ML20215K987
| ML20215K987 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/05/1987 |
| From: | Brown H, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20215K958 | List: |
| References | |
| OL, OL-3, NUDOCS 8705120058 | |
| Download: ML20215K987 (11) | |
Text
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May 5, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
)
In the Matter of
)
LONG ISLAND LIGHTING COMPANY
)
Docket Nos. 50-322-OL
)
50-322-OL-3 (Shoreham Nuclear Power Station,
)
(Emergency Planning)
Unit 1)
)
)
MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTEAMPTON FOR IMMEDIATE ORDER DIRECTING NRC STAFF TO CEASE UNAUTHORIZED REVIEW OF LILCO'S "REOULST" FOR 25% OPERATING LICENSE On April 29, 1987, the NRC Staff responded to LILCO's April 14 motion for expedited consideration of LILCO's " Request" to operate the Shoreham nuclear power plant at 25 percent of rated power (the " Motion").
The Staff argued to the Commission:
(1) that "LILCO's Request is proper under Commission ' regulations, and should be considered;" and (2) that "LILCO's Motion for expedited consideration of its request
. should be granted."
Staff Response, p.
5.
d The following day, April 30, at a meeting observed by Suffelk County's consultant, sixteen members of the Staff met with LILCO to discuss the substance of LILCO's " Request."
The Staff there disclosed that it had already commenced a review of LILCO's " Request," and had done so on an exoedited basis.
O
.=
On May 1, Suffolk County learned that the Staff has scheduled a visit to the Shoreham plant as part of its review --
(
and that the Staff has arranged with Oak Ridge National Laboratory to assist.
In short, without the Commission's authorization, and while the very issue of whether the NRC should review LILCO's " Request" is pending before the Commission, the Staff has given LILCO everything LILCO wants.1 The Staff's review of LILCO's Motion is improper and absolutely prejudicial to the Governments.
Pending before the Commission is the Governments' April 27 response to LILCO's Motion, urging summary rejection of LILCO's " Request" and denial of LILCO's Motion-for expedited review.
Material issues of fact and law clearly are thus in dispute.
The Staff is acting beyond its authority in providing LILCO the very expedited review to which the Commission has not ruled LILCO is entitled.
By doing so, the Staff is also rendering moot the Governments' pending motion before the Commission that no Staff review be commenced.
Equally important, the need for LILCO to seek an exemotion is an issue of threshold significance.
No party -- including the Staff -- should move forward on LILCO's " Request" until this 1The Governments assume that there has been no directive of the Commission, or of any Commissioner, General Counsel personnel, or other Commission-level personnel to the Executive Director or any other Staff member to commence a review, or expedited review, of LILCO's " Request."
If this assumption is not correct, the Governments hereby ask the affected persons to make full disclosure of what has transpired..
o-threshold issue is resolved.
Yet, in the Staff's zeal to help LILCO, at least 11 Staff persons are directing attention to the
" Request".
The Commission should immediately direct the Staff to cease its review of LILCO's "Recuest" pending a ruling of the Commission on the Government's motion for summary rejection of LILCO's Motion and " Request".
Moreover, the Commission is hereby advised that the Staff's April 29 Response is grossly slanted and misleading to favor LILCO.
The Response ignores major legal and factual issues that militate against the grant of LILCO's " Request."
These omissions cannot be a mere oversight of the Staff.
They also cannot be reconciled with the obligation of the Staff to be impartial.
(1)
The Staff's Response entirely ignores the merits of the oniv argument that LILCO makes for expedited consideration:
1.e., Shoreham's power is immediately "needed."
At a minimum, a forthright Staff response would have either (i) recognized that New York State speaks conclusively on the need-for-power issue and, thus, deferred to the State's conclusion; or (ii) acknowledged that need-for-power is a material issue in dispute and thus that, if the Commission does not summarily reject LILCO's " Request," a fact-finding hearing on the merits is r
required.
Indeed, the Governments on April 29 submitted the.
o affidavit of William E.
Davis, Deputy Commissioner of the New York State Energy Office, who made clear that Shoreham's power is asi needed.
(2)
The Staff's Response does not even acknowledge the existence of Section 50.47(d) of the NRC's regulations --a provision which is central to LILCO's Motion and " Request."
Section 50.47(d) prevents operation of a nuclear plant at levels above 5% unless there is an approved and implementable offsite emergency plan.
There is no such plan at Shoreham.
There is no conceivable way an impartial Staff could have ignored the relevance of Section 50.47(d).
Similarly, in view of the previous notorious effort of the Staff to help LILCO evade NRC regulations requiring an exemption i.e.,
the March / April 1984 effort to " harmonize" the regulations out of existence in order to facilitate a low power license for LILCO -- it stretches the imagination too far to believe that the Staff here has simply overlooked the issue of whether LILCO must seek an exemption from Section 50.47(d).
The Staff's reference to a separate exemption-related issue arising out of Limerick (see Staff fn. 2) only highlights that the Staff has chosen deliberately to bypass the critical Section 50.47(d) exemption issue.. - _
O,
~':g (3)
The Staff's Response cites the Licensing Board's 1976 Beaver Vallev decision, which allowed operation of a nuclear-power plant at 35% power, as support for the propriety of LILCO's
" Request."
.The Staff fails to disclose, however, that Beaver Valley was decided four years before the NRC's emergency planning regulations and Section 50.47(d) came into existence.
At a minimum, therefore, an impartial Staff would have informed the Commission that, subsequent to Beaver Vallev, the NRC changed its regulations in a way that is material to whether LILCO's
" Request" can even be considered.
(4)
The Staff's Response disregards the rights of the Governments and reveals the Staff's bias against the Governments.
The Staff states, "LILCO's Request is properly filed, and its consideration should be expedited on a schedule consistent with the time needed for Staff review of the LILCO Recuest."
Staff Response, p. 6 (emphasis added).
The Staff does not even-acknowledge that the schedule would also have to be consistent with the requirements and rights of the Governments.
This omission is particularly eggregious because the Staff knows that
-- unlike how LILCO is treating the Staff -- LILCO has not given the Governments any information or data concerning the substance of the " Request."2 2 ubsequent to last week's Staff /LILCO meeting, LILCO has agreed S
to provide the Governments with data.
None has been received thus far.
The Staff's Response speaks harshly about the Staff's relationship to LILCO.
The Staff's Response flaunts blind enthusiasm for LILCO; it exhibits prejudice toward the Governments.
The Staff's conduct cannot be reconciled with its responsibilities under Part O of the NRC's regulations.
- Indeed, the Staff's conduct here is the only matter that properly should receive the Commission's expedited consideration.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Herbert H.
Brown Lawrence Coe Lanpher Karla J.
Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County Fabian G.
Palomino j/
Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York 4 3
,.-r-
4 e
Sk ts.LK-Jyys Stephen B. Latham
/
Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 4
1 t i
May 5, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON'FOR IMMEDIATE ORDER DIRECTING NRC STAFF TO CEASE UNAUTHORIZED REVIEW OF LILCO'S
" REQUEST FOR 25% OPERATING LICENSE have been served on the following this 5th day of May, 1987 by U.S. mail, first class, except as otherwise noted.
- Lando W. Zech, Jr., Chairman
- Comm. James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissio Room 1113 Room 1136 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555
- William C. Parler, Esq.
- Comm. Frederick M. Bernthal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissic 10th Floor Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555
.v
- Comm. Thomas M. Roberts Alan S. Rosenthal, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Room 1103 Appeal Board 1717 H Street, N.W.
U.S.-Nuclear Regulatory Commissio
' Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard'A. Wilber Gary J. Edles, Esq.
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal. Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissio Washington, D.C.
20555 Washington, D.C.
20555 Morton B. Margulies, Esq.-
- Comm. Kenneth M. Carr Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commissio U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Dr. Jerry R..Kline William R. Cumming, Esq.
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agen 500 C Street, S.W., Room 840 Washington, D.C.
20472 Mr. Frederick J.
Shon Anthony F.
Earley, Jr., Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi, Clerk
- W.
Taylor Reveley, III, Esq.
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L. F. Britt
- Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555
a Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Richard G.
Bachmann, Esq.
David A.
Brownlee, Esq.
Myron Karman, Esq.
Kirkpatrick & Lockhart Charles A.
Barth, Esq.
1500 Oliver Building George E. Johnson, Esq.
Pittsburgh, Pennsylvania 15222 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 10036 Joel Blau, Esq.
Mr. Philip McIntire Director, Utility Intervention Federal Emergency Management N.Y. Consumer Protection Board Agency Suite 1020 26 Federal Plaza i
Albany, New York 12210 New York, New York 10278 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 N
Mferbert E.
Brown, Esq.
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891
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