to the human environment.
The Requestor understands that in approximately 8
four_ days activities, the licensee has removed about 100 fuel bundles from the reactor vessel and is ccnducting other activities contrary to the commitments given to the Commission that form the basis for the full-power operating license. According to your letter, the licensee may be allowed to continue such activities contrary to the public interest for as-long as Anather ten days before you will act.
Under these circumstances, I am furnishing copies of this letter directly to the Commission so that it may exercise its supervisory power over delegated staff functions to protect
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'JUL $1 '89 12:50 FROM D.L.A. WASHINGTON DC PAGE.007 l Mr. Thomas E. Murley July 21, 1989 Page 5 the health and safety of the public, preserve the human environment, and preserve the Shoreham f acility. 10 C.F.R. I 2.206(c)(1) (1988).
Sincerely, f h sl --
r James P. McGranery, Jr.
Counsel for
-Shoreham-Wading River central School District JPMajmb--
Enclosure cet Chairnan Kenneth M. Carr Commissioner Thomas M. Roberts Commissioner Kenneth C. Rogers Commissioner James-R. Curtiss 1
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Mr. Jams P. McGrantry, Jr., Esq. l Dow Lohnes & Albertson
!!8ITwenty.ThirdStreet Washington,D.C. 200371194 Dear Mr. Mcforantryt This letter is to ecknowledge receipt of the betition filed by you en JV1y 14, 196p on behalf of the Shonha> Wading River tentral School District. In your petilion you request that the trecutive Director for Operations issue an ferediately effective order to Long Island Lighting coepsny to cease and desist from any and all activities related to the defueling' and destaffing of Shoreham Wuclear Power Station, Unit 3 and return to the 'itetus tuo enD , pending further consideratier. by the domission. You furtier request snat such an order be accoyanted by an announcement of the Comission's intention to fine the licensee a substantial amount per day for any violation or continuing violstion of the Comission's orders. ,i As bases for your request, you essert that (1) the defueling of the core of the
$horeham and because$tation involves the increased riskan ofunreviewed accidents in the safety transquestion,fer of fuel to the spentbeca fuel pool outweighs the slight additional Mrgin of safety provided by the spent fuel sool and es uth, requires prior Comission approval in accordance with 30 C.r,g lgo,gl1 (t the issuance of the fv11-power operatir,g license for the and the licensee facility has now wal premised, declared among to the Comissionether things its inlention on adequate staffing, to willfully re duce 8ttffing by about heif, which would violate the basis of the issuance of its license and the 11censee's activities at tieprior comitments f acility is contrary toto the a MarchComission: 19 89 Operational Readiness (3) the lac Assesment Reports (4) the licenste's plan to substitute fossil. fuel-burning units for the shorehtm station is a Ntter that my result in a significant ,
increase in en adverse environtental ittpact previously evaluated in the Final es such Environmental $tatennt for unreviewed environmental the operating question that requires license priorand,Comissio,n opprovalipresents en (5) such an order would allow for a full environmental review pursuant to the the Council on Environmental Wetinul Environnntal Policy
...:a ines ano the Comission's re rulat Act (NIPA) Ions in 10 C.F.R Part 51:6)the and (Quality issuance of a license amendNnt sutseriainq decomissionin is a major Com.ission action significantly affecting 4he quality of t;e ; environmnt and Movires en environmental impact statement or suppleant to an envqronmental impact statement as specified in 10 C.F.R ll61.20(b)(5) and (b)(13).
Your petition has been referred to me pursuant to 10 C.F.R 42.206 of the Comission's regulations. As provided by Section t.206, action will be taken on your request within a reasonable time. However, a preliminary review of the concerns in your petitten does not indicate any need to take imediate ection as you request because on the basis of current information, the licensee
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(r. Jaew ; 3. Neiranery 2-i is currently in coepifance with the provisions of its full-power license. The defueling of the reactor vessel is an activity parettstble under the terts of Facility Operating License NPF-82. The destaffing of the plant will not be 7 isnplemented until early August. / .V h's are currently evaluating the effects of these chtnges in staffing level to ensure that they will not be inimical to either the corron esfense and security or to the public hesith and safety. This evaluation will be ccepleted before the end of July and we will take appropriate action if warranted. Furthentrere. I t;ith regard to your assertion that an environeental impact statement (Ell) or supplement to an EIS shov1d be stepared, we note that defueling the Shoreham facility is authorized by the 51creham operatin! ' license and does not constitute i asep6tatefederalactionsubjecttoNEPA. Altiough you are correct that the decomissioning of a facility requires a Itcense amen.eent necessiteting the preparation of an !!$. such an amendment has not yet been applied for in this l case. If the Comissien issves a license amendrent authorizing the I decomissioning of thewith performed in accordance Shoreham the Ceceissfacilitylon's regulations.anensivenmentalrtyleww
$incerely, l E Ah.
Thomas E. Murley, Director Offic.e of Nuclear Reactor Regulation l l
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VIA TELECOPY Victor Stallo, Jr.
Executive Director for Operations U.S. Nuclear Regulatory commission One Whiteflint North 11555 Rockville Pike Rockville, Maryland 20852 Ret shoreham-Wading River central School District Section 2.206 Request Submitted July 14, 1989 U.S._N.R.C. Docket No. 50-322 Dea.r Mr. Stello In further support of the above-captioned Request
(" Request"), the Shorehan-Wading River Central School District states as follows:
A. In Para E. (1) of the Request, the Requestor . - -
stated that there might be a "very slight, if any, additional .
margin of safety provided by the placement of the fuel in the spent fuel pool, as opposed to its continued residence in a reactor in a cold shutdown condition...." At this time, the Requestor notes that there may indeed be a reduced margin of safety if the Licensee is allowed to complete that transfer, since the public health and saiety would no longer be o : u w...e.,. .un ... .,6..i. oto ci...... .... tia .... ...> . ....
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"ju[ 19 'B9._14t2B- - . .F ROM D.L . A. WASH!NSTON DC 9 PAGE.003 Mr. Victor Stallo, Jr.
{* July 19, 1989 \
Page 2 protected by a ecmbination of barriers provided by (a) the l reactor vessel Itnelf, (b) the primary containment and (c)
" the secondary containment, but would only be protected by the secondary containment once the fuel is in the spent fuel pool. -The Requestor also suggests that the Administrator of Region I may recognize that the activities. currently being eenducted should require prior commission review and approval in this case, since he.has stated that "In this case, the circumstances are somewhat.different" and has further stated that_"there are sone unique elements to the situation at Shoreham". 113 Request Para D.(1).
B. Attachment 1 hereto is an article which appeared in the New York Times on July 18, 1989. It provides support for the allegations that LILco is removing the fuel and destaffing the plant as part of a single course of action to decommission the plant without applying to the commission for permission to decommission, thus depriving the commission of full and timely safety and environmental review i
, of the proposed course of action. The article also quotes the Chairman of the New York State public Service Commission as calling "the removal of the fuel rods 'one of a continuum of. actions that Litco must take to carryout their obligations under the settlement, which include not running the plant and also getting it into the least expensive configuration as possible'". This further supports the allegation that LILCo,
- in consort with the Governor of the State of New York and various other entities, is conducting a single course of action (" continuum of actions"), under NRC reculatory
'suvervit inD, to unlawfully segment the review required by the National Environmental Policy Act of 1969 ("NEPA").
Further, the article quotes "some officials" as stating that the decommissioning process . . . - began on Friday, as LILCO . . . started the. slow procedure for ramoving the 12-foot-high bundles ....", styling-that process as being
... virtually unstoppable once it is started ...." This is a clear indication of concerted activity to evade the commission's safety and environmental review which_ demands an immediate and tamporarily effective order to cease and desist ,
and return to the status g22 ADIA so that the Commission-may -
exercise its mandated jurisdiction pursuant to the Atomic -
Energy Act of 1954, as amended ("AEA") and NEPA to conduct a prior review of the proposed " continuum" of activities.
- c. Attachment 2 to this supplement is a letter from the Governor of the State of New York to the' people of Long Island, dated March 21, 1989, which indicates he has 4
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-( July 19, 1989 page 3 .
engineered the " Settlement Agreement" (which is currently subject to judicial review in at least two civil suits in New York State courts and is subject to many conditions subsequent) on the basis of the substitution of his judgment of the risk the Shoreham Nuclear Power Station poses to the health and safety of the public for the judpent made by the Commission in issuing the full power operating license on April 21, 1989 in violation of the doctrine of Federal Pre-emption of this area. 'As the Court said in Pacific Gas &
Electric Co. v. State Enercy Rescuces Conservation Comm.,
461 U.S. 190, 213, 103 S.Ct. 1713, 1727 (1983):
"A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field. Morover, a state judgment
' that nuclear power is not safe enough to be further developed would conflict directly with the countervailing judgment of the NRC, see, infra, at 1729-1730, that nuclear construction may proceed not withstanding extant uncertainties as to vaste disposal. A-state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use - and would be pre-empted for that reason. Infra, at 1731.
In particular, the Governor states in that letter that the proposed settlement will " forever" remove "[t)he threat of a nuclear accident ... from Long Island's future".
And he states further that the Shoreham plant "... is of questionable reliability and, because it is located in an area where evacuation is impossible, raises overwhelming concerns about safety". That letter also reveals that the Governor intends to "close and dismantle the plant, provide alternative energies sources to replace it, and give LILCO-customers rates lower than those they would have have to pay if the Shoreham were to operate".
This contradicts the judgments already made by the commission-in its review of the need for the plant, the-
- alternatives to the plant, and the costs and benefits of the plant by the Commission pursuant to NEPA as well as the AEA.
It further demonstrates the need for a cease and desist order so that a unified NEPA. review of the proposed plan of action
ggLg m f' % rT UI M5 AR9W b . L . B . WASHINGTON DC FAGE.005 Mr. Victor Stello, Jr.
i July 19, 1989 Page 4 involving the exercise of the Commission's reaulatory and licensina authority can be conducted.
D. Attachment 1 also demonstrates that the New York Public service commission and the Licensee are pursuing the current course of conduct in order to put the plant "into the least expensive configuration as possible" and "to save about $43 million on Shoreham this year". This further demonstrates the need for a cease and desist order and an order to return to the status gun ante so that the Commission may exercise its regulatory hoalth and safety jurisdiction to the determine whether the economic objectives of the New York Public Service Commission and the Licensee are consistent with the responsibilities accepted pursuant to the full power operating license, or whether the New York Public Service Commission is subjecting the Licensee to unlawful economic pressures that would cause violations of the commitments the Licensee has made in obtaining its license.
E. In the Request at Para D.(7), the Requestor suggested that any immediately and temporarily effective orders issued pursuant to this Request be accompanied by an announcement of the commission's intention pursuant to 10 C.F.R. I 2.205 to fine the Licensee a substantial '.tount per day for any violation or continuing violation of the com=ission's orders in an amount that would deter any l economic incentives which the Licensee may have to violate the orders. That request identified at least six violations. 533 Request at Para D. (1)-(6) . It is recognized that "in no instance will a civil penalty for any one violation exceed $100,000 per day". 10 C.F.R. Part 2, App.
C.V.B.5. (1988). However, it is also recognized that 'If an evaluation of such multiple viciation shows that more than one fundamental problem is involved- each of which, if viewed independently, could lead to civi.1 talty action by itself, then separate civil penalties mey assessed for each such fundamental problem." 10 C.F.R. Part 2, App. c . N' . B . 5 . ( 3 )
(1988). Given the anticipated "saving" of "about $43 million on Shoreham this year" identified in Attachment 1 hereto, it would appear that cumulative fines of at least $250,000 per day would be necessary to act as an economic deterrent to -
continuing violations.
. ~
The Requestor looks forward to a considered response to its Request as supplemented herein, but urges prompt orders to cease and desist and return to the status gun anti to arrest the illegal, continuing evasion and
l Mr. Victor Stello, Jr.
=; July.19, 1989 Page $_
erosion of the Commission's jurisdiction described _ in Attachment I he.?sto.
Resp etfull eu mit ed l
. ,is
. Ja es P. McGranary, r.
Counsel for the Shoreham-Wading River Central School District JPM t jmb Enclosures cci Chairman Kenneth M. Carr Commissioner Thomas M. Roberts Commissioner Kenneth C. Rogers Commissioner James R. Curtiss k
+
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rma Metropolitan Eews .
NSW YORK, NEWJER58Y, CONNECTICUT / TUESDAY, JULY 18,1%
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$6 iar. et a pare of one trJndW tYery LUCO JTemOves Lilco Removes 30 mtnutes, the utility has shifted al>
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. and for featmenance they could 14 ACh'0TI Ufu.I FwrigflG(I vide justifreauon to the people of tong PUC ionna for the Admm strauen's arrons '
55*%bs31mo W mactor and und Fr ^ 8"=d'oro, the chairman o.,
to stop the decommwontns of the hsEveptuatDa.ma. nim.g e s ,,, ,,, ,,,,,,,,, ,. , 2n*22,*un,":
son Moure, the deputy eurgy secro- of a conunwm of acuens mat 1.uct tary.said Mr. Cuomo's comtnants tod> musuamo carry w Mr obugsuom Dy PHILi? tw WTi$ un ja to m
- ~ ~ ,g must muy te tn e fegng pg}tytg, t MICKtVILLE,L1, July INThe lang Is* ., m,nk ,, he,, ,u,nf e ,t into u,e i. ass expenm conngar.nm numerous umes." Mr. Moore said, as possWe "
land ughtmb Company hss begun removing " Sot we certainty would be willmg to uko completed shoreham to IMS ursritum fuel teds from t5e Shortham ou- meet with the Governor anytstne he , but wu tmable to vtn a commercaa) op c) tar Sewer plant, taMng die first step to. wants and we would s skome him truo ; eraungI tse for he fit werd wtet could be the evectual charnar,. our offices " . the uewt i g : ub s
thng of the 85.5 bilbon reactor. As for remenna the fuei reds from i and Suffoi nty ,o pa tpa uloo. whMh has agreed to tell $horeham Sh 'eam, Mr. Moore said h was nm M em ghgr at Nuclear Regula l O New Yort State for $1 and dasmantle it in ritum for 10 years of rate increases.has yet Q$u pysh "O tory Cornmasjon amaroed the plan 4 M apply to the Federal Nuclear Regulatory intenuona to operate plant," he igd. power ikmse nder tms yeal Cotumispen for permiasson to decommis. .uid. "We vww this as ahort of actual uko had already a reed to a Mttu decommisstonmg and doet.n't make meet with Gwrnor g\ we m *M i s6cn the plarrt. puttag that plant on strearn econom6 agmd to teU W plam to W stan.
But it began to remove the reector's callyimpos41ble "
34,720 fuel rods on Friday as a way of con, bico's appiscauon to the Nuclear troDma cosu at the plant. Regulatory Commluton to begui besides startmg to removs the fuel rods, decointmssiming la expected before Ulco has also begun to transfer about 150 Se end of W year, ther offsetals of tM employees f rom its Ho person werts foret aL
.AndUW Shorehara to amer )@s Ahog@ tM util-8ty exputs to aaye about $43 millson on Power nueoruy[, w hich is to dittnande m this yest. it, agree on how to proced Cven as uko workers withdrew fuel rods $)ow Refnovat Procedure frvro the plant on Long Island a North But fx some offietais IM decommis-shore, Federal and etate offats ,.2tanved "*f prowss - which they said is D argue about the reactor's futura. .
nnuaJy Unstoppable once H H suned began on Fndsy as Lute flocded the in to interview on Sunday with Nevaday ,
reactor vessel and an adjacem spetu-at the ecmostk summit en Paris, Presedent -
fuel poor and staned the slow proce.
Bush's chief of staff, John H. Summu, ques. l dure for remunna the 12 foot Afgh bun-tieped why New York wtaald war.t to destroy l dies that each contain 62 futiroda.
Shoreham. "Why make unusable someerns
- that inlght screeday be usable?" he aded .
Federal energy officials had prevsously vowed to f6ght the shutdowit of the plam to-cause of Long latand's tight energy srtuauon 1 me coumir epedence m unponed (Coltzm 1 of the above appeared in 7he New York Times, July 18, 1989, in Cbltzm 5 of page B1f Colums 2 and 3
- m. Mano M. cuomo, in a statement to- above, and the picture appeared in Colton 2 of page B2]
way, called the Fedtral Goverftenerit's &c..
tkma "unjostrfwd and arrogant smerfer' ence" and esDed on President Bush so clar.
ify the Admmistratsoc's posation and "Pf*
Q=cnued on Page Si
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JUL IU '69 14: 29 TROM D.L.A. WASHINGTON DC PACE.005
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ATTACEMENT 2
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- t STAtt or Ncw You ExtcuTevt CHAustm M a o M.Cuowo oevea=on March 21, 1989
Dear Long Islander:
I am writing to inform you about an agreement that, once and for all, will provide a comprehensive solution to the agonizing saga.concerning the nuclear power plant at Shoreham. This agreement wil'1 close and dismantle the plant, provide alternative
' energy sources to replace it, and give LILCO customers rates. lover than those they would have to pay if the Shoreham plant were to operate.
This agreement is still subject to approval by the State Public Service Commission (PSC), the Long Island Power Authority, the New York Power Authority and the shareholders of LILCO.
The agreement provides for the dismantling of the plant by the New York Power Authority after careful planning and public hearings. The threat of a nuclear accident will be forever removed from Long Island's future.
dust think of it. For the first time in nearly two decades, the controversy surrounding shoreham will finally 6nd and we can devote all our energies to solving the other pressing problems confronting-Long Island.
Regrettably, no matter what course of action is taken regarding Shoreham, LILCo's electric rates will rise in the future. o f a l_1 the cotions available, this_norgement will crovide the lowest rates cessible -- much lower than if Shoreham were to operate. At this moment, I have tr.3 Executive Director of the State Consumer Protection Board fighting before the PSC to assure this result. 1
'< The lower rates under my agreement are possible because closing l Shoreham will.nake it unnecessary to spend any additional money on. l the plant and vill guarantee that LILCo and the federal government share the losses with you. , .
(over) 9 l --
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2 e
Last year my administration negotiated an agreement that acconp31shed many-of these same goals. The state Logislature, however, was unwilling to make the hard choices necessary to close the plant and declined to act on the agreement. But now I have found a way- to do it without the legislators .
I share the outrage of many Long-Islanders about the waste associated.with the Shoreham controversy. For six years I asked LILCo to stop investing taxpayers' and ratepayers' money. Too much tine and money was put into a nuclear power plant that is of questionable reliability and, because it is located in an area
, where evJcuotdon is impoccible, raises overwhelmit:0 concernc about safety.
Unfortunately, there is nothing we can do to recover all the losses associated with Shoreham. There is, however, one sure way to end the vaste and provide Long Island with a reliable energy
/ future at the lowest rates possible. That way is the agresoent that I have negotiated to close Shoreham and allow us to dovote all our attention to building a better future for Long Island.
Sincerely,
.s .
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