ML20128G858

Request for Commission to Prepare Supplemental EIS Addressing Alternatives to Facility Low Power License,But Not License to Full Power,Prior to Vote on Review of ALAB-800.Certificate of Svc Encl

ML20128G858
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/29/1985
From:	Lanpher L, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	NRC COMMISSION (OCM)
References
CON-#285-172 ALAB-800, OL-4, NUDOCS 8505300334
Download: ML20128G858 (6)

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. UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

BEFORE:THE' COMMISSION o

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COCKETED USNRC

)

In1the Matter ~of. )

.LONG ISLAND' LIGHTING' COMPANY ,p

-(Shoreham Nuclear' Power Station, ) DFFICE OF SECRt: TAP Unit 1) ') 00CKETING & SERVii.f.

SRANCH

)

REQUEST OF STATE OF NEW YORK AND SUFFOLK COUNTY FOR ORAL PRESENTATIONS PRIOR TO COMMISSION VOTE ON REVIEW OF ALAB-800

,By a Federal Register Sunshine Act Notice dated May 22, 1985.(50.F.R. 21164), the Commission announced its intention

'to conduct a public meeting on June 4, 1985 to discuss and possibly vote on its review of ALAB-800. If the Commission

.were to-deny the State / County Petition for Reconsideration of CLI-85-1 and were to reverse the Appeal Board's ruling that LILCO's substitute emergency onsite power system must be treated as " vital equipment," the Commission would.have to: consider whether to issue a low power license for Shoreham.

New York State and'Suffolk County submit that before proceeding-to consider'that matter, the Commission would have to prepare a Supplemental Environmental Impact Statement ("EIS") which

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.specifically addresses the foreseeable alternative of Shoreham

.be'ing licensed to operate at low power but not being licensed Lto operate at full-power.

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The State and County have on repeated previous occasions requestedithe Commission to prepare such-a Supplemental EIS.

- :In each instance, the Commission denied these requests.*/

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Nevertheless, the. State and County believe that events of the

'pastifewfmonths underscore the reasonableness of their requests for a Supplemental EIS and believe that the Commission would

' benefit greatly from brief oral presentations of the views of all parties to the proceeding. We suggest that these oral

. presentations be scheduled for June 4.

In-particular, the recent decisions of the New York State Supreme Court (Febrary 20, 1985:

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LILCO plan illegal under State law), the United States' District Court for the Eastern District of New York (March 18,.1985: Suffolk County emergency planning resolutions are rationally based and not preempted),

and the NRC's Shoreham Emergency Planning Licensing Board (April 21, 1985:- Federal law does not preempt New York law and thus LILCO has no " implementable, comprehensive and

<, effective emergency response plan for Shoreham") make clear

.that-LILCO's proposed offsite emergency plan is illegal and

-not implementable. Without such a plan, Shoreham cannot be licensed for full power operation. And, without subsequent full power operation, low power operation would result in great costs that would not be offset by any benefits. This would be demonstrated conclusively by a Supplemental EIS.

• / For instance, on March 4, 1985, Suffolk County and the State of New York filed a Renewal of Request for NRC Supplementation of its Shoreham FEIS as Required by NEPA. On April 18, 1985, the NRC rejected this request by 4-1 vote, without providing any basis for its ruling.

g The usefulness of oral presentations is underscored by the IULC Staff's May 13 Response to the County and State's fPetition for Reconsideration of CLI-85-1. In this filing, the Staff: agreed that given the decisions of state and federal

~ courts 1and the Emergency Planning Board, "it would appear that LILCO will be unable to demonstrate compliance with Section 50.47 and thus may not be able to qualify for a license for operation of Shoreham beyond 5% of rated power . . . ." Staff Response at 17. The Staff further stated that "there may

.well be little or no benefit to low power testing at the present time" and that "an exemption at this stage of the Shoreham proceeding would appear to have no real value."

Id. at 18.-

This is a significant change in the Staff's-position that should be heard and considered by the Commission and other parties on June 4. It is further reason for the Commission to abandon its standing view that the denial of a full power license for Shoreham is "too speculative" to require an EIS supplement before the Commission considers

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any licensing action.

In its May 13 Response, the Staff announced that it intended to file an additional pleading with the Commission to address whether the U.S. District Court and ASLB decisions of March 18'and April 21 resulted in the need to prepare an EIS supplement. See Staff Response at 18-19, Note 11. Staff counsel informed Mr. Chilk today, however, that the Staff will not file such a pleading. See letter from Robert G.

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Perlis to Samuel J. Chilk, May 28, 1985. The effect of the Staff reversal is to deprive the Commission of the Staff's new view'that strongly relates to the need for an EIS Supple-ment. An oral presentation by all parties addressing this critical matter would permit the Commission not only to hear the Staff's new view, but to gain an understanding of the impact of the recent decisions of the Courts and Licensing Board on the need for a Supplemental EIS.

Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law H. Lee Dennison Building Veterans Memorial Highway Haup auge, New York 11788 Herbert H. Brown f Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County 036:iha '

Fabian G. Palomino Special Counsel to the Governor Executive Chamber, Room 229 State Capitol Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York May 29, 1985

6' jf UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

Before-the Commission DOLKETEC U$NRC

)

JIn-the Matter of- )

LONG ISLAND LIGHTING. COMPANY ) Docket No. b-L-4

, ) Low Power (Shoreham Nuclear Power' Station, ) ' 0FFICE OF SECHLIAbt Unit 1) ) 00CKETING & SERVif.f-BRANCH

)

' CERTIFICATE OF SERVICE' I hereby certify that copies of the_ Request of State of.

New York and Suffolk County for Oral Presentations Prior to.

Commission Vote'on Review of ALAB-800 have been served on the following this 29th day of May,'1985, by U.S. mail, first class, except as otherwise noted. .

Judge James L..Kelley, Chairman. Edward M. Barrett, Esq.

Atomic Safety and^ Licensing Board Long Island Lighting' Company.

U.S. Nuclear Regulatory Commission 250 Old Country Road

. Washington, D.C. 20555 Mineola, New' York '11501 Judge Glenn 0. Bright Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S. Nuclear' Regulatory Commission H. Lee Dennison Building Washington, D.C. 20555 Veterans Memorial Highway Hauppauge,-New York 11788

! Judge Elizabeth B. Johnson

Oak Ridge National Laboratory *

• Fabian G. Palomino, Esq.

i P.O.-Box X, Building 3500 Special Counsel to the p '

Oak Ridge, Tennessee 37830 Governor Executive Chamber, Room 229-Herzal Plaine, Esq. State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W., 10th Floor Washington, D.C. 20555 ** W. Taylor Reveley, III, Esq.

Anthony F. Earley, Jr., Esq.-

.Edwin J. Reis, Esq. . Robert M. Rolfe, Esq.

Bernard'M. Bordenick, Esq. Hunton a Williams Office of Exec. Legal Director 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C. 20555

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(4-l' Mr. Martin Suubert James Dougherty, Esq.

c/o Cong. William Carney 3045 Porter Street, N.W.

1113 Longworth House Office Washington, D.C. 20008 Building Washington, D.C. 20515 Mr. L. F. Britt-Long Island Lighting Company Martin Bradley Ashare, Esq. Shoreham Nuclear Power Sta.

Suffolk County Attorney P.O. Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.

• Docketing and Service Branch New York State Energy Office Office of.the Secretary Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C. 20555 Albany, New York 12223

• Nunzio J. Palladino, Chairman

• Comm. Frederick M. Bernthal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1114 Room 1156 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555

• Commissioner Lando W. Zech, Jr.-

• Comm. Thomas M. Roberts U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1113 Room 1103 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555

• Commissioner James K. Asselstine Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Commission John F. Shea, Esq.

Room 1136 Twomey, Latham and Shea 1717 H Street, N.W. 33 West Second Street Washington, D.C. 20555 Riverhead, New York 11901 i

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• By Hand

• *Telecopied 4+tte4 Y Lawrence Coe Lanpher KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: May 29, 1985