ML20235Y429

Requests That Studies Relied Upon in Proposed Rule Re Licensing of Nuclear Power Plants Where State &/Or Local Govts Decline to Participate in Offsite Emergency Planning Be Published & That Comment Period Be Reopened

ML20235Y429
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/15/1987
From:	Brown H KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-52FR6980, RULE-PR-50 NUDOCS 8710200353
Download: ML20235Y429 (4)

Text

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T DOCKET NUMBER PR 50 PROPOSED RUl.E -(52 FR 6930) i KIRKPATRICK & LOCKHART EMERGENCY. Py\\NNING -

SOUTH LOBBY. 9TH Floor N

EXCHANGE PLACE 1800 M STREET, N.W.

WASHINGTON, D.C. 200 % 5891 mn) 2274000 BRICKELL AVENUE MIAMI. FL 33131 TELEPHONE G02) 7749000 (105) 374 4 112 Nli PI W OWER BUILNO TE11 COP 1ER G02) US9100 P $ BURGH, PA 15222 5379 g

HERBERT H. BROWN Hiz) 3ss4w (202) 77 & 9075 October 15, 1987 Mr. Samuel J.

Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attention:

Docketing and Service Branch RE:

Request for Studies Relied Upon in Proposed Rule Regarding Licensing of Nuclear Power Plants Where State and/or Local Governments Decline'to Cooperate in Offsite Emergency Planning, 52 Fed. Reg. 6980, et seg.

(March 6, 1987)

Dear Mr. Chilk:

This letter is submitted on behalf of Suffolk County and the State of New York.

Counsel for the State of New York has authorized the undersigned to represent that New York State joins in the statements made herein.

On June 4, 1987, Suffolk County and the State of New York submitted comments on the Nuclear Regulatory Commission's

(" Commission") proposed rule identified above.

In these comments, Suffolk County and New York State noted that the Commission failed to identify the technical data underlying the bases set forth in the March 6, 1987 notice.1/

Given the large number of responses to the Commission's proposed rulemaking, the Suffolk County /New York State request for identification of data and studies underlying the bases for the new rule might have been overlooked.

Since there has been no Commission response to the initial request by Suffolk County and New York State, these governments now renew their request that the Commission make available, or at the very least reference, the data and studies the Commission relied upon in proposing to amend 10 C.F.R. 50.47.

1/

See Letter from Herbert H.

Brown to Samuel J.

Chilk, June 4, 1987, at 18-23.

g, h Oa u, H- (03 E

$3r l' d 1L% 26>c,Ph'l i o

S A:

KIRKPATRICK & LOCKHART Mr. Samuel J.

Chilk, Secretary

.U.S.

Nuclear Regulatory Commission October 15, 1987-Page 2 Further, once these data and studies are identified, the NRC should reopen the comment period so that interested parties may effectively take part in the rulemaking process.

The parties have to date been denied such participation because the Commission has failed to disclose the full bases of its proposed rule.

Indeed, there is no way for the County and State to know I

or respond to facts which the Commission keeps to itself.

There are at least two areas where the Commission has withheld and failed to identify underlying data or studies.

First, the Commission concludes that the rule will remedy i

" financial consequences" (52 Fed. Reg. 6981) that are nowhere l

identified or analyzed.

The parties are entitled to know the i

basis of this vague statement and to be given the opportunity to respond to it.

Second, the Commission concludes that the new rule will not increase the hazard posed to the public welfare in the event of radiological emergency (52 Fed. Reg. 6983), but fails to reference the dose reduction or other safety studies j

underlying this conclusion.

The Commission's unsubstantiated statements have made it impossible for nterested parties to comment meaningfully on the

. proposed rule.2 The public has been left to guess what, if any, technical studies and factual data underlie the Comaission's proposed rule change.

The Commission's obligation is to do more than to draw conclusions and withhold any underlying evidence.

Several proponents of the rule have attempted to guess at j

the Commission's possiblg bases for the rule.

For example, Long i

Island Lighting Companyl/ suggested that the proposed rule l

allegedly is the result of Commission review of "offsite plans i

1 2/

Suffolk County and New York State are not the only entities I

who have complained about the Commission's failure to identify data and studies.

See also, for example, Comments submitted to the Commission from Attorney General Thornburg, State of North Carolina (Apr. 29, 1987) ("The Commission bases the change on an assumption without adequate factual data to support the assumption"); Governor Dukakis, Commonwealth of Massachusetts (June 3, 1987) ("The proferred justifications for changing the rule are unfounded"); Attorney General Van de Kamp, State of l

California (June 5, 1987)

(" Lacking hard evidence, the NRC I

advances only theoretical arguments to support the regulations");

Union of Concerned Scientists (May 29, 1987) ("The NRC has offered no rational basis for altering the current emergency l

planning rule.").

2/

Letter from Long Island Lighting Company, dated May 2, 1987.

9K KPATFJCK & LOCK. HART.

Mr.fSamuel'J. Chilk, Secretary U.S. Nuclear Regulatory Commission-

- October 15, 1987 Page 3 s and exercises" and the " realism argument set forth in CLI 86-13."1

-The Committee on. uclear Technology and: Law of the Association of the New York Barl preferences Commission. transportation needs-studies and data!from.non-nuclear evaluations as.the alleged

- bases' relied upon by the Commission.1/ - If.these are indeed the

- studies upon which the Commission is relying, the Commission.

needs to so indicate and' identify them with precision, explain how they are' relied upon, and allow.the public the opportunity'to comment.

The purpose"of the. Administrative _ Procedure Act notice and comment requirements:(5 U.S.C. @ 553) is to facilitate an exchange of views,'information, and criticism between~ interested persons-and federal agencies to ensure that agencies have

considered.all relevant factors and that the final rule is indeed Lthe. product of-reasoned decisionmaking.1/

The state:of.the law:

is clear:

the notice required by the Administrative-Procedure:

i

'Act must discloseLin' detail the-thinking that has animate 4

}

proposedirule and-the data upon which the rule is based.1/

For-the Commission.to frustrate meaningful comment by a failure to disclose the data relied upon is akin'to rejecting comment altogether.

The Commission's failure to identify the studies and data upon which the Commission relied in its proposal to amend 10 C.F.R.

S 50.47 has prevented Suffolk County, the State of New

-York,'and other members of the interested public from effectively engaging in the rulemaking process.

In light.of this, Suffolk County and the State of New York renew their request.that the studies / data relied upon by the Commission in its notice of amendment to 10 C.F.R. @ 50.47 be published and provided to all 4/L' Letter from the Committee on Nuclear Technology and Law of the Association of the New York Bar, dated June 4, 1987.

'l/ :The Committee also indicates that the Commission needs to t

" conduct risk impact studies" and has " overlooked information currently'available to the Commission."

1 1

1/

y E'. g., Portland Cement Assoc.

v.

Ruckelshaus, 486 F.2d 375 l

.(D.C.

Cir. 1973), on-rhrq 513 F.2d 506 (D.C. Cir. 1975);

U.S.

v.

Nova Scotia Food Products Corp., 508 F.2d 240 (2d Cir. 1977).

2/

Portland Cement Assoc. v. Ruckelshaus, 486 F.2d 375 (D.C.

(,.

Cir. 1973), appeal after remand, 513 F.2d 506 (D.C. Cir. 1985);

Home Box Office v. FCC, 567 F.2d 9 (D.C. Cir. 1977); Int'l Harvester & Co.

v.

Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973 ).

I

g KIRKPATRICK & LOCKHART Mr'. Samuel J.

Chilk, Secretary U.S. Nuclear Regulatory Commission October 15,-1987 Page 4 interested parties, and that the comment period be reopened to.

afford the meaningful interchange and informed rulemaking required by the Administrative Procedure Act.

Respectfully submitted,

..,/,.;. ~ 3/

f e.

/r l ~

lerbert H. Brown Counsel to Suffolk County cc:

Fabian G.

Palomino, Esq.

Counsel to Governor Cuomo and the State of New York i

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