ML20112F095

Suffolk County & State of Ny Reply Comments,Per 850107 Order Soliciting Comments Re Whether ASLB 841029 Initial Decision Was Correct Application of Criteria in 840516 Order.Certificate of Svc Encl

ML20112F095
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/14/1985
From:	Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:
References
CON-#185-060, CON-#185-60 OL-4, NUDOCS 8501150384
Download: ML20112F095 (32)

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UNITED STATES OF AMERICA NUCLEAR REGUIA'IORY C) MISSION '65 Ja ;4 P3:32 Before the Ccrrtission -

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In the Matter of )

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IfNG ISLAND LIGRING COMPANY ) Docket No. 50-322-OL-4

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(Shoreham Nuclear Power Station, )

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SUFEOLK COUNIY AND STATE OF NDi WRK REPLY CCMDES PURSUANT 'IO COMMISSION'S JANUARY 7 ORDER Dy Order dated January 7,1985, the Ca:rtission invited the parties to re-t sponr1 to the November 29, 1984 ca:raents filed by other parties concerning "whether the [ Miller] Doard's October 29, 1994 Initial Decision was a correct e . application of the criteria in the May 16 Order." Suffolk County and the State of New-York jointly submit these Reply Ccrraents in accordance with the Jantury 7 Order.

The Miller Board did not correctly apply the criteria of the May 16 Order.

- The NRC Staff and LIILO in their November 29 ccrinents avoid any detailed consirl-eration of those May 16 criteria; we can understand why, since the Miller Board's Decision reflects a flagrant misapplication of those criteria.

What is' particularly troublesane is that the Staff and LIILO have asserted that the Miller Board carefully applied the May 16 criteria. For example, the Staff states that "the [ Miller] Doard was (with minor exceptions) correct 'in its n

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i application of the criteria set forth in CLI-84-8 to the facts of this case."

Staff Coments at 2. And the Staff talks with approval about the Miller Board's "ca mon sense approach" to those criteria. Id. at 3. LIICO asserts that the Miller Board " meticulously followed [CLI-84-8] both in fortnat and substance" (LIICO Ccrrnents at 1, saphasis supplied) and that "there can be little doubt that the Board scrupulously folicwed the ctandards established by CLI-84-8."

Id. at 12 (anphasis supplied).

It is time to put such fantasy to rest. There was nothing scrupulous or meticulous about the tiiller Board's conduct of the excrnption proceeding. Rath-er, fran the time the Miller Board was appointed in March 1984 right through its Decision, the Miller Board " distinguished" itself in only one way: it ran roughshod over the rights of Suffolk County and the State of New York.

An overriding criterion of the May 16 Order was that "[t]he Licensing Doard shall conduct the proceeding on the rodified application in accordance with the o

Comission's rules." It is evident why this normally self-evident criterion had to be expressly articulated in this case. During April 1984, the Miller Doard had conducted the proceeding in such a rnnner that a federal district court, for the first time in history, restrained an ongoing NRC proceeding because of due process violations. Two Ca:rdssioners wanted the Miller Board replaced.

CLI-84-8 (views of Cannissioners Gilinsky and Asselstine). By 3-2 vote, hoeav-er, the Miller Board was retained, with the "ccr.1pranise" apparently being the NRC's extraordinary directive that the Board " follow the rules."

It is preposterous now to suggest that the Miller Board followed the NRC's rules. For examples

- The Miller Board repeatedly refused to admit County and State evidence en issues articulated in CLI-84-8, while admitting LIlCO and Staff evidence on precisely the same issues. ha Miller Board then relied on that one-sided evidence in its October 29 Decision. See County / State Nov. 29 Ccrxents at 7, 10-19.

-- W e Miller Board made factual findings on the adequacy of LIICO's security plan to protect the alternate AC power system despite its refusal to hold a hearing on the County / State security contentions. Such findings where there is no evidentiary record clearly must be stumnrily reversed. Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Pcuer Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980); see County / State Nov. 29 Ccments at 27-30.

The Miller Board found that the "as safe as" standard was satisfied, despite the fact that "there is un-questionably a lesser margin of safety provided by LIICO's alternate power system." Decision at 24.

Thus, the Miller Board clearly applied a " safe enough" standard, in violation of the Cctriission's straightfor-ward requirement that the exemption could not be autho-rized on such a basis. The Doard's " safe enough" stan-dard would undercut the bases for the low pamr emer-gency planning rule. 10 C.F.R. { 50.47(d). See Coun-ty/ State Nov. 29 Ccrmnts at 27-30.

- The Miller Doard found that public interest factors weighed in favor of granting the exemption, despite the fact that the representatives of the public's interest, the State of New York and Suffolk County governments, had urged forcefully that an exemption would harn the public interest. Indeed, it could rot possibly be in the public interest to operate Shoreham with no safety grade energency power When the uncontroverted evidence established that Shoreham's electrical cotput is not needed for at least 10 years. See County / State Mov.

29 Ccments at 16, 22-23.

a In their November 29 ocmnents, the Staff and LIIID largely ignored the foregoing errors, as well as the host of other errors set forth in the Coun-ty/ State Novenber 29 ccanents. Indeed, instead of addressing these errors, LIIf0 addressed a total strawnan - whether the Ccmnission should issue a stay.

However, the question of a stay is not before the Ccanission and could not be until such time as the Miller Board's decision were itself effective. Pather, as articulated clearly in the NRC's Noveaber 19 Order, the only question to be addressed here is whether the Miller Board correctly applied the criteria of

' CLI-84-8._1/

In accordance with the NRC's January 7 Order, we now reply further to the LIIED and Staff Noveaber 29 ccmaents. We danonstrate below that the LIIID/ Staff ccmnents are largely predicated upon false characterizations of the Miller Board's decision, are largely irrelevant, and serve only to obscure the central ir@crative that the Ccmission has no choice but to reverse surmaarily the Miller Doard's decision.

I. LILCO Cair1ents About the Gravity of the Substantive Issues LIIr0 argues that "the authorization of the low power license for Shorehara is not of sufficient gravity to support a stay" because "the Ccmission's regu-lations expressly exclude icw power licenses frcra imaediate effectiveness

,1) Since LIID0's Novcr.ter 29 ccnnents did not address the issue raised by_ the NRC in its Nover,iber 19 Ordor, the NRC should disregard those LIIro caa-raents.'

review." T. Tim Caments at 3. Aside frca improperly atter:pting to convert the NRC's review into a " stay" inquiry, LIICO misstates the law. LILOO seeks an exemption fran the ccanission's regulations because LILOO cannot caply with GDC-17. W e Ca mission, not any licensing board, must grant or deny LILOO's ex-emptionrequest.2/ Thus, LIIDO is incorrect when it asserts that "it is not the Camission's function . . . to conduct a full review of the merits of the Board's factual findings." LIIf0 Caments at 8. Indeed, in this exerption pro-ceeding it is exclusively the Canission's duty to rule on the merits. 'Ihat duty is all the more important in the instant situation where the Ccruission's reviewwillbedirectedategregiouserrorsoftheMillerBoard.3]

2f Sco Southern California Co. (San Onofro Nuclear Generating Station, Units 2 and 3), LBP-77-35, 5 NRC 1290 (1977). Section 50.12 states that "the Ccr. mission my . . . grant such exmptions frcn the requirements of the regulations . . . as il determines are authorized by law and will not en-

. danger life or property or the ecmon defense and are otherwise in the pub-lic interest." (aghasis supplied).

3] Ebrthermore, LIID0's characterization of "the substantive issue" presented by the Miller Board decision is wrong. The question is not the " generic judgment" cited by LILOO that low power licenses need not be stayed, nor is it just the risk to the public health and safety that would be posed try operation with LIILO's alternate AC poser proposal. LIILO Cerrients at 3.

The Decision also poses the issues whether the public interest favors the grant of an exemption, Wether LIIro has demonstrated the existence of the extraordinary circumstances required W the Ccrrtission's May 16 order to justify an exernption, whether the State and County, representatives of the public, were denied their fundamental due process rights to a fair hearing, and whether there is any justification for allowing an unneedal nuclear plant to operate when it does not' ccrply with irportant safety regulations.

LIILO's ccments concerning the " gravity" of the issue ignore these mat-ters.

II. f. Tim and Staff Unsupportable Cmments Concerning the Miller Board's Resolution of Substantive Issues LIICO asserts that "there is little likelihood that the pertinent substan-tive issues were not correctly resolved" by the Miller Board because "the Com-mission has been involved extensively in this exeruption proceeding almost fm its inception." LIILO Ccmnents at 3. The Staff makes similar statements.

Staff Ccmnents at 2. 'Ihere is no factual basis for these conclusory assertions, and LIID0's non-sequitur land the Staff's similar ones) that the Miller Board

" reached factual findings and legal conclusions in accordance with" the Ccrmis-sion's guidance is plainly erroneous and fanciful too. LIIID Ccmnents at 3.

Indeed, the Miller Board ignored and/or incorrectly applied the Ccrmission's or-ders and regulations with respect to each of the determinations which the Miller Board was required to make in ruling upon LIID0's exermtion application. We ad-dress these errors and the LIILO/ Staff ccr.inents below.

A. Miller Board Errors Relating to the Required Security Determination LIILD mischaracterizes the Ccruission's guidance on security, stating that the thy 16 Order "[i]cplicitly recogniz[ed] that the ccmmn defense and security was not an issue." LIILO ccrrients at 4.4/ The May 16 Order did no such thing, 4j In its November 29 ccmwnts, the Staff cciapletely ignores the security issue raised by the May 16 Order and confirmed by the Ccrrtission's July la and August 20 Orders. In similar fashion, LIICO asserts that "the Ccrmis-sion's Novernber 19 Order excluded the merits of security issues frcrn the scope of permitted otranents." LIILO Ccr:rients at 4, n.2. That order does no such thing, nor could it be so construed since the tillier Board's deci-sion includes findings of fact and legal conclusions on security issues.

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V "inplicitly" or otherwise. Indeed, the Order recognized the need for a security

,.c finding by quoting Section 50.12(a) (including the requireraent that an exemption may be granted if the Ccmnission deterniines that it "will not endanger . . . the ccaton defense and security") and by stating that LILID "should nodify its ap-plication for low-power operation to address the determinations to be made under 10 CFR 50.12(a) ." Moreover, as LIICO was forced to acknowledge (LIICO Ccrinents at 4, n.2), the ccrmission's July 18 Order expressly recognized that physical security issues are pertinent to the granting of an exernption, and that the par-ties "were to be afforded the opportunity to raise new contentions" on that sub-ject. NRC July 18 Me:norandura and Order at 2-3.

Suffolk County and the State of New York suhnitted detailed security con-tentions, characterized by the Miller Doard as follows:

A pervasive issue throughout the proffered revised security "'

contentions was whether LIICO's pcraer " enhancement" equil -

raent should be treated as " vital," thus located in " vital areas" under NRC regulations . . . .

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The Intervenors also argued that the " change in configura- y d' tion" wrought by the addition of the enhancernents created new or_ different vulnerabilities for the site.

Decision at 20. 'ihe Miller Board's September 19 Order rejected the proposed se-curity contentions. Its action was apparently prer.tised largely on the fact that the NRC Staff supported some of the security contentions and that the Staff had requested LIICO to amend its security plan in ways allegni in the contentions to be necessary. The Miller Doard rejected the Staff's position on the substantive

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safety and security question raised in the contentions, characterizing its action as " overruling" the Staff's position "as a matter of law" pursuant to 10 CFR { 2.717(b). September 19 Order at 7; see Decision at 20.

The Doard's more detailed rulings on the security contentions are contained in the restricted version of the Miller Dmrd's September 19 Order. Due to the safeguards data involved, we will not in this filing be nore specific. Howver, we urge the Ccrraission to review that Order -- particularly pages 4 which will reveal the Miller Board's alleged bases for its rulings.5_/ We suhait that the Ccrmtission will have no choice after reading that Order but to agree that the Board did not " follow the rules" and had no rational basis for denying In-tervenors' contentions.6_/

Furtheriaore, despite its refusal even to consider the nerits of Interve-nors' security issues, much less to obtain evidence on those issues, the Miller 4

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The Ccrraission also should revicw the safeguarded transcript of the September 14, 1984 Miller Board Conference of Counsel. It documents again

-in claring detail the Miller Board's incapability of dealing fairly with the issues.

6/ The Board's rulings concerning the individual contentions themselves (Re-stricted Sept. 19 Order at 12-19), were also clearly erroneous. Those nilings are: (a) reiterations 'of the erroneous " conclusion of law" discussed in the text above; (b) findings on the merits of the contentions, based solely upon representations made by LILCO's counsel, and improper in theY eontext of ruling on the admissibility of contentions; (c) distortions or misstatements of the contentions tho selves, which are readily apparent upon reading the contentions; or (d) nimpplications of Ccrrtission prece-dent concerning the insis and specificity requirements for admissible con-tentions. See, e.g. , Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALTd3-590, 11 NRC 542 (1980). -

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Board nonetheless purported to make " findings of fact" concerning the adequacy

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$ of LIICO's physical security arrangemants - the very issue raised in the Coun-ty/ State security contentions. 'Ihus, the Board "found":

Placement of additional equipaent outside of and a reason-able distance frm the Shoreham Plant's vital areas, does not impair nor inpact upon established security procedures for protection of the vital areas; The need for securit.y of mergency AC power systems during low-power is dfAinished; In the posture of a request for exernption frm certain regu-lations for purpose of low-power testing, emergency AC power sources need not be protected as " vital" equipnent; LIID3's security arrangements provide reasonable assurance i^

] that its criergency power enhancements will be protected dur-ing the occurrence of a security-related event.

y Decision at 76-77. 'Ihere 'is no evidence whatsoever in the factual record that

. even relates to these findings, let alone evidence which supports them. Indeed, the Miller Board decision does wx. even purport to cite an evidentiary basis in a s

, the record i.n support of the foregoing "tindings." Therefore, fr m a legal

p standpoint, the Board's findings are but whimsical conclusions which underscore a

the lack of basis for the Decision.

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Given'the language of Section 50.12(a) and the Ccruission's July 18 Memo-randum an& Order, the Miller Board was required to make security findings. To m

doso/ .t lawfully,meantthattherehadtobefactualevidenceintherecord.

. c-There was none, however, because the board' rejected the County and State's secu-b 4g rity contentions and refused to pemit the introduction of any evidence on the

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security issues. 'Ihus, nothing of a factual nature stated by the Miller Board is legally supportable. Indeed, the Miller Board's rulings and so-called " find-ings" m ruing LIID0's security provisions were not only incorrect, but con-stitute a flagrant and prejudicial violation of Intervenors' right to a hearing on this matter which is central and material to an exenption decision. See Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

AIAB-580,11 Imc 227 (1980) (Board could not make security findings where the security plan itself was not even in the record). See also Union of Concerned Scientists v. Nuclear Regulatory Ccan., 735 F.2d 1437 (D.C. Cir.1984), cert.

denied, 53 U.S.L.W. 3475 (January 8,1985) (Atcnic Energy Act guarantees right to a hearing on material issues).

B. Miller Board Errors Related to Public Interest Finding We do not here repeat the discussion of the Miller Board's exclusion of County and State evidence concerning the econcrtic and financial disadvantages

. which would. result frcn granting the exemption, and the Board's admission of LIID0's evidence concerning alleged econmic and financial benefits of granting the execption, which is set forth at pages 12-14 of our November 29 ccrinents.

However, the following reply ccnnents concerning the public interest are neces-sary.

First, LIIf0's ccnments about the alleged econcnic benefits of granting the exmption purportedly "found" by the Miller Board 7 / are of a nature that is 7/ LIIDO states that "the Board also found that financial hardships arose frcn having a physically ccrpleted, otherwise acceptable nuclear facility stand-(Footnote cont'd next page) irrelevant to the legal standards for granting an exemption. 'Ihe so-called eco-ncmic " benefits" claimed by LIIDO would only be achieved if and vhen Shoreham beginsfullpoweroperation.8/ Thus, the asserted " benefits" relied upon by the Miller Board do not result frcm the conduct of low power testing, which is what would be authorized by the exenption.9/

'Ihe Miller Board's findings, as comented upon by LIICO, underscore the prejudice of the Miller Board's refusal to receive the County's testimony on the (Footnote cont'd frcn previous page) ing unused and non-productive because of substantial licensing delays," and "that potentially reaching carmercial operation earlier could result in an econcmic benefit to LIID0's custoners . . . ." LIICO Carments at 10-11.

8/ LIIf0's witnesses acknowledged that reducing dependence on foreign oil can-not occur until after a full power license is issued, the plant has been tied into the LIIED grid, and it begins to produce electricity (see, e.g.,

Tr. 1235-36, 1249-50, 1330), and that the alleged ratepayer " benefit" which, according to LIIDO, would be received in 1997 frcm beginning conner-cial operation three months earlier than would be possible without an ex-emption, can only occur after comercial full power operation begins and Shoreham goes into the rate base. See, e.g., Tr. 1372, 1405-10.

9f _ LIIf0 is disingenuous ir. asserting that "the County's evidence . . . did not address the effect of this low power license on alleviating [LILOO's financial] difficulties." LIIf0 CcrtTnts, n.4. The alleviation of LIIf0's financial difficulties is not an issue presented by the public interest criterion of Section 50.12(a). Nor was such alleviation the subject of the "econcnic benefits" which LIIDO alleged might occur as a result of a grant of the exemption. All such discussion went to purported benefits to LIID0's custcners, since such individuals constitute the public. LIICO 's private financial interests, and any potential signal to the capital mar-kets which could result frcm favorable Ccrmission action, are improper sub -

jects for consideration. See County / State Nov. 29 Ccrments at 14, n.12.

See Power Reactor Devel. Co. v. International Union of Electrical, Radio &

Machine Workers, 367 U.S. 3%, 415 (1%1).

substantial financial and econcmic ham to the public that would result frczn the grant of an exatption under the assunption that is the converse of LIIID's -

i.e., that there would never be full power operation of Shoreham. Wis testimo-ny was critical to evaluating the "public interest" aspects of LIIID's exemption request. At LIICO's urging (Tr. 2122-23), hoever, the tiiller Board refused to let such evidence into the record. The Board's n211ngs concerning alleged fi-nancial and econcr. tic hardships thus rely only upon LIIID's testirony and LIIf0's one-sided asstunption that Shoreham will operate at full power. Eis anbrace and reliance by the Board upon only LIICO's side of the issue, to the exclusion of evidence subnittea by the governmental representatives of the public, was an error.

Second, LIILO's assertion (Ccr1ments at 11, n.4) that "after weighing the evidence, viewing the witnesses and assessing their credibility, the Board rejected much" of the County's witnesses' econcrtic analysis, is a gross misrep-

. resentation. Although certain County evidence disputing LIICO's calculations of the so-called ratepayer " benefit" was admitted by the Board (albeit ignored in its Decision), much public interest testimony subnitted by the County and the State was never admitted into evidence. Furthemore, although LIIf3 character-izes the Board's striking of the County's evidence as " proper" (id. ), LIICO

, provides no legal or other basis to support that naked conclusion.

LIIED was pemitted to subctit testinony concerning LIIID's view of the pub-lic interest. At LILCO's urging, the Miller Board refused to admit evidence

O subnitted by the elected representatives of the public - the Governor of New York and Suffolk County - that explained in detail why it is not in the public interest to grant an exerption to LIICO. _See_ Tr. 2122-23, 2145-48, 2902-03.

Public servantis are in a far better position to advise the NRC regarding where the public. interest lies than LIICO. Indeed, the Camission itself has stated:

The views of the chief elected representative of the people of California should be accorded great weight in fixing where the public interest lies.

NRC Brief before U.S. Court'of Appeals in Diablo Canyon case, page 34. Surely, the views of the chief-elected representatives of New York State and Suffolk County should be accorded no less stature.

- Third, LIIID's bald assertion that "the Licensing Board has already consid-ered and evaluated public interest factors" (LIIID Ccments at 14) is false.lO,/

4 10/ The "public interest" is mentioned only twice in the Decision: in the one-sentence " conclusion of law" (paragraph G cn page 104), and in a six-sentence section under " Exigent Circumstances" which is headed "Public Interest'in Adherence to Regulations." However, the discussion in that

.section makes no reference to any of the evidence which the County and State subnitted or attempted to subnit concerning the actual interests of the public living in Suffolk County and New York State concerning the ex-emption. For that matter, it also makes no reference to any LIICO evidence concerning the alleged public interest. Thus, this portion of the Decision is merely a reiteration of the Daard's public health and safety findings.

The Miller Board's conclusion, without citation to any evidence, that "there is rainimal' public interest in strict and nochanical adherence- to the -

= regulation" (Decision at 68-69), violates Connecticut Yankee Ataraic Power Co.,.2 AEC 393-(1964), and has no evidentiary basis whatsoever. In fact, the Miller Beard never even considered the interest of the public concern-ing LIICO's exemption request. It considered only the one-sided " evidence" which dealt with LIICO's private interests in signalling the capital mar-kets and in obtaining a full. power license.

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The Miller Boerd's " conclusion" that LIIro's exemption application " meets the

'otherwise in the public interest' provision of 10 CFR 50.12(a)," is based sole-ly upon the Board's finding that the exernption application meets the exigent circumstances test enunciated by the Ccrmission. Decision at 104, T 6. There is no supportir.j Ccrmtission precedent, nor did the Board cite any, for the Mill-er Board's tortured reasoning that meeting an exigent circumstances test satisfies the wholly separate Section 50.12(a) requirenent that an exemption "otherwise" be "in the public interest." Indeed, this action by the Miller Board directly contradicts the Caxtission's May 16 Order, in which the Ccrmis-sion made clear that the exigent circumstances finding represents a threshold that an exenption applicant must meet separate fran, and in addition to, the re-quirements set forth in Section 50.12(a). See19NRCat1156,n.3.11/

Fourth, the public interest clearly does not favo" an exemption to allow contamination of a facility which is not needed. On this issue, there is no

, dispute: electricity output equal to Shoreham's will not be needed for at least 10 years. 'Ihus, the uncontradicted evidence of record - the consensus conclu-sion of the State of New York's Marburger Ccruission - was as follows:

The projections for Long Island's future electrical energy needs on which the Shoreham construction schedule was origi-nally based were obviously overestimates. The Panel is per-suaded that ample LIIf0 generating capacity currently exists 11_/ The Miller Board's treatment of the public interest finding required tader Section 50.12(a) also violates Connecticut Yankee Atomic Pchur Co., 2 AEC 393 (1964), which held that the public interest determination " constitutes

~a distinct and separate aspect" of an exemptien d w ision.

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' to satisfy prnhable demand for at least the next decade, and probably longer. Such estimates are of course subject to the same w1 certainties that cause the original projections to be so wrong. But at this time, it is difficult to see how the deraand for electricity could be so great as to re-quire a Shoreham-size plant within a decade or nore.

Suffolk County Ex. LP-20, at 37.l_2,/

Ccmrtission precedent makes clear that the need for a facility's power is a relevant criterion to be considered in decisions on exemption requests. See U.S. Departmnt of Energy (Clinch River Breeder Reactor Plant), CLI-83-1,17 NRC 1, 4 (1983); Washington Public Power Supply System (WPPSS Nuclear Projects Nos.

- 3 and 5), CLI-77-ll, 5 NRC 719 (1977). hus, the undisputed lack of need for Shoreham's power is a conclusive reason for denying the exemption. Indeed, it

. cannot be argued that the public interest favors a rush to contaminate Shoreham, and deprive the public's representatives of their due process rights to a fair hearing, in circumstances where the electric power output of the facility is

__4 plainly not needed in the near future.

Finally, the State and County also refer the Ccnrtision to the letter dated October 11, 1984, frcm President P.cagan'(copy attached). This statement.of 12/ In its January 7 Order, the Ccrmission declined to consider the affidavit submitted Deceaber 5,1984 by the County and State. ~ h is, of course, means that the Ccmrtission also must ignore the LIIf0 affidavit filed December 12, 1985. _ hus, the only evidence regarding.the need for Shoreham's pcrer upon-which the Omnission may rely is that described above which is in the evi-dentiary record. We evidence clearly is that there is no need for -

Shoreham's power. ;_

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Administration policy not favoring the iraposition of federal authority over State and local objections, is also relevant to the public interest.

C. Miller Board Errors Relating to Exigent Circumstances Finding LILCO asserts that "the Licensing Board conducted an extensive inquiry into the existence of the exigent circumstances pursuant to the Comaission's guid-ance." LILOO Calments at 9. LIICO neglects to raention that the " extensive in-quiry" was limited to evidence presented by LIICO. See County / State Nov. 29 Caxnents at 10-12. Similarly, LIIf0's reference to the Miller Board's finding "that LIIf0 had made a good faith effort to caaply with GDC-17" (LIIf0 Counents at 11), ' ignores the Miller Board's inexplicable refusal to consider the County's evidence on precisely the same subject.l.3,/ It is clear that the Miller Board's exigent circumstances finding resulted only fran the Board's violation of the County and State's right to present evidence on this critical issue identified

. in the Ccrnission's May 16 Order. The Ccrraission cannot condone this prejudi-4 cial action by the Miller Board, which was taken at LIILO's request. See Tr.

. 2370-85.

13/ The Miller Board purported to identify grounds for striking the County's evidence, but a review of Judge Miller's statements docunents the lack of any rational basis for the ruling. Indeed, as with the security issues (see discussion supra), the Ccanission should read Judge Miller's state-ments which denonstrate in the clearest terms possible that the Board did not adhere to the Ccrnission's admonition to "folicw the rules." See Tr.

2385-89.

N Similarly, T.TimN citation of the Miller Board's " finding"

• hat "the li-censing proceedingr thenselves have imposed unusually heavy financial and eco-nanic hardships tr,;on LIID0" (LIILO Catanents at 11), ignores the erroneous nature of that Board ruling. See County / State Nov. 29 CaTaents 23-25. 'Ihere is no legal, factual or logici basis for the Doard's conclusion that LIICO's litiga-tion costs constitute exigent circumstances which justify an exemption fran can-pliance with iraportant safety regulations. Even the Staff, which has sided with LIIDO on alrost every aspect of this proceeding, agreed that the Doard erred.

Staff Catrents at 8. The Miller Board's heavy reliance upon LIIf0's irrelevant whining about the NRC licensing process in finding the existence of " exigent circumstances" is clear error which the Camr.tission must reverse.

LIILO also cites the Miller Board's " finding" that the regulations have not been consistently applied by the NRC Staff. flowever, whatever the Staff may

? have done with respect to other plants prior, or even subsequent to, CLI-84-G, and whether such actions were right or wrong, cannot change the cat 11ssion's ruling that LIILO nust meet the criteria enunciated in the May 16 Order. See County / State Nov. 29 Ca,nents at 25-25. The Miller Board's " finding" that al-legedly " inconsistent" Staff practices constitute an exigent circumstance that justifies LIILO's exemption request flies in the face of the Caxtission's Ehy 16 Order.'

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D.1: ' Miller Board Errors Relating to the "As Safe As" Determination

The major portions of the LILOO and Staff ommients deal with the "as safe as" criterion. In' those Catanents, however, LIICO and the Staff not only imischaracterize the evidence subnitted by Intervenors that was admitted by the m

= Licensing h rd, but also ignore the erroneous Miller Board rulings: (1) the Board denied admission of relevant and significant evidence subnitted by Suffolk County; (2) the Board ignored the Ccmnission's May 16 Order defining the "as isafe as" criterion;~and (3) the Board rendered Section 50.47(d) inapplicable to 7

Shoreham.14[

First, the County testimony which was denied admission by the Miller Board

, , Ldenonstrated -that operation of Shoreham with the alternate AC power configura-1 tion would tie quantifiably less safe than low power operation with a fully qual-

[ :ified AC power systen. See County / State Nov. 29 ccreents at 17-18 and Attach-

mentL7. 'Ihe Miller Board had ino basis for refusing to adnit this testinony.l.5/ -

n , y- 51'4/ LIICO's characterization of Intervenors' proffered evidence also mus't be -

corrected. .LIIID asserts that "Intervenors' sole factual contention was

~

~

that- each canponent of the' alternate power systan'cught to be ccrpared in-' {

" ' ydividually withLthe TDITdiesels.and subjected individually to'a single failure analysis." LIICO Ccranentsiat-8. :LIICO ignores facts: (1) one 4.'" rraajor itsn of County evidence discussing a system rather than a_ ccriponent ccmparison _was denied admission by the Board at LIIro's request; and .(2) '

.f- .,

ruch of the County's.-evidence that was admitted (but ignored by- the Board.

Lin'its' Decision and by LIICO'in its ccrraents) goes directly to a functional-=

fand ' systemic caaparison of; safety margins. DSee discussion infra. .

, 7 ,, .

~

. . ~ -

%: - -15/ f The . Board's Lassertion that a probabilistic risk assessment .is' not "a prop 2r method to beTusedlin'this proceeding"i(Tr.~ 2858) is wrong. = PRAs have been s

_ ~

3' "., 3 % .' > . recpired by the Staff ~ in some proceedings (see, :c.g. , Tr. 2857), and the ;

PRAj perfonned by LIICO has been reviemd by the Staff and was considered b/'

% <?. s (Footnoto cont'd next page) t'-1 1 ,

m ui , -

l ;.1'

< i

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-: 3 ,'

v. .

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,,..,,m'..:-4.., ,m., , , m.., , ,# 9 , , , , , , , . . . . . _

. _,._.4, . , , _ ,,__, .

Indeed, although T.TTfD asserts that there was " abundant factual predicate supporting the [ Miller Board's] 'as safe as' finding" (LILCO Ccrrients at 8),

LIILD ignores that the Miller Board improperly interpreted and applied the Ccra-mission's standard. In ignoring the subnitted evidence that low power operation under the exmption configuration proposed by LIIID would be seven times less safe than low power operation with a qualified AC power system (County / State Nov. 29 Ccrrents at 17-18), the Miller Board made a rockery of the exemption proceeding. In addition, the Miller Board ignored the obvious reduction in safety, set forth in the evidence that was admitted, that would result frcra low power operation with the proposed alternate configuration. Thus, the Miller Board agreed that "there is unquestionably a lesser margin of safety provided by

- LIIfD's alternate power system" (Decision at 24, enphasis added), thereby establishing that LIILO does not satisfy the Ccmission's straightforward "as safe as" standard.5/

.-2 (Footnote cont'd frcra previous page) the Brenner Board and the Appeal Board in AIAB-788. See Iong Island Lighting Co. (Shoreham Nuclear Pcuer Station, Unit 1), AIAB-788, Oct. 31,

'1984 (Slip op. at 42-48). While there raay be no requirement to perform PRA analyses, there is no bar to the use of probabilistic data, if available, to evaluate the relative safety of operation in different configuratior .

See, e.g., Letter dated June 15, 1984 frcra Nunzio J. Palladino to the ibn-

' orable Echard J. Markey and attachments .thereto.

M/ Similarly, the Board found that "It is, of course, obvious that a fully qualified systen would have an established and documented higher resistance to seismic events than does the systm proposed by LIILO . . , , " (id_., at 52), again establishing that operation with LIIf0's alternate configuraticn inherently provides a lesser ma: gin of safety.

L

1

'Ihe Miller Board rejected as irrelevant the fact that a qualified IC power

- systen could provide emergency power to safety loads within 15 seconds, whereas the alternate configuration could not supply power for a mininun of several, but

.up to 30, minutes. 'Ihe Board found that since there are at least 55 minutes to restore power before core danage results during low power operation, it is not significant that under LIICO's alternate configuration 30 minutes of that time (as opposed to 15 seconds) could be necessary before any power is available -

or before it is even kncwn by plant personnel that power will not be available.

See id. at 23-25. In their ccrments, LIICO and the Staff stress the importance

.of the 55 minute time period available to restore power during low power operation. However, they, like the Miller Board, ignore the significance of the fact that the margin of safety of operating Shoreham with the alternate configu-ration is far less than with a qualified AC power system.

The Ccrinission did not set a standard of whether operation with the

( alternate configuration would, in the judgment of the Board, be safe enough, nor did the Ccrmission instruct the Miller Board to ccne up with a definition of how much safety, in its opinion, is "enough." Rather, the Ccruission, mindful of the impact of the exemption request on 10 C.F.R. } 50.47(d), instructed the Miller Board to determine whether operation with the alternate configuration would be as safe as operation would have been with fully qualified TDI dieselc.

' A reduction in the margin of safety, or a reduction in the defense-in-depth pro-tection which is central to the NRC's licensing concept, cannot be ignored under the Cccrtission's as safe as standard. Plainly, however, the Miller Board did exactly that.

As a result of its distortion and misapplication of the "as safe as" stan-dard, the Miller hrd ignored the following facts set forth in Suffolk County's expert testiraony, which document a real reduction in safety that would result fran operation with the alternate configuration as cmpared to that with a qual-ified configuration:ll/

1. 'Ihe alternate configuration contains only two power sources, whereas the qualified configuration contains three; clearly, there is less redundancy and a reduced margin of safety with the alternate configuration.

2. Portions of the two-part alternate configuration share caamon elernents with the off-site power system and also share coarron features with each other, thus making the alternate systen subject to single failures. In contrast, each of the three qualified diesels is an independent power source, physically isolated fran the other two and is fully indepenent of off-site power. 'Ihe alternate systern's vul-nerability to single failures, and its vulnerability to a cannon mode failure of the offsite system, represents a sub-stantially reduced margin of safety as empared to a quali-fled system.

3. One-half of LIICO's alternate configuration - the EMD

~'

diesels - is subject to single failures that would disable

- the entire set of diesels, because the four units share a

• couron . fuel system, a cmmon starting system, canmon output cables and cmnon controls. In contrast, each of the three qualified diesels raeets the single failure criterion.

Again, the vulnerability of one-half the alternate system to disabling single failures makes the margin of safety and de-fense in depth protection substantially less than that available with three single-failure-proof power sources.

4 .' Operation of the alternate configuration reqaires many manual operations, in several different-locations both in-side and outside_ plant buildings, giving rise to mar.y 17/ All these facts, with citations to the record, were set forth in the County and State Findings subraitted to the Miller Board on August 31, 1984.

(

r ___:---____-______-______________, _

opportunities for human error. In contrast, a qualified system is fully autmatic. h e reliance upon human opera-

. tors to perform properly and rapidly in the event of a sta-tion blackout, reduces the margin of safety from that avail-able with a fully autcmatic emergency power system.

5. 1 W e alternate configuration is vulnerable to seicmic events and is likely to fail in an SSE; a fully qualified system is designed to withstand the SSE. A reduced resis-tance to seismic events and a likelihoed of failure in an SSE, means that there is a smaller margin of safety of operation with the alternate configuration.

6. . We alternate configuration has essentially no local fire detection or extinguishing systems, and there is a pcr tential for fire and explosion because of the EMDs' battery starting system and poor ventilation. In addition, the ab-normal condition alarms associated with the alternate con-figuration are not annunciated in the control roan. In con-trast, a qualified system includes both fixed fire detection and extinguishing systems for each generator, no battery system, and a ocruprehensive alarm system which is annunciated in the control roon. Were is a substantial re-duction in safety nargins, as canpared to those present with a fully qualified systesa, if necessary equignent, such as that in the alternate configuration, is vulnerable to fire

.which may not be detected or extinguished, and if informa-

~

tion concerning the abnormal status of necessary equipment is not imediately available to the plant operators.

' 9.

Clearly,.the Miller Board applied a " safe enough" rationale of its own in-

_.vention in reaching its as safe 'as" conclusion. h is is reminiscent of the

" harmonizing" that went' on with 10 CFR $ 50.57(c) and GDC-17 prior to the May 16 3

LOrder. Werefore, the Miller Board's as safe as finding was plainly incorrect andIflatly disregarddi the Ccrmission's May 16 Order. .

~ Finally, the Decision, if upheld by the Carr.tission, would render '10 CFR

.i 50.47(d) inapplicable to Shoreham, and the Ccruission could not lawfully issue

~

- 22 -

g

'-- ,, _ , , __ _ _ . _ . , . . . .- ._, m _ , - _ .-

a low power license to T. Tim unless there were a fully approved and implemented offsite emergency plan for Shoreham. As the Ccmnission knows, there is no such plan; therefore, no low power license may be issued to LIIID.

4, The Miller Board's decision has thus created for the Ccmnission two mutual-

.ly exclusive options:

Rule that the "as safe as" standard has not been met because there is a lesser nargin of safety for low power operation usire the alternate power configuration, as the Board in fact found and as the evidence established; or Rule (contrary to the evidence of record) that a harmonized "as safe as" standard has been met but, in light of the ex-isting " lesser margin of safety" found by the Board, that Section 50.47(d) of the regulations cannot rrw be met. By this ruling, Shoreham would not be eligible to operate at icw power unless there were a fully approved and ir.plemented offsite emergency plan.

The Ccmnission's "as safe as" standard does not represent a casual formula-tion of words; rather, that standard was a debated and deliberate requirement.

e The standard was adopted because if operation at low power with the alternate AC power configuration were not as safe as operation with fully qualified diesels, then the rationale underlying Section 50.47(d) would not be present. 'Ihus ,

. there muld be no basis for pennitting low power operation of Shoreham without an approved offsite energency plan.

The Ccmnission adopted Section 50.47(d) in July 1982. See 47 Fed. Reg.

30,232 (1982). 'Ihere were three bases for the Ccrtaission's decision to permit low pcuer cperation in the absence of an approved arv3 implemente3 offsite

= -

energency plan: (1) lower fission product inventory during 1cw power operation; (2) reduction in the required capacity of systems designed to mitigate the con-sequences of accidents as compared to the required capacities at full power operation; and (3) more time available to react to a lw power accident. Id. at 30,233.

In establishing the "as safe as" standard, the Ccrmissioners were concerned that the second factor muld be undermined if lcw power operation with the alternate AC power configuration were not as safe as lw power operation with a fully qualified energency AC power system. The Cmmissioners first expressed this concern at the Ccrmission's April 23 Shoreham meeting. The Ccmmission discussed the Miller Board's intention in ruling cn LIIID's March 20,1984 lw power proposal to ccrapare the safety of LIIID's proposed icw power operation using the alternate AC power configuration, with the safety of full power operation using a fully qualified AC power system. The Ccomissioners expressed

• concern that if a lesser degree of safety were pennitted for lw power operation with the alternate AC power configuration than is normally present during Icw power operation with a qualified anergency power system (i e., because the icw power risk was found to be the same as the full power risk), the rationale for Section 50.47(d) would be undercut because the assumption of a lower risk during lw power operation would no longer be valid. See April 23 Transcript at 12-13, 30-32, 38, 44-45, 69 (Ccunissioner Gilinsky); M. at 12-13, 30-32, 38, 44- 45, 51 (Ccanissioner Asselstine); id. at 13-14, 40-41, 51, 67 (ccuraissioner Bernthal). See also id. at 12-13, 40, 44-45 (Cornission Staff ccnments);

M. at 31-32, 51 (Chainnan Palladino). But see M . at 45 (Roberts). E / This

_ M/ . The rationale for the Ccrrtissioners' concern was as follows: the capacity of mitigating systens such as emergency diesel generators ("EDGs") is sized (Footnote cont'd next page)

~

concern was expressed by the Ccmnission in its April 30 Order:

The [ Miller] Board's [ April 63 Order states that if public protection at l w power p ration without the diesel genera-tors required for full power operation is equivalent to (or greater than) the protection afforded to the public at full power operation with such approved generators, then LILOO's motion for lw power authorization should be granted. In these ciretrastances, what justification is there for waiving the emergency preparedness requirements applicable to full power operation?

NRC April 30 Order at 2.

'Ihe "as safe as" standard in the Ccmnission's May 16 Order was designed to address the Ccmnission's concern that no GDC-17 exer.ption for lw power operation have the effect of eliminating the basis for application of Section 50.47(d). For exanple, the General Counsel stated that the position of the Miller Board and the Staff prior to the May 16 Order - that the level of safety for lw power operation only need be equivalent to that associated with full

• power operation in full ccmpliance with the regulations - would have "obliter-ated the distinction between the safety risks at lw pcwer as opposed to full power, and thereby defeated the customary basis for defeating court injunctions (Footnote cont'd fran previous page) for full power; at lw power, fully qualified EDGs have over-capacity, thus conpensating for lack of an approved offsite emergency plan; if there were no fully qualified EDGs and no alternate system as safe as fully qualified EDGs, there would be no conpensation for lack of the offsite emergency plan; thus, the basis for applying 10 C.F.R. 50.47(d) would be lacking.

E.g., April 23 Tr. at 44, 46-47.

e e

against low power, and the basis for the rule requiring no finding regarding offsite ar-pcy planning for low power." SECY-84-290A, July 24, 1984, at 16,

n. 2. he General Counsel indicated that the "as safe as" standard was designed to avoid that result. Id. In the discussion of SECY-84-290A on July 25, 1984, the Canmissioners appear to have agreed with the General Counsel..l._9./

p / Although the transcript has a " disclaimer" concerning its citation, we bring it to the Comnission's attention as a reminder of the Ccmnission's intentions when it adopted the "as safe as" standard in CLI-84-8:

MR. MAISCH: 'Ihe Ccmnission has in the past justified low power operating licenses on the ground that they present a level of risk which is substantially less than the level of risk associated with full power operation.

And that, indeed, is a basis for exenpting a number of full power licenses frczn certain requirements such as requirement for off-site energency planning and other kinds of require-ments. I knw there wasn't any in the regulations.

Now the concern in low power licensing cases is that if you simply adopt a no undue risk standard for low power li-censes, then it becones ambiguous as to whether the low power license you end up with is clearly less risky, sub-stantially less risky,- than full power, or not.

And I think that led the Ccanission, in the interest of maintaining the argunent that there was a substantially lesser level of risk associated with low power licenses and therefore maintaining the distinction in its regulations be-tween-requirements that apply to low power and requirements

-that apply to full power, that led the Ccumission, I think, to adopt the as-safe-as requirement.

Now that doesn't mean, you know, substantially as-safe-as or as-safe-as scznething to diminuous variation might not do the trick.

But I do think that to sirply adopt a no undue risk argurent does present this kind of difficulty for 1cw power license.

(Footnote cont'd next page)

In stan, therefore, the "as safe as" standard was necessary to preserve the applicability of 10 C.F.R. 50.47(d). If the level of safety for low power operation of Shoreham were reduced under the alternate AC power configuration, there would be no basis to permit low power operation without an approved and

-inplenented.offsite emergency plan.

In the face of the admitted reduced margin of safety of LIILD's proposed low power operation,10 C.F.R. $ 50.47(d) cannot be applied to Shoreham. Ac-cordingly, if the Comission were now to approve the GDC-17 exemption (despite

. the gross errors of the Miller Board), the cat:tission would have to rule that Shorehan is ineligible for a low power license unless an offsite energency plan is fully approved and implemented.

(Footnote cont'd fran previous page)

COMMISSIONER ASSELSTINE: You're exactly right. ht was a

- key element in the Ccmission's discussion.

COMMISSIONER BERNTHAL: In the end, that was precisely the standard that at least scrne of us, I think, applied in Grard Gulf.

And.in my judgment, for the sake of argument, you surely want to argue- as-safe-as. ht means there are carnpensating measures.

Saying ranething is safe enough, that is, if there is the absence of any conpensating measure, is a horse of a differ-ent color.

July 25 Discussion cf Cerrission Practice in Granting Execptions, 48-51.

h - , ,-w , *v-

III. Conclusion One final point needs to be stressed. LIIDO has argued that even if errors existed in the Miller Board's decision, correction of those errors would not be prejudiced by plant operation, and that there are no public interest factors cu== ding a stay of Phases III and IV. LIIDO Coments at 13-14.

It is disingenuous for LILCO to suggest that Phases III and IV could pro-ceed without prejudicing the rights of the County and State. It is obvious that the County / State appeal of the Miller Board decision would be rendered essen-tially moot if the Phase III and IV testing program were begun, much less ccm-pleted,-prior to rendering a decision on the merits of the County / State appeal.

There is no interest whatsoever, other than LIILO's private one, that could possibly favor a Camission action to rubberstanp the Miller Board's decision shutting out the public without a full review of the facts and the record of the 4 Miller Board's conduct. Wis Comtission is responsible to the public, whan it is supposed to serve. It must recognize the interests of the public by thor-oughly reviewing and summrily reversing the Miller Board decision.

Finally, the State and County hereby reiterate their pending request that the Ccrtaission hold oral argument on this matter. There is great public benefit to be. gained by the Camtission addressing the views of the parties openly and personally. The public record is now filled with letters fran elected officials

-and other citizens supporting such oral argument. We Com11ssion has no legithaate reason to hide.-

4 -

Respectfully sutmitted, Martin Bradley Ashare Suffolk County Department of Iaw Veterans Memorial Highway Hauppauge, New York 11788

/ l

- /N Q Herbeet H. Brown Iawrehce Coe Ianph Karla J. Ietsche KIRKPATRICK & IOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County Fabian G. Palcmido Special Counsel to the Governor of the State of New York Executive Chamber, Rocm 229 Capitol Buildirx3 Albany, New York 12224 Attorney for Mario M. Cucrao, Governor of the State of New York January 14, 1985

i o

o )

l T HE WHITE '!!O( S E s w nserew. -

Cetober 31,.Jpsg

Dear 211*It. ,

I ynt Gu to kncW c:! m) appr.icicf.lon f or your

, continuin(-egntributies:s te, and support f or my -

Ad,-jinis t.-nt d on. Your leadership ond ecurage have been detemining tactcrs in the progress % hcye *

.made in the lar.t few years. -

on a ma tser of partf eular concerr. te you and the. .

pacple cf rastern Icnq .Triand, I wish to repeat .

Secretary Medr:1'c assurance to you thet this Ad.-.ini=tration d=rt not f av=r the i= position of Tederal Government authority over tv.e objecticas cf state and Iccal gevarn:.ents in v.ittera regarding thu' Adequacy cf an em'ergency evccuation. .

plan f or a nuclect Power plarnt such, a r Shcrehar,. .

Your ccncarn fer the safety of the ye:ple of Long "sle.d is pm.rcocunt and shared* by the Secreta:y .

ar.d =e.

. 'thank. you :.gair. f or your support.. I lock f:rucrd

.to w: kins with ycu in the years ahead.

Sincerely,. -

&. % u .-

--m The Honerable 1!illice. carney House ci hepec centstiver k*ashington, D.C 20515 f

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

)

In the Matter of' )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) Low Power

.(Shoreham Nuclear Power Station, )

Unit 1)- )

)

CERTIFICATE OF SERVICE I hereby certify that' copies of SUFFOLK COUNTY AND STATE OF NEW YORK REPLY COMMENTS PURSUANT TO COMMISSION'S JANUARY 7 ORDER, dated January 14, 1985, have been served on the following this 14th day of January 1985 by U.S. mail, first class, except as otherwise indicated..

Judge Marshall E. Miller, Chairman Edward M. Larrett, Esq.

Atomic Safety and Licensing Board Long Island Lighting Company of U.S~.~ Nuclear Regulatory Commission 250 Old Country Road

. Washington, D.C. 20555 Mineola, New York 11501

Judge Glenn O. Bright. Honorable Peter Cohalan Atomic Safety-and Licensing Board Suffolk County Executive U.S. Nuclear Regulatory Commission H.. Lee Dennison Building Washington,cD.C. 20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Fabian G. Palomino, Esq. #

P.O.. Box X, Building 3500 Special Counsel to the

-Oak Ridge, Tennessee 37830 Governor O Executive Chamber, Rcom 229

~

Eleanor'L. Frucci, Esq. State Capitol

~ Atomic _ Safety;and Licensing Board Albany,- New= York 12224 U.S. Necleat Regulatory Commission Washington, D.C. 2G555 W. Taylor.Reveley, III,.Esq.#

Anthony F. Earley, Jr., Esq.

Edwin J. Reis, Esq..* . . Robert M. Rolfe, Esq.

Bernard M. Bordenick, Esq. Hunton & Williams Office of-Exec. Legal Director 707 East Main Street U' .' S , Nuclear Regulatory Commission Richmond, Virginia 23212

. Washington,cD.C. 20555

O Mr. Martin Suubert James Dougherty, Esq.

c/o Cong. William Carney 3045 Porter Street, N.W.

1113 Longworth House Office Washington, D.C. 20008 Building Washington, D.C.- 20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq. Shoreham Nuclear Power Sta.

Suffolk County Attorney P.O. Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Hignway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Esq.

Docketing and Service Branch

• New York State Energy Office Office of the. Secretary Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C. 20555 Albany, New York 12223 Nunzio J. Palladino, Chairman

• Comm. Frederick M. Bernthal*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Room 1114 Room 1156 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Lando W. Zech,'Jr.* Comm. Thomas M. Roberts

• U.S. Nuclear' Regulatory Commission U.S. Nuclear Regulatory Comm.

'* Room 1113 Room 1103 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Commissioner James K. Asselstine* Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Commission John F. Shea, Esq.

Room 1136 Twomey, Latham and Shea 1717 H Street, N.W. 33 West Second Street Washington, D . C .- 20555 Riverhead, New York 11901 Herzal Plaine, Esq.

U.S. Nuclear Regulatory Commission 10th Floor 1717 H Street, N.W.

20555 -(

f] ' / / ,

Washington, D.C.

! ' N r) % N Chi Karla J. Le e-KIRKPATRIC LOCKHART

' 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: January 14, 1985

• Bys Hand

1. By Federal Express u'