ML20247H962
| ML20247H962 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/21/1989 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | Murley T Office of Nuclear Reactor Regulation |
| References | |
| 2.206, NUDOCS 8907310196 | |
| Download: ML20247H962 (6) | |
Text
JUL A '89 12: 47 FROM DJL.A. WASHINGTON DC PAGE.003 4. ]..
TM g g
^"f gag h now, LOHNES & ALDERTSON 1255 TWENTY-TH18tD STI:tttET Ce"4 e.aov.,'
g * "mue
.w manoncouun amier s ic-as tore,"
WABM IN GTO N.
D.C.
2003 7-f 194 a.IAN.EDf44 & 8tBidE.'.
num.m.s.tBrr n
awme ass a, esse v canas" CY L atlLT DfkA p Asst MOwas,t A00d" sum.rW L Wesepe119 pada.t*
act ase& DEsdETI.F*
ganr **
om dL taf'IWt e m -ow <>on u-e.oo
,,,g=
=g
- ,;,g-
=g;;--
tuec== <.on u-em
"/ L,
'i'l::=
=,;,%
"oT;:P vm ~~
lO',="
"..t. "i.=-
- lT", "M."" -
".,",*.P.="'
-en o,e* o.~ -
.w..
= %.
ll".,L
=.":".,ll". * "
i=".=e
- t..
,ti#lER r.
,8.*A8908#
hi d OL natsanf,oJ GA.llt ten 4CJ.54W tief FAS ItTI frfte as LTW "
uinAine mLvul 4Ms mese & app 5' O'70'f' July 21, 1989 C."lll"lL.
"lO'M
- lll"',r.".
3*A:::llR
,'.""".
CL P,lL",": 0"
=L"."."'""*"
fJ,/ %","
- rtrJ".o'"
L".'.#"'
%.k*2""o t' a" Pl7, ML""."4 0,'T:l:7 = -
jllll3 ',,,'",
(202) 857-2929 74/,"",",,,,.,,,,,,
'll7.'L."'**
gests a sit.ue".*
P 858DS S situeenan Assu,qv sN.It2.W.u
.affft.e A t*IUtm
..~,I.A.MO
-,es.s J F.TEVE O.v04 s.LDEWyespf a lengt.
Is40 80 I 8P.NE.
NL m,. 4.
=,:ll" ll%77.".7l
- ll"l3
= lll;,.
r lllll:M:ll*1-3",:"L y,
'"ll'"P."O 0l"' ",'l"1 Of,'J""
llllt,ll".".""
h' J'
=lT.."""
lll~,="l',-
=.':1.
3::::::r' I
- ll'::"/ %"""
!*.,74.ll.T.
. =
n.,-
,,.a..
u
.E.in.s.in a, agirwwy e.nP Olt.'
EB.e.il stDelt JR..
L.OU.B.4 A Inzut a
im
.m (svie,
,0 85 a8*
L
.,.e ci. - w VIA TELECOPY Thomas E. Murley i
Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 1
Dear Mr. Murley:
Your letter of July 20, 1989 states that a i
preliminary review of the " concerns" expressed in the Shoreham-Wading River Central School District request pursuant Section 2.206 of your regulations does not indicate "any need" to take immediate action, because
... on the basis of current information, the licensee is currently in compliance with the provisions of its full-power license.
The g
defueling of the reactor vessel is an activity permissible under the terms facility operating
- -mca l @
license NPF-82 the destaffing of the plant will not l oo be implemented until early August".
o~tn f.D o You also state that "... defueling the Shoreham facility is aou authorized by the Shoreham operating license and does not N
constitute a separate federal action subject to NEPA".
"C Il 6 i b Okt Rairt*ste Dstat synts tsco ATL ANT A, etcPG:A 3t346 t.oa TrttPhoNE (.04) ett 8850
,he tgLEcortsp 6404) $96 8874 TELis 4995266
[
kg 37 vanisci, mtuut sta voar.we w voev *ocas vs.o istspuowe uts ass asco f
vatteceit. <t+e) ses saw tttta antes I
ac wert state' an.waeotis w Annai.p et40s-smos trote,'ont (son n: cena
UUL d) '89 12: 48 FROM D.'L.A.
WASHINGTON DC PAGE.004 Mr. Thomas E.
Murley July 21, 1989 Page 2 The Requestor urges the need for an immediate reconsideration of your interim decision to address all, not some, of issues raised in that request and to prevent the further deterioration of a valuable electric resource.
I The statement that "[t]he defueling of the reactor vessel is an activity permissible under the terns of the facility operating license NPF-82" is, at best, disingenuous.
The Administrator of Region I has openly admitted that this is not_a normal defueling.
As.the Requestor stated in its letter of July 14, 1989, the defueling being conducted here is an unreviewed safety question, since it is n21 occasioned by any of the events normally initiating a dofueling and since it will provide none_ of the benefits sought to be achieved by a " normal defueling".
Therefore, it presents unnecessary and unreviewed risks to the public health and safety and to the environment.
Your statement that "[t]he destaffing of the plant will not be implemented until early August" is clearly in error. to the Requestor's supplemental letter of July 19, 1989 is a New York Times report that "LILCO has also beaun to transfer about 150 employees from its 590 person workforce at Shoreham to other jobs" as of three days Age now.
(Emphasis added.)
Most revealing, however, is the fact that you could gay (although in error) "destaffing of the plant will not be innlemented until early August".
(Emphasis added.)
This clearly demonstrates that the Commission is at this tiEe fully aware of what New York State Public Service Commission Chairman Bradford styled "a continuum of actions" that has been announced by the licensee to include (a) defueling, (b) destaffing, (c) reduction in maintenance, (d) application for a reduction in its operating license to a " possession only" license, (e) application for a transfer of that " possession only" license to a New York State entity (e,q_, Long Island Power Authority), and then (f) application for a license to decommission the facility (for which LILco will be fully financially responsible).
The Requestor respectfully suggests that the Commission should not "put on blinders" to this overall plan.
The Commission is currently involved in significant reaulatory actions regarding the fate of the Shoreham plant.
This is sufficient to trigger NEPA review at this time.
Een 10 C.F.R. S 51.10(b) (1988).
The Commission need not, and certainly should not, wait until the last step of the process
7UL 2'l-'89 12: 48 FROM D.L.A.
WASHINGTON DC PAGE.005
,, 4 Mr. Thomas E. Murley July 21, 1989 Page 3 described above (i.e, application for decommissioning) to x
conduct its NEPA review.
This would clearly be " locking the barn door after the horses are stolen".
Lathan v. Volpe, 350 F.
Supp. 262, 266, aff'd 506 F.2d G77 (9th Cir.)(1974)
(footnote omitted).
The Commission's regulations clearly state that "no person within the United States shall... transfer, acquire, possess, or use any production or utilization facility except as authorized by a license issued by the Commission."
10 C.F.R. 5 50.10 (a) (1988).
Those regulations I
further provide that:
"Any actions concerning the proposal taken by an applicant which would (i) have an adverse environmental impact, or (ii) limit the choice of reasonable alternatives may be grounds for denial of the license."
10 C.F.R. 9 51.101(a) (2) (1988) (emphasis added).
The regulations also provide that:
"This section does not preclude any applicant for an NRC permit, license, or other form of permission, or amendment to or renewal of an NRC permit, license or other form of permission, '1) from developing any plans or designs necessary to support an application; or (2) after prior notice and consultation with NRC staff, (i) from performing any physical work necessary to support an application, or (11) from performing any other physical work relating to the proposed action if the adverse environmental impact of that work is de minimis".
10 C.F.R. 9 51.101(c) (1988).
The actions planned and/or taken are not de minimis, do have adverse environment 3 impacts, and do incrementally Ilmit the choice of reasonable alternatives.
These regulations clearly announce the Commission's intent not to allgw the applicant to conduct any activities which would either have an adverse environmental impact, limit the choice of reasonable alternatives to the action, or perform any physical work relating to the proposed action unless the adverse environmental impact of that work is de minimis.
The explicitly identified remedy (" denial of the license") is obviously intended to be a deterrent to a licensee conducting a constructive activity, as opposed to a destructive activity, as in this case.
However, the expression of that remedy does not limit the Commission's authority pursuant subparc B of Part 2 of its regulations to impose requirements by order or to take other actions as may be proper against any person subject to the jurisdiction of the Commission, 10 C.F.R. $ 2.200(a)(1988).
In particular, you are authorized to take such actf.on if you determine that an emergency exist and that the public health, safety er interest requires a temporarily effective order.
The z
}
l
L*jud"d)89 12:c9 FROM D.L.A.
WASHINGTON DC P A G *E. 006 6
Mr. Thomas E. Murley.
July 21,-1989 Page 4 Requestor suggests, respectfully, that the situation at shoreham cries out for such orders, as previously requested.
Eighteen years ago (almost to the day), the Court of Appeals denounced-the Commission's interpretation of NEPA i
saying:
"We:believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act."
Calvert Cliffs' Coord. Comm. v.
U.S.A.E.C._,
146 U.S. App. D.C.
33,
, 449 F.2d-1109, 1117 (1971), cert denied, 404 U.S. 942 (1972).
The court said further:
"The word ' accompanied' must not be read so narrewly as to make the Act ludicrous.
It must, rather, be read to indicate a Congressional intent that' environmental factors as' compiled in the ' detailed-statement,' be considered through agency review processees".
I 146 U.S. App.
D.C.
at
, 449 F.2d at 1117-18 (emphasis in original; footnote omitted).
The current failure to act appears to,be a case of "d'eji vu, all over again".
Your letter indicates that an agency review process is underway.
You are also aware of the " continuum of actions' described above.
Pursuant to NEPA, orders should be issued'to.stop those actions, so that an environmental impact statement can be prepared to
. accompany _the proposal through the review process so, among other things, the alternatives can be considered.before they are limited or foreclosed with possible adverse effects'to the human environment.
The Requestor understands that in approximately four days # activities, the licensee has removed about 100 fuel j
bundles from the reactor vessel and is conducting other i
activities contrary to the commitments given to the Commission that form the basis for the full-power operating license.
According to your letter, the licensee may be allowed to continue such activities contrary to the public interest for as long as another ten days before you will act.
Under these circumstances, I am furnishing copies of this letter directly to the Commission so that it may exercise its supervisory power over delegated staff functions to protect
f
'Jul_ l$i ' ' 89.12 : 50
'FROM D.L A..
WASHINGTON DC PAGE.007 3.,M..
e Mr. Thomas'E. Murley July 21, 1989 Page 5 I
the health and safety of the public, preserve the human i
environment, and preserve the Shoreham facility.
10 C.F.R. 5 2.206 (c) (1). (1988).
Sincerely, oe h =
u/. Mr i
James P. McGranery, Jr.
Counsel'for l
Shoreham-Wading River Central School District i
JPM:jmb Enclosure cc:
Chairman Kenneth M. Carr Commissioner Thomas M. Roberts l
' Commissioner'Kenneth C.
Rogers I
i Commissioner James R.
Curtiss
%O me 2 " ~ **"~"
- w:m...
~~
UMTED TATss NUCLEAR REGULATORY COMMISSION g
nAnMiwoTom. D. C.sosts k
July 20, 198g
.Mr. James P. McGranery, Jr., Esq.
Dow, Lohnes & Albertson 1t65 Twenty-Third $treet Weshington,D.C. 200$ M 194
Dear Mr. McGranery:
This letter is to acknowledge recet t of the etition filed by you on July 14, 1989 on behalf of the Shoreham4ad ng River entral $chool District. In your petilion you request that the trecutive Director for Operations issue an isr:ediately effective order to Long Island Lighting Company to cease and desist from any and all activities related to the defueling' and destaffin Nuclear Power Station, Unit 1, and return to the ' status quo ante,g of Shoreham pending further consideration by the Comission. You further request that such an f order be accompanied by an announcement of the Comission's intention to fine the licensee a substantial amount per day for any violation or centinuing violation of the Comi$sion's orders.
As bases for your request, you assert that (1) the defueling of the core of the Shoreham $tation involves an unreviewed safety question, because it is unnecessary and because the increased risk of accidents in the transfer of fuel to the spent fuel pool outweighs the slight additional mar in.cf safety provided by the a ent and as such, requires orter Comi sion approval in accordance wi h fuelpooll50.5It(2)theissuanceofthefull-poweroperatinglicenseforthe
~
l 10 C.F.R and the licensee facility was premised. among other things, on adequate staffing,du,:e staffing has now declared to the Comission its intention to willfully re by about half, which would violate ',he basis of the issuance of its license and the licensee's ortor conscitments ta the Comissions (3) the lack of maintenance activities at tie facility is contrary to a March 1989 Operational Reediness AssessmentReport;(4)thelionsee'splantosubstitutefossil-fuel-burning units for the Shoreham ststion is a matter that may result in a si nificant increase in an adverse environmental impact previously evaluated i the Final Environmental Statement for the operating license and, as such, presents an untsviewed environment, question that requires prior Comission approval; he (5)suchanorderwouldallcwforafullenvironmentalreviewpursuanttot Notinul Environmental Policy Act (NEPA), the Council on Environmental vality
... a;:nes, ano the Comission's regulations in 10 C.F.R Fart 51; and ( ) the i
issuance of a Itcense amendment authorizing decomissionin) is a mjor Comission action significantly affecting the quality of tie environment and lement to an environmental veovires an environmental impact statement or supp(b)(5) and (b)(13).
impact statement as specified in 10 C.F.R ll51.20 Ycur petition has been referred to me pursusnt to 10 C.F.R 62.206 of the Comission's regulations. As provided by Section 2.206, action will be taken on your request within a reasonable time. However, a preitminary review of the concerns in your petition does not indicate any need to take imediate action as you request because on the basis of current information, the licensee 0 %hGk w
w
Jid!EOS 8SN. cdW D.L A.
WA M NGTON DC-ggGE.009
- $Y'..
Mr. James P. McGranery.
is currently in compliance with the provisions of its full-power license. The defueling of the reactor vessel is an activity permissible under the terms of Facility Operating License NPF-82. The destaffing of the plant will not be implemented until early August.
i We are currently ev41utting the effects of these changes in staffing level to ensure that they will not be inimical to either the comon defense and security or to the public health and safety. This evaluation will be completed before the end of July, and we will take appropriate action if warranted. Furthermore, t:ith regard to your assertion that an environmental impact statement (E!$) or supplement to an EIS should be prepared, we note that defueling the Shoreham facility is authorized by the Shoreham operating lice ~nse and does not constitute a separate federal action subject to NEPA. A1tiough you are correct that the decommissioning of a facility requires a license amendment necessitating the such an amendment has not yet been applied for in this preparation of an El$
If the ComissIon issues a license amendment authorizing the case.
' decommissioning of the Shoreham facility, an anyi'ronmental rey 1ew will be perfomed in accordance with the Commission's r6gu14tions.
Sincerely,
[
Thomas E. Murley, Director Office of Nuclear Reactor regulation l
./t.lO{ 2 V 89 12: 46 FROM D.L.A.
WASHINGTON DC-PAGE.001
..i..,
d,'
e
,V DOW, LOHNES & ALBEiHSON 1255 TWENT% THIRD STRECT
,,,, @".'".'w'. s v.u arue us-'t e se.eems.
awes t tman ne'*
WAS H IN GT C N.
D.C.
200371494 O,,W'"'
.s.o. van, e, moa me.s,se e.e.smo-
.s a...u.s, u
,,4,-
.n.
m.
Tw.ow.......,....
-.,,m~,.,,.,.
o.,,,.
m zco. e..en..r... =
., u..i.m.o
- m...
u,.
m
.r,
_,a
- m =n a,..
..u,.
s-LAnpa JD nse Egm9 eg gr.arggu Issam 4
~
grf 0.fC 4 8.It
'.*".",,','ll"."f.'
""'7"*.**,."
1
'N~ "".llT.".
"L' ".*L..
-m-
..af As,...
MWD.8,D D.a, m
--.4..O.gpssw tt sia gs.ss.er.e.
i
.u gusu.e pe a
r.
8
- t..ma da.s.D.A..tigtWi.a a.r n.seumh Cu.R.,.Il A Br.TTust, f.utu.t k.aas u gnas.e, a.,r.gr.e
.c a wi.
.ima c.
S dN *t8154355
., Jose t hoQase Alt > 5 use eu,e
.a WAIM g a. pass.ED.
Of fWie D at.es.'
6 ILS..&.8 D'IE,
- em
.'th RAMM $ 83 @
pt AC Tigprg(m' ro,
.u La f,eleassa e
.aseqE a seso.u sestr tu.ve.sm
, pes p m.ese
=.e.
p
, ppir, s.yu.um
.A.e.rt.u a.nho it.nr ss.es.c e tuo.sa.sJ.pr'stil st*
an m
.ae
,4.sk4 gu.? Gdae ven,0
'MC D u 4 gustana. OED c,onfhet O wru mv 8eII.0h e 4Laan agepubs tumul'd RAI.etan.
Ape.r n staessp 81iAuc mes A puisfspe amfied M meg aspe.LS R.t %3D.p umi
.8W A fur 74 6tFJag h FfEugens.: p Lout >4st s.um p eIDomSL,a
'EsphfrJ Rth,W amaikas a,gss anas y gettgin Laute Lpresuze-c uc s ess.e 899 0 0.smE.@'
8E'.ir.C.W, Db8.e 2818.#,EE.va.s J f,Dn 3.en.has-pass
=
am 1...,.
u e-
.u
.v 5HEstan. -
vuli sh JEs : 6 tpur nan.pe2 0 Wamo e TELECOPY COVER LETTER maa wa=a
.a==.
- aa=. '
s..aa.
.me
.,;si 8teresMP 0,s w vasen em c.skv
-arama e AQHIL A DL IfuWP4AfE'. CIE'
. u.se,de pugne,
Jo ht et quggerntEP LANNf I SkG-*
aEvest estD
. sues a63gmanse JaaES
- emes.ver,
EmanfiDO *t8EZ W VLAfCAB+
anflule L.assete" empt & aalpas D.@asame*
ar==== a $ t.Ese.**
vedv6 Y wassiswust
,is sc, Date:
July 21, 1989 Total number of pages 9
including the cover page.
f i
M utl%
Mr. h 1 L ily, A.
j To:
a
Title:
The Secretary 4
Nuclear Regulatory. Commission Company:
Froin:
James P. McGranery, Jr.
H m H arle-I Pls. deliver the following to ".:. Ctd b and __
Re:
one copy to each of the four Commissioners, who are "cc" to this letter.
Telecopy No.:
492-1672 To conf'.rm:
492-1976
~
10342.0001 Client No.:
If you do not receive all of the pages, please call (202) 857-2572 or (202) 857-2675 as soon as possible.
Thank you.
Sent and Confirmed:
Date:
Time:
By:
Cgst ftAVINIA Dil!VE $Lf1TI 139C ATL AM A $(C.S' A SDBa$.2103 TELEPh041 (80.> 994-4600 TlklCP*lte (404) $$6 GB?e TLLl* dO95265 43 7. ADISON Mf,85Ut N( W VCRK, sit e VDftlt 10C27 # etc TELEPe=0NE (312) 326 3850 TE t t COritP (2124 326 3333 'fi. : g r73s8 40 9t ST sins tt ANesapotil. wn.vt AND t.40s #4.
- tttP=0N8' {$0 6) S$3 D0d$
- - _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _