ML20210F334

Informs That NRR Lacks Jurisdiction to Consider Lilco Request for Exemption from 10CFR50,App E,Dtd 870122.Filing Must Be Returned to Lilco W/Instructions for Proper Filing Either W/Commission or Presiding Licensing Board

ML20210F334
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/06/1987
From:	Brown H KIRKPATRICK & LOCKHART
To:	Harold Denton Office of Nuclear Reactor Regulation
References
CON-#187-2481 OL, OL-5, NUDOCS 8702110055
Download: ML20210F334 (4)

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KIRKPATRICK & LOCKHART SoUIN LOBBY - 9TH floor EXCHANGE PLACE 1800 M STREET, N.W.

WASHINGTON, D.C. 200 % 5891 et?) 227mr4 1428 BRICKELL AVENUE MIAMI. FL 33131 TELEPHONE C02) 77&9000 (305) 374 4 112 TEtiX 440209 KL DC Ul 1500 m M TELECOPIER G02) 77&9100 PITTS8URGH, PA 15222-5379 IERBERT H. BROWN (4m 3554500 (202) 77Se February 6, 1987 Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-322-OL LILCO Request for Exemption from 10 C.F.R. Part 50, Appendix E

Dear Mr. Denton:

This is in reference to the filing made by the Long Island Lighting Company ("LILCO") with your office entitled " Licensee's Request for Exemption From 10 C.F.R. Part 50, Appendix E," dated January 22, 1987 (hereafter, the " Exemption Request"). On behalf of Suffolk County, and with the authorization of the State of New York and the Town of Southampton (collectively, the " Govern-ments"), we are writing to inform you that your office lacks jurisdiction to consider LILCO's Exemption Request, and that the filing accordingly must be returned to LILCO with instructions that it be filed properly either with the Commission or the Shoreham Licensing Board presiding over the post-exercise litiga-tion.

As you know, the Shoreham operating license proceeding is contested. One of the pending issues in the litigation is whether the results of the LILCO Exercise conducted on February 13, 1986, provide a sufficient basis for issuing a license authorizing operation above 5% power. The Licensing Board has admitted for litigation contentions on issues arising out of the Exercise. Each of those contentions alleges that the Exercise revealed fundamental flaws in LILCO's proposed off-site emergency plan and the lack of compliance with the NRC's emer-gency planning regulations.

LILCO's Exemption Request relates directly to the issues in the contested proceeding, including contentions which address whether the Exercise satisfies Part 50, Appendix E requirements 8702110055 870206 PDR ADOCK 05000322 go9

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Harold R. Denton February 6, 1987 Page 2 P

n for a full participation exercise. Forl example,nin its Exemption Request, LILCO asserts that the February 13, ~1986 . Exercise can -

serve as the. basis for licensing operation.above 5% power and that LILCO should be relieved from having to satisfy the_ Appendix E requirement'that a full participation exercise occur within.12

, months of.the grant of a full power license. LILCO's position i

that the scope of the Exercise satisfied the full participation-1 exercise requirements lof Appendix E and.that the results of the .:

Exercise can provide the basis for:the findings'necessary'under 10-C.F.R. 5 50.47 is not only contested, but is directly at: issue b in the licensing proceeding. See Prehearing Conference Order in l

the Shoreham OL-5 Proceeding (Ruling on Contentions-and Estab-lishing Discovery Schedule), October 3, 1986.

It is fundamental in NRC practice that issues which are contested or which by regulation or statute require a-decision by ,

F the Commission or a licensing board may be decided'only by the

> Commission or a board. The NRC Staff has no authority to decide-I such issues. See, e.g., Commonwealth Edison, Co.-(Byron Nuclear-Power Station,-Units 1 and 2), LBP-84-2, 19 NRC 36 (1984); Public Service Co. of Indiana-(Marble Hill Nuclear Generating Station, l'f Units 1 and 2), ALAB-461, 7 NRC 313 (1978); Cleveland Electric Illuminating'Co.-(Perry Nuclear Power Plant, Units 1 and 2),

ALAB-298,-2 NRC 730, 733 (1975); Consolidated Edison Co. of New I York-(Indian Point Station, Unit 2), CLI-74-23,.7 AEC 947-(1974); o

'. Washington Public Power Supply System (Hanford No. 2 Nuclear '

Power Plant), ALAB-113, 6-AEC 251 (1973); Vermont Yankee Power Corp. (Vermont Yankee Station), ALAB-12 4, 6 AEC 358 (1973).

LILCO's Exemption Request' deals directly and fundamentally with contested issues already pending in the Shoreham OL-5 proceeding.

l Therefore, only the Commission or the Shoreham Licensing Board may consider the Request.

i In light of LILCO's misfiling of the Exemption Request with your office, it is premature to address the merits of the Request-or'for_the Governments to place into dispute material issues of F fact. Should LILCO properly file an Exemption Request, the Governments will respond in accordance with their responsibili-ties under the regulations so as to obtain a hearing and a denial l

of the Request. Nevertheless, for your,information, we note that L LILCO cannot seriously argue ^that it is entitled to an exemption '

l in the present circumstances, where an exemption would have only i

the effect of making the exercise results further outdated, stale, and of no pertinence to the~ reasonable assurance standard; i

[ where FEMA found five deficiencies and concluded in any event l-I I

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g-KRKPATRICK & LOCKHART Harold R. Denton February 6, 1987 Page 3 that it cannot make a reasonable assurance finding; and where FEMA's RAC Chairman for Shoreham stated under oath-that a remed-ial exercise is necessary.

Finally, the Governments point out that the format and content of LILCO's filing are grossly deficient and subject to summary dismissal in their present form. HavJng participated in the extensive 1984 proceedings involving LILCO's request for an exemption from GDC-17, LILCO, perhaps more than any other util-ity, should know that exemption requests require serious and meaningful documentation. LILCO's filing is superficial and contrived; it was not accompanied even by supporting affidavits or corroborating data. In the event LILCO chooses to refile, the Governments will insist that LILCO fully satisfy its obligations and burden of proof under the NRC's regulations.

Should you disagree with the Governments' position that your office lacks authority to consider LILCO's request, the Govern-ments would appreciate your prompt advice and an opportunity for an early meeting at which to discuss this important matter.

Sincerely yours, Herbert H. Brown cc: Service List i

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