ML20083C068
| ML20083C068 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/20/1983 |
| From: | Crotty G NEW YORK, STATE OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8312220089 | |
| Download: ML20083C068 (17) | |
Text
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. 00CKETE0 USNRC
, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , . . , _ . -
, ATOMIC SAFETY AND LICENSING APPEAL BOARD" ,' ,
4-
______________________________x In the Matter of :
LONG ISLAND LIGHTING COMPANY : Docket No. 50-322-OL (Shoreham Nuclear Power :
Station, Unit 1)
X BRIEF OF MARIO M. CUOMO, GOVERNOR OF THE STATE OF NEW YORK IN SUPPORT OF SUFFOLK COUNTY EXCEPTION NOS. XII-l THROUGH XII-6 TO THE SEPTEMBER 21, 1983 PRELIMINARY INITIAL DECISION GERALD C. CROTTY, Counsel to the Governor Executive Chamber State Capitol Albany, New York 12224 BEN WILES, Assistant Counsel to the Governor JONATHAN FEINBERG, Attorney of Record 8312220089 831220 PDR ADOCK 05000322 r f' G PDR ~L-
UNITED STATES OF AMERTCA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD
______________________________x In-the Matter of :
LONG ISLAND LIGHTING COMPANY : Docket No. 50-322-OL (Shoreham Nuclear Power :
Stations Unit 1)
______________________________x BRIEF OF MARIO M. CUOMO, GOVERNOR OF THE 4 '
STATE OF NEW YORK IN SUPPORT OF SUFFOLK COUNTY EXCEPTION NOS. XII-l THROUGH XII-6 TO THE SEPTEMBER 21, 1983 PRELIMINARY INITIAL DECISION GERALD C. CROTTY, Counsel to the Governor Executive Chamber State Capitol Albany, New York 12224 BEN WILES, Assistant Counsel to the Governor ,
JONATHAN FEINBERG, Attorney of Record
UNITED STATES OF AMERICA NUCLEAR.RECULATORY COMMISSION Before the Atomic Safety Licensing Appeal Board
__------------------g In the Matter of :
LONG ISLAND LIGIITING COMPANY : Docket No.50-322 (OL)
(Shoreham Nuclear Power :
Station, Unit 1)
____----____----____-_--_______x BRIEF OF.MARIO M. CUOMO, GOVERNOR OF TIIE STATE OF NEW YORK IN SUPPORT OF SUFFOLK COUNTY EXCEPTION NOS.
XII-l T!!ROUGli XII-6 TO TIIE SEPTEMBER 21, 1983 PRELIMINARY INITIAL DECISION PRELIMINARY STATEMENT ThisLBrief is submitted by Mario M. Cuomo, Governor of the State of New York, in support of those portions of Suffolk County Exception Nos. XII-l through XII-6 which challenge the Atomic Safety and Licensing Board's September 21, 1983' Preliminary Initial Decision to authorize the low-level. operation of the Shoreham Nuclear Power Station despite the Licensing Board's conclusion that the present record does not support a finding of reasonable assurance that
, an adequate level of off-site emergency preparedness will be developed at Shoreham.
In a June 30, 1983 decision, the Nuclear Regulatory
i Commission explicitly recognized that the 1cw power license
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for the Shoreham plant could be issued despite the " difficult"
. emergency planning issues which this case presents and "the existing uncertainties about off-site emergency planning".
Long Island Lighting Co. (Shoreham, Unit 1) , CLI-83-17, 17 NRC (June 30, 1983). The Governor of New York has repeatedly urged that the emergency planning issues in this case should prompt the Commission to defer the grant of the low power license. This Brief is submitted as a further statement of these concerns.
POINT I APPLICATION OF 10 CFR 550.47(d) IN THIS PROCEEDING REQUIRES A DELAY IN THE ISSUANCE OF THE LOW POWER LICENSE In reaching its June 30, 1983 decision, the Nuclear Regulatory Commission accepted certification of a queation from the Atomic Safety and Licensing Board concerning the application of 10 C.F.R. S50.47(d) to this proceeding. In accepting the certified question and providing its advice on the application of 10 CFR 550.47(d), the Commission recognized the Licensing Board's doubt as to the likelihood that an off-site emergency plan can and will be developed for the Shoreham plant. The ' Commission's 3-2 decision suggested,
. however, that " interjection of such doubts into the low-power proceedings could create a limited full power hearing, before
authorization of the low power license", that such a procedure
'"would have little to commend it", and that S50.47 (d) did not require it. June 30, 1983 decision at 4..
In this case, however, the " low power proceeding" and the " full power hearing" have been in most respects the same proceeding. Indeed, in seeking the low power license, the Long Island Lighting Company ("LILCO") has proceeded under 10 C.F.R. S50.57(c). This section provides the applicant the opportunity to obtain the low power license "in any case where a hearing is held in connection with a pending proceeding".
In this case, the pending proceeding is LILCO's application for-a full power license. Therefore, this low power license is explicitly sought in the context of a full power hearing at which many full power issues have been heard and decided. In this-procedural context, there is no valid reason why safety issues surrounding the off-site emergency plan should not be resolved, like other full power safety issues already resolved by the Partial Initial Decision, before the authorization of low power operation at the plant. Where, as at Shoreham, the requirements for emergency planning impose a special burden on those who advocate operation of the plant, and where, as here there is.no reasonable assurance that this burden will be met,
, the need to address off-site emergency planning issues before issuance of the low power license is self-evident.
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i LILCO could have separated the low power license application from the pending operating license proceeding had
. it wished to do so. In contrast to the procedure actually utilized by LILCO under 10 C.F.R. S5 0. 57 (c) , 42 U.S.C. 52242 permits an applicant such as LILCO to obtain a low power license outside of the - normal hearing process. However, since the procedure under 10 C.F.R. S50.57(c) and not the alternate statutory procedure is being used in this case, the ,
low level license application should be decided on the same timetable as the other issues raised by the operating permit
- hearings including those issues with respect to off-site emergency planning.
While not applicable in this proceeding, 42 U.S.C.
.S2242 is nevertheless relevant to this proceeding. Under this statute, an application for a low power license is apparently permitted after "the filing of a State, local or utility emergency preparedness plan". Because of this explicit prescription, this statute is the only instance in which Congress has expressed its views as to the relationship .
L' tween off-site emergency preparedness and the issuance of a low power license. Importantly, in this statute, Congress makes no distinction between off-site and on-site emergency preparedness in the context of low power operating licenses.
Therefore, the distinction apparently drawn by the Partial
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Intitial Decision's approval of a low-power license.despite the pendency of difficult - off-site emergency preparedness
. . issues flies in the-face of expressed legislative intent.
POINT II 10 C.F.R. S50.47(d) DOES NOT AUTHORIZE THE LICENSING BOARD OR THE COMMISSION TO IGNORE EMERGENCY PREPAREDNESS IN THE' ISSUANCE OF
.A LOW POWER OPERATING LICENSE.
'The first sentence of .the text of 10 C.F.R.
. S50. 47 (d) purports to exempt determinations on low power license applications from any consideration of off-site emergency plans. 'However, the remaining text of that subsection and the comments which accompanied its promulgation clearly confirm that some consideration of off-site emergency planning is required prior to the issuance of a low power license. Specifically, the penultimate sentence in S50.47 (d) states that the low power license may be issued "after a finding is made-by the NRC that the State of on-site emergency preparedness provides reasonable assurance that adequate
-protective measures can be taken in the event of an emergency" and the subsection concludes by stating that "the NRC will base Lits . finding on its assessment of the applicant's emergency' plan against the standards in paragraph b of this
. section and Appendix E of this part". In the comments which
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accompanied the promulgation of this rule, the Commission responded to the assertion that no off-site protection will be confirmed to exist prior to the issuance of a low power license. In response to this contention, the Commission stated that under this rule, "Iplrior to issuing an operating license authorizing low-power testing and fuel loading, the NRC will review the following off-site elements of the applicant's emergency plan ... . 47 Fed. Reg. 30234 (July 13, 1982) (emphasis supplied). The Commission's comments go on to enumerate seven off-site emergency planning elements which would be reviewed by the NRC prior to the issuance of the low power license.
Despite the plain intent of S50.47 (d) to incorporate off-site emergency planning issues in the consideration of the application for a low power license, all off-site emergency planning issues have been deferred in this proceeding for decision by a second Licensing Board and a Partial Initial Decision in support of the low level license has been issued.
This proceu ce defies the intent of the Commission's own rules and simple common sense. Off-site preparedness is no different than any other safety issue examined by the Commission in the context of the operation of a nuclear power
, plant. Indeed, off-site emergency preparedness may be among the most important safety considerations inasmuch as these plans are the last resort by which the public is protected
r from radiological danger. If anything, off-site planning should be more intensely scrutinized. prior to the operation of the plant than the examination of other safety aspects. .
The Commission has for several years examined the physical and operational integrity of the Shoreham plant. The results of this study are now embodied in a fourteen hundred page opinion by the Atomic Safety and Licensing Boerd.
.Off-site emergency planning, as a safety measure which protects the public but not the plant, has received virtually no consideration. Nevertheless, the Commission's own rules recognize the importance of off-site emergency planning and testify to the fact that the operation of nuclear power plants, despite the intense scrutiny afforded in the licensing
-. process, cannot be characterized as " fail-safe". 10 C.F.R.
- 50. 4 7 (a) , (b) and 10 C.F.R. Part 50, Appendix E. In light of this principle, off-site emergency planning, which is the only safety system protecting the public and not the nuclear plant,
~cannot be swept aside. The public's safety is entitled to the same measure of critical concern as the Commission has already afforded to the plant itself. ,
To date,-the Licensing Board has decided virtually all of the outstanding issues with respect to this plant other
, than of f-site emergency planning. It has approved the issuance of the low-power license while refusing to address
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and, instead, simply deferring off-site emergency planning issues for a later date. In this practice, the Licensing Board has failed to afford the public that measure of concern for "public health and safety" to which it is entitled. 42 U.S.C. SS2013(d), 2133 (a) , 2201(p) and 2232 (a) .
The ' treatment of off-site emergency preparedness issues in this proceeding's consideration of the low power license application has been repeatedly frustrated by their entanglement in unnecessary procedural complexitiec. These entanglements, while regrettable in any case, are inexplicable where, as here, they have only served to prevent a full examination of " difficult" off-site emergency preparedness issues prior to the issuance of the low level license.
First, the most recent interpretation of 10 C.F.R.
. S50. 47 (d) , a regulation which must be fully understood before the low level license application in this case can be decided, was made by the Commission on June 30, 1983. This decision postdates virtually all of the briefs and materials supplied to the Licensing Board by the parties in anticipation of the Partial Initial Decision. It does not, however, postdate the Partial Initial Decision itself. Therefore, the Partial Initial Decision was written without the benefit of any
. _ contributions by the parties which might have been useful in the application of the June 30 decision to the Licensing
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Board's determinations. More inportantly, the June 30 decision itself was issued by the Commission without the benefit of the parties' participation. Rather, the Commission considered the question certified to it by the Licensing Board and simply decided it sua sponte. To compound this shortcoming, the 550.47(d) issue decided by the Commission on June 30 was never briefed before the Licensing Board even though the Board certified the question to the Commission for decision. In fact, the S50. 4 7 (d) question was certified by the Commission before any motion was made by LILCO for a low power license. Therefore, 550.47(d) was injected into the licensing proceeding by the Licensing Board before the parties themselves considered it relevant, it was decided by the licensing board and certified to the Commission without input from the parties and finally, the Commission decision was apparently applied by the Licensing Board without significant opportunity for any party to be heard. The ladependent course struck by the Licensing Board and the Commission in the interpretation and application of this subsection is in stark contrast to the common notions of opportunity to be heard which normally govern licensing proceedings. This contrast is heightened by the specific provisions of 10 C.F.R. S50. 57 (c)
, which govern the LILCO low level license application and which explicitly recognize each party's right to be heard prior to the decision on a low power operating license.
The unfortunate summary treatment of $50.47 (d) in this proceeding is compounded by the equally summary treatnent
. of the off-site emergency planning contentions which might have been heard by the Licensing Board and applied to the low power license application. As noted at page 5, supra, certain off-site emergency planning considerations were expressly recognized by the Commission as relevant to a low power license when the current 550.47(d) was promulgated. The enumerated considerations extended to requests for and the use of local assistance, notification of local response l
organizations and the public, emergency communications, emergency facilities and emergency equipment, radiological assessment and monitoring , emergency medical services, and radiological emergency response training. 47 Fed. Reg. 30234 (July 13, 1982). A conscientious application of this rule in this proceeding certainly would have reached these enumerated concerns as well as all others which relate to off-site emergency planning.
Rather than hear the off-site emergency planning contentions and decide them on the merits, however, the Licensing Board has simply dismissed them based upon the intervenor's refusal to participate in certain pre-hearing
. procedures. The Licensing Board candidly admits that these procedures were " novel in NRC practice". " Memorandum and
Order Confirming Sanctions for Intervenors Refusal to Comply with Order to Participate in Pre-hearing Examination",
LDP-83-115, 16 NPC (December 22, 1982) at 4.
Nevertheless, when the intervenors decided not to participate in the Licensing Board's apparently ad hoc pre-hearing procedures, the Board imposed sanctions. These sanctions included a waiver of the intervenor's right to cross-examination of witnesses and a waiver of their right to ask " follow-up" questions before the Board when the pre-hearings testimony was to be submitted. In addition, the Board concluded that intervenors had abandoned their right to present witnesses and testimony of their own on the off-site emergency planning issues. M. at 6. While these sanctions
. were already harsh in the extreme, the Board went on to conclude that the underlying contentions with regard to the off-site emergency planning which were'then in dispute could be dismissed with prejudice and that those issues were withdrawn from the proceeding. M. at 24. Thus, the Board reversed the burden of proof which would otherwise have fallen on LILCO to justify its off-site emergency plans. 10 C.F.R.
S2.732. More importantly, the Board denied itself its only opportunity to hear any testimony whatsoever concerning
, off-site emergency planning. Had the board properly recognized the importance of off-site emergency planning at
Shorcham and used this opportunity nore judiciously, the present record would better serve all parties and the public.
i . CONCLUSION For the reasons stated above, the portions of the Atomic Safety and Licensing Board's September 21, 1983 Partial Initial Decision which purport to authorize the low power operation of the shoreham nuclear power plant pursuant to 10 C.F.R. S50.57(c) should be reversed. The Licensing Board before which the low power license application is pending should be directed to withhold its determination on this application until a full determination on all relevant off-site emergency planning issues is made.
Dated: Albany, New York
', December 20, 1983 Respectfully Submitted, MARIO M. CUOMO, Governor of the State of New York
'^ s By: - - - - -
M CROTTY, '* ~@
[/GERALDC.
Counsel to the Governc#
Executive Chamber State Capitol Albany, New York 12224 BEN WILES, Assistant Counsel to the Governor JONATIIAN FEINBERG,
. Attorney of Record
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
, BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
, _____________________________x In the Matter of :
LONG ISLAND LIGHTING COMPANY :
(Shoreham Nuclear Power :
Station, Unit 1)
_____________________________x CERTIFICATE OF SERVICE I hereby certify that copies of "Brief of Mario M. Cuomo, Governor of the State of New York in Support of Suffolk County Exception Nos.
XII-l Through XII-6 to the September 21, 1983 Preliminary Initial Decision" were sent on Decembe. 20, 1983 by first class mail, except where otherwise noted, to the following:
Alan S. Rosenthal, Esq., Chairman
- Gary J. Edles, Esq.*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Uilber* Docketing and Service Station
- Atomic Safety and Licensing Appeal Office of the Secretary Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Lawrence Brenner, Esq.* James A. Laurenson, Chairman
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic S-fety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Uashington, D.C. 20555 Dr. George A. Ferguson*
Dr. Jerry R. Kline*
Administrative Judge Administrative Judge
. School of Engineering Atomic Safety and Licensing Board Howard University U.S. Nuclear Regulatory Commission 2300 - 6th Street, N.W. Washington, D.C. 20555
. Washington, D.C. 20059 Dr. Peter A. Morris
- Mr. Frederick J. Shon*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Conmission U.S. Nuclear Regulatory Comnission Washington, D.C. 20555 Washington, D.C. 20555
t Bernard M.-Borderick, Esq. Cherif Sedkey, Esq.
David A. Repka, Esq. Kirkpatrick, Lockhart, Johnson U.S. Nuclear Regulatory Commission & Hutchison Washington, D.C. 20555 1500 Oliver Building Pittsburgh, PA 15222
, Stephen B. Latham, Esq. Herbert H. Brown, Esq.
John F. Shea, III, Esq. Lawrence Coe Lanpher, Esq.
Twomey, Latham & Shea Karla J. Letsche, Esq.
Attornays at Law Kirkpatrick, Lockhart, Hill, P.O. Box 398 Christopher & Phillips 33 West Second Street 1900 M Street, N.W.
Riverhead, NY 11901 8th floor Washington, D.C. 20036 Atomic Safety and Licensing James B. Dougherty, Esq.
Board Panel 3045 Porter Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20008 Nashington, D.C. 20555 Atomic Safety and Licensing Dr. Peter F. Riehm Appeal Board Panel KMC, Inc.
U.S. Nuclear Regulatory Commission 801 18th Street, N.W.
Washington, D.C. 20555 Washington, D.C. 20006 Bruce L.-Harshe Lucinda Low Swartz, Esq.
Consumers Power Company Pacific Legal Foundation 1945 W. Parnall Road 1990 M Street, N.W.
. Jackson, MI .49201 Suite 550 Washington, D.C. 20036 Stewart M. Glass, Esq.
Regional Counsel Ralph Shapiro, Esq.
Federal Emergency Management Cammer and Shapiro Agency 9 East 40th Street 26 Federal Plaza New York, New York 10016 Room 1349 New York, NY 10278 W. Taylor Reveley III, Esq.
Hunton & Williams Spence Perry, Esq. P.O. Box 1535 Associate General Counsel Richmond, VA 23212 Federal Emergency Management Agency Room 840 500 C Street, S.W.
Washington, D.C. 20472 Howard L. Blau, Esq.
, 1217 Newbridge Road
-Hicksville, NY 11801
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COURTESY COPY LIST i
Edward M. Barrett, Esq. Mr. Jeff Smith
, General Counsel Shoreham Nuclear Power Station Long Island Lighting Company P.O. Box 618
.250 Old County Road North Country Road l . Mi~neola, NY 11501 Wading River, NY 11792 hr. Brian McCaffrey .
MHD Technical Associates Long Island Lighting Company 1732 Hamilton Avenue 175 East Old Country Road Suite K Hicksville, New York 11801 San Jose, CA 95125 i Marc W. Goldsmith Hon. Peter Cohalan Energy Research Group, Inc. Suffolk County Executive 400-1 Totten Pond Road County Executive / Legislative Bldg.
Waltham, MA 02154 Veterans Memorial Highway Hauppauge, NY 11788 David H. Gilmartin, Esq. Ken Robinson, Esq.
-Suffolk County Attorney N.Y. State Dept. of Law County E::ecutive, Legislative Bldg. 2 World Trade C7ter Veterans Memorial Highway Room 4615
Costogan, Hyman & Hyman !
! 1301 Franklin Avenue
- Garden City, NY 11530 Mc. Nora Bredes Shoreham opponents coalition 195 East Main Street Smithtown, NY 11787 i
- By Express Mail
\ b\; (
Ben Wiles I:
6 Sworn to before me
. the.20th day of December, 1983 JB 1[_. t Notary Public K ATELC.'M .M. !'tCECTT Uc' arf NWe.Etm c!Ihw Ycrk
. th. w:iv3 quMII:sd i.: N.*.ny Ccunty Cor.u:=sich Esphs LI..rca 00.19.55
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