ML20099L292
| ML20099L292 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/29/1984 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20099L278 | List: |
| References | |
| OL-4, NUDOCS 8412010077 | |
| Download: ML20099L292 (36) | |
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d UNITED STATES OF AMERICA NUCIEAR REGUIKIORY CCM4ISSION
- 0' ETED Before the Ccmnission .
84 2 30 NO 25 .
)
Inithe Matter of )
) ffQS((
"^'1, 'hhg;.7- t LONG ISLAND LIG1 TING CCMPANY ) Ibcket No. 50-322-OIA
) (Iow Power)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
)
- SUFFOIX COUtTIY AND STATE OF NN YORK CCNMEtfrS CO!CERNING CCNMISSION REVIN OF LILCO'S EXEMPTION REQUEST I. Introduction The State of New York and Suffolk (bunty subnit that the granting of an ex-auption and the issuance of a lcw power license for Shoreham would be a betrayal of public responsibility, an abuse of discretion, and an unlawful act.
- A betrayal of public responsibility, because there is no public purpose to N served by the Ccrtnission's authorizing the contamination of Shoreham at this time. Pivotal issues which underscore the inadequacy of LIICO's emergency plan and LILCO's . lack of legal authority to implement its plan are before the New York State Suprene Court. Pending the resolution of these matters,' the con-tamination of Shoreham would be a waste of resources and a costly cemitment of at least $150 million. Wreover, there is no time pressure or other reason for precipitous NRC action to energize Shoreham. Indeed, LIICO itself has admitted that the quantity of electricity which Shoreham represents will not be needed 8412010077 841129 PDR ADOCK 05000322 '
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for a decade. A wait of several months to let the court decide determinative questions, therefore, is the prudent course.
- An abuse of discretion, because the policy of the Federal government, as expressed by the President, "does not favor the imposition of-Federal government authority over the objections of state and local goverrments." (See letter frcm President Reagan which is Attachment 1.) There is no conceivable public benefit to b. achieved by a ruling which steamrolls Shoreham over the State and County.
The Caumission was'not constituted to make itself LIICO's advocate, knocking State and County opposition out of the way so that LIICO can wedge its foot into the operating license R or. Neither the public nor the institutions'of govern-ment which are the central players here would profit fran such a high-handed confrontation.
It is not without irony that the Ccanission is poised to issue a low power license for Shoreham over the objections of the State and local governments. A year ago, the Ccrnmission reinstated a license for Diablo Canyon, and there the Governor of California supported the license. In the Ocmnission's brief before the U.S. Court of Appeals, the Ocmnission argued for the legitirracy of its ac-tion by citing the " great weight" it gives to the views of a State government: ~
Finally, the Supreme Court has noted that the debate over 1
nuclear power is one in which the States have a vital stake.
[ Citing Vermont Yankee._] In this case the Governor of
-California, as representative.of the p u ple and the public inter-est, has indicated in hearings before the Appeal Board that he does not oppose this action. 'Ihe views of the chief elected rep-resentative of the people of California should be accorded great weight in fixing where the public interest lies.
.NRC'Brief, page 34 (enphasis supplied, citations cmitted). Here, in the
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Shoreham case, the chief elected representative of the people of New York and the elected government of:the people of Suffolk County oppose issuance of a low power license. See, e.g., the Resolution of the Suffolk County Iagislature which is Attachment 2. 'Ihe Ocmnission should finally confront this fact with realism and give it " great weight," just as the Ocunission did in pleading be-fore the (burt of Appeals. Surely, it was with conviction and not convenience in mind that the Ocmnission sp-ke to the Cburt.
-- An unlawful act, because this proceeding on LIIf0's request to operate Shoreham under an exemption fran NRC regulations has at every stage denied the State and County the due process of law. 'Ihe seeds of these abuses were planted ,
at the Chainnan's ex parte meeting with the NRC Staff and the chief ASIB judge on March 16. While the U.S. District Court's April 25 Temporary Restraining Order against the NRC and the Miller Board put an end to the first showing of regulatory abuses, the exemption proceeding which followed proved that the past was just prologue. Not the least of these abuses was the Ocmnission's decision to pennit the Miller Board to preside over the new exemption hearing despite the opInsition of the State, County, and two Ccmnissioners. 'Ihe Miller Board, which on October 29 reccmnended the issuance of a lcw power license, pursued a pattern of behavior which incitried a series of errors and abuses of such nature as to deny the County and State proctSural and substantive due process under the U.S.
Constitution, the Atanic Energy Act, and the Administrative Procedure Act. A fair-minded review of the record in this proceeding thus reveals a kaleidoscope of unsustainable procedural, evidentiary, and substantive rulings as the
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' foundation' for the Board's rationale in granting LIICO's every wish to the gross exclusion'of the County and State's fundamental interests. Wese unsustainable rulings fall into the following general categories:
-- he Board's rejection of testimony subnitted by the County and State on the very points on which the Board accepted evidence fran LIICO. 'Ib conpound these errors, the Board then relied on LIICO's evidence in formulating its find-ings of fact and conclusions of law.
- The trial of this case on one legal theory under the Cmmission's May 16 i
Order and the Board's decision on another. In particular, the State and County presented their evidentiary cases - to the extent the Board received their evi--
dence - on an interpretation of the "as' safe as" standard which was different fran how the Board itself interpreted and applied that standard in its October 29 decision.
- The Board's failure to characterize accurately, let alone to confront' ,
the major arguments of the munty and State. Ebr example, the Board did not even attenpt to deal squarely with t'he "public interest" aspects of the exemp-tion request. It ignored the substantive merits of the County and State's posi-tion and attempt to represent the public, and instead relied on LIICO's pur-ported evidence of alleged econanic " benefits" while excluding fran the record the County and State's evidence of economic harms. h e Board, with words and tone that reached toward aIology and pity, ruled for LIICO for reasons of aiding LIICO's self-interests, business and financial. We public's interest never had a chance and, the " great weight" which in pleading before the Court of Appeals the Caumission purported to accord to elected goverrinents, ranked not even the status of a passing footnote.
- The Board made findings of fact on security issues as it must under Sec-tion 50.12(a), despite having improperly rejected all the County and State's se-curity contentions and thus precluding the presentation of evidence and litiga-tion of such issues. Na evidence is in the recoru to support any of the Miller board's so-called " findings of fact" related to security.
3 Stripped of the legalisms and procedural trappings in which the Ommission has set this proceeding, there is only one issue for the Ccmnission to address:
Is there any legitimate reason for the Ocmnission now to consider, let alone issue, a low power license for Shoreham? 'Ihe answer is no. No, because the Commission owes its duty to the public, not to LIICO. While LIICO has for months broadcast its desire for a' low power license in order "to send a signal to Wall Street," and while the Miller Board has actually telegraphed the message as desired by LIIfD ("the granting of a low-power exemption would send a posi-tive signal to the capital markets" (Decision at 61)), signal-sending and code words are not legitimate reasons for the NRC to exercise powers entrusted to it by the public for the benefit of the public.
Responsibility to the public here means that the issuance of a low power license should not even be considered while determinative issues related to emergency preparedness are pending in State court. No words by the Ocmnission can ameliorate the wastefulness and costliness of permitting Shoreham to be con-taminated at this time. 'Ihe Ocmnission's usual boilerplate language that a low E
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_ power ~ license should not.be_ read as prejudicing a decision on full power issues would not' suffice here. 'Ihat language, under the extraordinary circumstances of
' this case - and the gross politicalization by LIICO _of'the ' low power license
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issue - would stand barren. Indeed, tht language would be read as the Ocmnis-sion's wink of the eye to go with LIICO's " signal" to Wall Street.
Accordingly, the conmission has only one legitimate option: it must stmma-rily reverse the unlawful decision of. the Miller Board and refrain frczn consid--
ering the issuance of a low power license for Shoreham until- the-pending determinative legal issues concerning energency preparedness have been decided by the courts. his action would be a sound exercise of the Ocnnission's dis-cretion and a manifestation of the public's interest. Any other action.by the Ccmnission would be nothing but hcnage to LIICO. It would clearly be unlawful.
II. Discussion The Miller Doard Decision which purports to grant LIICO's exemption request ;
must be simnarily reversed,1/ because the fundamental due process rights of Suffolk County and the State of New York were irremediably violated in the 1/ h e detailed position of Suffolk County and the State of New York concern--
ing the LIICO exemption request is set forth in the Suffolk County and State of New York Proposed Findings of Fact, the Brief of Suffolk County in opposition to LIICO's Motion for a low Power Operating License and Applica--
tion for Exemption, and the Brief of the State of New York in Opposition to-LIICO's Application for a Iow Power Operating License on the Basis of an L Exemption frcm the Regulations Pursuant' to .10 CFR { 50.12(a), all dated August 31, 1984. Copies are provided herewith as Attachnent 3 for the con-~
venience of the individual Ocmnissioners.
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. course of the so-called " proceeding" conducted by the Miller Board. 'Ihus ,
although scue testimony was accepted into an evidentiary record, scme cross ex-amination and argument of counsel was pernutted, and briefs were accepted pur-portedly on the issues identified in'the May 16, 1984 Order (CLI-84-8), in fact-what occurred during the exemption proceeding did not constitute a fair hearing at all.2_/
'Ihe most blatant of the Miller Board's-denials of due process was its re-peated pattern of refusing to admit evidence sutmitted by the County and the State on issues articulated by the Ocnnission in its May 16 Order, with accanpa-nying rulings that LIICO and Staff evidence on precisely the same issues was ad-missible. 'Ihis denial of the fundamental right to subnit evidence was made even more prejudicial by the Miller Board's subsequent reliance upon the one-sided LILCO and Staff evidence in its October 29 Decision. We 'stumarize sone of these unlawful and grossly prejudicial rulings in Sections A-D belcw.
The Miller Board also made findings relating to the adequacy of LIICO's se-curity plan to protect the proposed alternate AC power configuration. Ibwever, there was absolutely no basis for any such findings since the Miller Board had violated Ccanission guidance and refused to permit litigation of security 2_/ The fundamental due process right to a fair hearing was emphatically-recognized by the United States District Court in its April 25 decision which enjoined the previous attempts by the Miller Board to conduct a pro-ceeding in violation of the Constitution. See Cuano v. NRC, Civil Action No. 84-1264, _ CCH Nuc. Reg. Reptr. 5 20,304 (D.D.C. 1984). In addition, the necessity for a fair hearing was recognized by the Ccmnission in CLI-84-8, which required that the Licensing Board "shall conduct the proceeding . . .
in accordance with the Ommission's rules."
contentions subnitted by New York and Suffolk County, the admissibility and the substantive accuracy.of which, in large part, were supported by the tRC Staff.
This Miller Board error is' discussed in Section E below.
'Ihe Miller Board also made clearly erroneous rulings on many other legal and factual issues, and refused to consider matters which the Ccmmission's own Section 50.12(a) precedents identify as key considerations in exemption deci-siOns. We discuss these errors in Sections F-J below.
These errors constitute a denial of a fair hearing which must be renedied by the Ocmnission. A fair trial before a fair tribunal is a basic requirement of due process. Fitzoerald v. Hampton, 467 F.2d 755, 764 (D.C. Cir. 1972). 'Ihe Ccanission clearly cannot close its eyes to the gross deprivation of rights which has been permitted to take place.3/
Tne foregoing Miller Board errors ccme as no surprise. Rather, frce at least early April 1984,' the Ccmnission was on notice that the Miller Board was 3/ Due process requires the resolution of contested questions by an impartial and disinterested tribunal in a fair proceeding. Amos Treat & Co. v. SEE, 306 F.2d 260, 263-64 (D.C. Cir.1%2). See also Marshall v. Manzo, 380 U.S. 545, 552 (1965)'(due process requires that parties be affored the op -
portunity to be heard "at a meaningful time and in a meaningful manner");
Ohio Dell Telephone Co. v. Public Utilities Ocnnission, 301 U.S. 292, 304-C ) (1937) (right to fair hearing is "one of the ' rudiments of fair play' . . . assured to every litigant by the Fourteenth Amendment as a min-imal requirement"); NIRB v. Washington Dehydrated Ebod Co.,118 F.2d 980 (9th Cir. 1941) (due process requires a tribunal both impartial and mental-ly ecmpetent to afford a hearing); Union Bag - Camp Paper Corporation v.
FIC, 233 F. Supp. 660, 666 (S.D.N.Y. 1964) (agency action denying party the right to present its evidence and suntnon the witnesses of its choice vio-lates constitutional right of due process of law as well as concept of fairness necessary to every proceeding).
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incapable of conducting this proceeding in a fair manner. Indeed, whether it be the Miller Board's grossly improper April 6 scheduling order which resulted in the District Court's TRO, the Miller Board's attempt to intimidate an attorney representirg the County,4/ or a host of other substantive and procedural errors and irregularities ccmnitted by the Miller Board, this 0 mnission has known that the exmption proceeding was being conducted in a fundamentally unfair manner.
Indeed, two Ccmnissioners expressly called for the Miller Board's replacment
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(CLI-84-8, views of Ctmnissioners Gilinsky and Asselstine), as did both the {
l State and County.5_/ 'Ihus, the present need to reverse the Miller Board's deci-sion is merely the result of the Ocmnission's not having exerciseu proper con-trol of events at the outset. I Finally, his Ccrnmission must con 3uct a canplete review of the Miller 1
Board's decision. 'Ihis is a proceeding instituted to consider LIICO's exemption request. As such, the Ocmnission, not any licensing board, must grant or deny the exemption request. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 ar.d 3), LPB-77-35, 5 NRC '1290 (1977) .6_/ This would 4/ ASIB Order to Show Cause Why Disciplinary Action Should Not Be Imposed, April 13, 1984.
5_/ bby 4,1984 Joint Response of Suffolk County and the Stat.e of New York to the Ccmnission's Order of April 30, 1984, at 42.
6/ A licensing board may conduct hearings and render initial decisions on ex-emption requests. See, e.g., Connecticut Yankee, 2 AEC 393 (1964);
Carolina Power & Light (b. (Shearon Harris Nuclear Power Plant, Units 1, 2
.3, atal 4), CLI-74-9, 7 AEC 197 (1974) . However, as set forth in San Onofre, Section 50.12 requires that only "the Ocmnission my . . . grant such exmption fran the requirenents of the regulations . . . as it deter-mines are authorized by law and will not endanger life or property or the comen defense and security and are otherwise in the public interest."
s be true even if the Miller Board had not ccr:mitted errors which constitute a de- I nial of the Intervenors' fundamental rights. Particularly in light of those er-rors, however, this Cmmission is now obligated to consider. fully the entire record'of this proceeding. 'Ihus, LIIf0's assertion that the Ocmnission's review is limited to a cursory stay-type review is erroneous.
A. Exclusion of Evidence Concerning LIIf0's Alleged Good .
Faith Attempt to Ocmply with GDC-17
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"'Ihe applicant's good ' faith effort to ecznply with the regulation frcxn which an exenption is sought" is one " equity" to consider in determining whether ex-ceptional. circumstances exist to justify the granting of a Section 50.12(a) ex-emption. CLI-84-8 at 2-3, n.3. LIIf0 asserted that "LIIf0's strenuous efforts to cmply with GDC-17 . . . weigh in favor of the exenption." Application for Exemption, at 24. LIIfO also subnitted testinony concerning LIIf0's alleged good faith efforts to ccrnply with GDC-17, and asserted that among LIIf0's "ef-forts" which justify the exenption were: LIIf0's efforts relating to the pro-curenent of TDI dieels khich were designed and manufactured to meet performance standards identified by LIIf0; LIIf0's quality assurance efforts relating to the procurement, design, and installation of the TDI diesels; LIIf0's pre-operational testing program relating to the TDI diesels; and, LIILO's ef-forts follcwing the catastrophic failure of one of the TDI diesels at Shoreham to renedy that failure. See Tr. 1703-15.
In response, Suffolk County subnitted pre-filed testimony on precisely the subject addressed by LIICO. 'Ihe County's testimony established: that LIIf0 had o
e failed to take reasonable actions with respect to the TDIs to ensure ccmpliance with GDC-17; that LIICO's failures began in 1974 and continued through the early
-1980's; and that the failures involved, anong other things, LIICO's quality as-surance efforts and pre-operational' testing efforts. For no explicable reason, the Miller Board denied.the admission of the County's testimony even though it admitted LIICO's testimony on the'same subject. See Tr. 2385-89. Clearly, there is a denial of due process when a fact finder admits one party's testimony on a subject and refuses even to-consider the testimony stbnitted by another party on the identical subject.2/
'Ihe prejudicial impact of this Miller Board error is manifest in the' October 29 Decision.: 'Ihe Board found that: "the evidence shows that LIICO in-tends to ecmply fully with the requirenents of GDC-17 for full-power operation";
"the testimony of Brian McCaffrey showed that the TDI diesels were purchased under specifications designed to ccrnply with GDC-17. When problems were discovered, extensive efforts were undertaken to cure the deficiencies"; and, "LIICO's efforts as described in detail constitute the good faith to be consid-ered in evaluating the equities, and support the grant of an exemption."
October 29 Decision at 67,98-101. '1he Miller Board thus relied solely upon the LIICO testimorry,in purrortedly " weighing the equities" as required by the May 16 Order; in reality, of course, no such " weighing" occurred in the presence of 7]_ For the Ctmnission's convenience, copies of the County's testimony are pro-vided herewith since, due to the Board's ruling, the testimony is not in-cluded in the hearing transcript. See Attachnent 4.
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4-s only LIlCO's one-sided evidence. In denying the County's evidence, therefore,
. the Miller Board denied Intervenors the right to a hearing on the question of LIlCO's good faith efforts to canply with GDC 17, one of the issues the Ccanis-sion had expressly identified .as pertinent to an exemption ruling.
B. Exclusion of County and State Evidence Concerning Econcaic and Financial Disadvantages Resulting frcm Granting Exenption, and Admission of LIICO Evidence Cbncerning Alleged Econcmic and Financial Benefits of Granting the Exenption LIIf0 asserted there were at least two benefits of low power operation fol-Icwing the granting of an exenption: the reduction in dependence on foreign oil;
, and certain econcmic benefits to LIICO ratepayers. Both these alleged public interest " benefits" allegedly would be achieved when Shoreham begins full power operation. See Application for Exemption at 19-21. LIIf0 subaitted testimony
, which discussed these so-called benefits. 'Ihe LIIf0 testimony did not deal with benefits resulting fran the conduct of low power testing which is what would be i authorized by the exemption, but rather dealt only with possible benefits re-sulting fran the assumed full power operation of Shoreham.8/
When the County subnitted testimony concerning the substantial financial and econanic hann to the public that would result frczn the exemption if the as-
- stanption that is the converse of LIIfo's - i.e., that there would be no full 8_/ - 'Ihe County and the State noved to strike such testimony as irrelevant and speculative because it did not deal with " benefits" which would accrue as the result-of the grant of the exemption - the matter at issue - nor would such benefits even materialize until after the plant achieved full
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power operation. 'Ihat motion was denied. See Tr. 1237-68, 1356.
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- poer operation - was a prenise for evaluating' the public interest, the County was precluded frm doing so. W e County's testimony which discussed the econcm-
' ic penalties which would result frczn contaminating Shoreham to perform low power testing assuming that authorization for full power operation did not follow was not admitted by the Miller Board. 'See Tr. 2145-48.9/
According to the Canmission's own statements, the assumption that full power operation will never be achieval is at least as appropriate as the one preferred by LIICO. hus, in its Novenber 21,-1984 Memorandum and Order (CLI-84-21), the Ccmmission expressly rejected the suggestion that "once a Phase I and II license is granted, the eventual issuance of a full power license is a foregone conclusion." CLI-84-21 at 5.M/
We prejtriice resulting fran the Miller Board's admission of LIICO's testi-many concerning alleged econanic benefits of the exemption and its refusal to admit the County testimony based on the converse assumption, is again manifest in the Board's Decision. We Board's rulings concerning alleged financial and.
econanic hardships rely only upon testimony submitted by LIIro.ll./ See October 9/ For the Otramission's convenience, a copy of the referenced portion of Messrs. Madan and Dirmeier's testimony, that is, pages 41-47, which were amorg those stricken by the Board, is Attachment 5 hereto.
p/ See also Ca missioner Gilinsky's Separate Views filed with CLI-83-13
("%ere cannot be adequate emergency preparedness for surrounding popula-tion without the participation of a responsible government entity. . And, however they may qualify their views now, I do not believe that a single Canmissioner would actually approve the operation of the plant without such participation." (enphasis added))
11/ Richard Kessel, the Chairman _ of the State of New York Consumer Protection Board, whose job it is to represent the consumers of the State of New York, (Footnote cont'd next page) ;
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'29. Decision at 60-63. bbreover, the specific findings concerning alleged fuel '
savings, reduced dependence on foreign oil, and benefits to ratepayers, are all based solely upon the LIICO-proffered assumption of eventual full power operation. .Id. at 61. We fact that only such one-sided evidence was consid-ered by the Miller Board in its exigent ciretanstance finding constitutes clear error and the denial of a fair hearing.12/
(Footnote cont'd fran previous page) subnitted testimony on behalf of New York. A copy of his testimony, marked to reflect the Miller Board's rulings, ~is. Attachnent 6 hereto. As can be seen, much of it was stricken by the Board, but sentences stating that it is not in the public interest to contaminate a nuclear facility before uncertainties surrounding its future operation have been resolved, and that if Shoreham were operated at low power and subsequently were abandoned, the costs that ratepayers would ultimately bear would be increased, were (inexplicably) let in. LIIfC argued that Mr. Kessel's testimony should be disregarded because it was not supported by any facts. See e.g., Tr.
3104-105. m e County testimony stricken by the Miller Board provided sub-stantial factual support for Mr. Kessel's more simnary testimony. See Tr.
2145-48 and Attachment 5 hereto. Consistent with LIICO's suggestion, the Miller Board's Decision fails even to acknowledge the existence of Mr.
Kessel's testimony on this matter of the public interest. We one citation to Mr. Kessel's oral testimony (see last transcript citation in n.127 in Decision) is incorrect: Mr. Kessel's statement does not support the Board's assertion for which it is cited.
-12/ he Miller Board's reliance upon LILCO's testinony about the relationship between the issuance of a license and its own private financial needs was also clearly erroneous. hus, the Board apparently accepted as "an equity" weighing in favor of the exemption, the LIlCO testimorry that "the granting of a low-power exemption would send a positive signal to the capital mar-kets that would help to alleviate LIICO's financial distress in obtaining its totally needed cash by the issuance of securities." October 29 Deci-sion at 61. his Ccmnission cannot countenance such a cle.arly improper at-tenpt by the Miller Board to base, even in part, a decision to operate a nuclear power plant upon a perceived need to " send a signal" to the capital markets.
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'C.' Exclusion 'of County and Statie Testimony Concerning Where the Public Interest Lies with Respect to the Grant of the
. Exemption, ,and ' Admission of All- LIICO Testimony Concerning the Same Issue--
'As noted, LIIf0 subnitted evidence concerning purported benefits to the public which would result frcm eventual full power operation of Shoreham. Such
- evidence was apparently the 'only basis' upon which the Miller Board determined that _ the granting of the exe.ption is in the public-interest. See October 29 - '
Decision at. 103-104, 1T 5 and 6.13/ h us, the Miller Board's " conclusion of law" that "the Application meets the 'otherwise in the public interest' provi-sion of 10 CFR 50.'12(a)" is based solely upon the Board's finding that LIICO had met the " exigent ciretanstances test set forth by the Otzmission"; that find-ing, in turn, is based solely upon the Board's so-called " balancing of the equities" and 'its finding that "the Application and evidence adduced in support thereof demonstrate the ' exigent circumstances' that favor the granting of an exemption...." his wholly circular analysis is devoid of any' substantive con-tent or basis. in logic or fact and must be rejected. In actual' fact, the Miller Board never even considered the interests of the public with respect to the LIICO request; rather, it considered only the one-sided " evidence" which dealt with IIICO's interest's.l4/
-13/ Re only other mention of the "public interest" in the October 29' Decision
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is under. the heading "Public Interest in Adherence to Regulations." _ he discussion there makes no reference to any of the evidence which the County
. and State subnitted or attempted to subnit concerning the actual interests of the public living in Suffolk County and New York State concerning the exemption.. See October 29 Decision at 68-69.
14/ Be Miller Board's treatment of the public interest finding' required under Section 50.12(a) violates Connecticut Yankee,- 2 AEC 393 (1964), which held (Footnote cont'd next page)
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Furthen: ore, although LILCO was permitted to submit testimony concerning LIICO's slanted view of the public's interest, the Miller Board refused to admit-evidence submitted by the actual elected representatives of the public - the
- Governor of New York and Suffolk County - which would have set forth several.
reasons why-it is not in the public interest to grant an exemption to LILCO.
Thus, Suffolk County subnitted testimony which discussed the impact upon elec-trical service to LIICO's custmers which would result frm the exemption,' and New York submitted testimony that the electrical power frm -the Shoreham is not needed for at least ten years. See Attachments 5 and 6. It cannot be disputed that the public servants who were denied the right to present evidence are in a far better position to advise the NRC.regarding where the public interest lies than LILCO. See NRC representation to the Court of Appeals in the Diablo pro-ceeding, cited above. 'Iherefore, the Board's reliance upon LIICO's purported public interest testimony and its refusal even to consider the testimony sub-mitted by the Governor, representing the millions of residents of the State,' and Suffolk County, which has 1.3 million residents, whose obligation and responsi-bility it is to serve.and protect the public who have elected them, constitutes clear error.
(Footnote cont'd frm previous page) that the public interest. determination is not intended to be a repetition of the factors considered in making the safety of life and property find-ings, but rather " constitutes a distinct and separate aspect" of an exemp-tion decision. Id. at 394, n.l. See also October 29 Decision at 69 for another example E this Miller Board error.
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D. Exclusion of Suffolk County Testimny Waich Demnstrated that Operation With the Alternate AC Power Configuration Would Not j'
Be.As Safe As Operation With a Fully Qualified On-Site Power System, and Admission of All Evidence Subnitted by the Staff and LIICO Concerning the "As Safe As" Cmparison l
The Board admitted LIIf0 and Staff testimony asserting that operation of Shoreham with the alternate AC power configuration would be as safe as operation with a fully qualified source of on-site AC power. '1he Board refused to consider, however, County testimony which evaluated the relative safety of the alternate AC power configuration against that of a qualified on-site config-uration. See Tr. 2856-58. In making this ruling, the Miller Board once again followed its pattern of denying Intervenors a fair hearing.
Specifically, the County testimony demonstrated that operation of Shoreham with the alternate AC power configuration would not be as safe as operation with a fully qualified onsite power system.3.5l 'Ihe County witnesses had perfomed both qualitative and quantitative (PRA) analyses in support of their opinions.
Their testimony documents that Icw power operation with the alternate AC power systen is quantifiably less safe than 1cw power operation with a fully qualified AC power system: a loss of off-site power transient during low power operation of Shoreham is seven times more likely to lead to a core vulnerable condition with the alternate configuration than with a fully qualified sour ~c e of on-site AC power; and the likelihood that Shoreham wauld experience an event leading to
@ Copies of the Cotinty testimony, which due to the Board's ruling is not contained in the hearing transcript, are provided herewith as Attachment 7..
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core vulnerability during low power operation is two and one-half times greater under the alternate configuration than it would be under a qualified configura-tion. Such testimony was directly responsive to the cmparison mandated by. the C m mission's May 16 Order.-
The Miller Board clearly erred in refusing to admit this testimony.l. 6/ '~ 'Ihe prejudice is again manifest in the October 29 Decision. Although the Board discussed to a limited extent the reliability of individual items of equignent involved in the alternate AC power configuration, it also asserted that a
" point-by-point conparison of Shoreham's emergency power configuration with TEI diesels and without them" is not a proper cmparison; rather, the Board asserted,' a " functional conparison" is proper. See October 29 Decision at 25-26. In discussing this functional canparison, however, the Board considered only the LILCO and Staff testirony, since the County's evidence related to the .
functional canparison of the two systems was denied admission by the Board.
Thus, the Board improperly characterized the County's' position in the hearing as being limited to "a point-by-point conparison." Id. at 22-23, 25.l_7,/
16f 'Ihe Board's assertion that a probabilistic risk assessment is not "a proper method to be used in this proceeding" (Tr. 2858) is simply wrong and, in any event, is beside the point. PRAs have been required by the Staff in scme proceedings, and the full power PRA perfonned by LIICO has been reviewed by the Staff and was' considered by the Brenner Board. Ebrther-nore, while there may be no requirenent to perform PRA analyses as a gener-al matter, there is also no bar to the use of probabalistic data, if avail-able, to evaluate the relative safety of operation in different configura-tions. 'Ihe. Miller Board's ruling, particularly in the face of its admis-sion of all evidence subnitted by LIICO and the Staff, was clearly errone-ous and highly prejudicial.
17/ 'Ihe Board similarly incorrectly asserted that:
(Footnote cont'd next page) !
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-Moreover, the Miller Board's finding that evidence concerning the inferior-ity of the alternate equipnent 'or its vulnerability to single failures was "ir-relevant" (id. at 51) is inexplicable, and clearly erroneous. What could be
.more relevant to findings under the "as safe as" criterion than a discussion of the . vulnerabilities and inferiorities of such equipnent? .
Despite its refusal to consider the County's testimony,. the Miller Board
- found that operation with the alternate AC power configuration "provides a conparable level of protection as a' fully-qualified' system would and thus meets the 'as safe as,' standard set by the Ctmnission in CLI-84-8." Id. at 55 (ernpha-sis added). See also M. at 102. In addition, the Miller Board apparently interpreted the "as safe as" standard as requiring "a ccriparable level of pro -
tection." d at 27.
_I_d. Clearly, in reaching its "as safe as" - or "canparability" - conclusion without even considering the County evidence con-cerning the precise canparison mandated by the Ocmnission, the Board erred, and denied Intervenors a hearing on an issue central to the exemption request. In-deM . in ignoring evidence that low power operation under the exenption would be seven times less safe than with a qualified AC power system, the Miller Board made a mockery of the entire proceeding.
(Footnote cont'd frcm previous page)
Suffolk County's testimony was devoted almost exclusively to showing that each unit in the enhanced system (the gas tur-bine and the DiDs) was either inferior to the qualified sys-ten or, in the case of the DiDs, that the potential existed for a single failure which would disable all four of them.
d at 50-51.
I_d. Such characterizations of the County's testimony are in fact a reflection only of the Board's own erroneous evidentiary ruling. -
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E. Denial of Hearing on Security Issues Arising frcm Proposed Changes in AC Ibwer Configuration' and Applicable to Iow Power Operation 4
and Findings of Fact Without any Basis in Evidentiary Record-
.a j. f .
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The Ommission has recognized that physical security issues are pertinent
, ' to the granting of an exemption. See NRC Memorandum and Order r July 18, 1984 at m., o M 2-3, and n.l.
n Wat Order was issued in response to the County / State motion for a
.. directed certification of a June 20, 1984 Miller Board Order which precluded In-tervenors frcm raising any physical security issues. %e Ommission later stat-
. ed that in issuing its July 18 Order, it had "specifically considered the full 3
text' of the -1982 settlenent agreenent" between LIILO and Suffolk County relating 8
to LIIf0's then existing security plan. NRC Menorandum and Order dated August 20,' 1984 at 2. he Ctrunission also recognized that LIICO's exenption applica-tion " represent [ed] a new develognent in this proceeding, and it' raise [d] some new issues not heretofore considered." July 18 Memorandum and Order at 2. 'Ihe Canmission held that the parties "were to be afforded the opportunity to raise 4 new contentions, so long as they were responsive to-new issues ~ raised by LIICO's t
exenption request, relevant- to the exemption application and decision criteria
. cited and explained in the May 16, 1984 Order, and reasonably specific and oth-erwise capable of on-the-record litigation." Id. at 2-3.
Suffolk County and the State of New York subnitted 'seven detailed conten-tions concerning the security issues raised by LIICO's exenption proposal. Due to . safeguards considerations, we do not discuss the details of those contentions
,d, in this pleading,' but instead refer the Ccrimission to the Suffolk County. and h'
K -
State of New York Reply to LIICO Security Filing dated August 28, 1984. On
( y
'}'
Septenber 19, theLMiller Board' denied admission to all the proposed security
- contentions, despite the fact that the. Staff had agreed that certain 'of the con-tentions were both admissible for litigation and raised legitimate substantive concerns with which the NRC Staff agreed. See, e.g. , Tr. S-81, S-133, S-144-48,
'S-190-91, S-195. his Miller Board ruling was also made in the face of LIICO's admission that the existing physical security plan had never been modified to take into account the configuration changes proposed for low power operation.
See e.g., Tr. S-10, S-70.
Despite its refusal even. to consider specifically identified security is-sues, much less to obtain evidence on those issues, the Miller Board nonetheless had the audacity to make factual findings concerning the alleged adequacy of LIICO's physical security arrangements. See October 29 Decision at 76-77,. Find-ings 21-25.18/ Such baseless findings are further evidence 'of the Miller Board's incapability of conducting a fair proceeding.
Of course, given the language of Section 50.12(a) and the Commission's July J
18 Order, security findings are necessary in ruling upon LILCO's exemption re-quest, particularly in view of the F3Carity Vulnerabilities created by LIICO's atternate AC power configuration. The Miller Board's findings relating to secu-rity, however, are clearly without any factual basis in the evidentiary record.
Moreover, if the County and State had been permitted to present evidence, the
,18/ One of these findings purports to rely upon LIICO and Staff representations made after the Board had ingeperly rejected the proposed contentions. 'Ihe remainder have no stated basis whatsoever.
baseless assertions in the Miller Board's Decision would have been proven false.
Thus, the Miller Board's findings 22, 23 and 24 track, in scme respects almost verbatim, the contentions proposed by the State and County, which were rejected by the Miller Board. Its subsequent purported " findings of fact" on the precise issues the Intervenors sought to litigate, is so outrageous that it practically defies belief. 'Ihus, in addition to the error embodied in the Board's September 19 Order denying admission of the security contentions, the Miller Board's sub-sequent issuance of so-called " findings" concerning the alleged adequacy of LILCO's security provisions also constitutes an additional and even more preju-dicial violation of Intervenors' due process rights.
F. Pailure to Consider Evidence Concerning Whether 'Ihere is a Need for the Electric Power to be Provided by Shoreham The Miller Board refused to admit New York testimony which established that there is no need for Shoreham's power for at least 10 years and perhaps longer.
Ccr1 mission precedent makes clear, however, that need for the power is relevant to decisions on exenption requests. See United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-83-1,17 NRC 1, 4 (1983); Washington Public Ibwer Supply System (WPPSS Nuclear Projects Nos. 3 and 5), CLI-77-11, 5 NRC 719 (1977).l9/ In direct conflict with this legal authority, however, the 19/ 'Ihe Miller Board appears to acknowledge the significance of this fact by its citation of Shearon Harris II,- CLI-74-22, 7 AEC 938 (1974), which it quoted as holding that "the timely satisfaction of public needs by reducing unanticipated delays in the realization of facility benefits . . . consti-tt'te[s] exigent circumstances." October 29 Decision at 58.
h g
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t
! Miller Board struck the New York testinony on the question of.the need for elec-I tric pwer, ruling that such testimony was irrelevant. See Tr. 2903. 'Ihe Board's refusal to consider whether there is any need for the power to be b
[ supplied by Shoreham was clearly erroneous.
l The fact that Shoreham's power is not needed totally obviates the need for the unprecedented rush to license Shoreham by means that violate the parties' L
constitutional rights and defy logic and reason. Because there is no need for Shoreham's electricity, there is r.o need to dispense with the requirenent that LIIf0 ccmply with safety regulations. bbreover, the only logical and reasonable -
course of action - resolvirg the uncertainties relating to emergency planning before any contamination of the reactor - can be followed without any adverse impact on the provision of electricity to Iorg Island. '1he Comnission has no choice but to recognize this plain and obvious fact: no interests'other than LIIf0's private ones will be served by tolerating or approving the illegal actions of the Miller Board or by granting the exenption.
G. Improper Reliance Upon Evidence Concerning the length and Costs to LIIf0 of the Shoreham Licensing Proceeding
{
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LIIf0's evidence concerning the alleged existence of exigent circumstances to justify an exemption included testimony concerning the length and costs of the NRC licensing proceeding. Intervenors moved to strike as irrelevant this testimony (Tr. 1715-31), in which LIIf0 (a) canplains that the Shoreham proceed-ing has lasted for several years, (b) alleges that the Staff has impeced extra and technically unjustified burdens on LIIf0, and (c) ccrnplains that LIIf0 has
q
- P had to expend'a' great deal of-resources'in pursuing'its quest for a license.
See Tr. 1680-92. %e Staff agreed that this testimony was irrelevant. Tr.
-1693.
%ere is no indication in' any connission precedent that such evidence (even
' if believed) would support an exemption. Nonetheless, the Miller Board relied -
heavily upon this LIICO testimony'in its October 29 Decision:
he costs of tnusually h' eavy and protracted litigation may also properly be considered in evaluating finar cial or eco-
-nmic hardship as an equity in this exemption' proceed-ing. . . . It is beside the point to argue that such,liti-
--gation is' permitted under NRC regulations. Although not 11-legal, such inteminable litigation has resulted in great -
expense to LIICO, both in terms;of time and resources. . . . .
he unusually heavy financial and econanic hardships associ-ated with the.very-protracted Shoreham licensing proceedings constitute a significant' equity, which we hold can reasonably be held to amount to exceptional ciremstances in ,
the context of granting a low power- exemption.
October 29 Decision at 62-63 (enphasis added). See also id., at 59-60. Were
'~
is no legal, factual, or -loaical basis for the Eoard's conclusion that LIICO's litigation costs constitute exigent circumstances which -justify.an exemption fran canpliance with important safety regulations.2.9/ %e Board's reliance ~ upon LIICO's clearly irrelevant testimony, as well as its consideration only of the
- 2g he Staff and the Cannission's Licensing Boards are required to make find-ings concerning the safety of a nuclear plant, and undertake whatever.re-views are necessary to enable them to make the requisite findings. he .
fact tbst in the case of Shoreham extensive Staff review.and hearings have been necessary to make the. findings required under the regulations does not constitute the kind of " exigent ciremstances which justifies aniexemption or the issuance of a license.
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alleged. financial and .econmic hardships bcrne.by LIIf0 and its refusal even to
'l
~ consider;those putiforth by the State and the County which would be borne by the Ipublic,constitutesclearerror..
H. Iupoper Consideration of Prior Staff Practices ~ as Basis for. ,
" Finding Exigent Ciretristances to Support Exeription -
In " weighing the' equities"' and determining that-exigent ciremstances
~
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- exist, the Miller Board considered' prior Staff practices in permitting the issu-ance of licenses.despite nonempliance with safety regulations.' See October'29-Decision at 63-66. 'Ihe information apparently relied upon by the Miller" Board -
concerning such prior Staff practices is not in the evidentiary record and was never available to be cross-examined. Nor did Intervenors have any opportunity-to challenge the relevance, similarity or applicability to the facts at issue in~
this proceeding of the information apparently relied upon by the Miller: Board.
The Miller Board's reliance upon such extra-record;information is' clearly erro-neous, and constitutes yet another example of its flagrant abuse of due process.
Further,.the. Miller Board's suggestion that the Staff's behavior in situa-tions involving other utilities 'or regulations. smehow justifies the -issuance of a license in the -face'of LIIf0's non-empliance at issue here, whether on the basis of a. " constitutional equal protection" theory, or for. the sake of "consis-
-tency," is patently absurd. 'Ihis Otanission has ruled expressly'on how'LIICO's .
nonempliance with the Ctenission's regulations must be handled. Whatever..the Staff,may have done prior, or even subsequent, to the Camission's Shoreham rulings with: respect to other plants, and whether such actions were right or
[~
wrong, cannot change the 'Ccrnission's ruling ' that LIICO must meet the Section .
50.12 standards as enunciated in the May 16 Order. 'Ihe Board's finding that al-legedly " inconsistent" Staff practices constitute an exigent circumstance that justifies the exemption request is clearly erroneous.
I. Improper Consideration of Offsite Power System The Miller Board discusses what it terms the " reliability of LIICO's normal off-site power systs." October 29 Decision at 40-46, 82-85. After discussing various aspects of LIICO's off-site AC power system, the Board concludes that it is "unlikely that p3wer would be unavailable to either the NSST or the RSST from normal off-site sources." Id. at 46.
However, this exenption proceeding exists because LIICO does not have an on-site electric power system. 'Ihe Miller Board was instructed by the Camis-sion to consider whether LIICO's alternate configuration would result in low power operation that muld be as safe as that available with a fully qualified on-site power system. LIIf0's offsite power system is irrelevant. Rather, the entire focus of this proceeding was to be not on LIICO's normal offsite power system which is a constant on both sides of the emparison mandated by the Ccrn-mission; the focus was to be the reliability and capability of LIIf0's proposed alternate configuration (the gas turbine and D4Ds) as empared to a fully quali-fied on-site system. 'Ihus, to cmpare the relative safety of operation with a qualified on-site systen and with LIIro's proposed alternate configuration, h must be' assumed that the off-site system is not functioning. See also, GDC 17.
7 - . , . .. = , . , _ . _ _ - .
'Ihe Miller Board's speculation about the adequacy of LIICO's off-site system and 1whether a loss of off--site power would be likely was irrelevant and clearly cr-roneous.
J. 'Other Errors Relating to "As Safe As" Finding
'l. Improperly Qianging the legal Standards Set Ebrth by the Ctmnission In its May 16 Order, the Ctmnission established the exemption requirenents which LIICO must satisfy, including that LIICO must demonstrate "that, at the power levels for wich it seeks authorization to operate,- operation would be as safe under the conditions proposed by it, as operation would have been under a fully qualified on-site AC power source." CLI-84-8, at 2-3. 'Ihe foregoing standard was binding upon the Miller Board. Ibwever, throughout the proceeding, the Miller Board discussed at length, particularly with the Staff, whether the standard articulated by the Ommission means what it says or whether it means sonething else, such as "substantially as safe as," or "a ccTparable level of safety." See Tr. 3027 g seg. 'Ihe Board appears to adopt the Staff view that "as safe as" means "a conparable level of protection." See October 29 Decision at 27.
'Ihe Board's deviation fran the Cannission's standard was improper. An al-legedly "conparable level" of safety is not the same as being "as safe." 'Ihe CoTunission's standard calls for a direct conparison of the two AC power. configu-rations - the alternate system versus the fully qualif ed system. If the safe-ty provided by operation with the alternate system does not fully measure up to 9
that provided by operation with a fully qualified system, then the exenption must be denied. . he Miller Board's reliance upon a "conparable level- of safety"
- standard violates the Ocmnission's May 16 Order.
-his error is significantly prejudicial for several reasons. First, the use of a "conparable safety" standard permitted the Miller Board to ignore the obvious reduction in safety that would result fran low power operation with the alternate configuration. See subsection (2) below. h us, the liller Board ad-mitted that "there is unquestionably a lesser margin of safety provided by LIICO's ' alternate power system," thereby establishing that LIIf0 dces not ' satis-fy the Ctanission's "as safe as" standard. October 29 Decision at 24.2,l_/
Clearly, the Miller Board blatantly ignored the standard set by this Chn-mission: the Chrmission did not set a standard of whether operation with the alternate configuration would be safe enough; rather, operation with the alternate configuration must be as safe as operation would have been with fully qualified TDI diesels. A reduction in the margin of safety, and a reduction.in 2_1/
1 he Miller Board also rejected as irrelevant the fact that a qualified. sys-tem could provide emergency power to safety loads within 15 seconds, where-as.the alternate configuration could not supply power for a minimtra of sev-
~
eral, but up to 30, W nutes. We Board thus found that since there are at
' least 55 minutes to restore power before core damage results during low power operation, it is not significant that 30 ninutes of that time (as' opposed ~to 15 seconds) could be necessary before any power is available under LIICO's alternate configuration. See id_. at 23-25. % e Board's as-sertion that "there is no need to consider the relative merits of the two-systems per se, because for the purpose of the exernption request, it is )
only necessary to establish that the enhanced system is capable of per-forming its intended function" (id. at 52), is another example of the Board's improper apolication of the standard set by the Ocmnission. j 1
,. . - . = - _ - . - , - - - - - - - -
the defense in depth protection which is central to the NRC's licensing concept, cannot be ignored under the Ccranission's as safe as standard.
Secorxi, the Board's alteration of the Ctranission's standard constitutes an-other of the Miller Board's pattern of violations of the parties' fundamental rights. 'Ib require the parties to litigate the case according to one standard
-- that set by the Ccrmission - and then to decide it according to a different standard -- the Miller Board's clearly erroneous one - contravenes the federal constitutional guarantee of procedural due process and Ocmnission precedents'.22/
Due process requires that parties be given fair notice of any changes to regula-tory requirenents and that litigation must proceed according to standards artic-ulated beforehand, not those created after the fact to justify a decision in favor of one party rather than another.
- 2. Failure to Consider Factual Evidence Concerning the Safety of Operation With the Alternate Configuration We set forth in summary fashion below, particular facts, upon which Suffolk County subnitted expert testinony which document a real reduction in safety to be provided by the alternate configuration as canpared to a qualified configura-tion, each of which was ignored by the Miller Board in reaching its "as safe as" conclusion (all these facts are set forth in the County and State August 31 subnittals (Attachment 3))
- E/
22/ Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 186 (1978); Niagara bbhawk Power Co.
(Nine Mile Point Nuclear Station, Unit 2), AIAB-264,1 NRC 347, 353-55 (1977); Pennsylvania Power and Light Co. (Susquehanna Steam Electric eta-tion, Units 1 and 2), IBP-82-30,15 NRC 771, 781-82 (1982).
2_3/
3 'Ihe Decision did acknowledge that at least scrne of the facts were presented by the County; however, th Miller Board inexplicably concluded that (Footnote cont'd next page) l
.'y
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'u _
L l .' 'he ~ alternate' configuration contains only two.nonsafety--
' (related power sources,.whereas the qualified configuration
- p. ;contains three fully safety-related power sources.
2 .' Portions.of the alternate configuration share ecmnon el-ernents with the off-site power system and also ~ share ccmnon fea--
, >tures with each other,lthus making the alternate syst e subject to single: failures; each of theithree qualified diesels is~ a em-pletely independenti power source that'is physically isolated fr m each of. the'other two 'and is fully independent of off-site power sources.
--3. One-half of LIIco's alternate configuration.- the four
- DID diesels -- is subject' to' single failures,that would' disable .
the ~ entire set of diesels because the four units share a ecmnon-fuel systen, ~a ecmnon starting syste,~. comon -output . cables and ccmwon controls; 'each of the three qualified diesels meets the single failure criterion..
- 4. she alternate configuration requires many manual operations in different areas both inside and.outside plant:
buildings, giving rise to opporttnities for human' error; a-quali-fled system is fully. autcmatic.
5 ~. %e alternate configuration is vulnerable to seisnic events and is likely. to fail, in an SSE; a fully qualified ' system is designed to withstand the SSE. -
.6. W e alternate configuration has essentially no local fire detection or extinguishing systems.and the abnormal:condi-tion alarms associated with the alternate configuration are not annunciated in the control rom; a qualified system includes both fixed . fire detection and extinguishing systems for each genera-
. tor, and a emprehensive alarm systen which is' annunciated -in the control rom.
- 7. At least 16 additional technical specification require-ments and 9 license conditions must be imposed before operation' with the alternate configuration would be acceptable to the Staff; none of these'requirenents or conditions would be needed with a qualified source of AC power. -
(Footnote cont'd frca previous page) operation with the alternate configuration would be as safe as operation with a qualified system in the face of the clear. evidence to the ' contrary .
which we list above.
4
.A.
e Respectfully subnitted, Martin Bradley Ashare Suffolk County Department of law Veterans Memorial Highway.
Hauppauge, New York 11788 s
He);bert H. B Lawrence Coe pher Karla J. Letsche KIRKPATRICK & IOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County b/ ' -
c -
abian G. Palanino
.Special Counsel to the Governor of the State of New York '
Executive Chamber, Roan 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuano-Governor of the State of New York Novenber 29, 1984 l
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I' ATTACHMENT 1
1 THE WHITE HOU$E .
wwmwwow
)
l October 11, 1984
Dear bill:
I want c.u to knew c." m) appresst. tion for ycur
. continuire ecr.~tribution:s to and support tor my Adv.inist: i.t i on. Your leadershirier.d,cdurage hs.ve beer. Cwte.re.in:r.q fr.eters ir the progrese wt. hc te made in the inrt 6 w years.
On a natter of particular concern to you and the
. people cf Eastern Icr.g Island, I wish to repeat Secretary Mcde.!'c assurance to you thrt this
' Administration does not favor the impositier. of Federal Governmer.t authority over the objections ci state and lccal governments in matters regarding the adec.uacy of an emergency ev&r;uatier, plan for a r.uclear power plant such as Shoreham.
Your ecncern for the safety ci the people of Lor.g
- Islar.d is parameurs and shared by the Secretary ar.d me.
Thank /cu 4.gair. for your support, I 1cok forward to kcrkir.g with ; cu in the yearn ahead.
Sincerely, _,
- ^^t, b
1
- The Hor.critle Willism Cerney i House ci R6prczentativos Washingter., D.C. 20515
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ATTACHMENT 2
. . . .,LJ,.
~~ ~- ~
- u ruuuau of i.egh inwiik o.R. . J.6, C ,
SENSE OF THE LEGISLATURE RESOLUTION REITERATING h 5E5 '
$UFFDLK COUNTY's OPPOSITION TO LILCD'S SHDRENAM NUCLEARPOWERPLAN( .
- WHEREAS, the Muslear Regulatory Comerission.is considering L11co's request to operate i the shoreham Nuclear Power Plant at lower newer levels up to 55; and ,
WHERIAS. Suffb1k County has detensined ta Resolution 111-1983 that in recognition of ,
i the impossibildty of evacuating or otherwise protecting the health, welfare and l;
ss.fcty of the citizens of 5uffolk County in the event of a. serious nuclear accident at the ShorWA plant, the County will not adopt or impleent a radiological i emergency plan for Shorehees and ,,
I WHEREA5 the Governor acting on behalf of the State of Nas York has detemined not to impose a radictogical merpency plan on Suffb1k County or otherwise to act in a manner inconsistent with t"is determination of Suffb1k Countys and
! WHEREAS. Suffb1k County and New York 5 tate hsa asserted to the Nuclear Regulatory .
' Commission in the pending licensing proceedings that both goverreients oppose the licensing of Shoreham, including operation of Shoreham at "ow powers and _
i l
WHEREA5. the low power operation of Shoreham would contaminate the plant while them is no reasonable basis on which to believe the plant should ever operate at commercial ,
power leveiss and .
WHEREA5. the smst of cleaning up such contamination of the 5horeham plant following l
lower power operation would be well is excess of $100 millions and ,
l WHEREA5. the quantity of, electricity which Shoreham represents will not be needed fur i
at least a decado and therefore, there is no reason for the Nuclear Regulatory Comission to make a precipitous decision concerning low power operation at Shorehams l
and . .
I WHEREA5. the President of the United states wrote on October 11. 1984 that "...this
! Administration does not. favor the imposition of federal goverfinent authority over the 1 objections of state and local governments in matters regarding the adequacy of an amergency avacuation plan for a nuclear power plant such as Shorehem;" and '
I
! WHEREA5, any action tw the Nuclear Megulatory Caenission to license Shoreham to operate at low power levels would constitute the immsition of federal government authority over the oldections of Suffb1k County and tW State of New York; and ,
WHEREA5. such action by the Nucleat Regulatory Consnission would be in derogation of tha comity and cooperation the federal revernment should show with respect to this issue, which is a matter of particular ' ocal and state concern; now therefore, be it l
- 1 l
1 __ . _. . - . - - - - - _ - _.
c .,a
, RESOLVED. thai: Suffolk County hereby reiterates its opposition to the operation of the $horeham plant at any and oli power levols; and be it further ,
RESOLVED, that Suffb1k County heretw urgas the Nuclear Replatory Commission to deny Lilco's pendin5 request to operate Shoreham at low power avais up to 55; and be it '
further -
RESOLVED. that the cleett, of the County Le51slature promptly transmit a copy of this resolution to the Chaivaan and Ceuurissioners of the Nuclear: R5gulatory Ommsission and to other offictets of the federst mestatstration and Congress es appropriate. .
oArza: t//dy39 S
e e
9 0.
1 l
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