ML20096A531
| ML20096A531 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/06/1992 |
| From: | Reynolds N, Rogovin J LONG ISLAND POWER AUTHORITY, O'MELVENY & MYERS, WINSTON & STRAWN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#292-12889 DCOM, OLA-3, NUDOCS 9205110100 | |
| Download: ML20096A531 (42) | |
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-* 000KET t!ULmER 3 78f POD.& UT'L FAC.k d D ul lt i-t' MU LIPA May 6, 1992
'92 MY -6 P 4 34 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION :rt, -
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In the Matter of ) Docket No. 50-322-OLA-3
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LONG ISLAND POWER AUTHORITY ) (Decommissioning)
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(Shoreham Nuclear Power Station, )
Unit 1) )
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THE LONG 78 LAND POWER AUTHORITY'S COMMENTS ON BECY-92-140 AND RESPONSE TO PETITIONERS 8 JOINT QEEQRITION TO_ DLCSMMISBLQNING ORp3R In SECY-92-140 the Staff of the Nuclear Regulatory Commission ("NRC" or " Commission") recommended that, pursuant to 10 C.F.R. Part 2, Subpart B, the Commission authorize issuance of a Decommissioning Order ("Do") approving the Decommissioning Plan
("DP") for the Shoreham Nuclear Power Station ("Shoreham"). This plan was submitted by the licensee Long Island Power Authority
("LIPA"), with the support of the then-licensee Long Island Lighting Comps.ny ("LILCO"), more than 16 months ago, in December 1990, and has been thoroughly reviewed and accepted by the NRC Staff. (S_qq SECY-92-140, p. 1.) LIPA fully endorses the Staff's careful analysis, LIPA's DP is a straightforward plan to decommission, using the DECON method, a minimally contaminated facility and 9205110100 920506 b9o3 PDR ADOCK 05000322 d j
G PDR
- s. a j thus implement the February 1989 Settlement Agreement between :
- LILCO and the State of New Ycrk. Further, as previously explained, the NRC's prompt approval of LIPA's DP is even more urgent in light of the upcoming closure of the waste repository at Barnwell, South Carolina and Hanford, Washington on P
December 31, 1992. (Ekg Let'ter from Richard M. Kessel, LIPA, l Chairman to Commissioners (April 28, 1992) ("Kossel Letter") ;
Af fidavit of Leslie M. Hill (April 28, 1992) (" Hill Aff.").)
As part of their scorched-earth campaign to delay or prevent the decommissioning of Shoreham for financial and 1 philosophical reasons, the Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc., i (collectively " petitioners") have submitted a 28-page opposition
(" Pet. Opp.") to the Staff's recommendation for protnpt approval of LIPA's DP. Notably, however, petitioners raise no colorable public-health-and-safety concerns about LIPA's DP. Rather, grasping at every conceivable straw, petitioners raise a :
potpourri of obscure and pettifogging objections in the obvious i hope of 8ecuring even more delay and thereby imposing completely ,
unnecessary and avoidable expenses on Long Island ratepayers, who have been bearing Shoreham's ongoing expenses for three years now while LILCO and LIPA have struggled to obtain various commidnion approvals in the f ace of petitioners' obstructionism. If petitioners must be allowed to continue burdening the Commission's processes for their own extraneous purposes, they .
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f 4 should be confined to the cpportunity for a post-approval hearing, as recammenced by SECY-92-140, and the public interest would be served by the prompt approval of LIPA's DP, i
The Commission also should reject petitioners' perfunctory request for an administrative stay. (Pet. Opp., pp.
1-2.) These very petitioners have sought emergency stays of Shoreham-related NRC orders on threo prior occasions from the D.C. Circuit or the Second Circuit, but have secured no relief.
Egg D.C. Cir. No. 90-1241 (filed May 7, 1990) & No. 91-1301 (filed June 26, 1991); Second Cir. No. 92-4034 (filed March 2, 1992). This track record amply demonstratca the lack of equity in petitioneru' repeated requests for emergency judicial relief.
An administrative stay is not an entitlement, and petitioners have made no showing that a stay is warranted. The Commission should not assist petitioners in their plan to burden the courts with yet another unfounded application for emergency relief.2 2
The pettifogging nature of petitioners' objections is -
particularly evident in tho.May 5, 1992 " Supplement" to their Jo2nt Opposition, served on counsel for LIPA at 5: 30 p.m. <
yesterday. This prolix exegesin about supposed "mischaracterization(s)" and " typographical error (s)" is reminiscent of petitioners' carlier unsuccessful arguments that the Commission could not issue the March 1990 Confirmatory Order ,
under Part.'II Subpart B for similar reasons. The argument has no greater vitality in this context. The Staff states only that the as11En would be " drafted in the form of an order" as used for subpart B orders. -The Staff does not imply, nor need to conclude, that the Do ymOcLb.c a subpart B order. The Do is an order pursuant to 10 C.F.R. 5 50.82 (e) . Authority for the order therefore clearly exists. Since the decommissioning rule is silent on the form of the notice, the Staff was hardly (continued...)
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I. NEITHER THE AEA NOR THE APA INPOSES h PRIOR HEARING MnUlRKERT. .- -
Petitionars argue at length that they are entitled to a hearing griar to issuance of a DO approvir.g LIPA's DP because of the application of four sections of the Administrative Procedure Act ("APA"), 5 U.S.C. ll 554, 556-558, which deal with the formal adjudicatory requirements applicable to certain federal agency hearings. (Ecs Pet. Opp., pp. 14-22).2 As shown below, however, these provisions of the APA do not require a f ormal pre-effectiveness hearing, and neither does the Atomic Energy Act of 1954, 42 U.S.C. $ 2011 at_S.gg.. ("AEA").
- (... continued) unreasonable in adopting a form used for orders in other contexts.
2 Entt19n Milal provides that its ptovisions apply "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing."
ERE.ti2rl_Ms explains that a hearing required by Section 554 must comply with certain procedutos regarding the taking of evidence, the authority of the presiding officer, the allocation of the burden of proof, and the preparation of a transcript.
Section 557 explains the requirements for decisions that are made atter any hearing held pursuant to section 556, including the effect cf a decision rendered by the agency, the right of the parties to submit proposed findings and conclusions, and the rule against ex parte contacts.
Section sig explains an agency's authority under the APA to impose sanctions, deterrine applications for licenses, and oversee the suspension, revocation and expir tion of licensus.
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l htomip__Enercy Ant. Consistent with the Commission's prior decision in LgDE_1 gland Lichtina_Co. (Shoreham Nuclear Power Station, Unit 1), CLI-92-04, __ NRC __ (1992), SECY-92-140 properly recognizes that the AEA does not entitle petitioners to a pre-effectiveness hearing. (Egg SECY-92-140, p. 4.) In CLI- l l
92-04, the Commission explained the limited circuustances in which such a pre-effectiveness hearing is required:
l (T]he AEA requires the Commission to hold a pre-effectiveness or " prior" hearing on certain applications for a construction permit (second sentence (of AEA 5 189(a)?), and_to orfor a pre-effectiveness hoaring on certatn applications for an amendment to a construction oermit, an oceratina licengs, or an '
amendment to an ooeratina liconga (third and fourth sentences (of AEA 5 189(a))). Where applications for actions which do not fall into the four categorins described above are involved, the Commission has construed section 189a(1) as not requiring the offer of a pre-effectiveness or " prior" hearing. . . . This interpretation is long-standing, and supported by the legislative history of the 1957 amendments to the AEA which added the second sentence to section 189.
Egg CLI-92-04.. p. 9 (footnotes omitted).
In the present case, petitioners concede that the proposed Do is not a license amendment, not an operating license, and not a construction permit. (Eng Pet. Opp., p. 4.) Thus, a straightforward application of CLI-92-04 -- which petitioners ignore in their discussion -- disposes of any claim to a mandatory' pre-effectiveness hearing on AEA grounds. It is entirely within the NRC's authority in this case to issue the Do, 5
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make it immediataly effective, and offer a post-effectiveness hearing. For all the reasons articulated by the NRC Staff, (including the purely discretione.ry attd supplementary findings that the DO involves no significa1.s hazards consideration), this is an appropriate course.
h @gini.!LtL411y_e_,1ro c e d u r_olg t . Undeterred, petitioners argue that the hEh grants them a right to a hearing even though the AEA does not. That argument appears to contain four stopc:
(1) AEA 5 189 grants a right to a hearings (2) AEA $ 181 incorporates the APA; (3) the APA requires that all 6 189(a) hearings be "on the record"; and (4) all "on the record" 5 189(a) hearings are required to be pre-effectiveness hearings.
There are at least two fundamental flaws in petitioners' chain of reasoning. First, as the cases described by petitioners themselves demonstrate, there is no requirement that all AEA 5 189(a) hearings be "on the record" proceedings, and the legislative history cited by petitioners only confirms this conclusion. (Eg2 Pet. Opp., pp. 15-22.) Second, even if it were true that all 5 189(a) hearings were to be "on the record" hearings, it does not follow that they have to be pre-effectiveness hearings.
It is a well-settled principle, which petitioners nowhere dispute, that an "on the record" hearing is required by 6
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I the APA only if the underlying statute requires it. EE2, EAS.,
United States v. Florida _ East Coast Rv. Co., 410 U.S. 224, 238 (1973) ; United St ates V.A_Allfahtny-Ludlum Steel Corn. , 406 U.S.
742, 757 (1972). Even the authority cited by petitioners (Pet.
Opp., p. 16) confirms this critical point. 222 Attorney General's Manual on tile APA, p. 41 (1979) ("the formal procedural l
requirements of the (APA) are invoked only where agency action "on the record after opportunity for an agency hearing" is required by some other statutq").
This limiting principle is equally well settled with respect to-the AEA. Indeed, petitioners concedo (Pet. opp., i pp. 15-16 & n.9) that numerons precedents hold that, in the absence of express provision in the AEA, the APA does not require an "on the record" hearing under AEA 3 189(a). S.22, Ea.g . , City of West Chicaao v. NRC, 701 F.2d 632, 638-39 (7th Cir. 1983)
(Section 558 of the APA "does not independently provide that formal adjudicatory hearings must be hold"); Union of conctrned Ssientists-("UCS"l v. NRC, 920 F.2d 50, 53 Is.3 (D.C. Cir. 1990);
UCS v. NRC, 735 F.2d 1437, 1444 nn.11-12 (D.C. Cir. 1984), Ecrtz ,
dgnied, 469 U.S. 1132 (1985).
According to petitioners, the " problem" with this overwhelming line of authority "is that the courts considering this issue-have focused only on AEA 55 181 & 189." (Pet, opp.,
- p. 16.) Petitioners then prof fer an elaborate discussion of the 7
legislative history of AEA 5 191, 42 U.S.C. 5 2241, which provides as follows:
H.otwithstandina the orovisions of (sections 1 7(a) and 8(a) of the Administrative Procedure Ac1, the Commission is authorized to establish one or more (Licensing Boards).
42 U.S.C. 5 2241 (emphasis added); gan Pet. Opp., pp. 19-22.3 '
But petitioners' argument based on AEA i 191 adds nothing. That section merely restates, through negative ,
implication, that which is stated explicitly and simply in AEA b 1811-- that the APA applies to the AEA. poring over the legislative history of AEA 5 191 is not necessary to establish this proposition. No aspect of the legislative history will change the fundamental prir.ciple that the "on the record" requirements of the APA will not be imported into the AEA unless there is clear congressional intent favoring a formal hearing.
Finally, petitioners' argument fails for a second, wholly independent reason. Even assuming arcuendo that the legislative history cited by petitioners demonstrated that all hearings under AEA $ 189 must comply with the formal "on the.
record" requirements of the APA, that would still not answer the 8
Sections 7(a) and 8(a), 5 U.S.C. 55 556 and 557, as discussed above (p. 4 n.1), state the formal procedures to be undertaken in a hearing subject to the APA's formal adjudicatory procedures.
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only question relevant here -- whether a orlor hearing is necessary in this proceeding. Petitioners have cited absolutely no authority even addressing the question whether an "on the record" hearing must always-be held before an agency action is declared effective. And the NRC's longstanding practice is entirely inconsistent with any such-implication.
II. PETITIONER 8' BHOLLY-RELATED CRITIQUE 8 ARE INAPT AND PRESENT NO BASIS FOR REJECTION OF THE STAFF'8 BE.QQM!iEMR& TION. . ..
9 Petitioners also contend that the Staff's recommendation for pre-hearing approval of LIPA's DP does not comply with the Commission's Sholly procedures. (Pet. Opp.,
pp. 4-13.) As shown below, petitioners' arguments are not germane and, even if they were, none of them counsels against approval of the Staff's recommendation.
A.- The Commission's Sholly Requirements Are Inapplicable Because The Recommended DO Wil .Not Angpd The shoreham_ Mgense.
Petitioners first argue that Sholly procedures "are not available" for pre-hearing approval of a decommissioning plan.
(Pet. Opp., p. 4.) But, even assuming argunndg that petitioners' assertion would have merit in the context of a DO amending the Shoreham license, the assertion is simply irrelevant here because 9
J the Staff's recommendation involves no proposed amendment of the Shoreham license.'
Petitioners' argument that the Sholly procedures are unavailable could have significance only if this case involved a license amendment that could not be made effective prior to a hearing without reliance on the Sholly procedures. The Staff has amply demonstrated (and petitioners have not shown any error in such demonstration) that the DO approving LIPA's DP is a form of agency action that does ngt amend the existing Shoreham license and therefore presents no occasion for invocation of the Commissions Sholly procedures. (Eng SECY-92-140, pp. 3-4.)
It is, of course, true that the Staff references a No Significant Hazards Consideration ("NSHC") analysis in SECY 140. However, the Staff expressly states that it will include the NSHC analysis "in order to assure that the staff's assessment of the request (for DP approval) is documented even thquah not
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There also is no merit to petitioners' underlying premise that prehearing approval is impermissible in connection with an amendment of Shoreham's license now that it has been downgraded to a possession - only license (" POL"). (Egg Pet.
Opp., p. 4.& n.2.) LIPA and the NRC Staff have previously demonstrated (1)-that Sholly procedures have long been followed in amending possession-only licenses and (2) that it would be absurd !.f amendments of an operating license could be made immediately effective but amendments to a possession-only licence
- could not. (Egg LIPA Opposition to Motion for Stay of License Transfer and suggestion of Mootness (dated Dec.- 30,.1991), pp. 9-11 & nn.8-10; NRC Staff Response to Petitioners' Motion for Stay
'and Suggestion of Mootness (dated Jan. 6, 1992), pp. 6-8 & nn.11-17.)~
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r_tagired by the form __.of the approval." (SECY-92-140, p. 6 (emphasis added).) Since an NSHC determination is "not required by the form of approval," !;RC approval of LIPA's DP on a pre-hearing basis plainly cannot be defeated by petitioners' assertion that the Sholly procedures "are not available" (Pet.
Opp., p. 4), nor by petitioners' subsidiary arguments that an NSHC determination would not meet all regulatory requirements.
Aa shown below, the Staff has employed the HSHC criteria merely as a way of documenting its assessment of the regulatory action and as an additional basis for recommending immediate effectiveness of the DO. There is no requirement that the process followed in issuing the NSHC finding or Staff analysis comply with the Commission's Sholly regulations.5 Contrary to petitioners' suggestion (Pet. Opp., p. 13),
the foregoing conclusions are not affected by LIPA's January 23, 1992 request for a license amendment approving its DP. (Sen LSNRC-1883, Letter from L.M. Hill, LIPA, Resident Manager to NRC (Document Control Desk) (Jan. 13, 1992) ("LSNRC-18 8 3 ") . ) LIPA's January 13, 1992 request was made as a contingency, to avoid 5
This conclusion applies not only to petitioners' arguments on the technical merits of the NSHC analysis performed by LIPA and the NRC Staff, but also to petitioners' argumento on the Sholly procedures to be followed. Stated simply, the procedures of 10 C.F.R. $ 50.91 that relate to an NSHC finding (gtg., the definition of " emergency" situations andLthe requirements related to notice and comment) simply do not apply in this case.
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l delay in the event the Staff concluded that a license amendment was necessary to approve LIPA's DP.
B. Pre-Hearing Approval Of LIPA's DP Presents No Significag Hazards Conpidelpt h s.
Citing 10 C.F.R. 5 50.92(c)(1) and (2), petitioners next contend that "[t]he NRC (cjannot (m)ake an NSHC (d]etetuination for the DO" because decommissioning supposedly involves "new and different" potential accidents and increased potential for accidents. (Pet. Opp., p. 4.) For the reasons already discussed, however, this argument is beside the point.
The recommended Do will not amend the Shoreham license and therefore can be issued and made immediately effective without an NSHC determination; the " fundamental provisions" of the existing license will remain in place to " govern () the possession and use" of Shoreham. (SECY-92-140, p. 4.) Furthermore, as the Commission noted in promulgating section 50.92, a NSHC deterrJnation should be made taking into account the regulatory status of a plant. 51 Fed. Reg. 7744, 7747 col. 3 (1986). Given Shoreham's status, there can be no doubt that the Staff is fully warranted in concluding, as LIPA demonstrated, that the recommended Do involves no s3gnificant hazards considerations.
(Esa SECY-92-140, pp. 2, 6.)
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I "New ArL4_D11f3ttatlg.gidentAd LIPA's DP analyzes ten areas of potential hazard for the course of decommissioning. ,
(Egg DP Section 3.4.) LIPA has previously demonstrated that these matters involve no "new" or "different" accidents for NSHC purposes, and petitioners neither allege nor show error in any specific aspect of .LIPA's analysis. (CgagnI.g LSNRC-188 3 ; LSNRC-1899, Letter from L.M. Hill, LIPA, Resident Manager to NRC (Document Control Desk) (Jan. 22, 1992) ( " LSNRC-18 9 9 " ) ylth Pet.
Opp., pp. 4-7.)' Instead, citing San LyirLQhigng_Jip_ther g ipy peac2.v. NRC ("S1QMEE"), 799 F.2d 1268, 1270-71 (9th Cir. 1986), ,
petitioners sweepingly contend that an NSHC determination is inapproprj ate because the potentia.1 accidents analyzed in LIPA's DP are not in every instance conpletely identical with accidento previously analyzed. (Enn Pet. Opp., pp. 4-6.) This position in meritless.
In the SLOMFP case, the licensee sought (1) to increase fivefold the number of fuel rods permitted to be stored in the Diablo Canyon spent fuel pools and (2) to replace anchprod fuel pool racks with "a new rack design" of unanchored racks even though the plant is located in "an active seismic zone." 799 i F.2d at 1269-70. The requested amendments thus created the I '
Contrary to petitioners' assertfons (Pet. Opp., p. 5),
l LIPA's January 22, 1992 analysis does not concede that the matters analyzed in LIPA's DP constitute "new" and "different" accidents. To the contrary, LIPA's January 22 analysis demonstrated why the matters referenced in the DP did-ngt involve "new or different" accidents. (Eng LSNRC-1899, App. I, pp. 3-4.)
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l possibility of a new accident -- unanchored racks "collid[ing) with the walls of th9 pools or with each other" during an earthquake, which in turn "enhanc[ed) the risk of a nuclear reaction occurring in the pools," a possibility which the NRC 9
conceded to se "sufficiently serious to justify a later hearing."
Id. at 1270. It was only on those extreme facts that the Ninth ,
Circuit rejected the NRC's NSHC determination on the ground that prior analyses had not addressed the "ang31fic kinds of accidents petitioners identify." Id. (emphasis added).'
t As noted, the new-accident allegations in SLOMFP were highly specific, and the case cannot appropriately be extended beyond its facts. By contrast, petitioners here have made no specific showing whatever that any of the potential accidents referenced in LIPA's DP -- none of which involves changes in ,
design parameters for an operating plant -- involves "new" or "different" considerations from potential accidents previously analyzed.
The current Shoreham licensing basis is defined by the Defueled Safety Analysis Report ("DSAR") that supported, among 7
There is nothing in the SLOMPP opinion to support
_ petitioners' assertion that, in making an NSHC determination, the NRC may not conclude that the consequences of a potential accident "will not be greater than the consequences of a distinct accident which has been previously evaluated." (Pet. opp., p. 6
'(emphasis added).-) This was not the basis of the Court's decision, which rested on the different nature of the rack-collision accident.
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other amendments, the current possession-only license (" POL").
The DSAR included specific and thorough accident analysos, which in turn have been relied upon in LIPA's DP. As explained in LSNRC-18 99, App. I, p. 3, The set of accidents contained in DP Section 3.4 have either been previously evaluated directly in approved Shorcham licensing basis documents, or are considered to be subsets of accidents previously evaluated in approved Shoreham licensing basis documents.
Thus, there is no substance to the' claim that the DP pre 1ents new or different accidents from those previously analyzed.
The fuel handling accident referenced in DP Section 3.4.1.8 was.previously analyzed in Section 15.1.36A of the DSAR.
That analysis underpinned the prior amendment of the Shoreham Emergency Plan and downgrading of the Shoreham license to possession-only statuc. (Eng LSNRC-1899, App. I, p. 3.) Two of the other matters addressed in LIPA's DP -- effects of natural catastrophes and effects of security breaches (DP Sections 3.4.1;9 and-3.4.1.10) --
are not specific accidents at all, but rather involve broad matters that have been thoroughly addressed at Shoreham and have no special nexus to decommissioning. (Eng LSNRC-1899, App. I, p. 3.)
Finally, the DP addresses seven other matters -- for example, dropping of a waste container contatning activated 15
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concrete rubble resulting from decommissioning -- each of which simply represents a decommissioning-specific application of l
classes of accidents that have previously been analyzed on the Shcreham docket. (Id., pp. 3-4.)8 As the Commission well knows, Shoreham is a minimally contaminated plant the decommissioning of which entails infinitesimal radiologica? :
exposures. Nothing in the SbOMFP case supports petitioners' sweeping assertion that an NSHC determination cannot be made here simply because the potential decommissioning accidents differ in minor details (for example, the source of waste in a container) from prior analyses. Further, this view of the NSHC evaluation is contrary to longstanding Staff practice and, if applied to operating reactors, would frustrate the routine license amendment process. Here, also, petitioners' insistence on complete identicality seeks to paralyze the commission and delay as long as possible Shoreham's radiological decontamination, contrary to
, the public interest.'
8 The six other matters analyzed in the DP involve (1) a combustible waste fire, (2) a contaminated sweeping-compound fire, (3) a vacuum filter-bag rupture, (4) an oxyacetylene explosion, (5) an explosion of liquid propane gas leaked from a forklift, and (6) a-contanination control envelope rupture.
(Egg DP Sections 3.4.1.'2 through 3.4.1.7.)
Petitioners' reference to NRC Information Notice 92-21
.r n gothing. (Egg Pet. Opp., p. 7 n.3.) Fuel disposition is art of. decommissioning. Further, LIPA has analyzed the af) tcability of the Information Notice to Shoreham and has cor.cluded that the concerns identified in the Information Notice are not applicable to the fuel stored in the Shoreham Spent Fuel Pool.
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IAq19Ap.e_d. Probability of Accidents. Petitioners further contend that an NSHC determination here would not comport with 10 C.F.R. 5 50.92 (c) (1) because approval of LIPA's DP "will involve a *.tgnificant increase in the probability of accidents."
(Pet. Opp., p. 7.) But, far from creating an obstacle for the Staff's recommendation, this assertion simply demonstrates yet again the error in petitioners' approach.
Nowhere in petitioners' opposition is there a single word of analysis showing or tending to show that a fuel damage accident, a natural catastrophe, a breach of security, a waste container drop, or any of the other potential accidents would be more likely to occur during decommissioning than previously was the case. Indeed, petitioners' argument seems to be premised on the erroneous.and unsubstantiated assumption -- ruled out by the absence of a license amendment -- that approval of LIPA's DP "would allow a significant reduction in the safety procedures at Shoreham." (Compare Pet. Opp., p. 7 with SECY-92-140, p. 4.)
Such an assumption has no factual basis.
Even more important. the operations to be conducted during decommissioning are not substantially different in kind from those being conducted under the present POL. As explained in LSNRC-1899, App. I, p. 2, 17
The fuel, radioactive vaste and material will not be handled or treated in a different manner than assumed j
in previous safety analyses and evaluations. The small I amounts of radioactive waste and materials at Shoreham i are contained in systems and components specifically designed for their control. Fuel handling will be performed by certified personnel, with approved equipment and approved procedures. The low burn-up fuel is stored in the spent fuel pool. Storage of the fuel in any on-site location other than the spent fuel pool would require a further license amendment.
1 Therefore, the Do will not allow any activity that would significantly increase the probability (or consequences) of the accidents previously evaluated. There is no basis for the assumption that probabilities of accidents will increase simply because decommissioning would be authorized. Moreover, petitioners make no showing that any increase in the probability of any potential accident would have any significance. As amply shown in LIPA's DP and in LSNRC-1899, the potential decommissioning accidents simply do not threaten significant consequence in light of the minimally contaminated condition of Shoreham."
" Although lacking standing to do so, petitioners raised arguments relating to occupational radiation exposure. (Ess Pet.
Opp., p. 8.) Contrary to' petitioners' claim, LIPA's DP does analyze occupational exposures during a potential accident._ (Ess DP 55 3-19 through-3-27.)- The construction of the accident scenarios and assumptions are drawn from the bounding scenarios postulated by the NRC for the reference BRR, except for the postulated fuel-damage accident. (Sag DP 5 3-18). The-meteorological and other phrameters for Shoreham are conservative, and the off-site dose assessments are fully consistent with the procedures in NRC Regulatory Guide 1.109.
(Egg DP 3 3-19). Moreover, these parameters have.been consistently applied across all accident scenarios. (Eng DP 55 (continued...)
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C. The DO May Be Approved Without Further Opportunity For 99.amont. . _ _ _
Petitioners also argue that the "NRC may not oxercise "
its AEA 1 189a(2)(C) authority to dispense with prior notice and reasonable opportunity for public comment" on any hazards determination associated with the recommended DO. (Pet. Opp.,
- p. 9.) Once again, for reasons already shown, petitioners' argument must fail because the Staff has not propored approval of any license amendment, and hence the statutory provisions regarding notice and opportunity to comment simply do not come into-play.-
Moreover, petitioners are straining at gnats on the question of opportunity to comment. LIDA's DP, with its potential accident analysis, has been on tile for over 16 months and was the subject of the Commission's December 23, 1991 Federal Registe" notice. Eng 56 Fed. Reg. 66459 (1991). Petitioners' 30-plus-page requests for hearing, dated January 22, 1992, contain no- word of analysis concerning potentAal decommissioning accidents. Further, petitioners have also had access for more than three months to LIPA's January 13 and -22, ,
"(... continued) 3-21 through 3-27). Finally, any credit for HEPA filtration was taken only where appropriate, img., where HEPA filters are available and not damaged by the event postulated. This approach is fully consistent with the NRC analysis of the decommissioning of the reference BWR.
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1992 submissions regarding the NSHC 6.nalysis and were directly served with SECY-92-140, which specifically notes the Staff's concurrenco with LIPA's HsHC analysis. (Eng SccY-92-140, p. 2.)
During that time, they certainly were free to provide technical comments on LIPA's NSHC evaluation to the NRC Staff. They did not. And, as already shown, petitioners' latest filing with the commission is utterly devoid of any analysis showing or tending '
to show that a DO approving LIPA's DP would somehow create significant hazards considerations.
In short, it is abundantly clear that petitioners have
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said absolutely nothing on hazards considerations. Rather, petitioners once again seek to tie up the Commission -- and LIPA
-- in red tape, the untangling of which will simply further delay implementation, and further increase the cost, of the 1989 '
Settlement Agreement between LILCO and the State of New York."
The critical timing considerations here relate not to more procedures for petitioners on spurious issues, but rather to the pressing need to approve LIPA's DP D2w so that expenses may be minimized and, in particular, so that full advantage may be
" Petitioners contend that discrepancies exist between the delay costs cited by LIPA and those ecrlier cited by LILCo.
(Pet. Opp., p. 12 & n.8.1 By any account, however, the costs of delay are very large. Moreover, LILCO's earlier submissions did not include the costs associated with physical-contract laborers who will be mobilized and ready to perform. decommissioning activities cuch as segmentation of the reactor pressure vessel.
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1 taken of the last eight months of guaranteed availability of the waste repository at Hanford, Washington and Barnwell, South Carolina. (Sag Kessel Letter: Hill Aff.) Seeking to frustrate that public interest, petitioners suggest that the present need for expeditious approval of L1PA's DP is somehow a condition which was " created by LIPA" and which the Commission therefore must disregard. (Pet. Opp., p. 13 (emphasis omitted).) This is preposterous.
l LI PA , with LILCO's support, submitted its DP more than 16 months.ago and necessarily began planning for implementation ;
cf decom'issioning.
m It would have been fiscally and technically irresponsible of LIPA to fall to put contractual and other necessary arrangewents into place in advance of the NRC's approval of the DP. In addition, LIPA's Decerber 1990 submission of the INP can hardly be characterized as tard;* r en approval is sought for a date more than 16 months later. .en filed, the DP contained a schedule premised on NRC approval by September 1991.)
Further, the urgency of approval has increased due to developments since Decemb0r 1990, At that tiins, the possibility existed that Barnwell would remain open for some time after Decen;oer 31, 1992 to out-of-state shipmenta, but the possibility appears to have diminished in recent months." LIPA can hardly
" On March 13, the South Carolina House of Representatives defeated proposed legislation, endorsed by covernor carroll, which would have kept Barnwall available to (continued...)
21
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.k g' be faulted for this development, well known to the NRC, which makes it all the more important that.LIPA s DP be approved
.promptly so that maximum advantage can be taken of Barnwell's H remaining months of operation.
Finally, petitioners plainly err in claiming (Pet.
Opp.,.pp. 11-12) that economic considerations are irrelevant to NSHC determinations. Egg 51. Fed. Reg.-7744, 7756 (1986).
Significantly, as noted abova, in the decommissioning context, the imperatives created by Hanford and Barnwell's closure are closely analogous to the concerns involving shutdown or-derating whichl Congress understood would constitute exigent circumstances for purposes of NSHC analysis to operating plantt. (Eng Pet.
Opp., pp. 10-11.)- In light of these imperatives, and the ample procedures already afforded petitioners, there is no conceivable basis for delaying approval of the Do pending publication-of yet another Federal Register notice which will serve only to bring forth yet;another_just-say-no. filing from petitioners. Rather, even-if'a license amendment were' sought here, the Commission would be fully entitled and empowered to make such an amendment
"(... continued). .
receive out-of-state waste through 1995. The issue is not.
finelly settled because other_. legislation is still pending._
But unless1the Legislature cen be convinced to alter its.
. provision, Barnwell will apparently close.to out-of-state waste on December 31, 1992. Egg Nucleonics Week, March 19, 1992, pp.
2-3.
l.
22 l
. . - . , . .. . . . - .. . . - . ~ - . . .
i
't _'-j I
~inmediately effective in the "public . . .Linterest." Sag 10-l C . F . R .- 5-2'.204.
.i' III.'THE OOMMISSION MAY AUTHORISE THE DO ON THE BASIS OF THE RIAZ788 RECOMMENDA. TION. l
' Petitioners assert that the commission cannot_ approve -
- be Staff's recommendation regarding issuance of the DO because-
< the Commissioners nave not personally reviewed the draft order or
- sepporting-documentation.- (Pet. Opp., pp.'23-24.) This.
extraordinary contention-warrants little response. Boiled down, theLassertion amounts to nothing more than the obviously
- g 1 incorrect view that the Commissioners cannot rely on the expertise ofithe Staff but, ir. stead, must themselves review all of-the relevant documents-and technical analysis. On this point, petitioners' complaint lies not with anything the Staff is recommending, but rather with the Commission's standard practice of relyingion Staff recommendations in making informed licensing decisions. The Commissionern are, of course, perfectly entitled to - rely on the; tut f - recommendation - in carrying -out their regulatory responbloilities.
i' L
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23 .
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IV. THE RECOMMENDED DO~IS-IN FULL COMPLIANCE.WITH THE NRC'8 NEPA.
Q) LIGATIONS.
.[
Petitioners contend that the Staff's environmental assessment ("EA") and finding of.noLsignificant impact ("FONSI")
on the recommended action violate the National Environmental' .
Policy Act ("NEPA"), 42 U.S.C. S 4321 et sea, in two respects.
(Pet. . Opp., pp. 25-26.) _First, they claim that the EA.is
" inadequate.".(Id.,;p.25.) Second, petitioners assert that the Staff was required to issue a draft FONSI. (1d., p. 26.) These arguments areslargely' identical to assertions petitioners made in challeng'ing -- unsuccessfully -- the Staff's recommendation of-approval of--Shoreham's transfer to LIPA in SECY-92-041 (Feb. 6, 1992).- (Sag Pet. Opposition to Staff Recommendation for' Approval wicense-. Transfer-(dated.Feb. 20, 1992), pp. 7-13.) Here, as Lac e, neither of petitioners' arguments holds water.
Environmental Assessment.' Petitioners-note that-the Staff has prepared an:EA,.butl complain;that there has been
- inadequate -" participation -in its development" by the public and-other federal agencies. (Pet.--Opp., p. 25.) The NRC is obligated to undertake such consultation,--petitioners argue, under the' guidelines o' the1 Council on-Environmental. Quality j
'("CEQ") and the NRC's own NEPA-implementing rule,_specifically.10 L
D C. F.R. - 9 51. 3 0 (a) (2 ) .- (Reg-Pet. Opp., p. 25.) But the Staff is under no such obligation. Section 51.30(a) (2) requires only that 24 f:
1-- - . .- -.. .. -- -- -- -- - , , ,, . ,
~_ -
the EA contain a " list of agencies and persons" that the Staff may have consulted in preparing the EA. The provision does not Igguire that anyone be consulted."
Moreover, petitioners' err in citing Fritiofson v.
Alexande.I, 7 'i 2 F. 2 d 12 2 5 (5th Cir. 1985), as support for their assertion that an agency preparing an EA "must consult" with other federal agencies. In fritiofoson, the Fifth Circuit was referring to the obligation of the Army Corps of Engineers --
under one of its organic, enabling statutes, not NEPA -- to confer with other agencies before-taking action. Egg id. at 1235. Twist and turn as they might, petitioners just cannot find any such requirement here for consultation in the preparation of an EA.
Dr. aft FONSI. Petitioners claim that the Staff " appears to propose violation" of the allegedly." unambiguous requirement" to prepare a draft FONSI. (Pet. Opp., p. 26.) But there is no i
I such requirement. Rather, the pertinent-provision only l
identifies-"(c)ircumstances in which a draft (FONSI) may be prepared." 10 C.F.R. 5 51.33(b) (emphasis added). By the
". Indeed, over the years, the NRC has issued innumerable EA's in the Shoreham case (as well in many others) noting that L
L "[t]he NRC staff. reviewed the licensee's' request and did not L consult other agencies or persons." Sag, g2g., 57 Fed. Reg.
! 6860, 6861 (1992) (EA on Shoreham's transfer to LIPA); 56 Fed.
Reg. 58931, 58932 (1991) (EA on decommissioning fundirg exemption l
for Shoreham). There is nothing unique about the Str.ff's treatment of the instant EA.
25 s
regulation's plain terms, the Staff has discretion in determining whether to prepare a draft FONSI; it is never required to do so."
V. THE COMMISSION IS NOT ESTOPPED FROM ISSUING AN IMMEDIATELY EFFECTIVE DO OR FROh ISSULNG AN EA 2_b8 OPPOSED TO AN EIS_.__
Seeking to bootstrap themselves into rights they otherwise lack, petitioners claim that the commission is ectopped from issuing an order approving decommissioning on an immediately effective basis and also from issuing an EA, instead of an environmental impact statement ("EIS"). (ERS Pet. Opp., pp. 23, 27-28.) As demonstrated below, however, the Commission han not previously decided either issue, and thus there can be no estoppel effect from the Commission's prior statements.
In their estoppel claims, petitioners rely on Arianna Grocerv Co. v. Atchison Ry., 284 U.S. 370 (1932). There, the Supreme Court held that the Interstate Commerce Commission
("ICC") improperly ordered a shipper to pay reparations to its custce ars who paid rates that were within the ICC's maximum reasonable rates in force at the time of shipment but which the ICC later found to be unreasonably high. The Court held that
" In addition, petitioners' citation to 10 C.F.R. $ U1.34 is inapposite. This provision says that "[w] hen a hearing is held on the proposed action," the NRC Staff must prepare a draft FONSI. While petitioners have requested a hearing on the DO, no hearing has been held.
26 l
1
where the ICC " declares a specific rate to be the reasonable and lawful rate for the future, it speaks as the legislature," and the carrier is entitled to rely on the ICC's pronouncement, as if '
it had been a law enacted by Congress. Id. at 386, 389. These facts bear no relation whatever to the claimed estoppels here.
Pre-Effectivqness Hearing. Petitioners first suggest that former Chairman Carr somehow committed the NRC to a pre-effectiveness hearing on decommissioning in a letter he sent to the Secretary of Energy, Admiral James D. Watkins (dated Sept.
15, 1989). (A copy is attcched hereto as Exh. A.) In that letter, which is notably not addressed to petitioners or their counsel, Chairman Carr merely noted that "the Commission's rules require that we offer an opportunity for public hearing on any proposed license transfer and before NRC approval of decommissioning may be granted." (Id., p. 2; Pet. Opp., p. 23.)
That opportunity _was offered by the Commission's December 23 Federal Register notice, and petitioners' motions to intervene show no need for a pre-effectiveness hearing. Nor has any such reason been e.hown in their present opposition.
Moreover, it is preposterous for petitioners to claim that Chairman carr's statement, made, to another government official (not to petitioners) over 2\ years ago, could serve under Ari&ona Grocerv to compel a pre-effectiveness hearing not 27
otherwise required. Chairman carr did not even purport to address, let alcne-to resolve, the question whether anyone (much less petitioners) is entitled to-a pre-effectiveness hearing.
For.the rule in Arizona Grocerv to apply, the agency must have specifically addressed the issue now at hand, must have considered the arguments on both sides, must have made its determination after creating a record based on its findings and
. conclusions, and an equitable basis for estoppel must exist. See Arjzona_Grocerv, 284 U.S. at 382-83, 386-87, 389. Petitioners ha're not even begun to meet their burden to show that the Commission has a previously established position on the issue at hand or that petitioners have relied thereon. Furthe rmore , the Commission has just recently concluded that license transfer --
to which Chairman Carr's letter also referred -- could be made immediately effective, and there is no basis for treating the recommended DO differently.
EIS/EA. Petitioners also claim that the Commission has ,
committed itself to preparing an EIS, as opposed to an EA, on
, decommissioning. They point to a oreliminary response by Dr.
Thomas Murley to a petition filed by petitioners under 10 C.F.R. 5 2.206, stating "that an . . . (EIS) or supplement to an EIS l
should be prepared." (See Letter from Dr. Murley to James E.
l McGranery, Jr., Esq. (dated July 20, 1989), p. 2 (emphasis added)
(attached as Exh. B).) But Dr. Murley explained elsewhere in f
l that same letter that if te Commission "authoriz(es] the l 28 o
l
._a . . _ _ _ _ _ _ . . - _ _
decommissioning.of the Shoreham facility, an environmental review will be performed in accordance with the Commission's regulations." (14. (emphasis added).) An environmental review may obviously be in the form of an EA 2r an EIS.
There is no suggestion in Dr, Murley's July 1989 letter or in the August 1989 SECY-89-247, which petitioners also cite (Pet. : Opp. , p. 27)_, that the NRC intended to foreclose its ability to prepare an EA instead of an EIS." Again, petitioners have pointed to a supposed determination that does not even1 purport to address the issue raised here -- whether an EIS is required, as opposed to some other environmental review.
Here, too, petitioners have not met the requirements of Arizona Grocerv to establish that there was a binding Commission
' determination.
In-any event, Dr. Murley's letter and SECY-89-247 have long been superseded by the Commission's overriding guidance from the-Commiusion on NEPA issues, in CLI-90-08, 32 NRC 201-(1990),
and.other decisions. Reflecting such developments, Dr. Murley's formal response to petitioners' section 2.206 request stated that
" This is especially true in the decommissioning context, where the EA is intended to supplement the previously prepared-
" Final Generic Environmental Impact Statement.on Decommissioning of Nuclear Facilities" ("GEIS"), NUREG-0586. The complete environmental review of the Shoreham DO consists of the EA plus the GEIS.
29
p.
~
.g "to authorize the decommissioning of [Shoreham), the NRC Staff will prepare an -environinental impact statement gr environagntal assessmfat," (S_qq DD-90-8 (dated Dec. 20, 1990), p. 22 (emphasis added).) Thus, petitioners have long been specifically forewarned that the Commission might conduct its environmental review througn an EA.
30
)
CONCLgplOy For the foregoing reacons, and those shown in SECY 140, LIPA urges that the Commission expeditiously adopt the Staff's recommendation in SECY-92-140 and approve the Shoreham DP through an immediately effective decommissioning order. The public interest urgently requires that the radiological decontamination of Shorcham proceed D2w, and petitioners' dilatory tactics should not be rewarded by delay in approval.
Respectfully submitted, ps
,a . l o sy w Of Counsel: Eidliam T. Colffan,Jr.
Carl R. Schenker, Jr.
- Stanley B. Klimberg John D. Holum l President of Shoreham Project John A. Rogovin l~ and General Counsel O'MELVENY & MYERS l . Richard P. Bonnifield 555 13th Street, N .W.
- Deputy General Counsel Washington, D.C. 20004 LONG ISLAND POWER AUTHORITY (202) 383-5360
. 200 Garden City Plaza Garden City, N.Y. 11530 Nicholas S. Reynolds (516) 742-2200 David A. Repka WINSTON & STRAWN g
1400 L Street, N.W.
Washington, D.C. 20005 (202) 371-5726 Counsel for the
- Long Island Power Authority l
Lated; May 6, 1992 31
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[ccttm,\* UNif ED STATES
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wassmomm o c.rossa
%' f l September 15, 1989 ewAmum The Honorable Ja~s D. Watkins !
Secretary of Enesty '
Washington, D. C. 20585
Dear Mr. Secretary:
I am responding to your letter of stuly 27, 1989, concerning tt4 future of the thoreha:n Nuclear Power Station. The Comission is closely monitoring the-ectivities being Comission carried out at the Shoreaam fac111ty to ensure compliance with regulations.
1 In that connection, the Nuclear Regulatory Comission (hRC) staf f, in public cwetings wits the tong Island Lighting Ccopany (LILCO) on June 30 and July 28, 1989, underscored LILCO's obilgations to ccnform to all requirennts of the license issued by the Comission and all requirements of Coenission requiations until such time as the Comission approves enanges in the license. Jy letter _ dated August 30,1989 (copy enclosed), the staff forirally notified LitCO of the requirements that a majority of the Cocynission
, believes should authorized be met at Shoreham until disposition of the facility is by the NRC.
As is tFc case with all facility Itcenses issued by %RC, the plant Technical Specificattors, which are conditions of the Itcense issued to LILCO, provide a degree of flexibility with respect to such matters as staffing depending on the operational strtus of the facility.- At present, the fuel has been removed from the reactor and placed in the spent fuel pool. This is on activity under the routinely existingcarried operctit9 outlicense.
at other liccased facilities and is authorized With the fuel in the fuel pool-, the
-license requirements for in a critical or power operation mode. staf fing are reduced frew those required f(.r operation trained $taff are required to ensure plar.t safety in the defueledYou state.Howev before the fac1Hty could start power operttion. expressed the con:arn tha However, provided there is ,
suf ficient staff to Satisfy the requirements of the existing operating license to ensure that the plant is safe in its defueled condition, we do not believe that reduction in staff at the facility warrants enforcement or sanction.
Further, there are limitations on the changes that LILCO can make without NRC Response Organization (LtRO). approval c.oncerning emergency planning a Shoreham's operating license imposes conditions relating
- tmse ar.ol to the LERO. ano a license amendment is required in order to change tions.
In accition,10 CFR 50.54(q) author im the Itcensee to mate:
. changes in the emergency plan without NRC approval pnly if such changes do not decrease the effectiveness of the emergency a'an, pithoughL1LCOhasindicated that it would like to amerd the current lice.ne to permit reductions in the LEPO NRC aporcval.in light of the low radiological risk, 5::ch arnendments would reouf re prio'-
(~ .
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. Admiral Matkins l
August 30 letter that it is unacceptabi fto thTh Shoreham facility to deteriorate. y 28 meetings and in the e NRC for LILCO to permit the all systems needed for safety dition. in the defueled The licen'see mode will be required i to maintain are to be preserved from degradation, services as may be necessat with su on of the facility to ensure such preservation.enance or custodial decomissioning the facility,Moreover, NRC regulations the Shoreham facility, thein evaluating Comission will caany proposal forg deco issues in detemining whether to prepare an Envi refully assess all appropriate accordance with the Commission's regulations in 10 CFR Pro to decomission is granted, the staffsehas reque
, art 51.tUntil d approval maintain the Shoreham facility as described abov
- e. a comitment from LILCO to of the facility Comission is to another required before person such for Ifdecomissioning transfer ,
LILCO requests transfer approval by the actions, NRC will ot pemit an Environmental Polic" Actreview (NEPA)y As in all our proce improper se.may take place. m noted in your lettar, the Comission's rulesJinal'y, as you correctly tunity for public hearing on any proposedtre11ce that we offer an oppor-approval of decomissioning may be granted. transfer and before NRC At this time activities cu,rrently going on at they. Shoreham (Acilitwe n order halting indicated its intent not to operate Shoreham 44d' LILCO Although th has and thus far thetheState acti of New York indicates an intent'Ao decomie Agree existing license.vities that LILCO is carryin9 ssion the outfacility, are authorize that our such activities comply with the requireThe Commission regulations. s to ensure will to ensure complfence with Comission regulatiIf necessary, anctions NR start of deco.wissioning without .
Comission cense conditions, or the appro facility will not be permitted until sionino. the ComiI want to radation of the Shoreham the safety and environmental reviews of suchFurther, the comissioning until rthe necessary opportunity for public 4hearing foposal are carried out and
' omission's regulations, has been provided. ,
'n'accordance with the Sincerely, L mE .
Enclosure:
Kenneth M. Carr as statt d
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/,I,,, ,,, ?., UNITED STATES i .v s NUCLEAR REGULATORY COMMISSION g m ssisotou,o.c.aosas k . . . . . /; July 20, 1989 Nr. James P. McGranery, Jr. , Esq.
Dow, Lohnes & Albertson 1255 Twenty-Third Street Washir.gton, D.C. 20037-1194 - -
Dear Mr. Mctranery:
This letter is to acknowledge receipt of the petition filed by you on July 14, 1989, on behalf of the Shoreham-Wading River Central School District. In your petition you request that the Executive Director for Operations issue an imediately effective order to Long Island Lighting Company to cease and desist from any and all activities related to the defueling and destaffing of Shoreham Nuclear Power Station, Unit 1, and return to the " status quo ante " perding further consideration by the Commission. You further request that such an order be accompanied by an announcement of the Comission's intention to fine the licensee a substantial arount per day for any violation or continuing ,.
- violation of the Counission's orders.
As bases for your request, you_ assert that (1) the defueling of tl.a core of the Shorehan Station involves an unreviewed safety question, because it is , unnecessary and because the increased risk of accidents in the-transfer ot fuel to the spent fuel pool outweighs the slight additional argin of safety provided by the spent fuel pool, and, as such, requires prior Commission approval in accordance with l 10C.F.R550.59;(2) the issuance of the full-power oprating license for the i
i facility was premised, among other things, on adequate staffing, and the licensee has now declared to the Comission its intantion to willfully reduce staffing by about half, which would violate the_ basis of the issuance of its license and the licensee's prior comitments to the Comission; (3) the lack of maintenance
-activities at the' facility is contrary to a March 1989 Operational Readiness Assessment Report; (4) the licensee's plan to substitute fossil-fuel-burning l
' units for the Shoreham station is a matter that may result in a significant increase in an adverse environmental impact previously evaluated in the Final Environrental Statement for the operating license and, as such, presents an unreviewed environmental question that requires prior Comission approval; .
(5) such an order would allow for a full environmental review pursuant to the National Environmental Policy Act (NEPA), the Council on Environmental Quality guidelines, and the Commission's regulations in 10 C.F.R l art 51; and (6) the issuance of a license amendinent authorizing decosminioning is a ujor '
Comission action significantly nffecting the quality of the environment and reouires an environmental impact statement or supplement to an environmental impact statement as specified in 10 C.f.R ll51.20(b)(5) and (b)(13).
Your petition has been referred to me pursuar.t to 10 C.F.R 52.206 of the Comission's regulations. - As provided by Section 2.206, action will be taken on your request within a reasonable time. However, a preliminary review of the concerns in your petition does not indicate any need to take imediate action '
as you request because on the basis of current information, the licensee
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Mr. James P. McGranery 4 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 of facility Operating f.icense hPT-82. TFe destaffing of the plant will not be implemented untti early Angust. e We are currently evaluating the effects of these changes in staffing level to ensure or to thethat theyhealtn public will not andbesafety.
inimical to either the cowon defense and security This evt.luation will be completed before the end of July, and we will take appropriate action if warrantet. -furtherxre, with regard to your assertion that an environrental impact statemer.t (EIS) or supplement to an EIS should be prepared, we note that defueling the Shoreham facility is authorized by the Shortham operating license and does not constitute a separate federal ectinn subject to HEPA. Although you are correct that the decomissioning of a facility requires a license amendment necessitating the preparation caso, of an EIS, such an amendment has not yet been applied Sr in this if the Comissi;n hsues a license ar.endment authorizing the decomissionitig of the Shorchim facility, an environmental review will be performed in accordance with the Comission's regrlations.
Sr$N:hcard by awr uuriw Thomas E. Murley, Director Office of Nuclear Reacter Regulation DISTRIBl' TION-CentraT7TTd NRC POR/LPCR VStello, E00- HBridgers E00 h TMa rley- JSnfezek JParticw SVarga BBoger HButler M0'Brien 3 Brown CShiraki GPA/PA DMoisburg, PMAS ,
PDI-2 Reading CCarter, SECY, 16H21 ASLAB- .
ASLBP ACRS(10) l-VYanor(2)(W-501) .
J. Goldberg, OGC
[MCGRAtlERYLETTER)
- SEE PREVIOUS CONCURRENCE P01-2/P / PDI-2/D* Tech Ed.* OGC*
SBrown: '
WButler ADR* DP 1 !!:D JGoidberg 380cer 5 a^r a 7/g/ , 07/19/89 Oi/19/89 07/19/89 07/19/89 } / /89 ADP y JPart %
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- h. Mr. James P. McGranery - 2-
.is currently in compliance with the provisions of its full-power license. The v defueling Facility of the reactor Operating Licensevessel is an activity permissible under the terms of NPF-82.
_ impierented until early August. The destaffing of the plant will not be I
We are currently evaluating the effects of these changes in staffing level to
,a ensure that they will not be inimical to either the common defense and security i
or to the public health and safety. This evaluation will be completed before L the end of July, and we will take apprcpriate action if warranted.
wi'.h regard to your assertion that an environmental impact statemen,t (EIS) orFurthc st.pplement to an EIS should be preparea te note that defueling the Shoreham facility is authorized by the Shoreham o,perating license and does not constitute a separate federal action subject to NEPA. Although you are correct that the decommissioning of a facility requires a ifcense anenoment necessitating the
_ preparation case. of an EIS, such an amendrent has not yet been applied for in this g,
If the Commission issues a license amendment authorizing the decommissioning of the Shoreham facility, an environmental review will be i
performed in accoi 1ance with the Commission's regulations.
Sincerely,
/'
y f /NM%
Thomas E. Hurley, Director " ~3 Office of Nuclear Reactor Regulation l
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7 Long Islam Lighting Comany Shoreham Nuclear Power Sta'tfon ec:
Victor A. Staffierf. Esq. Supervisor General Counsel Long Island Lighting Company Town of Brookhaven 175 East Old County Road 205 5. Ocean Ave.
Patchogue. New York 11772 Hicksville. New York 11801 Town Attorney W. Taylor Revelay. I!!, Esq.
Hunton & Williams Town of Brookhaven 3232. Route ~112 Post Office Box 1535 Medford, NY 11763 l 707 East Main Street l Richmond, Virginia 23212 MHR Technical Assoetates Mr. Lawrence Britt 1723 Hamilton Avenue Suite K Shorthan Nuclear Power Station Post Offfee 80x 618 San Jose California 95125 ~
1-
' Wading River. New York 11792 Richard M. Kessel Mr. John Scalice Cralrman a Executive Director Plant Manager New York State Consumer Protection Board Shorthan Nuclear Power Statton Room 1725 Post Office Fox 628 250 Broadway Wading River. New York 11792 New York. NY 10007 Resident Inspector l
Shoreham NPS Jonathan D. Feinberg. Esq.
U.S. Nuclear Regulatory ComeIss1on New York State' Department Post C'ftce fox 8 of Public Service Rocky Point New York 11778 Three Empire State Plaza Albany New Yort 12223 Regional Administrator. Region I.
U.S. Nuclear Regulatory Commission Gerald C. Crott Ben Wilds. Esq.y. Esq.
475 Allendale Road King of Prussia. Pennsylvania 19406 Counsel to the Govstmor Executive Chamber '
State Capitol Ms. Donoa Ross New York State Energy Of(fce Albany New York 12224 Agency Building 2 Empire State Plaza Her. et H. Brown. Esq.
Albany New York 12223 Lawrence Coe Lanpher. Esq.
Karla J. I.etsche. Esc.
Mr. John D. Leonard, Jr. Kirkpatrick 8 Lockhart South Lobby 9th Floor Vice President Nuclear Operations Long Island Lighting Cc. 1800 M Street. N.W.
k'ashington D.C. 20036-5891 Shoreham Nuclear Power Station P.O. Box 618. North Country Road Wading River. NY 11792 l
i
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.i- Long Island Lighting Company -?-
Shoreham Nuclear Power Station cc:
.Dr. Monroe Schneider Hr. Charlie Ocnaldson North Shore Committee Assistant Attorney General Post Office Box 231 NYS Departcent of Law I Wading River, NY 11792 Room 3-118 l 120 Broadway Fabian G. Palomino, Esq. New York, NY 10271 l( Special Counsel to the Governor l' Executive Chamber - State Capitol Jares P. McGranery, Jr., Esq.
Albany, NY 12224 Dow, Lohnes and Alberson Suite 500 Martin Bradley Ashare. Esq. 1255 23 Street, N.W.
1 iuf folk County Attorney Washington, D.C. 20037 i
, H. Lee Dennison Building
-Veteran's Memorial-Highway Dr. A. David Rossin <>
Hauppauge, NY 11788 Resources Conservation Organization Suite 320
-Robert Abrams, Esq. 101 first Street ;-
! Attorr.ey General of the State Los Altos, CA 94022 of New York
- j. ATTN: John Corwin, Esq.
New York State Department of Law i Consuner Protection Bureau i
120 Broadway
- 3rd Floor
- New York, NY 10271 1
'i Honorable Peter Cohalan I
Suffolk County Executive County Executive / Legislative Building Veteran's Memorial Highway
- Hauppauge, NY 11788
- Hs. Nora credes Shoreham Opponents Coalition l
195 East Main Street
! i Smithtown, New York - 11787
'I Chris Nolin I
! Few York State Asser61y Energy Conmittee 626. Legislative Office Building Albany, New York 12248 l
- . .n -
,, . - _ . _._ ._ _ - .. _ . _ . _m . _ _ . ._ . _ _ _.
- C *L' J e.;
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' CERTIFICATE OF SERVICE ; ;te;i si D UMEC Pursuant to the service requirements _ of 13 5.h lh P4 34-
.6_2.712-(1991), I'hereby certify _that on May'6,_1992jfIjserytes!,; a 00CKt hN3 . %Vli.f copy of the Long Island Power Authority's Comments on Sh M 92-140 and Response to Petitioners' Joint Opposition to Decommissioning- ,
Order via' Courier upon the following parties, except where
._ _otherwise indicated:.
-Commissioner Ivan Selin: Stephen A.'Wakefield, Esq.
. Chairman- .. General' Counsel Nuclear Regulatory. Commission U.S. Department of Energy One White Flint North Building Forrestal Building 11555 Rockville Pike 1000 Independence Avenue,-S.W.
C .Rockville, Maryland _ 20852- Washington, D.C. . 20585 (First Class Mail)
. Commissioner Kenneth-C.= Rogers Nuclear: Regulatory Commission. The Honorable Samuel J. Chilk
- One White-Flint North-Building The-Secretary of the Commission 11555 Rockville Pike ~ Nuclear Regulatory Commission-Rockville,' Maryland 20852 One White Flint ~ North Building-t 11555 Rockville Pike Commissioner James R.-Curtiss
~
Rockville, Maryland 20852 NuclearLRegulatory Commission
'One White 2 Flint North Building Administrative-Judge 11555 Rockville Pike . Thomas S. Hoore, Chairman Rockville, Maryland _
20852 Administrative Judge Nuclear. Regulatory Commission Commissioner Forrest J. Remick Washington, D.C. 20555-Nuclear Regulatory Commission (First Class Mail)-
One White Flint North Building = _ _
b 113551Rockville Pike , Administrative Judge Rockville,-Maryland 20852 '
-Jerry R. Kline Atomic Safety
- Commissioner S. Geil_de Planque and Licensing Board
(_ ' Nuclear Regulatory-Commission ' Nuclear Regulatory Commission l' :One White-F1 int; North: Building- Washington, D.C. 20555 h
l' 11555:Rockville Pike .
(First-Class Mail)
-Rockville,-Maryland. 20852 l:
l
. I. . o Administrative Judge Donald P. Irwin, Esq.
George A. Ferguson Counsel, Long Island 5307 Al Jones Drive Lighting company Columbia Beach, Maryland 20764 Hunton & Williams (First Class Mail) Riverfront Plaza, East Tower 951 East Byrd Street Edvin J.-Reis, Esq. Richmond, Virginia 23219-4074 Deputy Assistant General Counsel (Via Federal Express) for Reactor Licensing Nuclear Regulatory Commission Gerald C. Goldstein, Esq.
One White Flint North Building Office of the General Counsel 11555 Rockville Pike Fower Authority of Rockville, Maryland 20852 State of New York 1633 Broadway James P. McGranery, Jr., Esq. New York, New York 10019 Dow, Lohnes & Albertson (Via Federal Express) 1255.23rd Street, N.W.
Suite 500 Samuel A. Cherniak, Esq.
Washington, D.C. 20037 NYS Department of Law Bureau of Consumer Frauds Regulatory Publications Branch c.nd Protection Division of Freedom of 120 Broadway Information & Publications New York, New York 10271 Services (Via Federal Express)
Office of Administration Nuclear Regulatory Commission Washington, D.C. 20o55 (First Class Mail) q-JhhnA. Rogo7fn O'Melveny & Myers 555 13th Street, N.W.
Washington, D.C. 20004 Dated: May 6, 1992