ML20247L318

Suppls Shoreham-Wading River Central School District 890714 Request Re Margin of Safety Provided by Placement of Fuel in Spent Fuel Pool at Facility

ML20247L318
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/19/1989
From:	Mcgranery J DOW, LOHNES & ALBERTSON
To:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
Shared Package
ML20247L306	List: ML20247L301 ML20247L318
References
2.206, NUDOCS 8909220183
Download: ML20247L318 (10)

Text

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yIA Trtreepy 9

Victor Stello, Jr.

Executive Director for operations U.S. Nuclear Regulatory Commission ,

one Whiteflint North 11555 Rockville Pike Rockville, Maryland 20852 Re: Shoreham-Wading River Central School District Section 2.205 Request submitted July 14, 1989 U.S.N.R.C. Dppket No. 5p-322

Dear Mr. Stello:

In further suppert of the above-captioned Request

(" Request *), the Shorehan-Wading River Central School District states as follows:

N .

N!i In Para E.(1) of the Request, the Requestor nis A.

stated that there might be a "very slight, if any, additional Z8"- margin of safety provided by the placenent of the fuel in the 6o

'$$ spent fuel pool, as opposed to its continued residence in a gg reactor in a cold shutdown cendition...." At this time, the mo Requestor notes that there say indeed be a reduced nargin of

%@ safety if the Licensee is allowed to complete that transfer, Oc since the public health and safety would no longer be N

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.s _AUG 23 '89 17:28 F R Oi1 D . . . A . WASFINGTON DC PAGE.003 2

Mr. Victor Stello, Jr.

July 19,~1989 page 2 protected by a combination of barriers provided by (a) the reactor vessel itself, (b) the primary containment and (c) the secondary containment, but would only be protected by the secondary containment once the fuel is in the spent fuel pool. The Requestor also suggests that the Administrator of Region I may recognize that the activities currently being conducted should require prior Commission review and approval in this case, since he has stated that "Jn thia. case, the, circumstances are somewhat different" and~has.further stated that "there are some unique-elements to the situation at Shoreham". 132 Request Para D. (1) .

B. Attachment I hereto is an article which appeared in the New York Times on July 18, 1989. It provides support for the allegations that LILCO is removing the fuel and destaffing the plant as part of a single course of action to decommission the plant without applying to the commission .

for permission to decommission, thus depriving the Commission of full and timely safety and environmental review of the proposed course of action. The article also quotes the Chairman of the New York State pablic Service Cor. mission

' as calling "the removal of the fuel rods 'one of a continuum of actions that LILCO must take to carryout their obligations under the settlement, which include not running the plant and also getting it into the 2 east expensive configuration as possible'". This further supports the allegation that LILCO, in consort with the Governer of the State of New York and various other entities, is ccnducting a single. course of action ("centinuum of actions"), under NPC reculaterv supervision, to unlawfully segment the review required by the National Environmental Policy Act of 1969 (*NEPA").

Further, the artic2e quotes "some officials" as stating that the " decommissioning process ... began on Friday, as LILCO . . . started the slew procedure for removing .

the 12-foot-high bundles ....", styling that process as being I

" ... Virtually unstoppable ence it is started ...." This is a clear indication of concerted activity to evade the Comr.ission's safety and envirennental review which demands an immediate and ter.porarily ef fective order to cease and desist ,

and return to the 3.131ME EMP A.H12 se that the Commission may exercise its mandated jurisdiction pursuant to the Atomic Energy Act of 1954, as amended ("AEA") and NIpA to conduct a prior review of the proposed "centinuum" of activities.

C. Attachment 2 to this supplement is a letter from the Governor of the State of New York to the people of Long Island, dated March 21, 19E9, which indicates he has

< hug 23 '89 17:29 FRot1 D. .'A. UASHINGTON DC PfiGE.00 t . Victor Stello, Jr.

. ly 19, 1989 Page 3 engineered the " settlement Agreement" (which is currently subject .to judicial review in at least two civil suits in New York State courts and is subject to many conditions subsequent) on the basis of the substitution of his judgment of the risk the Shoreham Nuclear Power Station poses to the health and safety of the public for the judgment made by the Commission in issuing the full power operatire license on April 21, 1989 in violation of the doctrine of Federal Pre-emption of this area. As the Court said in Pacific cas A riectric Co. v. State _ Enerev Jtescucas Conservation Cor_m. ,

461 U.S. 190, 213, 103 S.Ct. 1713, 1727 (1983):

"A state morator-lun on nuclear construction grounded in safety concerns falls squarely within the prohibited fie;d. Morover, a state judgnent that nuclear power is not safe enough to be further developed would conflict directly with the .

countervailing judgnent of the NRC, see, i_nfre, at 1729-1730, that nuclear construction may proceed not withstanding extant uncertainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the At:mic. Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use - and would be pre-empted for that reason. Infig, at 1731.

In particular, the Governer states in that letter that the proposed settlement will " forever" rerove "[t]he threat of a nuclear accident ... from Long Island's future".

And he states further that the shoreham plant "... is of questionable reliability and, because it is located in an area where eveeuation is inpossible, raises overwhelming concerns about safety". That letter also reveals that the Governor intends to "close and dismantle the plant, provide alternative energies sources to replace it, and give LILCO custoners rates lowr 1 than those they would have have to pay if the shoreham were to operate".

This contradicts the judgrents already made by the Commission in its review of the need for the plant, the alternatives to the plant, ar.d the costs and benefits of the ,

I plant by the commission pursuant to NEPA as well as the AIA.

It further demonstrates the r.eed for a cease and desist order so that a unified NEFA review of the proposed plan of action l

____________________-___A

~~$ AUG 23 '89 17:29 FROM D.L.A. WA5FINGTON DC PAGE.005 f

Mr. Victor stello, Jr.

, l July 19,-1989 3 I

Pkge 4 1

involving the exercise of the Commission's reuulatory and licensina authority can be conducted.

D. Attachment 1 also demonstrates that the New York Public Service Commission and the Licenses are pursuing

- the curre:st course of conduct in order to put the plant "into the least expensive configuration as possible" and "to save about $43 million on shoreham this year". This further demonstrates the need for a cease and desist order and an order to return to the ptatus 222 anta so that the Commission may exercise its regulatory health and safety jurisdiction to the determine whether the ecenomic objectives of the New York Public Service Commission and the Licensee are consistent with the responsibilities accepted pursuant to the full power operating license, or whether the New York Public Service commission is subjecting the Licensee to unlawful economic pressures that would cause violations of the commitnants the Licensee has made in obtainir.g its license.

E. In the Request at Para D.(7), the Requestor suggested that any immediately and temporarily effective ordkrs issued pursuant to this Request be accor.panied by an announcement of the Commission's intention pursuant to 10 C.P.R. E 2.205 to fine the Licensee a substantial amount per day for any violation or continuing violation of the Commission's orders in an Encunt that would deter any economic incentives which the Licensee muy have to violate the orders. That requert identified at least six violations. Egg Request at Para D.(1)-(6). It is recognized that "in r.o instance will a civil penalty for any one violation exceed 5100,000 per day". to C.r.R. Part 2, App.

C.V.B.5. (1988). However, it is also recognized that "If an evaluation of such nultiple violation shows that nore than one fundamental problem is invo2ved, each of which, if viewed l independently, could lead to civil penalty action by itself, then separate civil penalties nay be assessed for each such fundamental problem." 10 C F.R. Part 2, App. C.V.B.S.(3)

(1988). Given the anticipated "saving" of "about $43 million on Shoreham this year" identified in Attachment I hereto, it would appear that cumulative fines of at least $250,000 per '

day would be necessary to act as an economic deterrent to continuing violations.

The Requestor looks forward to a considerec response to its Request as supplemented herein, but urges prompt orders to cease and desist and return to the status E22 anis to arrest the illegal, continuing evasion and I

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'AUG 23 '89 17:30 FROM D...A. WASFjNGTON'DC g

e PAGE.006 i

Mr. Victor Ste110,*Jr.

' July 19, 1989 Page 5 erosion of the Commission's jurisdiction described in Attachment I hereto.

Resp etfully submitted I

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Ja.es P. McCranary, r'.

Counsel for the Shorehan-Wading River Central School District JPM:$mb Enclosures cc: Chairman Kenneth M. Carr Commissioner Thomas M. Roberts -

Commissioner Kenneth C. Rogers Commissioner James R. Curtiss r,

I

AUG 23 '89 17:30 FROM D._.A. W A D- I N G T O N DC PAGE.007 1

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ATTACHMINT 1 EbcNetugorkEimes new MetropolitanMews ^

NEW YORK, NE WJERSEY, CONNECTIC U T/ 7'UESDAY, j uLY 28,1989

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and for gramienance they to.13 he Action CouldSignal 1,M',2;m,%,1*,% A*T.**'*"**""'"*'"*

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ser Mtert. the 6epat} ent:gy setre- '***' C tar), saig Mr Cuemo's et mmems mde. *I * e't must t e te sq' W sw*"m*"er o#*Mae' B) PMILIP 5 GL*715 a,= = e= =e"** {s,ty o ,ttf

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IllCKSY!LLE.1.1, July 1% The Lcmg is. we s ee hust feri saidst as possW anne Lashtars Compen) has beg.m removing namefoss

-sa: istnes.",Mrtg be eere

, cews m to esmp:ved Stata'* sn !H.,

sranium feel rods frorr t*'e Shoreham nw. enee:

• t*. :he de.e,a,nor anyu.:2.rgmehe so but = as vr.ab.e te o m e sc~.mercia: c; clear power pLsnt. takstg the first ste; to.  := ants amt

• e wouli *sicome Para sato eraung heense fo* the p:an be:see c warf what essaid be the eventual dama, <

eu? orisces

• the unmenmgaess of hem 1erk 5:4 alshg nf the $!J billion reartor. A8 I8? T" **$ "* f**! *ecs f rom and 54fon Cam) te pangsa i.7 IJlco.whitt, has ag'eed te sef! Shortham 5,% 8m

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fTtufen ftf lC ycas t' rate intresses.has yet inten:aons to o$erate the ple'it." he IO>3**Ti l'cem eaw tNs pa:

to appiy to the Federa: Neelaa? Regstato*F saiC *** e e e n tha as een of a ttual Litec hat altest) a *ee it a se Commission fcr permasson to decomm4 Oecornmessawi'ig 8.i Caesel a m e frM' *ith 00f58? d8~ 8 8 ' E '

smon the plant. psttmg sta: s:am or urearr scasom,. agwe to seU LM p'a_ra te t But it begar. to remeve the reacter's c a!!) impterfe "

N.?ac fse! rocs em Fnsa) as a e ay of ser,. Lilco's appheation to the Na,clea r tro!!mg tes's ei the p ant RegWetory Comnnsus to begm Besides stanmg te rtenove tbt fuel fWs 6nommnowsis a n;enet befo*e 14:e has a!se bept to transfer about Ild M tM Cmpk'yets frpm its Sp0 persen work force at Qf[g p$8,';a e g

Riornham to 0;het Jobs Alto ether the util- to own Sherera n. ant the b York pg.tt AuNtty.shich is ta assvr.amh tr) expects le save about 3 sniliaon a st, ngtee on te so proceed hm this year. gg, ;g, n,g ,t p,,c,g,7, e Even as L!les workets withf es foef rods Bat for mo nt efferssts the c ecommis-from the P!&m er. LAR$ IsIahd s hefth ssonark p?9f els '" WPuth they sa4 ts J Whort.Teteral and state offsta:s coritmuod vanua.h unstrrpable once at rs atsned te argue about be reaetof's fvtuft. - began en F1 scar a s Lott fiapeet the to arr interv6es on Sunga) sith Nevaday reactof wsse and en af,atee.: sterit.

• Ct the econcmst suremst an Pans, Presacent fuel paal aff stane! the slom peace-Bush's chief of staff. John M Sununu ques. du'e f or terrenng the 12.f001diegt kn-tienet wt:y Nes York wovig =am to eastr9y ges ther och cu'utn 82 fiel recs Dorehem "M) se.ake amusatile someM that mighi acmM!ay be usabM"he saked Federa! ervergy off,cials had pervous'y airomed to fight t e shutdoun of the plam be-

• suse of Long Island's tigh: energy sit.astaan {CD1'.IT.1 Of the EMtt Sy@6 RI9d iM 'DG Nf4 YOIk ,*qCS' a-

$ tu cowmo epenenes on sepo .ed July 18, 1989, in Coln 5 of page B1; Colu ns 2 a-d 3 c,m. ware w onomo. in a statemem ie. y abcue, a-a the picture appured in Cola 2 cf page 32]

dey. eened the reeeral o.,m. mat's ae- '

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ence" and ca!)ed on Presidem Bush is tisf-Wy the Admansstration'a poutsee and

• Pre-C>stumanedset Pete 52

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,,. AUG 23 '89 17:31 FROM D._.A. UA5FINGTON DC PAGE.000 4

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AUG 23 '89 17:32 FROM D...A. WASFINGTON DC PAGE.009 j .., .

f ATTACHMENT 2 5ta's or New Yom <

Extcutive Cwawsce Attac : 34 w.. .. = e w .

se,ss.o.

March 21, 1989

Dear Long Islander:

I am writing to inferr.ycu shout an agreerent that, once and for all, will provide e comprehensive solution to the agonizing saga concerning the nuclear pcwer plant at Shereham. This agreement will close and disrantle the plant, provide alternative energy sources to replace it, and give LILCD customers rates acver than those they would have to pay if the shoreham plant were to operate.

This agreenent is still subject to approval by the state Public Service Cc mission (PSC), the lang Island Power Authority, the New Yerk Power Authority and the shareholders of LILCo.

The agreement provides for the dismantling of the plant by the New York Power Authority after careful planning and public hearings. The threat of a nuclear accident will be ferever removed fre= Long Island's future.

Just think of it. For ther first time in nearly two decades, the controversy surrounding Shorehan will finally and and we can devote all our energies to solving the other pressing prehlers contrenting Long Island.

Regrettably, no nstter what course of action is taken regarding Shorehan, LILCO's electric rates will rise in the future. Of_m12 the cetions available. this__etn;;perant v1,1,1 erovide the lovest reter Rassible -- nuch lower than if Shorehan were to operate. At this noment, I have the Executive Director of the State Censumer Protection Board fighting before the PSC to assure this result.

< The lower rates under sy agreement are possible because closing

' Shoreham will nake it unne:esnary to spend any additional noney en the plant and will guarantee that LILCO and the federal governcent share the losses with you.

(over)

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AUG 23 '89 17: 32 FROM D._.A. UA5FINGTON DC PAGE.010 S

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Last year ny administration negotiated an agreenent that accorp31shed many of these same goa2s. The state Legislature, however, was unwilling to make the hard choices necessary to c2 0se the p2 ant and declined to act on the agreenent. But now I have found a way to do it without the legislators.

I share the outrage of many Long Islanders about the' waste associated.with the Shoreham controversy. For six years I asked L7 Leo to stop investing taxpayers' and ratepayers' noney. Too such time and reney was put into a nuclear power p2 ant that is of questionable reliability and, be:ause it is located in an area where evacuation is jrpectib1c, raises overwhelming cont:crns about safety.

Unfortunately, there is ncthing we can do to recover all the losFes associated with Shoreham. There is, however, one sure way to and the vaste and provide Long Island with a reliable energy r' future at the lowest rates possiele. 'That way is the agreerent that I have negotiated to close shoreham and allow us to dovcto all cur attention to bui2 ding a better future fer Long Island.

Sincerely, a

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e e e

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.-. .- . :L'".".a' VIA TELECOPY Thomas E. Murley Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Comnission Washington, D.C. 20555

Dear Mr. Murley:

N Your letter of July 20, 1989 states that a 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

[.j, , defueling of the reactor vessel is an activity

-rd permissible under the terms facility operating Qf license NPT-82 the destaffing of the plant will not gg be implemented until early August".

coc.

You also state that "... defueling the Shoreham facility is

,0 o authorized by the Shoreham operating license and does not 53 constitute a separate federal action subject to NEPA".

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'JUL $1 '89 12: 48 FROM D.L.A. WASHINGTON DC PAGE.004

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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.

The statement that "[t]he defueling of the reactor vessel is an activity permissible under the terms 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 defuelina. 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 occasierad by Any of the events normally initiating a defueling 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. Attachment 1 to the Requestor's supplemental letter of July 19, 1989 is a New York Times report that "LILCO has also becun to transfer about 150 emnlovees from its 590 person workforce at Shoreham to other jobs" as of three days A52 now. (Emphasis added.)

Most revealing, however, is the fact that you could EAy (although in error) "destaffing of the plant will not be incremented until early August". (Emphasis added.) This clearly demonstrates that the Commission is at this time 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.um, 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 reculatory actions regarding the fate of the Shoreham plant.

This is sufficient to trigger NEPA review at this time. Egg ,

10 C.F.R. 5 51.10(b) (1988).

The Commission need not, and 4 certainly should not, wait until the last step of the process

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . - _ _ _____m_ - . _ _ _ _ _ _ _ - __.mm_,__._.,,.

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JUL $189 12i49 FROM D.L.A. WASHINGTON'DC PAGE.005 Mr. Thomas E. Murley July 21,,1989-

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described above (lagt, application for decommissioning) to i conduct its NEPA review. This would clearly be " locking the l barn door after the horses are stolen". Lathan v. voine, 350 i F. Supp. 262,.266, affld 506 F.2d 677 (9th Cir. ) (1974)

(footnote omitted).

The Commission's regulations clearly state that l "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 I Commission." 10 C.F.-R.. I 50.10 (a) (1988) . Those regulations l further provide that: "Any' actions concernina 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. 5 51.101(a) (2) (1988) (emphasis added). The .

regulations also provide that: 0 "This s6ction does not .j preclude any applicant for an'NRC permit, license, or other 0 form of permission, or amendment'to or renewal of an NRC i 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 (ii) from performing any other i physical work relating.to the proposed action if the adverse  !

environmental impact of that work is*de minimis". 10 C.F.R. 5 51.101(c) (1988). The actions planned and/or taken are not de minimis, do have adverse environmental impacts, and do incrementally limit the choice of reasonable alternatives.

l These regulations cleerly announce the Commission's l intent not to allow the applicant to conduct any activities  !

which would either have an adverse environmental impact, l

^

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 j destructive activity, as in this case. However, the expression of that remedy does not limit the Commission's authority pursuant subpart B of Part 2 of its regulations to l- 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. 2 00 (a) (1988) . In particular, you nre authorized to take such action if you determine that an emergency exist and that the public health, safety SI interest requires a temporarily effective order. The l

l r

,e .I

• 2') f ' 8 9 ' 12 : 49. FROM D.L.A. WASHING, TON DC

. PAGE.086

.= -

4 L ,. ,

Mr. Thomas E. Murley July 21, 1989 Page 4 Requester suggests, respectfully, that the situation at l ,

shoreham cries out for such orders, as previously requested.

1 Eighteen years ago_(almost to the day), the Court of Appeals denounced the Commission's interpretation of NEPA saying: "We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act." CalXar_t Cliffs' coord. camm. v. U.S.A.E.C., 146 U.S. App. D.C. 33,

, 449 F.2d 1109, 1117 (1971), sagt deniad, 404 U.S. 942 (1972). The court said further: "The word ' accompanied' ...

must not be read so narrowly 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".

146 U.S. App. D.C. at , 449 F.2d at 1117-18 (emphasis in originals footnote omitted).

The current failure to act appears to be a case of "dhjf vu, all over again". Your letter indicates that an agency review. process is underway. You are also aware of the "centinuum 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 3

bundles from the reactor vessel and is conducting other 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 dava 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

, -JUL El '89 12:90 FROM D.L.A. WASHINGTOM DC PAGE.007 Mr. Thomas E. Murley July 21,-1989 Page 5 the health and safsty of the public, preserve the human environment, and pruserve the Shoreham facility. 10 C.F.R. I

2. 206 (c) (1) (1988).

Sincerely, ce f.Nr -

h '

James P. McGranery, Jr.

Counsel for Shoreham-Wading River central School District JPM:jmb Enclosure cc: Chairman Kenneth M. Carr ,

Commissioner Thomas M. Roberts Commissioner Kenneth C. Rogers Commissioner James R. Curtiss b

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E 'X; ums. um NUCLEAR REGULATORY COMMittl0N se..* ) . nasmwarow.a t.eeens July 20, 1989 Mr. James P. McGrantry.1r., Esq.

Lohnes & Albertson Dowl Il8 Twenty Third Street Washington,D.C. 20037-1194

~

Dear Mr. McGranery:

This letter la to acknowledge receipt of the petition filed by you en July 14, 1989 on behalf of the Shoreham Wading River Central School District. In yevr petilion you request that the trecutive Director for Operations issue an Isrediately effective order to Long Island Lishting Company to cease and desist fromanyandallactivitiesrelatedtothedefueling'anddestaffingofShoreham Wuclear power Station, Unit I and return to the ' status eco ents. pending further consideration by the domission. You further request snet such an order be accompanied by an announcement of the Cossnission's intention to fine the ifcensee a substantial amount per day for any violstion or continuing violation of the Comission'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 margin of safety provided by the spent and as such requires prior Cossnission approval in accordance with fuel 10 C.r.R mo)Il0.5It (t) the issuance of the full-power operating license for the and the licensa facility has now was premised, declared to theasong other things, Coasnission on adequate its latention staffing, to willfully re duce staffing by about half, which would violate the basis of the issuance of its license and the licensee's prior coszitments to the Cesseissions (3) the lack of maintenance activities at tse facility is contrary to a March 1989 Operational Reediness Assessment Report; (4) the licensee's plan to substitute fossil fuel-burning units for the Shoreham station is a matter that may result in a significant '

increase in an adverse environmental impact previously evaluated in the Final environmental $tateeent for the operating license and, as such, presents an unreviewed environmental question that requires prior Comission approvals (5) such an order would allow for a full environmental review pursuant to the weHnul revironmental policy Act (NEPA), the Council on Environmental Quality

. . .:,:ines, ano the cossnission's regulations in 10 C.F.R part 51: and (6) the issuance of a license amendment authorizing decommissientei is a major concission action significantly affecting the quality of t te environment and -

eeevices an environmental impact statement or supplement to en environmental impact statement as specified in 10 C.F.R ll51.tcib)(5) and (b)(D).

Yourpetitionhasbeenreferredtomepursuantto10C.F.R62.106ofth6 Comission's regulations. As provided by Section 2.206, action will be taken on your request within a reasonable time. However, a preliminary review of the concerns in your petition does not indicate any need to take imediate action as you request because on the bar.is of current information, the licensee at o %SoMS f

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Mr. James' p. McGranery .

fs currently in compliance with the provisions of its full-power If eense. The defueling of the reactor vessel is an activity peretssible under the terms of Facility Operating License NPF-82. The destaffing of the plant will not be implemented until early August.

We are currently evaluating the effects of these shanges in staffing level to ensure that they will not be inimical to either the common defense and security or to the public health and safety. This evaluatten will be completed before the end of July, and we will take appropriate action if warrented. Furthermore, with regard to your assertion that an environmental impact statement (E!8) or supplement to an EIS should be >repared, we note that defueling the Shoreham facility is authorized by the $toreham operatini licehse and does not constitute a separate federal action subject to NEPA. Altiough you are correct that the decommissioning of a facility requires a license amendment necessitating the preparation of an !!$ such an amendment has not yet been appited for in this case. If the ConsissIon issues a Itcense amendment authortains the decotanissioning perfomed in accordance of the withShorehse the CoenissfacilityIon's regulattens.an anyibonmental review Sincerely,

{ hd% ..

Thomas E. Nurley, Director Office of Nuclear Reactor Regulation A

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The Secretary Company: Nuclear Regulatory Cor=*.ission __

James P. McGranery, Jr.

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FU Harle- and Re: Pls. deliver the followino to " . St:11 one copy to each of the four Commissioners, who are "ce" to th_is letter.

Telecopy No.: 492-1672 To confirm: 492-1976 Client No.: 10342.0001 _

If you do not receive all of the pages, please call Thank (202) you.

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_BY MAND victor stello,-Jr.

Executive Director for operations U.S. Nuclear Regulatory Cor. mission

• Washington,"D.C. 20555

- Re: Request Pursuant to 10 C.F.R. $ 2.206 U.S.N.R.C. Dg-ket No. 50-322

Dear Mr. Stello:

Pursuant to 10 C.F.R. I 2 206 (1988), Scientists and Engineers for Secure Energy, Inc. ("SE2 ") hereby requests in,ediately effective orders and the institution of proceedings to the same extent and on the same bases as the Request made July 14, 1989, in U.S.N.R~.C. Docket No. 50-322 by the Shoreham-Wading River Central School District (" School District"). SE2 hereby edepts and incorporates herein by reference the School District's Request made on July 14, 1989 as supplemented by that Requestor's letters of July 19, 1989 and July 21, 1989, all of which are attached hereto. SE2 further requests consolidation of its Request with the former Request made by the School Cistrict.

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July 25, 1989 "' .

Page 2 gI21s Interest SE2 is an incorporated, tax-exempt, nationwide organization formed in the Spring of 1976, whose membership consist of over 1,000 faculty members and researchers from American colleges _and universities, both State and private, and other persons engaged in the sciences. Its purpose is to correct tne alarming degree of misunderstanding on fundamental, scientific and technological issues permeating the national energy debate, especially with respect to the

~

balancing of environmental concerns. In pursuing these objectives, SE2 is committed to offering its views based on the considerable kncwledge and expertise of its members to the public and to the varicos governmental agencies with responsibility for the resolution of energy issues, including participation in rulemaking and adjudicatory proceedings of the U.S. Nuclear Regulatory Ocamission. Many of SE 2 's members live and/or work on Long Island in the vicinity of the Shorehan Nuclear Power plant and rely on electricity from its license, Long Island-Lighting company. Therefore, the

- organization and its members have a special interest in the safe and environmentally benign operation of the Shoreham plant to provide them with reliable electricity and to avoid the substitution of fossil fuel plants relying on imported oil and gas, which would centribute not only to acid rain, the greenhouse effect and other effec *s adversa to the physical environmental, but also to our national trade deficit and the endangerment of national energy security and other effects adverse to our society.

Notice Requested SE2 requests that it be notified of all ..

developments in U.S.N.R.C. fccket No. 50-322 by mail (a) to Professor Miro M. Todorovich, Executive Director, Scientists and Engineers for Secure Energy, suite 1007, 570 Seventh Avenue, New York, New York 20018, as well as (b) to counsel at the Washington, D.C., address shown on this letterhead.

Notice and_ Intervention SE 2 roguests to be notified of all actions taken on this Section 2.206 Request and also requests intervenor status in any proceedings inatiated by the Commission pursuant to the consolidated requests of SE2 and the School District.

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July 25, 1989

.Page 3 l

Consent I am authorized to advise you of the Shoreham-Wading River Central School District's consent to the consolidation of its Request with this request by SE2' Respectful yj-,' ,

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James P. McGranery,"Jr.

Counsel for Scientists and Engineers for secure Energy and Shorehan-Wading River central school District JPM:jmb Enclosures cc: Dr. Thomas E. Murley (w/o enclosures) k i

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- ll:::Y: lll""  ::"a',':"I'".'.'f llllf. h lllllJL VIA TELECOPY Dr. Thomas E. Murley Director Office of Nuclear Reactor Regulation

. Nail Stop 12-G18 U.S. Nuclear Regulatory Ccamission Washington, D.C. 20555 Re: Third Supplement to The Section 2.206 Request by the Shorehan-Wading River Central School District and Scientists and Engineers fc,r 3.g.ratre Ener.gy_in U. 5. E M . C. Docket No. 50.322

Dear Dr. Murley:

j This is to further supplanent the requests for imediately effective orders in the subject docket with respect to the issues and en the bases set forth in the original request dated July 24, 1989 es supplanented by our letters of July 19 and July 21, 1989, si : ... ... enire syne ,ne . 6..i. se cas .. nu. vu 9 6i....: ....: e n n u TEttCG it. ,aget tes note titt, 4006844 a37 seatist. arteug at. TDhs t a 10.. opsti test 98 t.=0 8 (2.t1 86 H80 t$6880 41. sit ##3H 8839 98648ft+P48 et.it?89 5l' 6=...svg e... 6.s3 gene.3 0 vttle.0.t (H 5 H) esp 43 0N "A f ([ 'f a J T)b % v // _ -__ __-_ __ -__ _ ____-__ - - -

_ _ _ _ __ _ ~. -_ _ _ . . . _ _ _ m ,ggg July 31, 1989 Page 2 Two events occasion this third supplement. First, the briefing presented by the Long Island Lighting Company

("LI LCo") , licensee in the above-captioned docket, to you and other members of senior managenent at the NRC on Friday, July 28, 1989 revealed certain new information and reinforced other information relevant to the bases en which the section 2.206 requests were originally made. Second, and most important, I attach (as Exhibit a hereto) a letter of July 27, 1989 from Admiral Watkins to Admiral Carr which states among other things:

". . . the Copartment would support the

... issuance by the NRC of an immediately effective order prohibiting LIICo from taking actions which, in effect, initiate the decommissioning process for Shoreham before NRC permission is sought and granted for that action following a full adjudicatory hearing."-

In short, President Bush's Administration supports the request for immediately effective orders made by the School District and SE2 Both of these matters are addressed below in detail.

A. INFORMATION FRoM THE JULY 28 BRIIEDir The July 24 briefing addressed various matters concerning the defueling, destaffing and maintenance

" activities" (or lack of maintenance activities) at the Shoreham Nuclear Power Station ("Shoreham") as well as LILCo's plans for licensing apendments in the future; neither the licensee or the NRC Staff addressed their respective obligations under the National Environmental Policy Act of 1969 ("NEPA") at that meeting.

1. Defualingi LILc0 reported that as of the morning of July 28 approximately 287 of the 560 fuel bundles had been removed from the core and that if that activity is allowed to continue, LILCo expects to conplete the defueling ,

between August 5 and August 8, LILCO also described various section 50.59 analyses of the defueling and the risk of the subsequent residence of the fuel in the spent fuel pool which are being conducted, but which ATS_D91 corriq13 at this time.

That revelation in and of itself is a sufficient basis for the NRC to find that LILCD does D21 have the appropriate basis at this time to make the required determination, under Section 50.59, that the defueling activity does not involve

mui cm 'em id:*A pnvM D...R..UMbelNGTON DC PAGE.004 w

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l July 3c 1989 ,

Page 3-an "unreviewed safety question". Further, nome of those analyses described at the briefing consider the issue raised in our roguest of July 14, nanely, the acceptability of the risk in light of the fact that the defueling is unnecessary.

We do not argue that there is a great risk in the defueling activity and subsequent residence of the fuel in the spent fuel poolt rather, we argue that previous reviews of.

defueling activities have addressed the acceptability of that risk in light of the benefit to be achieved (13., either reloading of new fuel for continued operation or, in rare cases, nitigation of an accident) which is totally lacking here. Thus, the current defueling presents an unreviewed safety question deserving careful scrutiny by the NRC in the conduct of its' regulatory activities.

In short, the briefing clearly demonstrated that this defueling activity is not being conducted in accordance with Section 50.59 and demonn*. rated the need for immediately effective orders requiring the cessation of defueling and the return of the fuel bundles, which have been removed, to the reactor vessel where the health and safety of the public will be protected not only by the secondary containment, but also by the primary containment and the reactor vessel itself until reviews of the activity pursuant to the Atomic Energy Act of 1954 as amended ("AEA") and NEPA have been completed.

2. Destaffino: Contrary to one of the premises of your interin reply to the Schcol District request, the July 2B briefing also revealed that LILCO has already significantly reduced staff at Shoreham as of July 28 and has plans for even more significant reductions in the very near future. The most significant staffing change which was revealed at that meeting was LILCO's intent to transfer John D. Leonard, Jr. , Vice Presider.t - Nuclear Operations, from that post effective August 1, 1989 and to replace him with the current plant manager. Mr. Leonard is not only extraordinarily well respected in the industry, but also'he is unarguably the key man on whom the NRC relies for' assuring compliance with the full power operating license terms.

In our initial reTJest, we reported that in the .

June 30, 1989 LILCO-NRC Region 7 nesting, Mr. Leonard had said among other things *I think you all know se very well enough tha.t I try to run the show the way you want it run, and there will be no violation in that license, as lona as I have it in my mover to conttal_il." SWRCSD Request pursuant to 10 C.F.R. 52.206 (July 14, 1989), at D.(3]. We considered that qualification ominous at the time and l

.-- -- - - - - ~.__--,-o

,  %,g July 31, 1989

• Page 4 -

therefore stressed the qualification in our report o' the meeting to the NRC. Our worst fears will now be fos filled, uniens the NRC acts promptly to prevent his transfer.

^

If the transfer occurs, the NRC will no longer have Mr. Leonard to rely on, and it will'not have had the opportunity to review the qualifications of his proposed successor prior to that person taking control. -Moreover, there may be a cascading effect throughout the L7LCO organization with people being promoted to positions which they have not previously handled and for which the NRC has no assurance they are goalified.

Under these circumstances, there is a crying need for. immediately effective orders requiring LILCO not to transfer Mr. Leonard, not to further deplete the Shoreham staff and to return LILCO and contractor personnel to the required personnel positions to allow for prior review of LILCO's proposed actions under both the AEA and NEPA.

3. Maintena_ngg: At the July 28 briefing, LILCO said that it was going to continue maintenance in accord with its obligations under the full power operating license, h21 (a) it was n21 going to make further modifications raquired of other full power operating licensees, and (b) it explicitly described what it was going to do with maintenance of existing plant systems: Defining the plant as 124 operating systems, LILCO said it was going to maintain 40 syrtens as " operable," . ( i . em_ ,. meet Technical specification requirements"), 42 systens in a " functional condition", 36 systems in a " secured" condition, and 7 systens in a

" preserved" conditicn. Exhibit 2 hereto displays our understanding of how LILCO intends to address maintenance for each of the 124 plant systems. -

There are two key concepts involved in understanding LILCO's proclained pattern of maintenance:

(a) the concept of Operating Condition 6 ("0C 6") and (b) the definitions of " operable", ' functional", " secured", and

" preserved". There is D2 operational Condition 6 in LILCO's

• Technical Specifications. 331 NUREG - 1357 (April 1989), at Table 1.2. And while the Shorehan Technical Specifications do contain a definition of " operable", those Technical Specifications contain na definitions of " functional",

" secured", or " preserved". Its NUREG - 1357 at Section 1.0 passin and Specification 1.25. In short, LILCO has directly informed the NRC staff that it is creating a new Operating Condition (1 3., OC 6) and that it will D21 saintain 84 of

__ __ __ -_- _ ~. _ _ -..,_,_ _

July 31, 1989 i Page &

the shoreham Plant's 224 systems in accord with the Technical specifications.

For example, LILCO appears to state that it yM1 DA1 maintain the feed water control system, the neutron instrumentation system,.the reactor remote shutdown ~ system, the core spray system, the residual heat removal system, the

,redwaste off gas system, the primary containment inerting system, the primary containment cooling system, the post -

accident monitoring systems, nor many other_syst;ms which are essential to the health and safety of the public. 133 Exhibit 2-3.

The Requestors suqqest that the licensee's prbelamation of its n2n-modification planstand its n2n ~

maintenance plan also cry out for immediately effective orders to bar the licensee from discontinuing any required modifications or maintenance to protect the health and safety of the public, to protect the environment and to preserve alternatives for the shoreham plant prior to full review pursuant to the AEA and NEPA.

4. Licensin_o PIAna: At the July 28 briefing, LILCO's said that it " hoped" to cone in for a license amendment "before the end of the year" and, in response to staff questions, represented that it was having a hard time deciding whether to transfer the full power operating license to LIPA or to apply for a reduction of the full power

, operating license to a " possession only" license prior <to L applying for a transfer of the license to LIPA. The

.. requestors believe that this is strictly a stalling tactic by L'.tLCO so that the plant will " decommission itself" prior to applying for either license .meendment.

The agreements among LILCO, LIPA and the others ir<volved in the so-called "Sattlement Agreement" make unarguably clear the precise order in which LILeo is required to proceed in seeking license emendments. For example:

"?romptly af ter the Ef fective settlement Date, LItco will (i) unless previously accomplished, remove the fuel from .

Shoreham's reactor and deposit the fuel in the Shoreham spent fuel pool, . . . [and then) apply to the NRC for a

" possession onlya license and/or other license anendments as are necessary to facilitate the License Transfer. . . ." Etz Exhibit 1 to the Requesters' July 14, 1989 letter at its Exhibit 3, Section 5.1(b).

- - _ _ _ _ _ ~

_ - m -.m_ _  % , gg July 31, 1989 Page 6 -

The entire context of the July 28 briefing and all other documentation available to the NRC Staff make it indisputable that LILCO has embarked upon a- single continuum of actions from defueling through decommissioning which may have adverse environmental effects and that, if allowed to segment this unitary course of conduct, LILCO will significantly. reduce the scope of. alternatives.available for commission review under.both the AEA and NEPA, contrary to the purposes of both of those acts.

None of the steps being taken by LILCO at this time is justified independently of the continuum of actionst none of.them so far has been accompanied by an adequate environmental impact statement; and each one of them will prejudice the ultimate decision under the program. Under-these circumstances, the policy behind Section 51.101 of the Commission's Regulations clearly requires an immediately effective order directing L1LCO to cease and desist from defueling, destaffing, and reduction of maintenance activities and a return to the _ status rue ante. EAs 10 C.F.R. i 51.101 (1988). Given the facts that have been presented to the NRC Staff, inaction would also constitute a

" form of permission" without environmental review in violation of 10 C.F.R. I 51.100(a) (1) (1988), since there is no question but that the final step of the continuum (lugt, an application for decommissioning).is subject to the requirement for an environmental impact statement or a-supplement to an environmental impact statement. Egg 10 C.F.R. i 51.20(b)(5) (1988).

5. Public Comment: At the conclusion of the July 28 briefing, you thanked LIL:o for its " reassurances" and invited comments from members of the public present for that '

briefing. At that time, that I offered comments on behalf of the School District and SE2 on matters discussed, and not discussed, during the briefing which relate to the pendin'g requests for immediately effective orders.

In addition to the points identified and expanded on above, my ccaments inc3uded the followings (1) Contrary

• to your summation to the effect that the briefing had

" offered reassurances" to the Staff, I suggested that the briefing gave clear notice to the Staff that LTLCO was nst abiding by, and did D21 intend to abide by, its license conditions and commitments; (2) The LILCo response to an expressed staf f concern that LILCO might let the plant become a " rust bucket' was totally inadequate when the assurance was that LILeo was maintaining a afull staff of 30 janitors"; as l

-mm am oc em -m .mm. meme-. .merome um ye ensa,ggg July 31, 1989

• page 7 t -

I said then, without denigrating the value of janitors, we do not believe that the janitorial staff is the most important element in ersuring the proper maintenance of a nuclear power plant; (3) The requestors repeat their impression that LILeo's mode of dealing with staffing and maintenance

'(namely, saying in eeneral terns that they intend to abide by their license conditions and commitments, but then explicitly detailing the myriad of ways in which they were D21 going to comply with these conditions and commitments) is a way of asking the comnission to "put its head in the sand and pretend it doesn't know what is going on"; and (4)

The requestors repeat their concern that neither the commission staff nor the Licensee addressed their respective responsibilities pursuant to FEpA during the briefing.

B. THE DEPARTMENT OF ENERGY LTTTER OF JULY 2*1. 1st9 The Requestors have kept the Department of Energy aware of the request for immediately effective orders pending before the NRC.

On July 27, 1989, Admiral James B. Watkins, U.S.

Secretary of Energy, directed a letter to Adniral Kenneth M.

Carr, Chairman of your commission, with copies to the other commissioners, in which he stated the Department of Energy's positions on both (a) the need for Shoreham and (b) the procedures which can be followed in assuring a full review of the alternatives by your Connission. As part of the relevant procedures, Admiral watkins said ". . . the Department would support the issuance by the NR; of an immediately effective order prohibiting LILeo from taking actions which, in effect, j

initiate the decommissioning process for Shoreham before NRC permission is sought and granted for that action following a full adjudicatory hearing." ggg Exhibit 1 hereto, at 2.

This " support" by the cabinet Secretary responsible for energy matters constitute:s unmistakable evidence of where the "public interest" lies. Han 10 C.F.R. I 2.202(f) (1988).

The Requestors suggest that the Commission is entitled to give this support for immediate effective orders by a cabinet secretary at least as much weight as, and perhaps more weight than, the commission gave to the letter of October 4, 1977 from Stuart E. Eizenstat, an Assistant to the presid'ent, in deciding to discontinue the generic environmental statenant on mixed oxide fuel ("GESMO")

proceedings. In the GESMO proceedings, the Commission gave Mr. Eizenstat's letter decisive weight. 521, sagt, 42 Fed.

~. - . . _._..m.- _  %,,

- July 31, 1989 L Page 8

~

(

Reg. 55334 (December 30, 1977); In the_ Matter of Mixed oxide D.31, 7 NRC 711, 722 (CL1-78.10) (1978).

C. COPIES JOR THE COMMISElQ}{%2g Under these circumstances end, especially, in light of Admirel Watkins' " support" for the issuance of immediately effective orders, I am furnishing copies of this letter (and its exhibits) directly to the commissioners so that they may exercise their supervisory power over delegated staff functions to protect the health and safety of the public, preserve the human environment, and prasarve the shoreham facility in support of U.S. enorgy policy. 20 C.F.R.

12. 2 06 (e) (1) (1988 ) .

Sincerely, -

anos P. McGranary, Jr.

(

Counsel for Shoreham-Wading River central School District and Scientists and Engineers for Secure Energy JPM/clk Enciesures cc: Chairman Kenneth M. Carr Commissioner Thomas M. Roberts Cor.missioner Kenneth C. Rogers Cor.missioner James R. Curtiss e e.-

, . . - - - ~- ~. _ . _ . ,, _ _

The C2crd:ry of Energy Washegon, Oc 30645 t

July 27,1989 Admiral Kenneth Pt. Carr Chatnaan, Nuclear Regulatory Coenission Washington, D.C. 205$5 ,

Dear Admiral Carr:

I understad that, pursuant to the Ateetc ' Energy Act of 1954, as amended, an application er applications will be filed shortly with the the Long Island Lighttag Ceapony Nuclear Regulatory Comission (L3tCD) and the Long Island Power Auth (NRC) by'ority (LIPA) seeking the required consent of the MRC for (1) LILCC's surrender of its full power operating license in favor of a possesston-3nly Itcense for its shoreham facility (t)transferofthepossession-enlylicensetoLIPA;and(3)the secomissioning of 54rtham by LIPA utilizing the technical services of the New York Power Authority (HiPA) to perfem the decennissioning activities. These NRC authorizations will be sought. solely to effectuate an agreement among L1LCD, LIPA and New York state pursuant to which the Shoreham facility is to be sold for a token consideration in order to dismantle it before it ever Dentrates electricity coanercially.

The dise.antling of this invaluabia energy resource, the safety of which has been affirmed by the flRt through years of technical review and extensive litigation, would be a colossal sistake. Shorehan:'s destruction would be contrary to every principle associated with the establishment and maintenance of a sensible national energy policy and would be inconsistent with the provision of an edetwate and reliable supply cf energy in the Northeast. Further, dismantling of this facility will necessitate the increased use of fossil fuels and the concotr.itant adverse environmental is' pacts-essociated with their use the very ir. pacts which the Bush Administration is striving to mitigate and, where possible, avoid.

The Atomic Energy Act provides that any person whose interests may be affected by the issuance of a arcposed operating license amende4nt say request a public adjudicatory searing to contest the proposed amendment.

Important questions exist regarcing the technical, renagerial and financial qualifications of LIFA to hold kn NRC license for the purpose-'

sought, and these matters ralst considerations of the type which, under the Comission's regulations (10 CFR 60.92), require that a requested .

adjudicatory hearing be conducted before the toanission approves the preposed amendments.

JUL 2B 'es 14: 23 222 SeE zitt PMI . eci on nm e-_ - N A J {] O -'uI W Vf2 ________-______ - - ___ - _ _ _-

, AUG 25 '89 10 k5 FR0k D. .A. uAsp hGTON DC pqh

-m 2.,

t The Comission also has discretion pursuant to the Ateetc Energy Act and its regulations to hold a erfor hearing if it detemines that euch a

. hearing should be held in the public interest. b re could hardly be a stronger case icant thanof issues this one first for the esercise impression of such raised are abyteusty dissestion. by the 51561' proposal to transfer a new, basticad electric generatsag facility, pessessing a full power operatingthlicense, nucleartofacilities an en),ityfor with denoexpress expertise in and no saperience w' purpose of tearing it down. In addition, once ne license transfer and dismantling are authorised and commenced, the consequences would be irreversible and the availability of any remedy following a hearing en the significant public issues involved would be entirely foreclosed.

In this renard. I as satremely concerned that the plans resently announced by LILCD for defueling the reacter and for drastic reductions in plant and LILC0 staff L3PA,ing will havg the effect of disabling the facility ever approach the NRC with the aforementioned license amendment requests. There have been disturbing reports in the public media that, following dispersal of the Shorehna operations staff as currently planned, it may take as long as two to three years to reessemble the operating staff required te safely operate Shoreham.

LILCO should not be allowed to disable the facility Indirectly prior to forv.a1 approval by the RC of the 6ecomissioning of the plant through the license amendment process. I would urge the Comission to monitor closely any actions, such as defueling, destaffing or reduced which are intended to cornence the dismantling. In this maintenance, Department would support the issuance by the NRC of an regard, theinnediately effective order prohibiting LILCO from taking actions which, in effect, initiate the decommissioning process for Shoreham before MC pemission is sought thd granted for that 6ction following a full adjudicatory hearing.

I also strongly urge the Comission and'the NRC staff not to consider the various steps leading to the dissantleeent of Storsham (license surrender, license transfer, and decommissioning) as independent requests for discrete actions which can be segmented for purposes of the NRC's required safety and envirorcental review. These actions must be viewed as integral parts of the basic and overriding pian to dismantle The shortha:t that was actually e6efhortalised in a written egreement.

possession only license and LIPA's spalifications to hold an RC license can be essessed preparly only in the context of the activities to be authorized under the license. Trese license unendnent requests should only be considered in light of both a full analysis of the decommissioning plan required by the NRC's regulations and a full evaluation of the consequences of destroying $hcreham required under the .

National Environmental Policy Act (MCPA).

In this case, the written agreements among the parties clearly establish

t. hat the impendine request spy L!l.C0 for a possession-only license is intended to femally initiate the process of dismantling Shoreham.

Certainly the Comission should treat this license amendrent noUnder differently than do the parties to this ill. considered plan.

-- *** mer n KP PoGE.903

.- . - . . . . ~ . . . - _.mg s

4 3

>c ,

these circumstances,' approval by the NRC of action leading to 'the

! dismantling of a newly conoleted, licensed nuclear facility in the faca of increasing energy relialtlity problems en Long Island is clearly a "majorfe0eralacronsignificantlyaffectingtheesalityofthehuman environment.' Accordingly, NEPA requires that a dotatted comprehensive environmental impact statement must be prepared and circulated for public coment prior to the approval of any of the Impending lisense amendment requests. Aside from the significant environmental impactr, associated with alternative energy sources, with the pacerbation of the energy reliability problems en Long Island and with the decommissioning itself, there are alternatives to the impending preposal wMeh are obviously superior to dismantling the facility.

The shoreham plant is a significant domestic energy eevree that is capable of seating the electricity requirements of Long Island and the surrounding region in a safe, reliable and econosteal manner for years to come. The dismantlin; of Shoreham would be a grave sistake even if the energy situation en ',eng Island were more favorable. Taking this action under present circumstan:es would be simply irresponsible. Thus, it is obvious that the proposal for the ERC to authoriae the destruction of the plant raises, and requires the NRC to address, issues involving power needs, alternatives and other important environmental sensiderations in an Els. Following cowletion of that document, these matters should be fully evaluated in the public hearing afforded those whose interests may be affected before the NRC detemines whether to pemit Shoreham to be destreved. The interests of this Department, the Northeast and the Nation will be affected th a far-reaching sanner by the comission's ultimate decisten in this matter.

SincereTy, k -

James D. Watkins Admiral. U.S. Navy (Retired) cc: Commissioner Thomas N. Rcberts Cw.stissioner Kenneth C. Rogers Connissioner James R. Curtiss e

JUL 29 '69 14: 30 202 5e5 Rett FAGE.00J l

AUG 25 '89 10: 46 FROM D.'.A. WASHINGTON DC PAGE.013

• i v..

Exhibit 2-1 b g QPIBARLE B21 Nuclear Boiler 2*/ C51 Neutron Instrumentation Reactor Protection

~

C71 4 D11 Process Radiation Monitoring '

D21 Area Redistion Monitoring F12 Servicing Aids (Fuel)

F15 Refueling Gil Radweste L G33 Reactor Water Cleanup M43 Fire Protection N50 RBSV & Centrol Room Chilled Water 741 Service Water' P64 Meteorological Monitoring R11 Station Transformer (NSS & RSS)

R21 Non-Segregated Buses R22 Metal Clad Switchgear. --

R23 Load Centers and Unit substations R3b AC Instrument Power

.R36 AC Uninterruptible (Vital) Power R42 Battery Power (125V DC)

R43 Diesel Energency Power R62 Station Protection and Metering R71 Fire Detection & Station Security R81 Heat Tracing 523 138/69KV Switchyard Pot. Transformer

$24 138KV Switchyard Relay Panels T21 Reactor Building T22 Reactor Building Superstructure T23 Reactor Primary Containment T31 (RB) Cranes, Hoists and Elevators T41 Reactor Building ventilation T46 Reactor Building Standby Vent

. U41 - Turbine Eu11 ding Ventilation a-V41 Radwaste Building ventilation W12 Screenwell Canal X41 Miscellaneous MVAC X60 Diesel Generator Ventilation X61 Control S.oom Air Conditioning .

Y25 Barge Dock and Waterfront.

E94 Seismic Monitoring 296 Post Accident Sarpling

• • / " Secured" for DC6.

Operable: System (s) saintained to meet Technical Specification requirements.

Total of 41 operable systens (40 for OC6).

~bs25.'89'10: 47 FROM D. .A. WASFINGTON.DC PAGE.014

~

Exhibit 2 2 l PUNCT10N%

311 Reactor Assy G41 Puol Pool Cool & Cleanup M41 Heating & Auxilary Doller M42 Domestic Fater M44 ' Sanitary sovsge M61 Building stervice Miscellaneous N34 Lubricating oil N39 Turning Gear N42 Hydrogen Seal N43 Generator Stator Cooling N45 General Hydrogen & CO2 Purge N71 Circulating water 061 Plant security Pil condensate Transfer & Storage P21 Domineraliser & Makeup Water P33- Sample system P43 TBCLCW P50 compressed Air P71 Low Conduct & SW Drains

R24 Motor Control Centers R34 Auxiliary Grounding R41 DC Instrunent Power (43VDC)

R51 Communication (Intra Plant) '

R52 Coma-Telephone (Leased Line)

R53 Comm-Sound (Powered Telephone)

R54 Coms-Radio R55 Closed circuit TV R61 Unit Protection & Metering 521 Plant Substation S25 69KV Switchyard / Gas Turbine T51 Reactor Building Lighting U31 (Turbine Building) Cranes e Heists, Elevators U51 Turbine Building Lighting V31 RW Cranes, Moists and Elevators V51 Radwaste 3uilding Lighting W23 Chlorination -

M37 Security Building

• X46 office Building HVAC X50 office Building Annex X70 Secondary Access racility Y46 Cathodic Protection ,

YS1 Yard Lighting Functional: Essential support system (s) not required per Technical spe:Jfications but necessary for mininal plant functions, habitability, and preservation concerne.

t Total of 42 ranctional systems. ,

l

, ._- __ __ __ _- -_ _..,.~._,mm rweu,e33 j

. 1

• Erhibit 2-3 l AEim

~~

C11 CRD Hydraulic Control C32 Feedwater control C41 Standby Liquid Control

• / C51 Neutron instrumentation C61 Reactor Remote Shutdown C91 Process Computer Ell' Residual Heat Removal

E21 Core Spray ""

E32 MISV Leakage Contral Main Chilled Water M60 N11 Main Steam N21 Condensate and Feedwater N22 Heater Relist and Vent Lines N23 Misce 13 aneous Drains Secondary Plant N24 sealing Water N25 feedpump TSI N31 Turbine N33 Seal and Radwaste Steam N35 Moisture Separator Rehester & Drains N36 Extraction Steam N37 Main Turbine Supv Instrumentation N44 Vacuum Priming & Air Removal N52 condensate Domineralizar N62 Radweste Offgas P42 RBCLCW P63 Radwaste Solids Handling P65 Vibration Monitoring R13 Isolated Phase Bus 322 138KV Transformer Breaker T24 Primary Ccntainnent Inerting T47 Primary Containment Cooling i T48 Primary containment Atmospheric Control T49 Primary Containment Inter Leak Test X62 Control Room Self Contained Air Supply Z92 Excess Flow Check Valves Z93 Post Accident Monitoring 24 " Operable" for DC4, 5 and 6 ("6" should probably be ".*").

Secured: System not to be operated or naintained that will be left in a de-energized / safe state.

Total of 35 Securect Systems (36 for 0C6).

~.

1 l ,

. - - __ __ ~ ~. -~_ __.....m._ _ mgg,ggg e

- Exhibit 2-4 PRESERVED 231 Reactor Water Recirculation E41 High Pressure coolant Injection E51 Reactor core Isolation Cooling N32 Turbine Control " ' '

N41 Generator --

M51 Excitation 511 Main Power Transformer t

Preserved: System equipment of considerable value preserved for sale / salvage. Items preserved are et LIICO discretion and may be secured as seen fit.

Total of 7 Preserved Systems.

l l

1 l

l l

l

• • TOTAL PAGE.016 **

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August 4, 1989 l 1

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1

,2 .

BY HAND ' '

q Dr. Thomas E. Murley '  ;

Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission l One White Flint North .

11555 Rockville Pike

.Rockville, Maryland 20852

-Re: Long Island Lighting Company, Shoreham Nuclear l Power Station. Unit 1  !

Dear Dr. Murley:

Enclosed are an original and one copy of the Long l Island Association's Petition for an Order Suspending Lilco's  !

" Minimum Posture' Activities Pending an Investigation and j Environmental Review. This Pe?.ition is filed in relation to  ;

the operating license issued to Long Island Lighting Company I for Shoreham Nuclear Power Station, Unit 1. l Sincerely,

[- h ,

i Leonard Bickwit, Jr. j 1

LB/mpc ,

i Enclosures l m, s n O n..:, e:Os.:m pDR , .t.OC , ~ 03000 322 3I i p FDC ,

l 33gLflni30 n ,

I p.

OR 3 VL UNITED STII'ES NUCLEAR REGULATORY COMMISSION I

)

In the Matter of LONG ISLAND )

LIGHTING COMPANY, SHOREHAM FUCLEAR ) j POWER STATION, UNIT 1 )

i

)

I PETITION FOR AN ORDER SUSPENDING LILCO'S

" MINIMUM POSTURE" ACTIVITIES PENDING AN INVESTIGATION AND ENVIRONMENTAL REVIEW As described in its recent July 28 meeting with Commission staff, the Long Island Lighting Company has embarked on a course of conduct aimed at achieving a so-called j

" minimum posture condition" at Shoreham Nuclear Power Station, j Unit 1 that raises serious questions under the Atomic Energy i

Act, the National Environmental Policy Act, and the l 1

Commission's regulations. In fact, the Long Island Association believes that, in certain respects, Lilco's I

conduct contravenes those statutes and regulations. The Association.therefore petitions the Commission to suspend that ],

1 conduct pending (1) an investigation into whether license  !

i violations have occurred, (2) an environmental review of the  ;

j planned decommissioning of Shoreham, and (3) the formulation j of an orderly process, under the Commission's regulations, to govern the future consideration of Shoreham issues.

The Long Island Association is a not-for-profit organization with more than 4,000 members, companies, and organizations. Its membership includes businesses, labor j,k h/2i b [-

{A

3 organizations, trade associations, economic development agencies, ~ local chambers of commerce, and educational institutions. The Association is the region's largest business and civic organization and seeks to advance its membership's interests in improving Long Island as a place to live, work, and do business. The Association and its members are located within close proximity of Shoreham, are customers and ratepayers of the plant, and have a vital interest in ensuring that Long Island has available adequate sources of power and that the region's public health and safety are protected.

The Association strongly believes that, as a matter of long-term energy, environmental, and national security policy, it is in Long Island's and the nation's interests to preserve Shoreham's ability to function as an efficient and safe source of clean power. But even if the plant never operates again, the Association has a strong interest in seeing that the plant's proposed decommissioning is carried out safely and in complete compliance with the Commission's regulations. The activities leading to decommissioning must be carefully supervised to avoid the risk of harm to the l public safety or the environment. To achieve that goal, the Commission must act now to devise an orderly process, in full compliance with the terms and objectives of its regulations.

2

{

( _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ - - _ - _ -

L I. CONSISTENT WITH ITS REGULATORY OBLIGATIONS, THE COMMISSION SHOULD SUSPEND LILCO'S MOVEMENT TOWARD A " MINIMUM POSTURE CONDITION" Shoreham presents the Commission with a novel and difficult situation. Based on a lengthy and exhaustive analysis, the Commission recently granted Lilco a full-power license to operate the plant in accordance with the representations made in its application. Now, however, Lilco has contractually disabled itself frca operating the plant.

After being ravaged by extraordinary delays in the licensing process, Lilco has sought to buy peace with the state and to obtain some relief from its financial woes by capitulating to the demands of state authorities. It has signed an agreement that obligates it to refrain from operating the plant and to cooperate fully with the state's efforts to bring about Shoreham's dismantlement in return for guaranteed rate and other relief.

The Commission is thus confronted with a regulatory anomaly. On the one hand, Lilco continues to retain a full power license with all the rights and privileges that entails.

On the other hand, it has bound itself contractually to take actions that are inconsistent with the understandings on which issuance of the license was based. Lilco seeks to dismiss concerns about that anomaly by repeatedly emphasizing that it has no intention of ever operating the plant. See Tr. 7, 18, 60, 63 (July 28, 1989). But that response can give the Commission little comfort. It not only perpetuates the 3

- r r

~

.'f. ,'

regulatory anomaly but also distorts the Commission's i

regulatory process.

Indeed, Lilco's strategy seems designed to maximize its ability to take actions that depart from the commitments underlying its full-power. license, while forestalling formal Commission oversight in a public proceeding. By refusing to amend its license, Lilco can shield itself from'the need to obtain' advance Commission approval of the actions that it is taking at Shoreham in furtherance of the state's dismantlement objectives. As a consequence', Lilco is now making judgments about what procedures can be terminated or modified and'what staff can be eliminated or redeployed at Shoreham without-following any regularized or formal regulatory process.

The uneasiness of the Commission's staff with that approach was apparent at the recent July 28 meeting. For example, noting that it was entering "new territory" and navigating " uncharted waters," the staff expressed the need to think through further the " fundamental," longer-term questions presented by Lilco's plan to moye to a " minimum posture condition" at Shoreham. Tr. 86 (stmt. of T. Murley). The staff understandably wante to avoid " allow [ing] the plant . . . to decommission itself" or to " sit there and rust." Id 2 at 81. Thus, the staff exhibited considerable skepticism regarding the "long-term" viability and acceptability of Lilco's " minimum posture" approach and expressed the need to engage in "a lot more discussion." Id.

4

...___..-.s _ - _ _ _ - _ _ _ _ _ _ _ ..

4, o'

at 78,'81. In. fact, the staff noted that it would be advisable "to stand back and look at the whole thing" so that "an overall consideration" could be given to the course of decommissioning rather than examining only isolated individual actions, on an after-the-fact basis, to determine whether they satisfy the " absolute minimum" required by the_" tech specs."

Id2 at 37.

In the Association's view, now -- not later -- is the time to " stand back" and take that "look." The Commission should suspend the minimum posture program at Shoreham until it has thoroughly examined the issues and devised an overall plan for resolving them properly. By continuing to permit Lilco to take actions inconsistent with the premises underlying its license and merely relying on an after-the-fact review without the benefit of adequate documentation or explanation, the Commission is following a course fraught with danger. Both the regulatory scheme and principles of responsible regulation require the agency to examine the issues thoroughly before irreversible action is undertaken, environmentally preiumsale options are foreclosed, and safety hazards are created.

Although the staff has properly expressed discomfort with Lilco's approach, it has not yet seen the need for taking affirmative and immediate action. The staff apparently believes that no such action is necessary in the short-term because, at present, Lilco is in technical compliance with its 5

s - _

e . .

/.

license. Idz at 81, 86. But that justification for inaction will not withstand scrutiny for three reasons.

1. Violation of 6 50.59. The licensee is taking actions, without prior Commission approval, that give rise to an unreviewed safety question as defined by 10 C.F.R.

~

5 50.59 (a) (2) . Under the regulations, absent a license amendment, a licensee is prohibited from making a change at a plant that " involves a change in the technical spec $fications incorporated in the license or an unreviewed safety question."

10 C.F.R. 5 50.59 (a) (1) . A change shall be deemed to involve an unreviewed safety question (i) if the probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the safety analysis report may be increased; or (ii) if a possibility for an accident or malfunction of a different type than any evaluated previously in the safety analysis report may be created; or (iii) if the margin of safety as defined in the basis for any technical specification is reduced.

10 C.F.R. 5 50.59(a) (2) .

Here, Lilco's efforts to move to a " minimum posture condition" have a number of adverse safety implications under the regulations. Cutting staff, disregarding Commission upgrade orders, reducing maintenance and surveillance, and deactivating procedures -- all of which are part of the

" minimum posture condition" at Shoreham -- will undoubtedly i

6 l _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

0 . ,

increase the risks of accident or malfunction that would be associate'd with operating the plant as contemplated by the license and raise safety issues that have not been "previously evaluated." Indeed, the Commission evaluated the safety of i

Shoreham under a set of parameters wholly different from the conditions that currently exist at the plant.

Lilco itself has conceded, for example, that the substantial destaffing occurring at the plant is incompatible with the safety standards imposed by its license. See, e.a.,

Tr. 35 (stmt. of W. Steiger). Lilco seeks to excuse that shortcoming on the ground that it does not ever intend to operate the plant. But Lilco's assurances cannot shelter it from the requirements of the regulations. The regulations do not make the existence of an unreviewed safety question turn on the licensee's " intentions." Rather, the changes being implemented at the plant must be evaluated in light of what the licensee is authorized to do. Here, Lilco has been granted, and continues to retain, a full-power license, yet it I is making changes that depart significantly from the basis on which that license was granted and that increase the risks associated with operation under the license. Absent a license amendment, such changes are flatly forbidden by the regulations.'

' At the July 28 hearing, the NRC staff emphasized the importance'of enforcing compliance with the existing license.

The staff stated: "[A)s long as there is a valid operating I license, we intend to make sure that the equipment and '

condition [are] kept appropriate to a plant with an operacine.

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Nor can Lilco elude the requirements of 5 50.59 on

-the ground that no violation of the licensee's technical specifications has yet occurred. As the NRC staff has noted, reliance on the technical specifications cannot be the sole test here. The Commission did not draft these tech specs and write them on the basis that a plant would be in the extended non-operating period for months, if not years, on its way to decommissioning. So, . . .

- - there may be certain parts of 4 the plant that could just turn into rust buckets under (the) tech specs.

Tr. 37 (stmt. of T. Murley) (July 28, 1989). Similarly, the staff noted that, withoutregarbtothetechnical specifications, the " minimum posture condition" changes being effectuated by Lilco "could impact sections of the updated FSAR and/or other commitments made to the NRC in the (licensing] process" and thus constitute a violation of f 50.59. Id. at 39 (stmt. of W. Russell).

The Association believes that such a violation has occurred and that Lilco should be made to comply with the requirements of 9 50.59. But even if the Commission is not prepared to make such a finding, it should institute an investigation into the issue. Otherwise, Lilco will be left free to continue to make judgments about the safety of the changes it.is effectuating without prior NRC approval and in license." Tr. 12 (stmt. of T. Murley).

8

i possible contravention of the regulations. Moreover, the changes at issue are being made pursuant to a methodology developed solely by Lilco and, as yet, not fully documented or explained to the Commission. That is wholly incompatible with 5 50.59 and sound safety regulation.

2. Unauthorized control. New York state authorities, through the settlement agreement, have assumed unauthorized control over the Shoreham license. Under the Atomic Energy Act, no license may "be transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any p,erson" without prior Commission approval. 42 U.S.C. 5 2234; agg also 42 U.S.C. 5 2233(c), (

10 C.F.R. 5 50.80(a). The reason for that prohibition is obvious. To protect the public health and safety, Congress has provided that only those persons or entities whcse technical, financial, and legal qualifications have been fully evaluated by the Commission should be permitted to exercise control over and conduct operations under a nuclear license.

l In the present case, however, an entity that has not undergone such review is exercising a substantial degree of control over activities under the license. Under the settlement, the state has purchased a voice in the management l 1

of Shoreham. It has obtained Lilco's commitment that it will I not operats Shoreham and that it will cooperate fully in helping to effectuate the plant's demise. j l

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.p-Thus, this is not the typical situation in which a state simply seeks to assert its usual authority to regulate '

utility rates. Rather, the state here has entered into a binding contract with the company-for the purpose of obtaining legal authority to direct and influence. operational decisions..

Under the contract, for example, Lilco must remove the fuel and deposit it in the spent fuel pond; withdraw applications to receive 25 and 50 percent power operating licenses; apply for a " possession only" license and other amendments to facilitate transfer; " cooperate with representatives of the Power Authorities on transition and personnel planning and i report matters of significance foncerning the status of Shoreham"; and to keep the state authorities informed of any changes in the " normal" status of the facility. Amended and Restated Asset Transfer Agreement, Art. V,.5 5.1(b).

]

The state also has a contractual right to obtain specific performance to enforce Lilco's obligations under settlement. Id. Art. X, S 10.5. Thus, for example, if Lilco 4 decided not to carry out the defueling at this time or refused to cooperate with the state's " transition and personnel planning" wishes, the state would have a right to seek an injunction forcing Lilco to take the desired action.

Consistent with the statute and the regulations, such  ;

operational matters should not be under the control or j influence of state authorities. They have neither appeared i

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before the Commission nor been found to comply with applicable statutory and regulatory requirements.

l As a consequence of the settlement agreement, Lilco has ceded the power to operate the facility in accordance with its independent judgment. In the words of J. W. McDonnell, a Lilco vice president, the licensee is contractually obligated to " cooperate fully with the state as it determines what to do with the plant as a policy matter." N.Y. Times, Apr. 22, 1989, at 30, col. 4. Thus, with respect to decisions involving issues of resource commitments, Lilco has emphasized that it will " ensure that all expenditures are prudent and

. consistent with the terms of the agreement" with the state l authorities. Tr. 13 (stmt. of J. Leonard) (July 28, 1989).

Similarly, Peter Bradford, Chairman of the New= York Public Service Commission, has emphasized in press accounts that his staff will review Lilco's spending plans at Shoreham to make sure that they do not include " expenditures above and l

l beyond decommissioning." Newsday, June 29, 1989, at 28. The press has also reported that the state "is planning to allow.

Lilco to spend no more at Shoreham than is absolutely necessary, even if that means letting the plant deteriorate to a state where restarting it someday would be virtually impossible, or prohibitively expensive." Idz at 4. Thus, the state has made clear its intentions. Its ultimate goal is dismantlement, and it seeks to minimize its costs in the interim. Indeed, it is the state's objectives that are l 11 1

driving Lilco's movement toward a " minimum posture condition" at'Shoreham.

The potential for conflict with considerations of public safety and proper nuclear plant maintenance and management looms large. It is apparent thatall decisions i

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regarding resource commitments at Shoreham must be cleared with and approved by the state. Thus, even if Lilco were to determine that public safety or plant maintenance  !

considerations require an expenditure of funds, that 9

determination may be effectively overruled by the state. The state's shadow control over the license must be halted pending the outcome of a proceeding toeconsider a properly filed transfer of control application.

3. De Facto Decommissioning. A da facto '

decommissioning of Shoreham is already underway. The decision i to decommission has been made, Lilco and the state have l

contracted to implement that objective, and the parties are l taking actions designed to lead to the plant's ultimate dismantlement. In fact, but for the decision to decommission, the licensee's current actions would not be taking place. j Given the reality that present activities at the plant are aimed toward decommissioning, the Commission should put those actions "on hold" until it has worked out an overall procedure for ensuring that the entire decommissioning process is conducted in a way that will further the public health and ]

safety. Otherwise, the Commission may later confront issues l 12 l

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. e that shotld have been anticipated or realize that it has lost optionsth.atshouldhavebeenkeptalive. In fact, absent careful and dscisive action'at this juncture, the Commission may soon find that the state's hope that "[t]he plant could gradually-decommission itself" has come to pass. Newsday, June 29, 1989 at 28 (stat. of P. Bradford).

II. NEPA REQUIRES THAT THE COMMISSION INITIATE AN ENVIRONMENTAL REVIEW TO ENSURE THAT ALL BEASONABLE ALTERNATIVES ARE PRESERVED The issuance of a license authorizing Lilco to conduct full-power operations at Shoreham involved a major federal action that required the Commission to undertake a thorough environmental analysis in accordance with the requirements of NEPA, 40 U.S.C. 55 4321 at sec. Shoreham continues to be a major federal project, requiring substantial Commission involvement. That has not been changed by the plan to dismantle, rather than operate, the plant. Indeed, the Commission's regulations specifically provide that issuance of a license amendment authorizing the decommissioning of a ,

nuclear power reactor is a regulatory action requiring environmental review.

The Commission cannot escape its NEPA 4

responsibilities by claiming that its environmental obligations are not triggered until the filing of a formal decommissioning application. The actions that the parties are currently implementing at Shoreham pursuant to the settlement agreement are aimed at the ultimate filing of a 13

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.+ . .i decommissioning application. Thus, NRC involvement is foreordained.  !

J Under 40-C.F.R. 5 1501.2(b) of the regulations of.

the Council on Environmental Quality, the Commission is  ;

" require [d] . . . to take steps toward ensuring that" proper j

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" environmental studies" are "~lnitiate(d) . . . as soon as I federal involvement . . . can be foreseen." 46 Fed. Reg.

18,026, 18,028 (1981). The purpose of that directive is "to ensure that environmental factors are considered at an early stage in the planning process and to avoid the situation where the applicant for a federal permit or approval has completed planning and eliminated all alt,ernatives to the proposed cction by the time the EIS process commences or before the EIS' C process has been completed." Id2 at 18,028. "[T]he_ purpose

[of 6'1501.2] cannot be fully served if consideration of the  ;

cumulative effects of successive, interdependent steps is delayed until the first step has already been taken." Thomas

v. Peterson, 753 F.2d 754, 760 (9th'Cir. 1985). Thus, consistent with the CEQ mandate that agencies " integrate the NEPA process with other planning at the earliest possible time" (40 C.F.R. 6 1501.2), the Commission should make certain that appropriate environmental review of activities at i Shoreham and of the long-term decommissioning plan begins now and that options are not lost.

Moreover, case law makes clear that the agency's current NEPA responsibilities cannot be circumvented on the ,

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theory that particular actions now being implemented at Shoreham do not, standing alone, constitute major matters and do not yet necessitate the invocation of federal processes.

Where, as here, actions are taken that are part of an overall plan or project that vill culminate in federal involvement, they cannot properly escape environmental scrutiny. Egg Lathan v. Volce, 455 F.2d lill, 1120-21 (9th Cir. 1971):

Thomoson v. Fucate, 347 F. Supp. 120, 124 (E.D. Va.), aff'd in relevant eart, 452 F.2d 57 (4th Cir. 1972). Under the reasoning of those cases, NEPA's requirements cannot here be avoided through piecemeal action on segments of an overall plan leading to federal consideration of whether to decommission Shoreham. It is therefore impermissible for the ,

^

Commission to permit the parties, through segmentation of the decommissioning process, to avoid NEPA's requirements and to make unguided decisions that may foreclose future options.

In Conner v. Burford, 836 F.2d 1521 (9th Cir. 1988),

the court held that an EIS was required before an oil lease on federal land could be granted even though site-specific proposals for development had not yet been submitted. The court explained that " relinquishing the 'no action' alternative without preparation of an EIS" would subvert the purposes of NEPA. Idz at 1531-32. The " heart" of the EIS

" requires federal agencies to consider seriously the 'no action' alternative before approving a project with significant environmental effects. That analysis would serve 15

< e .

no purpose if at the time the EIS is finally prepared, the option is'no longer aval)able." Idt at 1532. Thus, the court held, an EIS must be prepared prior to granting the lease unless the lease forbids any surface-disturbing activities pending completion of the EIS. Id.

To prevent a similar frustration of HEPA's purposes here, the Commission must likewise halt any activities that -

are inconsistent with the "no action" option of preserving the Shoreham plant.in an operating condition until an environmental review has been undertaken. Thus, before Lilco's current plans make a return to "no action" infeasible, the Commission should suspend further steps toward c

decommissioning and initiate an appropriate environmental

• review of the decommissioning process from its inception.

That may require the Commission's undertaking an environmental review or its ordering the parties to prepare environmental analyses that are faithful to NEPA's objectives. In.either event, decisive action is necessary now.

C9MCLUSION The Commission should order the suspension of

. Lilco's actions in furtherance of a " minimum posture condition" at Shoroham, investigate the matters raised in this petition, initiate appropriate environmental reviews, and devise a process for the orderly consideration of Shoreham issues.

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Respectfully submitted, Leonard Bickwit, Jr.

James-P. Tuite James B. Altman Miller & Chevalier, Chartered 655 15th Street, N.W.

Suite 900-Washington, D.C. 20005 (202) 626-5800

- Attorneys'for the Long Island Association By -

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CERTIFICATE OF SERVICE I certify that the foregoing Petition for an Order suspending Lilco's " Minimum Posture" Activities Pending An Investigation and' Environmental Review has been served this 4th day of August, 1989, by mailing a true and correct copy thereof to the following persons:

Mr. John D. Leonard, Jr. Supervisor Vice-President--Nuclear Operations Town of Brookhaven Long Island Lighting Company 205 S. Ocean Avenue P.O. Box 618 Patchogue, New York 11772 Shoreham Nuclear Power Station Wading River, New York 11792 Town Attorney Town of Brookhaven Victor A. Staffieri, Esq. 3232, Route 112 General Counsel Medford, New York 11763 Long Island Lighting Company 8 175 East Old County Road Environmental Protection j Hicksville, New York 11801 Agency Region II W. Taylor Reveley, III, Esq. 26 Federal Plaza Hunton & Williams New York, New York 10278 Post Office Box 1535 707 East Main Street Mr. Bruce Blanchard, Richmond, Virginia 23212 Director ,

Office of Environmental I Mr. Lawrence Britt Project Review i Shoreham Nuclear Power Station U.S. Department of the Post Office Box 618 Interior Wading River, New York 11792 18th and C Streets, N.W.

Washington, D.C. 20240 i Mr. John"Scalice l Plant Manager Mr. Allen Hirsch, . . l Shoreham Nuclear Power Station Director j

. P.O. Box 628 Office of Federal Wading River, New York 11792 Activities U.S. Environmental Resident Inspector Protection Agency Shoreham NPS Washington, D.C. 20460 j U.S. Nuclear Regulatory Commission i P.O. Box B Mr. Paul D. Eddy l Rocky Point, New York 11778 New York State Public Service Commission Admiral James D. Watkins P.O. Box 63 Secretary"of Energy 1ycoming, New York 12210 U.S. Department of Energy Washington, D.C. 20585 l

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Regional-Administrator, Region I MHB Tehchnical Associates U.S. Nuclear Regulatory-Commission 1723 Hamilton Avenue 475 Allendale Road Suite K King of Prussia, Pennsylvania 19406 San Jose, CA 95125 Ms. Donna Ross Jonathan D. Feinberg, Esq.

New York State Energy Office New York State Department Agency Building 2 of Public Service Empire State Plaza' Three Empire State Plaza Albany, New York 12223 Albany,~New York 12223 l

Richard M. Kessel Gerald C. Crotty, Esq.  ;

Chairman & Executive Director Ben Wiles, Esq.

New York State Consumer Counsel to the Governor Protection Board Executive Chamber Room 1725 State Capitol 250 Broadway Albany, New York 12224 New York, New York 10007 Mr. Charlie Donaldson Dr. Monroe Schneider Assistant Attorney General North Shore Committee NYS Department of Law Post Office Box 231 Room 3-118 Wading River, New York 11792 120 Broadway  ;

New York, New York 10271 4 Fabian G. Palomino, Esq. jg Special Counsel to the Governor Herbert H. Brown, Esq.

Executive Chamber - State Capitol Lawrence Coe Lanpher, Esq.

Albany,,New York 12224 Karla J. Letsche, Esq. ,

Kirkpatrick & Lockhart Martin Bradley Ashare, Esq. South Icobby - 9th Floor Suffolk County Attorney 1800 M Street, N.W.

H. Lee Dennison Building

• Wash., D.C. 20036-5891 Veteran's Memorial Highway l Hauppauge, New York 11788 James P. McGranery, Jr.,  !

Esquire

' Robert Abrams, Esq. Dow, Lohnes & Albertson j Attorney General of the State 1255 Twenty-Third Street 1 I

of New York Washington, D.C. 20037 l ATTN: John Corwin, Esq. j New York State Department of Law Ms. Nora Bredes '

Consumer Protection Bureau Shoreham Opponents

. 120 Broadway Coalition 3rd Floor 195 East Main Street New York, New York 10271 Smithtown, New York 11787 Honorable Peter Cohalan Chris Nolin Suffolk County Executive New York State Assembly ,

County Executive / Legislative Bldg. Energy Committee '

Veteran's Memorial Highway 626 Legislative Off. Bldg.

Hauppauge, New York 11788 Albany, New York 12248 l August 4, 1989 f

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