ML20114D110

Comments on Suffolk County Opposing NRC Environ Assessment & Finding of No Significant Impact on Util Request for Exemption from 10CFR50,GDC 17.Commission Finding Correct

ML20114D110
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/23/1985
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Novak T Office of Nuclear Reactor Regulation
References
CON-#185-257 OL, OL-4, NUDOCS 8501300709
Download: ML20114D110 (4)

Text

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HUNTON Sc WILLIAMS 707 EAST MAIN STREET P.O. Box 1535 aooo NNNsVLVat A AVENvC. N. w. Rxcuxown, Vzno;wzA 23212 a..pannavauve P.o somesa3o wcw vonn, wtw vonn soiri wasMswoTow. o. c. soose TELtenous ata sao-eaoo vstarwont zoa eso.isoo TELE PHON E 804-788 8200 TELEX 7s470s rinst vinotwin saNn Towan TWX-710 956 -0066 e e a 7 aviLoiwo P. o mox soo P. o. mox sees natrion, wonTw camouma a7eoa wonrotn. vinoimia assi4 TELErnowc sio-ara-o37 Tattu 7 era rins? Tahusssez sawn suitoiwo aose enais ensoot noao OOOOEY F nuoxviLLc. T swuc rc 37eoe raiaram, vinoisia proso TELErnowc eis-e37 42n vrLapwowc 7os.3sa-aaoo oinscv osat wo. ao4 7e.. 8357 Mr. Thomas M. Novak Assistant Director for Licensing Division of Licensing U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Long Island Lighting Co. (Shoreham Nuclear Power Station), Docket No. 50-322-OL-4: Environmental Assessment and Finding of No Significant Impact i

Dear Mr. Novak:

On December 21, 1984, Suf folk County submitted to you a letter advancing four reasons why NRC's Environmental Assessment and Finding of No Significant Impact on LILCO's request for an exemption from certain requirements of 10 CFR Part 50, GDC 17 at

, the Shoreham Nuclear Power Station (49 Fed. Reg. 48121 (December 10, 1984)) were assertedly " deficient and not in accordance with regulatory requirements." LILCO disagreeJ with Suffolk County, and believes that the Commission's finding of no significant impact was correct and in keeping with regulatory requirements.

As is detailed below, none of the four " reasons" proffered by Suffolk County requires NRC to rescind its Federal Reaister notice or to develop further environmental assessments or impact statements.

First, Suffolk County argues that the environmental assess-ment of LILCO's exemption request must include a discussion of the need for the power that will be produced by the Shoreham plant.

Suffolk County bases this argument on 10 CPR S 51.30 (a)(1)(i),

which states that environmental assessments shall include a brief description of "[t]he need for the proposed action." Suffolk

County would interpret this provision broadly so as to permit a i

reassessment of a nuclear project any time a negative declaration was prepared. However, the plain language of this provision, as well as other sections of Part 51, contradict this broad interpre-tation.

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Huwrow & WILLIAMS

Suffolk; County's argument goes beyond the scope of the pend-L ingLexemption request. .Section 51.30(a)(1)(i) requires a discus-l sion of'the.need for the proposed action. In this case, the pro-posed action is

th'e request for an exemption from GDC 17. to permit

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, the operation of Shoreham at low power using a variety of sources .

! of AC power instead of.a fully qualified onsite source as is required by GDC 17. Accordingly, the "need" issue in this exemp- ,

tion application is limited to issues within the scope of the

. - exemption: the timing of low-power- testing, LILCO's efforts to l' comply with GDC 17, and .the economic and public interest benefits j that would accrue from granting the exemption. These need issues j were resolved by the cognizant Atomic Safety and Licensing Board j in its Initial Decision. Long Island Lighting Company (Shoreham ,

{ Nuclear Power Station, Unit 1), LBP-84-45, 20 NRC , unpub-

lished slip op., 60, 63, 67, 68, 69 (October 29, 1984). The issue does not, contrary to Suf folk County's suggestion, go to the far f different issue of whether there is a basic . need for the power ,

! from the Shoreham plant. Indeed, NRC_ regulations clearly indicate

that, unless required by the Commission, need for. power from a

! proposed plant should not be discussed at the operating license

{. - stage. .10 CPR S 51.53. The Commission has not opened.the need issue in this operating license proceeding. Suffolk County is thus improperly seeking to expand the otherwise clear meaning of i i~ 5 51.30(a)(1)(i) to vitiate S 51.53. Suffolk County's first "rea- r t on" must be rejected. ,

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' Second, Suffolk County argues that the environmental i j assessment is fectually incorrect in stating that denial of the

! exemption would not lessen the environmental effects of the  !

l Shoreham plant. Suffolk County asserts three deficiencies: 1) i i the environmental assessment does not assess as a cost the fact

! that an uncontaminated reactor will become radioactive if the j exemption is granted, 2) the environmental assessment does not discuss the fact that denial of the exemption would produce no t

radioactivity; and 3) the environmental assessment does not dis-j cuss the alternative of merely delaying decision on the exemption l request. Suffolk County is incorrect as to each of these per- '

! ceived deficiencies.

Suffolk County's first two alleged deficiencies proceed from the same faulty assumption -- namely, that the Shoreham plant will

never be issued a full-power operating license and that the envi- l l ronmental assessment should thus proceed from that assumption. In i essence, Suffolk County argues in each case that low power l operation followed by abandonment of the Shoreham plant would j result in ' environmental harm without any commensurate benefit. 1 i This ' argument is faulty because it is outside the scope of the '

l exemption request, which simply goes to when low power operation j will be allowed (before or af ter full quaTffication of the TDI diesels and any litigation on them) and not to whether it will be.

f Further, it has already been rejected twice, by the Shoreham ,

! licensing board and by the Commission itself. Each rejected the '

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Huwrow & WILLI AMS 4

. need to prepare a supplemental environmental impact statement that

, assumed -low-power operation - would ;tus followed by abandonment.

Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),.LBP-83-57, 18 NRC 445, 624-25 (1983);'Long Island Lighting

{ Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-9, 19 NRC i: 1323,1327 ,(1984 ) .1/ ~ The only' question in this case is whether .

i low-power ' operation should , be permitted at an earlier time by the granting of an exemption or whether it should await the end of

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1 litigation on~the qualification of Shoreham's TDI diesels. This

! question is one of timing, not one of differing environmental 4

effects: in.either case low-power operation will occur, and the

! reactor will become radioactive.

Suf folk County's suggested " alternative" of delaying a decision on the exemption is not a further alternative at all.

1, Instead, it has the same effect as an outright denial of LILCO's i exemption request -- an alternative already considered and

rejected in the environmental assessment. This " alternative" requests a delay in the ruling on LILCO's exemption request until all emergency planning issues are resolved and the Miller Board's low-power decision has survived all appellate avenues. Since LILCO's exemption request is premised largely on timing concerns, i delaying its resolution until the -remaining major portions of the i Shoreham litigation are completed -- i.e., until it is moot -- is i tantamount to simply rejecting it. In addition, Suffolk County's suggestion that a ruling must await the conclusion.of the litiga-i tion of emergency planning issues is contrary to 10 CPR S 50.47(d), which permits low-power operation without an approved emergency plan.

, Third, Suf folk County argues that the " Finding of No Significant Impact" violates 10 CPR S 51.33 since it was not issued in draft form. This argument is based on an incorrect reading of S 51.33. The language of 5 51.33 is plainly couched in

] discretionary terms. Indeed, the preface to the final rule clearly states:

, Section 51.33 gives the NRC staff discretionary

. authority to prepare a draft finding of no

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l significant impact and issue the draf t finding

{ for public comment. . . . The NRC staff.is not required,.however, to use this discretionary ,

procedure.

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.1/ The Commission had earlier rejected Suffolk County's analo-

gous argument that the pendency of the emergency planning issues i at Shoreham should prevent issuance of a low power license. Long 1 Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

I CLI-83-17, 17 NRC 1032, 1034 (1983).

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IIUNTON & WILLI AMS 49 Fed. Reg. 9363 (March 12, 1984) (emphasis supplied). It is plain that the NRC was under no obligation to issue its " Finding of No Significant Impact" in draft form.

Finally, Suffolk County contends that the " Finding of No Significant Impact" violates 10 CFR S 51.34 since the Staf f direc-tor did not prepare a proposed finding for later approval by the presiding officer of the Licensing Board, the Appeal Board, or the Commission. This argument disregards language of the Federal Reg-ister notice itself. The notice states:

The Commission has determined not to prepare an environmental impact statement for the proposed exemption.

49 Fed. Reg. 48122 (emphasis supplied). The notice is also signed "For the Nuclear Regulatory Commission." Thus, the requirements s

of S 51.34 have been met.

Suffolk County's claims regarding the Environmental Assess-ment and Finding of No Significant Impact for LILCO's exemption request are baselesr.. Accordingly, there is no need to revise the environmental assessment or prepare a full environmental impact statement as Suffolk County suggests.

Sincerely yours, N N Donald P. Irwin One of Counsel for Long Island Lighting Company 91/730 cc: Nunzio J. Palladino Lando W. Zech, Jr.

James K. Asselstine Frederick M. Bernthal Thomas M. Roberts Lawrence J. Brenner, Esq.-

Dr. George A. Ferguson J Dr. Peter A. dorris 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, Epg.

Lawrence Coe Lanphor, Esq.

Fabian G. Palomino, Esq.

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