ML20101E402

Advises That Assessment & No Significant Impact Finding Concerning Util Request for Exemption from 10CFR50 & GDC 17 Deficient & Not in Accordance W/Regulatory Requirements. Licensing Action on Request Would Be Illegal

ML20101E402
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/21/1984
From:	Lamphen L, Lampher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Novak T Office of Nuclear Reactor Regulation
References
CON-#185-788 OL-4, NUDOCS 8412260237
Download: ML20101E402 (5)

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KIRKPATRICK & LOCKHART 1900 M STREET. N.W.

WASHINGIDN, D.C. 20036 ONE BOSTON PLACE BOSTON MA 02108 TELE!NONE (202) 452r7000 (617) 97L5400 1428 BluCKELL AVENUE TEI.ECOPIEll(202) 452-7052 MIAMI. FL 33131 0 05) 374 4112 1500 OLNER BUILDDO December 21, 1984 mTssuncu.PA i5m TIUTEK5 LVCT DIAL NUMBO (4I2) 1554500 (202) 452-7011 Mr. Thomas M. Novak Assistant Director for Licensing Division of Licensing U.S. Nuclear Regulatory Commicsion Washington, D.C.

20555 Re:

Long Island Lighting Co. (Shoreham Nuclear Power Station), Docket No. 50-322-OL-4 (Low Power); Environmental Assessment and Finding of No Significant Impact

Dear Mr. Novak:

We are writing on behalf of our client, Suffolk County, New York.

Suffolk County has reviewed the NRC's " Environmental Assessment" and " Finding of No Significant Impact" pertaining to LILCO's request for an exemption from 10 C.F.R. Part 50, GDC 17.

See 49 Fed. Reg. 48,121 (1984).

For reasons set forth below, the Assessment and No Significant Impact Finding are deficient and not in accordance with regulatory requirements.

1.

Under 10 C.F.R.

@ Sl.30(a)(1)(i), an environmental assessment must discuss the "need for the proposed action In the instant case, the " proposed action" is an exemption from GDC 17 to permit early operation of Shoreham at low power despite the absence of a fully qualified onsite AC power source.

The Assessment purports to discuss the need for the proposed action.

49 Fed. Reg. at 48,121.

This discussion is grossly deficient.

The "need" discussion amounts only to a description of the fact that LILCO lacks fully qualified diesels, that with-out the exemption LILCO cannot operate Shoreham at low power, and that the Miller Board and Staff believe there is adequate tech-nical justification for the exemption.

The Assessment fails even to identify, let alone meaning-fully address, the very "need" issue which is central to NEPA and the NEPA issue in this docket, i.e., whether there is any need for or benefit to be derived from the grant of the unprecedented 8412260237 841221 PDR ADOCK 050003gg pool 's a

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LMr.. Thomas M.-Novak December /21, 1984 Page 2

'GDC.17. exemption request in face of the fact that the power from

'Shoreham is:not required by Long Island residents for at least 10

. years.1/L Since Shoreham's power is'not needed for at least 10 nyears, there canube no possible basis for the NRC to find that

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there is-.a'need for the proposed exemption action..The Assess-ment ignores this critical issue and, thus, is defective and in violationlof.NEPA and the NRC's regulations.

2.

Under 10 C.F.R. 5 Sl.30(a)(1)(ii) and (iii), an assessment must consider the " alternatives" to the proposed action. and.the environmental. impacts of the' proposed action and

.such_ alternative (s).

The Assessment purports to address these requirements.

See :49 Fed. Reg. at 48,121-22.

In fact, however, the(Assessment makes only inconsequential and conclusory state-ments.

First,' the Assessment ignores an inescapable critical environmental impactlwhich would result from grant of the exemp-tion:. a' presently uncontaminated. facility which would~not likely ever be eligible-for a commerical operating license would be 7

cont &minated by1 radiation.

Such contamination would create the potential: for worker exposure to harmful radiation and require

that.the facility be decontaminated subsequently.

The decontam-

'ination_ process alone will add millions of dollars of cost (and, again, the potential for worker exposure _to radiation).-

Under

.the NEPA process,-tha NRC'was required ~to take a hard look at these impacts and costs.

By completely ignoring these impacts

'and costs, the-NRC has flagrantly violated NEPA.

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Second,'the Assessment states that the principal alternative to the grant of the exemption -- the denial of the-exemption --

"would not reduce the environmental impacts associated with the onsite emergency. power supply system, and would' result in delay

. 1/. ~See Suffolk County and State of New York Comments Concerning 1 Commission-Review of LILCO's Exemption Request, November 29,

1984,'at 16 and Attachments 5 and 6; New York State and Suffolk

Ccunty. Supplementary Affidavit in Support'of Comments Filed November 29 and Request for Oral Argument-filed November 29, December 5, 1984,'and particularly the affidavit of Eugene J.

Gleason, Director of the New York State Energy Office Bureau of Planning;'New York State and Suffolk County Motion for Leave to Reply to LILCO's Request for the Commission to Ignore State Energy-Official's Sworn Statement that Shoreham's Capacity Will Not-Be Needed for More Than Ten Years, December 14, 1984.

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KIRKPATRICK & LOCKHART Mrh Thomas M. Novak December 21, 1984 Page.3

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~in theEissuance-of'the Shoreham operating' license."

-Id.

at 148,122.

This statement is clearly wrong.

The_-denial of the

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exemptionLwould avoid radioactive contamination of.the plant, resulting in.less environmental impact.

Further,-the purported

" delay" in issuance ofian operating license is'of no effect, particularly:because:

.(a) there_is no need for Shoreham's power; and-(b)-the~1ack of an approved and implementable offsite radio-

. logical emergency response plan means that the plant will not be.

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eligible:for a full power, commercial operating license.2/

i If the Assessment had properly considered these matters as g

1 required by NEPA, the NRC would have understood that the environ-mental costs associated with the grant _of~an exemption fer exceed any benefits which possibly might accrue from operation of-the

plant at low. power when the plant likely may then need to be

' abandoned. ;Indeed, there clearly are no benefits that might be derived-from low power operation of an unneeded plant when there are substantial' uncertainties (such.as presently exist).regarding

~whether the plant ever could be-granted a commercial license.

Accordingly,Dthe Assessment is deficient and violates NEPA and the.NRC's regulations..

Third', the: Assessment is-deficient because all reasonable

" alternatives to the proposed action are not discussed.

The Assessment considers only the alternative of outright denial of the exemption.

The Assessment ignores the alternative of delay-ing: action on the exemption until there has been resolution of

. critical. issues which could eliminate any possible basis for grantiof.the exemption.

Thus, if the Appeal Board reverses the Miller Board's October 29 Initial Decision which has been ap-

-pealed by the State and County,3/ if the Laurenson Board finds 1!/.

The Assessment' implies that there would be some harm from denial of an exemption to allow low power opera

• ion.

But the Assessment never even purports to identify what that harm might be. -Surely, in terms of the public interest, taere is no harm in holding back an operating license until critical safety require-

.ments are1 satisfied.

Again, the Assessment is woefully inade-quate for:failing to take the requisite hard look at the

environmental costs and benefits of the proposed action and the alternatives-thereto.

3/

.The Joint State and County Brief in appeal of the Miller Board Decision was filed December 11, 1984 and demonstrates multiple bases to reverse the Miller Board.

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' [defici' enc esiinlLILCO?s emergencysplan',Lorrif thel'ewjYork: State

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N LSupreme Court 1 rules in:Cuomo~-et~-al.-'v. LILCO,cConsolidated Index

'No.184-4615,ythat-LILCO. lacks legal. authority to implement its m,

Ll plan',ithen plainly there;would beino possible justification lforf A

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the;NRC.to) permit.LILCO to contaminate.Shoreham;at low power by

[meansiofian' exemption'to GDC 17..Decisionsfon'all'these matters'

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are expected in'. coming-months.';A deferral'of a decision on the PLILCO:exemptio~niuntil these'. decisions are rendered-would result-ein nofdelay'in: ultimate: full" power op'eration of the plant (assum-

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-ing,farguendo, that such; operation could ever be' authorized),

because under-no schedule,could such" operation occur until late-fin:1985.1 }Thus,:even after'these-decisions there_woufd be time Lfor'thef riefLlow power program' proposed by LILOO (2-3 months) b n~

priorsto;anyl potential' commercial operating license..According-ly, : delay lin (action - on the exemption request until-decisions are:

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' reached.in:these.'other matters would serve to maintain-the status-quo,1would4 avoid unnecessary' environmental-impacts, would result JinLno1 harm to LILCO,.and-would-not_have anadversesimpact on'the 10-yearitimespan; before Shoreham is needed.

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J 3.1 The;" Finding of:No-Significant' Impact" was never issued finidraft-for public. comment.. This-violates 10 C.F.R.

S 51.33,'

ibecause theicriteria of:Section 51.33(b) for circulation'of draft rfindings;for:oublic comment' clearly.are here satisfied:

this Texemption'. request isi"without precedent".(5 51.33(b)(11(ii)):-and Ethe'; purposes;of NEPA-clearly lwould be. furthered ($ 51.33(b)(2)) *

~inLthi's case'by;a-full lpublic comment period since, as'this.sub-

mission.'makes' clear,

there~is no basis.under NEPA to' justify the

, exemption from GDC 17.

- 4.-- ~The " Finding'of No-Significant-Impact" was is' sued in 3

. violation:of.SectionL51.34.- In a. contested proceeding such as

' ' the.. instant case,- the. Staff director can only prepare-a proposed

.findingjof no significant impact.

The final' finding can be iissued onlylby the presiding officer, the Appeal Board, or the s

. /C5mmis'sion,as a' collegial body.

See 10 C.F.R. 5 51.34(b).

?In-l view-of'the Part 51' violations documented above, the

? Assessment?and Finding:of No-Significant' Impact must be rescind-

'ed.

The NRC has only two options:

(1) prepare-an Environmental

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? Assessment in full compliance.with the regulations, which we sub-E mitEwill-reveal theineed to prepare a full environtrantal impact Estatementf("EIS"); or J (2) -dispense with the Assessr:ent and

immediately commence preparation of an EIS in accordance with E

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KRKPATRICK & LOCKHART ut kj -

- Mr. Thomas M. :Novak -

' December 21,.1984-Page.

Part'51 procedures.. Until such steps are taken,-any licensing-action-on-the LILCO. exemption request would be illegal.

Respectfully' submitted, W {lMy_%}-W Counsel for Suf folk County LCL/dk

-cc:' Nunzio J.'Palladino LandoW. Zech, Jr.

James:K.-Asselstine Frederick M.-Bernthal Th'omas M.'. Roberts Lawrence J.

Brenner, Esq.

Dr. George A..Ferguson Dr.-Peter A. Morris

~ Marshall E. Miller, Esq.

Glenn-O.. Bright.

Elizabeth B. Johnson

_ Alan (S...Rosenthal, Esq.

Gary J.

Edles, Esq.

-Howard A. Wilber Docketing & Service Section Edwin'J..-Reis, Esq.-

--W. Taylor-Reveley, III, Esq.

Fabian G.

Palomino, Esq.

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