ML20062N670

Requests That NRC Reject Nj Dept of Environmental Protection & Energy Requesting That NRC Review & Reverse 931223 Denial by RM Bernero of 10CFR2.206 Request That NRC Halt Lipa Shipments of Slightly Irradiated Nuclear Fuel

ML20062N670
Person / Time
Site:	Limerick, Shoreham  File:Long Island Lighting Company icon.png
Issue date:	01/10/1994
From:	Lanpher L KIRKPATRICK & LOCKHART, LONG ISLAND POWER AUTHORITY
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
CON-#194-14579 2.206, NUDOCS 9401190023
Download: ML20062N670 (3)

Text

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January 10, 1994

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Samuel J. Chilk Secretary to the Commission U.S. Nuclear Regulatory Commission ~

Washington, D.C. 20555  ?!

u Attention: Docketing and Service Branch Re: January 5, 1994 Letter on Behalf of the New Jersey DeDartment of Environmental Protection and Enercy Dear Mr. Chilk On Wednesday, January 5, 1994, the undersigned, counsel to the Long Island Power Authority ("LIPA"), received via telecopy a Jenuary 5, 1994 letter to you from counsel to the New Jersey Department of Environmental Protection and Energy (HDEPE"). The DEPE letter constitutes a request that the Nuclear Regulatory commission'("NRC") review and reverse'the December 23, 1993, denial by Robert M. Bernero, Director, NRC Office of Nuclear Material Safety and Safeguards, of a DEPE 10 C.F.R. $ 2.206 request that the NRC halt LIPA's shipments of slightly irradiated nuclear fuel, and amend or issue additional regulatory approvals for the fuel shipments. Egg DEPE Petition to the NRC dated October 8, 1993 at 5 ("DEPE Petition").

Director Barnero's December 23, 1993 denial constituted initial action on the DEPE Petition by the NRC Staff pursuant to 10 C.F.R. 5 2.206(b) . Director Bernero made clear in his December 23, 1993 decision that his ruling would be filed with the Secretary of the Commission-for review in accordance with 10 C.F.R. S 2.206 (c) (1) . As that provision explicitly states, the Commission may on its own motion decide to review the Director's decision in whole or in part to determine if the Director has abused his discretion. 1 51 DC 124384.1 9401190023 940110

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" * *~7 *~ U KIRKPATRICK & LOCKHART Samuel J. Chilk January 10, 1994 Page 2 I am writing on LIPA's behalf to request that the NRC reject the DEPE's January 5, 1994 letter. The DEPE letter is directly contrary to 10 C.F.R. 5 2.206(c) (2) which states:

No petition or other request for Commission review of a Director's decision under this section will be enter-tained by the Commission.

Consistent with this provision, it is LIPA's understanding that the DEPE letter cannot and will not be considered.

The DEPE's January 5, 1994 letter constitutes the second time the DEPE impermissibly has urged the NRC to review a decision of Dircctor Bernero in direct contravention of 10 C.F.R.  ;

5 2.206 (c) (2) . Previously, the DEPE sought NRC review of l Director Bernero's October 22, 1993 denial of its request for immediate action on the DEPE Petition. Egg DEPE Letter to Samuel J. Chilk dated November 5, 1993. The NRC properly donied that l requent under 10 C.F.R. 5 2.206(c)(2) and determined that it '

would not undertake a formal review of Director Bornero's decision. The NRC should act similarly here.

In the event the January 5, 1994 letter is considered by the NRC, the DEPE's request for NRC review of the December 23, 1993 decision should be denied. First, one of the grounds on which the DEPE seeks to have the decision reversed has already been decided against it by the United States Court of Appeals for the Third Circuit. The Third Circuit found, in direct contravention of the claims made in the DEPE's January 5, 1994 letter, that the NRC did not violate the coastal Zone Management Act, 16 U.S.C. 55 1451 el 122 ("CZMA"), by failing to require a certification from the state of New Jersey that the fuel shipments complied with the policies of New Jersey's Coastal Zone Management program. See State of New Jersey, Deeartment of Environmental Protection and Enerav. ot al. v. Lona Island Power AuthoritV, et al., Civ.

Action No. 93-4269 (3rd Cir. Dec. 1, 1993) (transcript of oral ruling at pages 10-12).

Second, if the January 5, 1994 letter is considered, the DEPE's request should be denied insofar as it claims that the NRC's environmental assessment ("EA") is defactive because it fails to consider transportation alternatives. The DEPE argues that the NRC's EA should consider each alternative separately, and that reliance on Table S-4 was improper. This argument is an impermissible attack on the NRC's regulations. E.g,, Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Unita 1 and 2), LBP-76-9, 3 N.R.C. 205, 207 (1976) (intervenor may not challonga Table S-4 absent application for and issuance of a waivor). Further, the DEPE has failed to demonstrate any basis

o i. 1 c. 94 02: 57 PM *K A L 202-770-9300 Po4 I KIRKPATRICK & LOCKHART Samuel J. Chilk I

January 10, 1994 Page 3 to believe that Table S-4 does not properly address the alleged impacts of LIPA's fuel shipments -- and, indeed, with great conservatism.

In sum, because DEPE's January S, 1994 letter is an imper-missible challenge to Director Bernero's decision under 10 C.F.R.  !

S 2.206(c) (2) , the NRC must refuse to consider its contents. In the event the letter is considered, its arguments must be rejected on substantive and procedural grounds.

Sincere y, I W &

awrence Coe Lanphe.

cc: Richard P. Bonnifield, General Counsel, LIPA Thomas A. Borden, N.J. Dept. of Law Edward J. Reis, NRC Counsel Ann Hodgdon, NRC Counsel Steven Lewis, NRC Counsel Marjorie Nordlinger, NRC Counsel Robert Rader, PECO Counsel l

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