ML20086C538
| ML20086C538 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/18/1991 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20086C543 | List: |
| References | |
| CON-#491-12361 91-642-OLA-3, OLA-3, NUDOCS 9111220295 | |
| Download: ML20086C538 (21) | |
Text
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(% c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9) gg ATOMIC SAFETY AND LICENSING BOARD J. .
g, Before Administrative Judges: "" i .s't
- u, Thomas S. Moore, Chairman Dr. boorge A. Terguson Dr. Jerry R. Kline
)
In the Matter of ) Docket No. 5 0- 3 2 2 -O LA- 3
)
LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-642-OLA-3
)
(Shoreham Nuclear Power Station, ) (License Transfer Unit 1) ) Application)
)
ffTITlpl!ERS'.. JOINT SUPPLEMERIAL PETITiplL Imrouant to the Atomic Safety and Licensing Board's
( " AS LB") Scheduling order of October 23, 1991, (" October 23 Order") in the above-captioned matter, Petitioners Shoreham-Wading River Central School District (" School District") and Scientists and Engineers for Secure Energy ("SE,") hereby submit this Joint Supplemental Petition, including a list of the contentions which Petitioners seek to have litigated in the hearing. S1n ging, 10 C.r.R. $$ 2.714(a)(3) & 2.714(b)(1)
(1991).1' While attempting to comply with the October 23 order, Petitioners object to the Order insofar es it requires the filing 1/ In accordance with the rights granted Petitioners by the referenced subsections of $ 2.714, the School District and SE 2 l reserve the right to further amend their petitions and file turther contentions not more than " fifteen (15) days prior to the holding of the first prehearing conference" in these matters, itgt, on or before July 15, 1991.
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4 of contentions under the National Environmental Policy Act of 1969, as amended ("NEPA"), 42 U.S.C. I 4321 21 arg. (1988), at this time, because requiring the filing of NEPA contentions is premature before the Long Island Lighting Company ("LILC0") has filed its environmental report ("ER") on the entire scope of the
- proposal to decommission Shoreham, not merely on ER on one improperly sogemented part of that proposal. Egg 10 C.F.R. I
- 2. 714 (b) ( 2 ) (iii) (1991). The requirement to file NEPA contentions at this time severely prejudices the Petitioners' rights and the persons they represent, and is contrary to the public interest.
I. THE PETITIONERS HAVE STANDING UNDER NEPA AND THE AEA.
Standing requires that a party demonstrate that, if its claim is proven, the party will suffer an " injury in fact" within the zone of interests protected by the statute in question, that the injury is caused by (" fairly traceable to") the alleged violation, that the remedy (ies) sought would redress, or have a "real possibility" of redressing, the injury, and finally that the party (or those whom it represents) has a " sufficient geographical nexus to the location at which the . . .
consequences are likely to be felt."U Ett, c.c., City of Los 2/ Petitioners note that, in such consolidated proceedings, if the ASLB finds that any one of them has standing, it is not necessary to inquire into the standing of all petitioners.
NHTSA, 912 F.2d at 485.
. l Anceles.v. NHTSA, 912 F.2d 478, 491-99 (D.C. Cir. 1990)
("l@ TEA") .
The School District is a political subdivision of the State of New York with certain responsibilities for the education of the citizens of New York within the geographical boundaries and responsibilities for the health and safety of its students, faculty, and other employees while their under the School District's supervision. In addition, the School District derives approximately 90% (or over $25 million) of its annual budget from real estate. taxes on the shoreham Plant, and it has been designated by the President of its School Board (who resides approximately two miles from the Shoreham Plant) to represent his interests under the AEA and NEPA in this Proceeding under review here as described in his affidavit in this proceeding.
SE2 is a tax exempt New York State not-for-profit j corporation whose purposes include promoting intelligent uses of secure energy resources within the United States and informing its members, governmental officials and others of the
! environmental and other costs and benefits of energy proposals and options. SE2 has participated in the debate-over Shoreham in the past, seeks an EIS on the proposal to decommission Shoreham to fulfill its informational responsibilities and has been designated by six of its members who are dependent upon LILCO for electricity, and all of whom reside and work within 50 miles of the Shoreham Plant and some of whom live and work within 10 miles of the.shoreham Plant to represent and protect their interests 1
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I under NEPA and the AEA as described in their affidavits in this proceeding.
It-is well established that "[t]he procedural and informational thrust of NEPA gives rise to a cognizable injury t
from denial of its explanatory process, so long as there is a
'i reasonable risk that environmental harm may occur." NHTSA, 912 F.2d at-492. There can be-no doubt either that the proposed i license transfer in aid of the destruction of a $5.5 billion i electric generating plant at the beginning of its 40 year useful i
life constitutes an " environmental-harm" or that the NRC has thus
,far denied. Petitioners and those whom they represent the
-explanatory process promised by'NEPA. In view of the fact that Petitioners have repeatedly sought to have NRC baain that ,
process, and that_the NRC has refused to act on those requests, it is abundantly clear that the-NRC is causing-that denial. 1 Petitioners have also consistently alleged that:such a :
NEPA review "would redress [their) asserted injury, i.e., that any serious effects (of approval of the proposal to decommission-Shoreham) will not be overlooked." NHTSA, 912 F.2d at 499. It-is within~the: power of this Board'to require the undertaking and completion of.NEPA review of the proposal to decommission Shoreham-prior to a decision on the license transfer application.
Thus, under NEPA, Petitioners clearly satisfy the' requirements for'(a)/an injury in fact, (b) the causation of that injury by '
L NRC's failure ~to perform its ministerial NEPA duties, and (c)'the (
l .
L .redressability of that injury-by this Board ordering the NRC l
Staff to undertake and complete such a HEPA review before making a decision whether to approve that license transfer.3' In this case, the Petitioners are certainly " aggrieved" within the NEPA context by the agency's failure to prepare an EIS because they can show much more than a "'rlsk that serious environmental impacts will be over looked'." HHISA, 912 T.2d at 492 (quoting City of Davis v. Coleman, 521 T.2d 661, 671 (9th Cir. 1975)). The NRC Staff and the applicants are attempting to avoid all HEPA review at the appropriate time.
The absence of an EIS at this time creates a certair.ty that other "berious environmental impacts will be overlooked" in the NEC's process of approving decommissioning including, but not limited to, the denial of the benefits of Shoreham to the Long Island cc vunity and the avoidance of the risks and costs of 2/ The fact that Petitioners hope that such NEPA would review would also result (a) in a decision by the NRC to reject the proposal to decommission Shoreham and (b) in the future operation of Shoreham is a separate matter. On the one hand, Petitioners recognize that the NRC is not constrained to take the environmentally most favorable decision identified by the resulting EIS; on the other hand, petitioners are entitled to have confidence that "these procedures are almost certain to affect the agency's substantive decision." Robertson v. Methow yalley Citizens Council,109 S.Ct. 1835, 1846 (1989).
Petitioners also. note that while they would hope that the results of such a NEPA analysis would cause the-various New York entities to change their minds as to the wisdom of their proposal, they are not the only relevant decisionmakers outside of the NRC. The Secretary of Energy has independent authority to order the operation of Shoreham and such a NEPA review might well form the basis for the Secretary of Energy to exerciso such authority.
! Egg 16 U.S.C. I 824a(c) (1988); App. 1199. Thus, there is a l "real possibility" that even these substantial goals, as apposed to the merely procedural objectives of NEPA, can be achieved if the relief sought is granted.
I l
- 6-further dependence on foreign oil, the adverse effects on the reliability of the electric system to Long Island if Shoreham is destroyed, and the extraordinarily adverse effects on the quality of education of the citizens of the School District as a direct and unavoidable result of the elimination of 90% of its tax base if Shoreham is destroyed.F Also given the description of the School District (and the person it represents) and the persons represented by SE,,
they certainly satisfy the " sufficient geographical nexus to the location at which the environmental consequences are likely to be felt." HHIEA, 912 F.2d at 494 (citation omitted). And these injuries can be predicted with certainty and even with relatively
" precise timing and scope" (iA22, they would occur when the reasonable possibility of shoreham's future operation is eliminated and substitute fossil fuel facilities are built pursuant to the settlement Agreement). Id.
Further, the courts have determined that an organization representing persons living in a State as large as California and expressing concerns about alobal warming is aggrieved within NEPA's zone of interest and pcssess a sufficient geographical nexus when national standards are at issue. NHTSA, 912 F.2d at 495. The School District and SE, (and the persons 1/ In Dellums v. U.S.N.R.C# , 863 ?.2d 968, 973 (D.C. Cir.
1988), the Court found that " inability to find work [bv a singig individual) constitutes injury in fact" satisfying that element of the test for standing. The greater magnitude of injury threatening the School District should certainly suffice.
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i they represent) demonstrate much more direct effects of the instant proposal on the inmediate area where they carry out their functions, dwell and/or work whether the affected area be considered the geographical area of the School District, the ,
geographical area within a 10 or 50 mile radius from Shoreham, or {
r Long Island as a whole.
Furthermore, given the fact that the Final
- Environmental Impact Statement Related to the Operation of Shoreham (NUREG-0285, October 1977) ("FEIS") identified the resulting tax revenue to the School District among the principal socioeconomic benefits of the proposal to operate Shoreham,1/
1/ The FEIS recognized among other things, that the " major economic impacts from the operation of (Shoreham) are derived from the tax revenues." In particular, the FEIS recognized (at i 5.6.3) that there was a substantial benefit from the " taxes paid to the Shoreham-Wading River School District during construction of the-plant (since they) represent a substantial proportion of the total School District budget (and that) proportion will continue will continue to increase when the plant goes into operation. . . . " The special benefit of Shoreham to the School District by way of its tax contributions was also singled out in the FEIS at i 5.6.5 " Summary of Socioeconomic Impacts."
In Chapter 8, the FEIS addressed the "need for'the station" .
concluding that the_ energy demand and LILCO's commitments to the
- New York. Power pool to maintain a minimum reserve margin ,
- justified a new electrical generation plant the size of Shoreham
($ 8.4.1 & 8.4.3), that there would be significant cost savings in providing electricity from this nuclear plant rather than from oil-fired plants ($ 8.4.2), and that other alternative electric energy sources were not " feasible" on-Long Island-(5 8.2).
Finally, in the Benefit-Cost Summary (Ch.10), the FEIS recognized
" direct benefits" from Shoreham as its production of up to 5
. billion Kwh/yr of electricity, its " favorable effect on system reliability, and a savings in system fuel costs," as well as
- identifying the contribution to "the local property, revenue and sales taxes
. . . and the new jobs- created as "important considerations to l the surrounding areas." (5 10.2).
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4 (FEIS at i 5.6), it would be truly anomalous if this Board would find that interest does not qualify it for standing under NEPA.
If the FEIS found there :vX :.' venues (and hence, the School District's ability to 910vl!? a better education for the citizens of the Dj strict) to in) ss principal socioeconomic benefit to be addressed in the FE7s thder HEPA, how can the ASLB find that the proposed deprivation of such revenues is not a harm which would ,
" qualify it for standing mder NEPA?" It would appear that any EIS addressing the proposal to decommission Shoreham would have to address the loss of these tax revenues as a " socioeconomic cost" of the approval of the proposal, a cost directly affect ing the School District.
II. THE CONTDDlQJJ!!i.
CONTENTIOR_lL: Pet 2tioners contend that the NRC must require LILCO to prepare an environmental report and that the NRC Staff must then publish a draft environmental impact statement
("DEIS") for comment, prepare a final environmental impact statement ("FEIS"), and follow other NRC procedures for the i consideration of the environmental impacts of the proposal to decommission Shorehan before approving transfer of the Shoreham
! license to the Long Island Power Authority ("LIPA") because that j action is within ':he " scope" of the proposal to decommission Shoreham, which is a proposal for a major federal action i significantly affecting the quality of the human environment requiring such environmental consideration before the issuance of
- ,.n.-, ,, , , _.. .. -
3 any " form of approval" by the NRC of the proposal to decommission Shoreham or any of its subsidiary proposals, including the action within the scope of this proceeding. 42 U.S.C. I 4332 (1988); 10 C.F.R. i 51.100(a) (1991). Further, that license transfer would i
make the proposal to decommission irreversible since New York State statutes forbid LIPA to operate Shoreham as a nuclear facility and compel LIPA to decommission Shoreham. Long Island Power Authority Act $$ 1020-t & 1020-k. subd. 9.
3 The action which is the subject of this proceeding is within the scope of the proposal to decommission Shoreham because it is an " interdependent (part) of (that) larger action and depend the larger action for (its) justification." 40 C.F.R. 5 ,
1508. 25 (a) (1) (iii) . This action also constitutes a cumulative action "which when viewed with other proposed actions (both within and without the current scope of this proceeding) have cumulatively significant impacts and should therefore be l
-discussed in-the same impact statement." 40 C.F.R. $ -
1508. 25 (a) (2) . Such an EIS also "shell consider . . . the 3 types of alternatives . . . namely the "[njo action alternative",
"[olther reasonable courses of actions", and "[m]itigation measures (not in the proposed action)." 40 C.F.R. $$ 1508.25 1508. 2 5 (b) . And that EIS is also required ("shall consider") 3 types of impacts, namely (1) Direct; (2) Indirect; (3) ,
Cumulative." 40 C.F.R. i 1508.25(c). In asserting that these ,
l l principles govern the need for an EIS embracing the proposal to 1
decommission Shoreham (including its component parts),
t
6 Petitioners note that the NRC explicitly adopted 40 C.F.R. $
3508.25. 10 C.F.R. i 51.14 (b) (1991) .
CONTENTION 2: The need for an EIS on the proposal i decommission Shoreham is established by the Commission's determination in 10 C.T.R. i 51.20(b) (5) in the 1988 Edition and earlier years that a proposal to decommission a nuclear power reactor "should be covered by an environmental impact statement."
That requirement continues to exist for the proposal to decommission Shoreham because the removal of the categorical requirement for EISs on all proposals to decommission nuclear reactors was based upon the Final Generic Environmental Imnact Statement on Decommissionina Nuclear Facilities, NUREG-0586 (August 1988) ("GEIS") which was limited in its scope io fac.tlities where decommissioning is necessary because such facilities are either "at the end of their normal lifetimes" or where there is a " premature closure of a reactor dce to an l accident." GLIS at 8-1. Since Shoreham is not at the end of ita l
l
" normal life" and has suffered no permanently disabling accident, the proposal to decommission Shoreham is outside the scope of the l
GEIS and, therefore, the categorical requirement continues in full force and effect with respect to a proposal to decommission Shoreham. Petitioners have made this acsertion to the Commission repeetedly and the Commission has never denied that a proposal to decommission Shoreham is outside the scope of that GEIS.
CONTENTION 3: Petitioners contend that LILCO's environmental report should address all issues prescribed by 7 -_-yi, .-- ,, , y +,y-_ w. -e, ,...m.,--_ - - - -
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1 Regulatory Guide 4.2 (Rev. 2, July 1976) and 10 C.F.R. Part 51, App. A (1991) as appropriately modified for the proposal at issue as a result of the future application of the Commission's scoping procedures at 10 C.F.R. Il 51.28 & 51.29 (1991) since that format for an environmental report on a nuclear power station has been determined by the NRC Staff to be the format " acceptable to the NRC Staff for implementing [these) specific parts of the Commission's regulations." NUREG-0099, Cover Sheet (July 1976).
CONTENTION 4: An EIS is required for Commission consideration of the proposal to decommission Shoreham because the Plan submitted by the Long Island Power Authority in U.S.N.R.C. Docket No. 50-322 by letter of December 29, 1990 which LILCO has requested the NRC Staf f to consider pursuant to 10 C.F.R. i 50.82 by GNRC-1781 (January 2, 1991) proposes the selection of the DECON alternative (Plan at 1 2.1) which would foreclose the consideration of alternative decommissioning methods including SAFSTOR and ENTOMB. Also, the NRC Staff has recognized that issuance of the POL allows the licensee to " ship l
the fuel support castings and peripheral pieces for off-site i
! disposal . . . .
" Egg SECY-91-129,
Subject:
Status and l Developments at the Shoreham Nuclear Power Station (SNPS) at 3 (May 13, 1991). The Commission approved SECY-91-129 in its Memorandum and Order in Long Island Lighting Co. (Shoreham Nuclear power Station, Unit 1), CLI-91-08, 33 NRC 461, 471 (June 12, 1991). Since DECON is the only alternative "in which the I
equipment, structures, and portions of the facility and site containing radioactive contaminants are removed . . . . from the site," it is clear that allowing LILCO to proceed with the disposal of reactor s.itornals at this time would prejudice the consideration both of SAFSTOR which "is the alternative in which the nuclear facJllty is placed and maintained in a condition that allows the nuclear facility to safely stored and subsequently decontaminated (deferred contamination) to levels that permit release for unrestricted use" and of ENTOMB which is "the alternative in which radioactive contaminants are encased in structurely long-lived material, such as concrete; the ENTOMB structure is appropriately maintained and continued surveillance is carried out until radioactivity decays to a level permitting release of the property for unrestricted use." GEIS at 1 2.4.
Further, with particular reference to a boiling water reactor such as Shoreham, proceeding with DECON without a prior EIS forfeits the consideration of the NRC's recognition that SAFSTOR "is advantageous in that it can result in reduced occupational radiation exposure in situations where urgent land use considerations do not exist." GEIS at 1 5.3.2. It also would deny the similar benefits of avoidance of radiation exposure availabic through the ENTOMB alternative which explicitly foresees the entombment of "the pressure vessel internals and their long-lived . . . isotopes . . . , along with other radioactive material." GEIS at 1 5.3.3. The avoidance of radiation exposures available through the choice of SAFSTOR or
ENTOMB are "NEPA-based considerations" and Atomic Energy Act considerations which would be addressed in the EIS and would be foreclosed by allowing LILCO's proposed actions to go forward without such an EIS. Ese Lona Island Lichtina Co. (shoreham Huclear Power Station, Unit 1) CLI-91-04 (at p.5). NRC ,
(April 3, 1991).
CQlEEilIlOji ji Petitioners contend that the EIS required for consideration of the proposal in question does include the indirect effects of the adoption of that proposal, including the construction of fossil plants and transmission lines to replace Shoreham. Ees 40 C.F.R. 6 1508.8 (1989). The Council on Environmental Quality ("CEQ") requirement for the consideration of and definition of the concept of such " indirect effects" has been adopted by the NRC. 10 C.F.R. 66 51.14(b) &
- 51. 4 S (b) (2 ) (1991).
QQNTENTION Q: LIPA is not financially qualified to become a Part 50 licensee or to engage in any activities under the existing Shoreham license. Egg 10 C.F,R. l 50.40(b) (1991).
(a) LIPA is bankrupt. The audited LIPA financial statements for the year ended March 31,.1991 (App. 51-71) show that, as of that date, LIPA had approxir.ately $6.1 million of current assets, $3.9 million of current liabilities, an accumulated deficit of $11.9 million, nnd total liabilities of spproximately $18.1 million. App. 58. It also shows that LIPA is incurring non-LILCO reimburneable costs at the rate of approximately of $1.3 million per year. App. 70. And this
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picture would be even bicaker were it not for an extraordinary LILCO payaent of $549,544 to LIPA in FY 1991 due to a one-time redetermination of general and administrative expenses attributable-to Shoreham. App. 66.
(b) LIPA has no reasonable prospect of receiving any funds for its non-Shoreham activities. As the independant auditor's report states, "the continuing operations of the Long Island power Authority are dependent upri receiving future appropriations from the State of New York. No appropriations have been granted for the Authority's expenditures beginning .
April 1, 1991 and future appropriation enounts cannot be deternined." App. 57. Further, even if LIPA were to undertake the conversion of Shoreham to a gas fueled electric generating station or other activities, its Chairman has admitted that such utility activities would generate Ds funds for LIPA. hpp. 108.
(c) LIPA is in violation of the Repayment Agreement with the New York State Director of the Budget. App.
1-16. That Repayment Agreement covers only the initial $11 million Fund Appropriation for LIPA. App. 2. It requires LIPA to repay those fund appropriations from the proceeds of its first issuance of bonds (other than repayment bonds) and, if there are no such bonds, then from LIPA " excess revenuesn61 and, only if ft/ " Excess revenues" shall mean authority earnings derived from authority operations and/or investments not required for debt service on authority bonds, reserve requirements en the bonds, or ongoing or projected expenses as approved by the Director to meet the Authority's statutory obligations. App. 3.
1 bond proceeds or excess revenues are not available, may LIPA use
" repayment bonds." App. 6. With respect to all cash reimbursements by LILCO for general and administrative expenses, all such funds constitute " excess revenues" except for $403,317 which the Director of the Budget instructed LIPA to use for its ,
authorized purposes as of July 17, 1990. App. 62. Therefore, LIPA's failure to pay such funds to the State of New York constitutes a violation of the Repayment Agreement and LIPA 5 1020-r.
(d) LIPA's f ailure to delivery a Repayment Bond on April 1, 1988 ir. also in violation of the Repayment Agreement, LIPA 9 1020-r and independently shows a lack of financial and managerial responsibility,a total disrespect for the law and a lack of character required of NRC licensees. Even if LIPA were not required to turn over its excess. revenues to the Director of the Budget, the Pepayment Agreement of August 20, 1987 (App. 2) requires LIPA to have delivered to the " Comptroller, and provide written certification of such delivery to the Director, a repayment bond in ar, amount equal to the unpaid portion" of the
$11 million received pursuant to that Agreement on April 1. 19 Q1 App. 6. However, inquiries to the of fice of the State Comptroller in the Spring of 1211 (App. 91) for coDies of LIPA l " repayment bonds and/or replacement repayment bonris" resulted in l
l a response that there is "no record of any repaynent or replacement bonds being issued and filed with this office" by LIPA. App. 9 2 ; 113 Algg , App. 93 & 94.
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(e) LIPA has received a $2.8 million allocation from New York State in FY 1990 (App. 42) in violation of law.
State Finance Law $ 40-a(2) and 1986 New York Laws Ch. 517 (9) (c) require a Repaymu;t Agreement to be in place between LIPA and the Budget Director before each such appropriation is disbursed to LIPA. However, no such kepayment Agreement exists for the FY 1990 appropriations. Comnare App. 89 Hith App. 90.
(1) Even if LIPA were not currently insolvent and in violation f the numerous state financial laws and agreements discussed above, there is no adequate assurance that LIPA would be able to obtain adequate funds for its proposed activities under the NRC license viewed in isolation. The Site Cooperation and Reimbursement Agreement botseen LIPA and the Long Island Lighting Company ("LILCO") (January 24, 1990) is the principal document relied on by LIPA for the adequacy of funding for its Shoreham-related activities.F The Reimbursement Agreement makes LILCO's obligations to pay all costs attributable to Shoreham
" unconditional and not contingent on any PSC action".
Reimbursement Agreement at 19. And it gives LIPA absolute authority to establish the amounts that LILCO must pay.
Reimbursement Agreement, Article III. However, LILCO's ability to provide such funds to LIPA may be coverely hindered by LIPA's bitter opposition to LILCO's request for rate relief from the New 2/ Petitioners contend that the NRC may not look at the Shoreham-related activities in isolation but rust conrider the financial qualifications of LIPA as a whole.
l
I- 't.-
s; 17 -
York PSC. E.Q., App. 108. And these circumstacues could k9 further aggravated by an underestimation of the decommissioning cost estimate by LIPA. In its December 1990 Decommissioning 2
Plan, LIPA estimated the cost of Shoreham decommissioning at
$186.3 million in Table 5.1-1. However, other estimates now are significantly higher with some reaching in excess of $1 billion.
App. 111. In these circumstances, WSere LIPA dictates the costs that LILCO must pay and then challenges LILCO's recovery of those costs, there is a clear demonstration of total financial irresponsibility on LIPA's part.
CONTENTION 71 LILCO's management fails to meet the character requirements for a NRC licensee.
On February 13, 1991, a manage.nent level meeting between the NRC Staf f and LILCO/LIPA/New York Power Authority was held.in the Washington, D.C. area. App. 116-150 (relevant excerpts).- During that meeting there was-extensive discussion of the adequacy of the financial arrangements for LIPA's proposed 4
activities. 1d. _Among the attendees at that meeting were Mr.
. Richard Kessel, the Chairman of LIPA, Land Mr. Stan Klimberg, the General iCounsel of LIPA.
In particuler, Mr. Klimberg.said: "We have the assurance - of the Public Service Commission that LILCO's ratepayers will provide rates sufficient to pay for all of our
+
costs." App. at 42. And later the Chairman of LIPA added: "I want to'make that emphasis that the assurances that we have of funding to decommissioning Shoreham are a lot-greater than would .
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- f. .,
likely exist if the decommissioning entity were a utility; indeed, if it were LILCO itself." App. 139.
And at another time Mr. Klimberg said "There is no LILC0 or Public Service Commission or any other entity authority to review the reasonableness of those expenditures, so long as they arc expenditures that are covered by Agreements which are costs incurred to undertake this project." App. 135. LILCO was slightly more cautious recognizing that the PSC "is always free to change their mind at some point in time . . . .
" App. 137.
It is important to recognize that all of these reassurances were offered in the context of the Director for Reactor Regulation clearly expressed concern arising from the NRC experience "in our materials licensees where we've had cases, and we have some today, where these companies are either shell companies with no assets or they've vanished into the mist leaving an u' cleaned up situation behind." App. 142.
A short time later, after announcing that LIPA would oppose LILCO's rate request, Chairman Kessel was confronted by a reporter who asked him why he had not mentioned LIPA's intent to oppose the LILCO rate request at the NRC/ licensee meeting. App.
114-15. According to that story in Newsday, Chairman Kessel responded that he had said nothing because "the question was not directed at him. 'There are times when you walk a very difficult line,' Kessel said. 'And that was one of them.'" Ap .s . 115.
As the portions from the transcript above indicate, Chairman Kessel not only failed to disclose LIPA's intention to l
I oppose the LILCO rate request, but also offered assurances as to the smoothness of the PSC rate process that could be considered misleading as to a lack of intent to oppose.
In the context of NRC licensing, such misleading by silence, lack of candor and openness, and, perhaps, affirmative misleading merits denial of the license transfer application for a lack of managerial character.
There are also perhaps many other areas in which LiPA has been conducting itself in violation the manangerial character requirements for NRC licensees. However, without discovery orders from this Board, such management misconduct cannot be discovered through the normal State of New York Freedom of Information Law processes, since LIPA simply ignores its responsibilities to respond to such requests. App. 95-97. This only further demonstrates LIPA's failure to meet management character standards for NRC licenseer..
Respectfu)1y submitted, November 18, 1991
- h M -
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gpmerF.McGraner//[Jr.
LDow, Lohnes & AlbWrtsc 1 Suite 500 1255 Twenty-Third Street, N.V.
Washington, D.C. 20937 (202) 857-2929 Counsel for Petitioners Shorchem-Wading River Central School District and Scientists &
Engineers for Secure Energy, Inc.
l.
_--------_mm..__ _-_____ _____
t ri ;i U Uahnt uUNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'91 KN 19 A8 51 BEFORE THE ATOMIC SAFETY AND LICENSING BQARD cr6 n o ra <
t El
) NCn! ig In the Matter of ) Docket No. 50-322-OLA-3
)
LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-642-OLA-3
)
(Shoreham Nuclear Power Station, ) (License Transfer)
Unit 1) )
)
CERTIFICATE OJ_ SERVICE I hereby c rtify that copies of the Petitioners' Joint Supplemental Petition 1.1 the above-captioned proceeding have been served on the following by (a) (1) hand or (a)(ii) telecopy (and, as a courtesy, air courier), or (b) first-class mail, postage prepaid on this 18th day of November, 1991:
Thomas S. Moore, Chairman Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 (first-class mail) (first-class mail)
George A. Ferguson Edwin J. Reis, Esq.
Administrative Judge Mitzi A. Young, Esq.
Atomic Safety & Licensing Board Office of the General Counsel U.S. truelear Regulatory Commission U.S. Nuclear Regulatory Commission 5307 Al Jones Drive Washington, D.C. 20555 Columbia Beach, Maryland 20764 (hand delivery)
(first-class mail)
W., Taylor Reveley, III, Esq. Samuel A. Cherniak, Esq.
Donald P. Irwin, Esq. NYS Department of Law Hunton & Williams Bureau of Consuncr Frauds Riverfront Plaza, East Tower and Protection 951 East Byrd Street 120 Broadway Richmond, Virginia 23219-4074 New York, New York 10271 (telecopy & air courier) (telecopy & air courier)
Carl R. Schenker, Jr., Esq. Gerald C. Goldstein, Esq.
O'Melveny & Myers Office of General Counsel 555 13th Street, N.W. New York Power Authority Washington, D.C. 20004 1633 Broadway (hand delivery) New York, New York 10019 (first-class mail)
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Stanley B. Klimberg, Esq. Nicholas S. Reynolds
. Executive Director & David A. Repka
-General Counsel Winston & Strawn Long Island Power' Authority 1400 L Street, N.W.
-200-Garden City Plaza, Suite 201- Washington, D.C. 20005 Garden ~ City, New York 11530 (hand delivery)
(first-class mail) u_ m m-J/u'nes P. McGranery. Vf' Munsel for the Pe i ioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy,-Inc.
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