ML20096A507

Suppl to Joint Opposition to NRC Staff Recommendation for Issuance of Decommissioning Order Prior to Hearing & Contingent Motion for Stay.* Supplements Joint Opposition Prior to Hearing.W/Certificate of Svc

ML20096A507
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/05/1992
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY
To:	NRC COMMISSION (OCM)
References
CON-#292-12887 CLI-92-04, CLI-92-4, DCOM, NUDOCS 9205110091
Download: ML20096A507 (6)

Text

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, BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION D0 . 0 0

COMMISSIONERS:

Ivan Selin, Chairman

Kenneth C. Rogers James-R. Curtiss u ' E! A L iiitai '

Forrest J. Remick E. Gail de Planque

1. U'@l'#'

) Docket No. 50-322 - b%

In the Matter of )

) t"Long Island Lighting Co.,

LONG ISLAND POWER AUTHORITY ) Consideration of an Order

) Authorizing Decommissioning (Shoreham Nuclear Power Station, ) a Facility and Opportunity Unit 1) ) for Hearing," 56 Fed. Reg.

) 66459 (December 23, 1991))

SUPPLEMENT TO JOINT OPPOSITION TO THE NRC STAFF'S RECOMMENDATION FOR ISSUANCE OF A DECOMMISSIONING ORDER PRIOR TO HEARING AND CONTINGENT MOTION FOR STAY The Shoreham-Wading River Central School District

(" School District") and Scientists and Engineers for Secure Energy, Inc. ("SE2"), Petitioners in the above-captioned proceeding, hereby supplement their Joint. Opposition to the NRC Staff's Recommendation for Issuance of a Decommissioning Order Prior to Hearing to identify an additional mischaracterization of the instant proceeding by the NRC Staff and an apparent typographical error in the Commission's Scheduling Order.

THE MISCHARACTERIZATION In Policy Issue (Notation Vote) Paper SECY-92-140 (April 17,.1992) ("SECY-92-140"), the NRC Staff mischaracterized the Eederal Reaister notice of the above-captiened proceeding as having been " drafted in the form of an order conventionally used l-1 p DO O 00 g2 gh 5 u

under the-provisions of 10 C.F.R. Part 2, Subpart B." And then, said that LIPA's January 13, 1992 letter was "[ijn recognition of this." SECY-92-140 at 2. Without trying to divine the Staff's motivation for this mischaracterization, the School District and SE2 submit that it is a totally unsupportable characterization for three reasons.

First, 10 C.F.R. Part 2, Subpart B consists 10 C.F.R. 55 2.200-2.206 (1991) which describe particular circumstances "in cases initiated by the staff, or upon a request by any person, to imoose reauirements by order, or to modify, suspend or revoke a license, or to take any other action as may be procer, acainst anv nerson subject to the jurisdiction of the Commission." 10 There is no hint in

~

C.F.R. 9 2.200(a) (1991) (emphasis added).

the above-captioned. notice that it was to " impose requirements by order or to modify, suspend, or revoke a license or to take other action-as may be proper, aaainst" the Long Island Power Authority

("LIPA") or Long Island Lighting Company ("LILCO").I' Moreover, the NRC' Staff's exercise of power pursuant to Subpart B is

= limited to situations where there is an " alleged violation of any provision of the Act or this chapter or the conditions of the license"-(10 C.F.R.-5 2.201(a) (1991)) or where there are "potentially hazardous conditions or other facts deemed to be 1/ Subpart B also prescribes procedures for civil penalties under the Atomic Energy Act and the Energy Reorganization Act of 1974. 10 C.F.R. 55 2.200(b) & 2.205-(1991). Although the School District and SE2 may consider that penalties would be appropriate for LILCO ~ and LIPA, there is nothing in the above-captioned notice to indicate that it was proposing such civil penalties.

sufficient ground for the proposed action" (10 C.F.R. $

2. 202 (a) (1) (1991)).- There is nothing in tho e.bove-captioned notice that indicates any violations or allegations of potentially hazardous conditions. Further, there is nothing in Subpart B that indicates that there should be a notice in the Federal Reaister, such as the above-captioned notice. And, if this were a " notice of violation," it would have " require (d)" the licensee to respond, which it did not, gag 10 C.F.R. 5 2.201(a).

And if it were an " order to show cause," it would have specified that the licensee's responsive filing would have to be "under oath or. affirmation," and the notice would have specified the issues, and would have stated the effective date of the order; the above-captioned order did none of these things. 10 C.F.R. 5

2. 202 (a) (2) , (4), (5) & (b) (1991). In short, the Staff's characterization of the above-captioned notice as a Part 2, Subpart B notice is totally specious.

Second, there is nothing in LIPA's letter of January 13, 1992_that indicates that LIPA recognizes the above-captioned notice as a Part 2, Subpart B notice. Egg U.S.N.R.C. Docket No.

50-322'LSNRC-1883 (January 13, 1992). The only reference to the L

l above-captioned notice in that letter is the statement that "the NRC published notice of its intent to approve the Shoreham

[ decommissioning plan. Set-56 Fed. Reg. 66459 (1991). The t

requested amendment would allow LIPA, after it has become the licensee, to-implement that Shoreham Decommissioning plan." Id.

at 1. The concepts of " intent to appuove" and "would allow LIPA 1

~4 -

. . - . to imp 1.ement" indicate the granting of a LIPA request, rather than " impose (ing] requirements . . . against" LIPA. Ess 10 C.F.R. 5 2.200(a) (1991). Moreover, in LSNRC-1883 (at 2-3).

LIPA seeks approval of the decommissioning plan pursuant to 10 C. F.R. 5 50.91(a) (4 ) after publication of a No Significant Hazards Consideration determination in the Federal Resittnr. No such- procedure is required for an order pursuant to Part. 2, Subpart B. Finally, the licensco's characterization of the notice (even if it had been as the NRC Staff said) is irrelevant.

Third, if there were any doubt as to the character of the above-captioned notice, it was resolved by thic Commission in referring the School District and SE2 petitions to intervene and requests for hearinge to the Atomic Safety and Licensing Board

("ASLB") Panel where the Commission noted that this was a proceeding' notice pursuant to 10 C.F.R. 5 2.105 (1991). And in appointing'ASLB_in this proceeding, the ASLB Panel also explicitly recognized that this was a proceeding notice pursuant to 5 2.105. Long. Island Power Authority; " Establishment of Atomic Safety and Licensing Board," 57 : ed. Reg. 12949 (April 14, 1992). Neither the ASLB Panel nor this Commission characterized the notice as being pursuant to 10 C.F.R. 55 2.201(a) or 2.202(a)

-(1991).

HQ1LQE OF TYPOGRAPHICAL ERROR In issuing the Scheduling Order of April 30, 1992 in the above-captioned matter, the Secretary noted that "the licensee may file . . . .

" The School District and SE2 hope that l

, , - , _v , .._e

'- LILCO will not consider itself barred from participation in this matter by this typographical crror, which.should have read "the licenseen." It is clear from the Comniission's decision in isD9 Island Lichtina Ctz (Shoreham Nuclear Power Station, Unit 1),

CLI-92-04~at 10 & n.6, __ NRC _ (February 26, 1992) that there are two licensees: While LILCO remains the licensee with sole possession of the Shoreham POL (" possess, use by not operate"),

control of that license was transferred to LIPA naking LIPA also an NRC licensee.

This supplement is being telecopied to LILCO, LIPA and the NRC Staff on May 5, 1992 in the event that they may wish to address it tomorrow.

Raspectfully submitted,

!) -LT)

,_ as,L_/A< h7 ,/.

}

May 5, 1992 Jrimes P. McGranery, fity /

dw, Lohnes & Albertson Suite 500 1255 Twenty-Third Street, F.W.

Washington, D.C. 20037

, (202) 857-2929 Counsel for Petitioners Shoreham-Wading Ri"er Central School District and Scientists and Engineers for Secure Energy, Inc.

A_

W BEFORE;THE UNITED STATES-

! *ULD

- N.UCLEAR MGUTF'9Y . COMMISSION u s e.

-[  ::COMMIS'SIONERS:.

7Ivan Selin,JChairman 72 MM -6 P4 :08 KennethLC.'Rogersj

{m  : James 1RL Curtiss#  : W du of mcw <

ForreJt J.iRemick DOCKf hNG & Sf uYlCl-

• A. ' BRANDi '

E.1Gail:deiPlanque .

. , )' _ Docket'No.:50-322

. In1the Matter of-

)

, ) .- ("Long Island Lighting Co'.,

LONG ISLANDzPOWER AUTHORITY ) Considerationiof:an Order

) ' Authorizing Decommissioning- ,'

(Shoreham Nuclear Power Station, ) _'a Facility and Oprortunity Unit ~1)f ). for Hearing;" 56-Fed..-Reg.

) 66459 (Decerber 23, 1991))

. CERTIFICATE OF SERVfCE 1-herebyfcertify that=.a'. copy.of the Petitioners'-Supplement to their-

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? Joint-Opposition to the NRC Staff!s Recommendation for Issuance of a Decommissioning.OrdernPrior to Hearing and Contingent Motion for Stay-in y the-above-captioned l proceeding have-been served on the following by-

@ }telecopy and_first-class mail,-postage prepaid on this 5th day;of May,

=:1992:s l

ww. . _

s ._ Edwin _ J. : Reis, Esq.~ _ W. Taylor.Reveley, III, Esq.

4 7':Mitzi A.; Young, Esq.-

Donald P. Irwin', Esq.

'Hunton &. Williams office of-the General Counsel

- (U..S.fNuclear Regulatory Commission Riverfront-Plaza,. East Tower y Lone 1WhiteTFlint North 951-East Byrd~ Street a15553 R'ckville Pike - - Richmond , _: Virginia 23219-4074-

~

o l:Rockvill'e',iMaryland 120852 TCaillRi LSchenker, Jr. , Esq.

4

( LO!Melveny & Myers-

> ?M. 555(1.ith Street, N.W.

• Washin9 ton, . D.C. ..-20004 -

W s sh .

JaIJHf@is P. McGranery,'Jg/ff l7

• 1 C o M s e l f o r t h e P e t i 'f i o n e r s

, 1 W -Shoreham-Wading River Central School District and $cientists and Engineers'for Secure Energy, Inc.

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