ML20248D967
| ML20248D967 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/04/1989 |
| From: | Bickwit L MILLER & CHEVALIER |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20248D770 | List: |
| References | |
| NUDOCS 8908110179 | |
| Download: ML20248D967 (19) | |
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w UNITED STATES NUCLEAR REGULATORY COMMISSION
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In the Matter of LONG ISLAND
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LIGHTING COMPANY, SHOREHAM NUCLEAR )
POWER STATION, UNIT 1
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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
" minimum posture condition" at Shoreham Nuclear Power. Station, Unit 1 that raises serious questions under the Atomic Energy Act, the National Environmental Policy Act, and the Commission's regulations.
fact, the Long Island Association believes that, in certain respects, Lilco's conduct contravenes those statutes and regulations.
The Association therefore petitions the Commission to suspend that conduct pending (1) an investigation into whether license violations have occurred, (2) an environmental review of the planned decommissioning of Shoreham, and (3) the formulation 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 hbk kkbC
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cd Et 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 watter of long-term entP+,, 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 public safety or the environment.
To achieve that goal, the j
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Commission must act now to devise an orderly process, in full I
compliance with the terms and objectives of its regulations.
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CONSISTENT WITH ITS REGULATORY OBLIGATIONS, THE COMMISSION SHOULD SUSPEND LILCO'S MOVEMENT
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TOWARD A " MINIMUM POSTURE CONDITION" l
Shoreham presents the Commission with a novel and i
difficult situation.
Based on a lengthy and exhaustive analysis, the Commission recently granted Lilco a full-power 1
license to operate the plant in accordance with the representations made in its application.
Now, however, Lilco has contractually disabled itself from 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
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I regulatory anomaly but also distorts the Commission's I
regulatory' process.
7ndeed, 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 move to a " minimum posture condition" at Shoreham.
Tr. 86 (stat. of T. Murley).
The staff understandably wants to avoid " allow (ing] the plant.
to decommission itself" or to " sit there and rust."
Id. 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.
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at 78, 81.
In fact, the staff noted that it would be
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advisable "to stand back and look at the whole thing" so that "an overall consideration" could be given to the course of I
decommissioning rather than examining only isolated individual
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actions, on an after-the-fact basis, to determine whether they satisfy the " absolute minimum" required by the " tech specs."
Idz 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 preferable 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 1
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license.
Id. at 81, 86.
But that justification for inaction will not withstand scrutiny for three reasonn.
1.
Violation of 6 50.59.
The licensee is taking actions, without prior Comminsion approval, that give rise to an unreviewed safety question as defined by 10 C.F.R.
S 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 specifications incorporated in the license or an unreviewed safety question."
10 C.F.R. 5 50.59(a) (1).
A change shall be deemed to in"olve 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. S 50.59(a) (2).
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Here, Lilco's efforts to move to a " minimum posture condition" have a number of adverse safety implications under the regulations.
Catting staff, disregarding Commission upgrade orders, reducing maintenance and surveillance, and l
l deactivating procedures -- all of which are part of the
" minimum posture condition" at Shoreham -- will undoubtedly 6
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'A increase the risks of accident or malfunction that would be associated 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 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 (stat. 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 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.'
I 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 license, we intend to make sure that the equipment and condition [are] kept appropriate to a plant with an operating 7
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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 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, without regard to the technical i
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 5 50.59.
Idz 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 5 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 l
.r 9-L 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 9 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, througn transfer of control of any license to any person" without prior corr ission approval.
42 U.S.C.
5 2234; see 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 l
has provided that only those persons or entities whose 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.
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 stata has purchased a voice in the management of Shoreham.
It has obtained Lilco's commitment that it will not operate Shoreham and that it will cooperate fully in helping to effectuate the plant's demise.
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Thus,-this is not the typical situation in which a state simply seeks to assert its usual authority to regulate i
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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 report matters of significance concerning'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, 5 10.5.
Thus, for example, it' Lilco 2
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 ststute and the regulations, such operational matters should not be under the control or influence of state authorities.
They have neither appeared 10
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before the. Commission nor been;found to comply'with applicable I
l-statutoryfand' regulatory requirements.
As a consequence of the settlement agreement, Lilco has ceded the power to operate theLfacility in accordance with
'its' independent judgment.
In the words of'J. W. McDonnell,.a Lilco vice. president, the licensee is contractually obligated L
to " cooperate fully with the state aus 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 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 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 woula be virtually impossible, or prohibitively expensive."
Id. 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 11
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driving T,ilco'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 that all decisions
'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 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 to consider a properly filed transfer of control application.
3.
De Facto Decommissioning.
A de facto decommissioning of Shoreham is already underway.
The decision to decommission has been made, Lilco and the state have contracted to implement that objective, and the parties are 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.
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 12 L-_ __ _ -.
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't that should~have been anticipated or realize that it has' lost
' options that should have been kept alive.
In fact, absent careful'and decisive 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 REASONABLE 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. SS 4321 et sea.
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 licence amendment authorizing the decommissioning of a nuclear power reactor is a regulatory action requiring environmental review.
The Commission cannot escape its NEPA 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 I
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decommissioning application.
Thus,.NRC involvement'is foreordained.
Under 40 C.F.R.
5 1501.2(b) of the regulations of the Council on Environmental Quality, the Commission is i
" require [d]
. to take steps toward ensuring that" proper-
" environmental studies" are " initiate [d]
. as soon as 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 alternatives to the proposed
. action by the time the EIS process commences or before the EIS process has been completed."
Id. at 18,028.
"[T]he purpose (of 5 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. 198L).
- Thus, l
consistent with the CEQ mandate that agencies " integrate the NEPA process with other planning at the earliest possible time" (40 C.F.R.
5 1501.2), the Commission should make certain that appropriate environmental review of activities at j
Shoreham and of the long-term decommissioning plan begins now i
and that options are not lost.
Moreover, case law makes clear that the agency's current NEPA responsibilities cannot be circumvented on the l
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a theory that particular actions now being implemented at
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Shoreham do not, standing alone, constitute major matters and do not yet necessitate the invocation of federal processes.
9 Where' as here, actions are taken that are part of an overall i
i plan'or project that will culminate in federal involvement, they cannot properly. escape environmental scrutiny.
Ege 1
Lathan v. Volpe, 455 F.2d'1111, 1120-21 (9th Cir. 1971);
Thomoson v.
Fucate, 347 F.
Supp. 120, 124 (E.D. Va.), aff'd in relevant part, 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.
Tnat analysis would serve 15
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'no purpose if at the time the EIS'is finally prepared, the option is no' longer'available."
Idi at 1532.- Thus, the court held, an EIS must be prepared prior to granting the;1 case unless the: lease forbids any surface-disturbing activities i
pending completion'of the EIS.
Idx l
i To prevent a similar frustration of NEPA'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 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.
CONCLUSION The Commission should order the suspension of Lilco's actions in furtherance of a " minimum posture condition" at Shoreham, investigate the matters raised in this petition, initiate appropriate environmental reviews, and devise a process for the orderly consideration of Shoreham j
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-issues.
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a r.',,
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Respectfully' submitted, i-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 l-By I Q i
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c 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 175 East Old County Road Environmental Protection 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 Mr. Lawrence Britt Project Review 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 Mr. John Scalice Plant Manager Mr. Allen Hirsch, Shoreham Nuclear Power Station Director 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 U.S. Nuclear Regulatory Commission P.O.
Box B Mr. Paul D. Eddy Rocky Point, New York 11778 New York State Public Service Commission Admiral James D. Watkins P.O.
Box 63 Secretary of Energy Lycoming, New York 12210 U.S.
Department of Energy Wachington, D.C.
20585 i
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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 of Public Service Agency Building 2
. Three Empire State Plaza Empire State Plaza Albany, New York 12223 Albany, New York 12223 l
Richard M. Kessel Gerald C.
Crotty, Esq.
l Chairman & Executive Director Ben Wiles, Esq.
i New York State Consumer Counsel to the Governor j
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 l
Wading River, New York 11792 120 Broadway New York, New York 10271 Fabian G.
Palomino, Esq.
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 Lobby - 9th Floor Suffolk County Attorney 1800 M Street, N.W.
H.
Lee Dennison Building Wash.,
D.C.
20036-5891 Veteran's Memorial Highway Hauppauge, New York 11788 James P. McGranery, Jr.,
Esquire Robert Abrams, Esq.
Dow, Lohnes & Albertson Attorney General of the State 1255 Twenty-Third Street of New York Washington, D.C.
20037 ATTN:
John Corwin, Esq.
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
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Veteran's Memorial Highway 626 Legislative Off. Bldg.
Hauppauge, New York 11788 Albany, New York 12248 August 4, 1989
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