ML20207H736
| ML20207H736 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/23/1986 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-090, CON-#386-90 CLI-86-11, OL-3, OL-5, NUDOCS 8607250074 | |
| Download: ML20207H736 (11) | |
Text
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LILCO, July 23,1986 h0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Y 24 Pl2:51 Before the Coramission crrfg gp n '_ _ _ _
Dochu;,L,;(, o < Ti.'
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In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) ("EP Exercise")
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S RESPONSE TO INTERVENORS' MOTION TO RECONSIDER CLI-86-11 LILCO has received and responds as follows to Intervenors' July 21 " Motion for Reconsideration of CLI-86-11." That Motion consists of a rehash of two arguments ear-lier presented by Intervenors, and rejected by the Licensing Board, some two weeks ago at the July 8 prehearing conference. Neithea argument merits reconsideration by the Commission; neither warrants granting the pre-emptive relief requested by Interve-nors, arbitrary termination of the proceeding now in progress on the February 13 exer-cise.
1.
Nassau Coliseum Intervenors make two critical mistakes in discussing whatever issues may be raised by the recent action of the Nassau County Board of Supervisors on the Nassau Coliseum. First, they grossly exaggerate the significance of the Coliseum itself to the exercise. Second, they mistake an issue which is essentially a one concerning LILCO's plan for one involving LILCO's demonstration of its ability to implement that plan in an exercise.
Intervenors claim, in effect, that the entire point of the February 13 exercise was somehow to display the Coliseum as its centerpiece. This is flatly wrong. Rather, the exercise's purpose, embodied in some 78 listed objectives involving 8 fixed facilities e6072Sg074 h "22 a oc" goa TSB
plus field activities,1! was to test the overall capability of the LERO organization to perform a broad range of tasks, including mobilizing itself, informing the public, ana-lyzing an accident and making recommendations to the public concerning protective recommendations, and assisting in the effectuation of those recommendations. By so distorting the role of the Coliseum Intervenors then move to the distorted conclusion that any alteration of that role vitiates any exercise of the plan. That is also plainly
. rong: reception centers, whether the Coliseum or any other facility or facilities, con-w stitute merely one discrete and non-dominant portion of a complex plan.
Second and even more basic, Intervenors confuse those aspects of the role of a reception center that are truly exercise-related with those that are plan-related. The plan itself is what describes the characteristics and capabilities of re::eption facilities proposed as adequate for an evacuation of the populace of an affected EPZ. The exer-cise, by contrast, measures the capability of the emergency organization to mobilize in accordance with the plan, to muster and demonstrate its knowledge of use of the equip-ment available to it, to show its knowledge of procedures, and the like. This capability l
l is not uniquely dependent on the existence of any given location for reception centers (or any other facilities). Monitoring personnel, for instance, will not perform their jobs fundamentally differently at different reception center locations; nor, within reason, will their mobilization or the reporting of the general public to reception centers be significantly affected by the centers' location.2/ Intervenors, in short, ascribe to the 1/
See FEMA Post-Exercise Assessment, February 13, 1986 Exercise of the Local Emergency Response Organization... (April 17,1986), at 8-15.
2/
Other recent FEMA exercises also indicate a primary focus at reception centers on evaluating emergency workers' ability to monitor and decontaminate evacuees, not on evaluating the physical facility. For example, during the FEMA exercise for the Millstone facility on October 12, 1984, the FEMA post-exercise report indicates that the evacuation of school children was demonstrated by having the children board waiting buses, stay on those buses for several minutes, and then re-enter their school which for exercise purposes was assumed to be a Red Cross reception center. Moni-toring/ decontamination was then demonstrated at the school.
exercise aspects of reception center adequacy that are properly part of the review of the plan itself.3/
That part of the plan which includes the designation of the Coliseum as a recep-tion center and the adequacy of its characteristics as a reception center has, of course, already been decided by the Licensing Board in LBP-85-31,22 NRC 410 (1985). Those is-sues are now before this Commission on LILCO's appeal of ALAB-832.
This Commission's regulations provide a clear avenue for raising issues arising from facts which are alleged to have changed since the closure of a record: a motion to reopen the record pursuant to 10 CFR S 2.734,51 Fed. Reg.19,535 (May 30,1986).
Accordingly, the recourse for Intervenors' allegations about the availability of the Coll-seum is a motion to reopen the record concerning LILCO's designation of the Coliseum as a reception center in its plan, and litigation of issues raised by such a motion that satisfy the requirements of 5 2.734 - not a pre-emptive derailing of proceedings on the very distinct issues concerning LERO's capabilities fairly raised by an exercise.
2.
New York State Takeover Ledslation Intervenors'second reprise of a motion rejected by the Licensing Board on July 8 concerns two bills enacted by the New York State Legislature late in the night of July 2-3, but still not even signed by Governor Cuomo.O New York State previously urged the Licensing Board in a motion dated July 7 to accept the proposition that these unsigned bills determine, even now, the fate of LILCO as an entity and the outcome of 3/
One of the manifold areas of FEMA observation of an exercise is the adequacy of physical facilities used in emergency response. In that regard, however, the exercise is simply akin to an audit review of the accuracy of representations made initially in the plan and thus already reviewed as to their adequacy (with their accuracy being pre-sumed).
4/
Intervenors have served copies of only one of these bills, the so-called "LIPA" bill, on the Commission. As a courtesy, LILCO attaches copies of the other, the so-called "used and useful" bill.
4-this proceeding. However, as LILCO indicated in its letter response of that date,El reports of its demise are, like those of Mark Twain, greatly exaggerated. The passage of these two bills provides no basis for this Commission to conclude either as a matter of fact or law that the legal fate of LILCO has been determined or that the company has lost its viability as an applicant or licensee.
One of the bills permits the establishment of a Long Island Power Authority
("LIPA") to assume, if specified conditions can be met, the property and obligations of Long Island Lighting Company. The other could exclude future costs attributable to Shoreham from the rate base unless the plant had received a full power operating 11-cense and become "used and useful" in the generation of commercial electricity by a fu-
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ture date certain.
i Neither bill, however, has any immediate effect. The "LIPA" bill does not be-come effective for any purposes for nearly six months yet, until January 15,1987, and its prospects at any point thereafter for acquisition of LILCO, with or without Shoreham, cannot be determined from the bill's face.EI The "used and useful" bill would exclude Shoreham expenses from LILCO's rate base only if the plant has not entered commercial service by December 1988.
Neither of these bills purports to prohibit further efforts to license Shoreham - an automatic, immediate taking of property for 1/
Letter, Donald P. Irwin to Morton B. Margulies, Esq. et al. (attached). That let-
~
ter is in error in one respect: it reports the effective date of the substantive provisions of the Long Island Power Authority bill as January 1,1987. Actually, it is January 15, 1987.
I
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The bill authorizes acquisition of LILCO only if resulting economic benefit to ratepayers can be demonstrated. Whether there exists an acquisition price which de-monstrably benefits ratepayers while sufficiently protecting LILCO's creditors and shareholders is a matter which is far from free of doubt.
7/
Two eventualities could trigger an earlier effective date for the "used and use-ful" bill-voluntary abandonment of Shoreham by LILCO or final denial of an operating i
license. Neither of these, of course, has occurred.
14
- 1 which just compensation would have to be paid - in the meantime; indeed, proposed amendments to that end were rejected by the New York legislature.
Thus the only effect of these bills' enactment is to enhance the urgency of completing full power licensing proceedings well before Shoreham becomes potentially vulnerable under either one of them. If anything, they underscore the Commission's in-structions to the Licensing Board in CLI-86-11 to hold expedited hearings on the February 13,1986 Shoreham emergency preparedness exercise.
CONCLUSION For the above stated reasons neither of Intervenors' motions for reconsideration of CLI-86-11 has merit. Both shoulo be denied. Intervenors should be put to their ade-quate remedies under the regulations.N Respectfully submitted, W. Taylor Reveley, III i
Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street l
P.O. Box 1535 Richmond, Virginia 23212 DATED: July 23,1986 8/
LILCO has just received a pair of pleadings from Intervenors, requesting leave to supplement, and supplementing, their response to LILCO's petition to review ALAB-832 with respect to the Nassau Coliseum. The filing of these pleadings apparently concedes the inappropriateness of the relief requested by their pending motion. Whether these pleadings meet the regulations' requirements LILCO cannot state without review; and l
LILCO will respond to them within the time afforded by the regulations.
STATE OF NEW YORK 21035 Gal. M9.1H1 IN SENATE June af, 1986 i
Asssably till No.11666 introduced by COMMITrt! CN AULIS== (at request of M. of A, Bianchi, Maranbars. Yevoli, Nawburgar, Patten.
- .ipsobutz.
Kramer)== (at roguest of the Governor)
- read twice and referred te the Committee on Rules, substituted for Senato Bill No.
1254-A 53
$ses. LACK. LAVALLE, Dt'SN1 GOODWE, JOHN 8ON. N. LEW, MARIN3, S TRUNIO TULLY - ordered to a third reading, amended and ordered re-printed, retaistR5 f ts place in the order of third reading AN ACT to amend the public service law, in relation to the denial te certain utilities of recovery for direct and indirect costs asso: atec with nuclasr power plants not used and useful in the public service The b1v. do enact as followsipecole of the State of New York, reoresented in $ss 1
5ection 1.
Legislative findings and declaration. 'Its legislatura 2 hereby finds and declares that i pursuant to traditions 1 regulatory prin-3 tiples, utility cuatestra should not ha required to bear the cost of a 4
plant which fails to operate; that invaatment in auch a plant 5
would ha of no benefit to the utility's customers, for the plant would not con-6 stitute property used and useful in tha provision of the utility's 7
(
vice; that the finanstal copasquences of a utility's expenditure of vast ser-t suas on a nuclear power plant that fails to operata is of particular pu-9 blio concern bessues of the large amounts involved; that it would pose 10 an unrassonable and discriminatory detriment r.o the customers of such 11 utility and to economic activity in such utility's service territory to a
it permit any of the sosts of such plant to be borne by such 13 burden such economic a:tivity) that this financial detrimant to sueb to custeesrs or la auseemer to intenstraea wk.a she messe or sush 15 piemr. must be shared among a smallar ausbar of ratepayers; that is to just and and reasonable 16 in thase circumstances that the consequencas of the business judgment to 37 espond the company that made that judgment and not en itsvast suas on a n 18 19 larly where customers, particu-auch customers have ac leg 41 cpportunity to obtain utility IXPLANATION--Matter in i_talics (underscored) is new; s stter in brackets
[ ] is old law to be omicted.
LSD15696 02-6
- 3. 21035 2
y" I servicts elsewboro; and thct it is in the public intorest to protest 2 utility customers, to the 4restest extent permitted by the constitutiens 3 of the United Statse arid the state of New York, from having to bear,
- 4. dire:!1y er isdireatly, any of the seats sesociated with such a plaat.
5 m Jagislature further finds and declares that special circuatatances 4 ausseandena abe conostustico by a single slowl,th, ut gas anti s!sutrit 7 corporesiac of a nuclear power plant which say fall to uperats on 1,ong 4
Island require a specific statutory prescription of the application of 9 the used and useful principle in that instanca, that these unique cir-
.. 10...suanese: ir.clude the extraordinary siss of the invaat:eent in such 11 plant, the prolonged, continuing and fundamental inability of the util-12 ity to obtain a full power operating 11 conte for such plant, and the 13 concentration of economic burden on the ratepaying residents and 14 businessoa on Lens Island if suct. plaat fails to carmenen er. centinut 15 commercial operation; and that such special circue. stances are not nov la presant and are not anticipated to occur in connection with other nu-17 clear power plants in the utste.
13 6
- 2. Section sixty six of the public service law is amended by adding
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. a-rise shdivision twenty four to read as follows:
20 24.
(a)_ If a nucIsar oower plant which is net eemnreially tsed and 21 usaful fri the actual _ asnaration of electrief ty or the effective (ste of
)
22 this subdivision and whi:b is coed bv 4 sinale utility on or after the l
23 effective date of this subdivision fails to coewer e or continue ce raer_-
24 cial operatiec after the effectiva date of this subdivision, the co eis-l 21 sten shall thereafter remove _and exclude from the utility corocration a 26 revacue reautremoet all arcurts.
costs._ charmes, adjusterents, or ex-27 traordinarv _ cost of capital allowances theretofore made.
tranted _o_r 24 nrovidad which are attributable, direct 1v or indirectly, to such nuclear i
29 rgwer nLant or to such plant's_ failure to coarnance twercial coeration; 30 lb) Phe commis'ston shall not theresiter, unless and ur.ttl such clant 31, commences or retsgascces commercial onoration, inc.ute in such utility's 32 ravamue reautrement anv anoants, costs charmes, adustments or extraor-31 dinary cost of capital _al owantes attributable. directly or indirectiv.
34 to such n! ant or to such plant's fai!ure,1[o,, come,ance commarital 1
35 eneration.
36 (c) Nothina in this subduvision shall be deemed to renuire a refund of 37
_ bo charaes said by or 111 Lad to a customer of such uti: its prior to e t
38 failure to commente or continue cortrarcial overation of such niant, 31 (d) For the purposes of this nubdivision. the failure to comenes or 40 continue commercial creration shsJ sean the abaadonment of such sl ant 41 after the effective date of th;.s subdivisient t se dental, includina any 42 dental nursuant to or as a resu t of any administrative or judicial 43 naview. of a commercial oneratina license or other reaulatory tonrevet 44 necessarv for the slant to become commercialLv used and beeful in the 45 actual maneration of elentricitet the f anlure of the slant _ to becoes 46 commercially used and useful in the estual aeneration of electricitf 47 hafett Dec4Fler f1Tatt hineteen hundred simhtpsinht! ar the 544btf4544 68 of any event or the saistance of any cirewestareas (other than customarv 49 inspection and maipienames and related ranafra ar raruattna ra w ca-56 manta) after the niant becosIs commercial.y used and useful in the ac-51 tual maneratien of electrientv which renders the slant not commercially 32 used and useful im the actueS mene_tstion of electricitv.
53 5
- 5. The provasions of this act shall be severadia and if any phrase.
. 14 _dausemusica etr_ preJ.oA. mt..tMe act, or the applicability thereof l
l 4
a 2 to any person or circumstances shall be held it. valid, the rematader of 2
this act ar.d the application thereof shall riot he affected thereby.
3 5 4.
H is set shall take effect immediately.
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HUNroN Oc WILLIAMS 707 EAST MAIN STREET P.O. Box 1535 aooo pch=svtvamin avswus.
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- TELEpMoNE eis-637-43it TELEPMoNE Fo3 3sa-aaoo Morton B.
Margulies, Esq., Chairman o,n.c,o,a,,o so.,se.
Dr. Jerry R.
Kline Mr. Frederick J.
Shon By Telecopier Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission East-West Tower, Room 402-A 4350 East-West Highway Bethesda, Maryland 20814 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1)
(Docket No. 50-322-OL-3)
Gentlemen:
LILCO responds briefly to the letter of today's date sub-mitted on behalf of the State of New York regarding legislation recently enacted by the New York State Legislature.
The pu,rpose of this reply is solely to correct a misimpression which that letter would leave -- that a Lona Island Power Authority will imminently come into existence and purchase LILCO, and that the only remaining order of business is negotiation of a takeover price.
The fact is that on July 3 the New York State Legislature approved two bills that in time could affect Shoreham.
One per-mits the establishment of a Long Island Power Authority to assume, if specified conditions can be met, the property and ob-ligations of Long Island Lighting Company.
The other could ex-clude future costs attributable to Shoreham from the rate base unless the plant had received a full power operating license and become "used and useful" in the generation of commercial elec-tricity by a future date certain.
Neither bill, however, has any immediate effect.
The "LIPA" bill does not become effective for any purposes for nearly six months yet, until January 1, 1987, and its prospects at any point thereafter for acquisition of LILCO, with or without Shoreham, cannot be determined from the bill's face.
The "used and useful" bill would exclude Shoreham expenses from LILCO's rate base only Cl JAl Cefn
-o unp i i v v v4rY,/
1
\\
M UNTON & WILLIAM S July 7, 1986 Page 2 if the 1988.1/ plant has not entered commercial service - by December
- Neither of these bills purports to prohibit further ef-forts to license Shoreham -- an automatic, immediate taking of property for which just compensation would have to be paid -- in the meantime; indeed, proposed amendments to that effect were re-jected.
The only effect of these bills' enactment is to enhance the urgency of completing full power licensing proceedings well be-fore Shoreham becomes potentially vulnerable under either one of them.
They clearly do not provide a valid basis for this licens-ing board to depart from the Commission's instructions to hold expedited hearings on the. February 13, 1986 Shoreham emergency preparedness exercise.
They plainly do not add any justiciable issues to such a proceeding.
They may, however, commend substan-tial contraction of the hearing schedule proposed by LILCO on July 1, so 'as to ensure completion of proceedings in time to forestall potential future jeopardy under the bills.
LILCO will be prepared to address this matter and other areas of reply at the prehearing conference tomorrow.2/
Respectfully submitted, Donald P.
Irwin One of Counsel for Long Island Lighting Company 91/730 cc:
Docketing and Service Section Counsel for all Parties 1/
Two eventualities could trigger an earlier effective date for.the "used and useful" bill -- voluntary abandonment of Shoreham by LILCO or final denial of an operating license.
Nei-ther of these, of course, has occurred.
2/
LILCO has not replied in writing to the July 1 submission from counsel for Suffolk County since it believes that all issues raised by it can be dealt with orally at the prehearing confer-ence.
LILCO, July 23,1986 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S RESPONSE TO INTERVENORS' MOTION TO RECONSIDER CLI-86-11 were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
Commissioner Lando W. Zech, Jr., Chairman
- Gary J. Edles, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W.
Appeal Board i
Washington, DC 20555 U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts
- Fif th Floor (North Tower)
U.S. Nuclear Regulatory Commission East-West Towers 1717 H Street, N.W.
4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 Commissioner James K. Asselstine
- Dr. Howard A. Wilber U.S. Nuclear Regulatory Commisison Atomic Safety and Licensing 1717 H Street, N.W.
Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Commissioner Frederick M. Bernthal
- Fif th Floor (North Tower)
U.S. Nuclear Regulatory Commission East-West Towers 1717 H Street, N.W.
4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 William C. Parler, Esq.
- Morton B. Margulies, General Counsel Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W.
Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Alan S. Rosenthal, Esq.,
East-West Towers, Rm. 407 Chairman 4350 East-West Hwy.
Atomic Safety and Licensing Bethesda, MD 20814 Appeal Board U.S. Nuclear Regulatory Dr. Jerry R. Kline Commission Atomic Safety and Licensing Fif th Floor (North Tower)
Board East-West Towers U.S. Nuclear Regulatory l
4350 East-West Highway Commission Bethesda, MD 20814 East-West Towers, Rm. 427 4350 East-West Hwy.
Bethesda, MD 20814
Mr. Frederick J. Shon Mary Gundrum, Esq.
Atomic Safety and Licensing Assistant Attorney General Board 2 World Trade Center U.S. Nuclear Regulatory Room 4614 Commission New York, New York 10047 East-West Towers, Rm. 430 4350 East-West Hwy.
Spence W. PerrJ, Esq.
- Bethesda, MD 20814 General Counsel Federal Emergency Secretary of the Commission Management Agency U.S. Nuclear Regulatory 501 C Street, S.W., Room 840 Commission Washington, D.C. 20472 Washington, D.C. 20555 Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Appeal Board Panel Agency Building 2 U.S. Nuclear Regulatory Empire State Plaza Commission Albany, New York 12223 Washington, D.C. 20555 Stewart M. Glass, Esq.
- Atomic Safety and Licensing Regional Counsel Board Panel Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 26 Federal Plaza, Room 1349 Washington, D.C. 20555 New York, New York 10278 Bernard M. Bordenick, Esq.
- Stephen B. Latham, Esq.
- Oreste Russ Pirfo, Esq.
Twomey, Latham & Shea Edwin J. Reis, Esq.
33 West Second Street U.S. Nuclear Regulatory P.O. Box 298 l
Commission Riverhead, New York 11901 7735 Old Georgetown Road (to mailroom)
Jonathan D. Feinberg, Esq.
Bethesda, MD 20814 New York State Department of Public Service, Staff Counsel Lawrence Coe Lanpher, Esq.
- Three Rockefeller Plaza Karla J. Letsche, Esq.
Albany, New York 12223 Kirkpatrick & Lockhart Eighth Floor William E. Cumming, Esq.
l 1900 M Street, N.W.
Associate General Counsel Washington, D.C. 20036 Federal Emergency Management Agency Fabian G. Palomino, Esq.
- 500 C Street, S.W.
Special Counsel to the Room 840 Governor Washington, D.C. 20472 Executive Chamber Room 229 Ms. Nora Bredes State Capitol Executive Coordinator Albany, New York 12224 Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 l
- t Gerald C. Crotty, Esq.
Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Box 231 State Capitol Wading River, NY 11792 Albany, New York 12224 Martin Bradley Ashare, Esq.
- Eugene R. Kelly, Esq.
Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11787 Doiiald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: July 23,1986 i
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