ML20024D234
| ML20024D234 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/29/1983 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20024D229 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8308030352 | |
| Download: ML20024D234 (14) | |
Text
--
7/29/83 Cl 4) i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,,
i l 6
Before the Atomic Safety and Licensing rg S. C# ,g; Mi w g{1 5 d b fi $, d'
\ T In the Matter of ) ge
) 4/ A LONG ISLAND LIGHTING COMPANY ) Docket No. 50- . .
)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
SUFFOLK COUNTY RESPONSE TO LILCO AND NRC STAFF ARGUMENTS THAT THE SHOREHAM FINAL ENVIRONMENTAL IMPACT STATEMENT DOES NOT NEED TO BE SUPPLEMENTED In its June 27, 1983 Answer and Opposition to LILCO's request for a low power operating license, Suffolk County asserted that the Shoreham final environmental impact statement
("FEIS") must be supplemented to consider the costs and benefits of the alternative of low power operation followed by abandonment. Since this alternative to full power operation was not considered in the FEIS and since the present status of offsite emergency preparedness makes full power operation uncertain, the FEIS must be supplemented before any decision on the low power operating license request. See County's June 27 Answer and Opposition at 27-32.
In responses dated July 18,'1983, LILCO and the NRC Staff have opposed the need to supplement the FEIS. See LILCO's Reply to the Answer and Opposition of Suffolk County to LILCO's Motion for a Low-Power Operating License; NRC Staff Response to Answer and Opposition of Suffolk County to 0 p 0%
G
- LILCO's Motion for a Low-Power Operating License. Two argu-ments raised by LILCO and the Staff concern whether so-called
" economic" costs.and benefits are properly considered in the NEPA process and whether the alternative of low power operation followed by abandonment is too speculative to require FEIS supplementation. Each argument is addressed below.
I. RESPONSE TO ECONOMIC IMPACT STATEMENT LILCO contends that the failure of Shoreham to receive a full power license would be an " economic" impact and as such does not need to be analyzed in the FEIS. (LILCO Reply at 15-18). First, this view misstates the County's argument.
The County is concerned with how this new turn of events --
the fact that LILCO will be unable to operate at commercial power levels -- affects the crucial NEPA cost / benefit balance.
Thus, to label something as an " economic impact" simply obscures the real NEPA issue, which is whether there is any benefit which would justify the environmental costs associated with
. low power operation followed by abandonment of the plant.
Second, LILCO's position is unsupported by case law.
A balancing of environmental costs and economic benefits is at the heart of the NEPA process. "NEPA . . . mandates at least a broad, informal cost-benefit analysis by federal agencies of the economic, technical and environmental costs O
e
--e -
-,,-..--r -, - , - - -,--.,-e- . , , - - - , , , - ~ . - - - - . ,e- , ---.---,-e --- .- - -.---.-,---..,,--am --,.a = m -v r- - . , . ,
e
. and benefits of a particular action . . . ." Sierra Club v.
Sigler, 695 F.2d 957, 978 (5th Cir. 1983) (emphasis added).
As the District of Columbia circuit said in Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971):
i NEPA mandates a rather finely tuned and
" systematic" balancing analysis in each. .
instance.
In each individual case, the particular economic and technical benefits of planned action must be assessed and then j
weighed against the environmental costs
. . . . In some cases, the benefits will be great enough to justify a certain quantum of environmental costs; in other cases, they will not be so great and the proposed action may have to be abandoned or significantly altered so as to bring the benefits and costs into a proper 3
balance.
][ci, at 1113, 1123 (emphasis added) (footnoted omitted).
The recent decision in Conservation Law Foundation v.
Watt, 560 F. Supp. 561 (D. Mass. 1983) (appeal pending) addressed a situation similar to Shoreham. There the FEIS weighed the possible environmental costs of offshore oil exploration against the projected economic benefits of a major oil discovery. Before the sale of leases commenced, I
however, the projected estimate of possible reserves was sharply reduced, decreasing the potential economic benefits l
by a factor of 20 to 30. The court noted that:
l l
a change, by several orders of magnitude, in the benefits to be obtained from a l
l proposed action amounts to " substantial changes in the proposed action,"
f
~. _ .______ _ .__ . _ _ _ _ . _ . _ . . _ _ _ . _ . _ _ _ _ . _.___ _ _ ,._ ___ _ . . _ _ _
t directly relevant to the reasoned decision-making and balancing of environmental cost against economic benefit that NEPA requires.
Id,. at 571 (emph' asis added) .
The possibility that LILCO may have to abandon Shoreham after low power operation is the kind of significant new ,
information or significant change in the proposed. action which .
requires a supplement to the FEIS. The benefits flowing from low power operation will not merely be reduced by "several orders of magnitude," as in Conservation Law Foundation, but will be eliminated entirely. Nowhere in the Shoreham FEIS has this information become incorporated into the calculus of "particular economic and technical benefits" and " environ-mental costs" of the proposed action as required under law.
See Calvert Cliffs, supra, 449 F.2d at 1113; Conservation Law ,
1 Foundation, supra, 560 F. Supp. at 570. Loss of all benefits ,
due to denial of a full power license would thus fundamentally distort the systematic cost benefit analysis underlying the FEIS. A supplement is thus required to reflect that
~
1/
possibility. .
~1/ LILCO also asserts that non-environmental economic con-cerns are " tangential" to the concerns expressed in NEPA.
LILCO Reply at 18 n. 11, citing Sierra Club v. Sigler, 1 532 F. Supp. 1222 (S.D. Tex. 1982). However, the Sierra Club case also recognizes that economic concerns have an important place in the NEPA analysis of costs and benefits.
"NEPA requires the decision making agency to weigh the potential environmental harms of the action against its economic benefits." -Id. at 1238. Furthermore, "the court must consider whether the. economic considerations against i
which the environmental considerations were weighed were so distorted as to impair fair consideration of those environmental-consequences." Id,.
e-m e- 'v*r c'---v ar--yme 4 1 - + '---t--=- r--- - * - - --- yM--aw--<--m--=t--e-v--
' 1 II. RESPONSE TO ARGUMENT THAT NO SUPPLEMENT TO FEIS IS l REQUIRED BECAUSE LIKELIHOOD OF NO FULL POWER LICENSE IS SPECULATIVE LILCO and the NRC Staff contend that the likelihood that f
LILCO will not be granted a full power operating license is speculative and, thus, that the alternative of low power See operation followed by abandonment need not be considered. .
LILCO Reply at 20, NRC Staff Reply at 4-6. The apparent thrust of this argument appears to be that if an event or alternative is less than certain, it then does not need to be considered in the NEPA process. This is not in accordance with applicable facts or law. The possibility of Shoreham never being permitted Further, the to operate is clearly far from mere speculation.
case law clearly supports the need to supplement a FEIS on the facts of this case.
A. The Shoreham Facts Document The Need To Supplement The FEIS Before Low Power Operation Can Be Authorized i
Recent events document that the lack of governmental participation in Shoreham offsite preparedness creates a substant'ial possibility that Shoreham never will receive a I
commercial operating license and, thus, that the low. power license, if granted, would likely be followed by abandonment.
First, the Licensing Board expressed serious doubts that LILCO
(
would ever be able to meet the emergency planning requirements l
t . . -. - - . - . . .. . - . . . - - . . - . - - - - _ _ - . - . . _ _ - .__ - -
d
. for a full power license. In light of that fact, it questioned the wisdom of issuing a low power license for Shoreham before such doubts could be resolved.
It is our view that even if the explicit emergency planning requirements of Section
- 50. 47 (d) for issuance of a low-power license for Shoreham are met, as a matter of sound public policy the Commission should not apply that section so as to permit the .
irradiation of fuel in a commercial nuclear power plant in circumstances where there is no reasonable assurance that the power plant will in the future be permitted to engage in the normal contemplated full power operation, or for that matter any operation above five percent . . . .
We believe that avoidance of . . . delay (in full power operation), which would occur only if and when a full-power operating license is issued for Shoreham, does not outweigh the irreversible change in the status quo of Shoreham which would obtain if fuel were to be irradiated in the reactor in circumstances where, at present, we cannot find there is reasonable assurance that Shoreham will ever be permitted to operate at power levels above five percent.
Memorandum and Order Referring Denial of Suffolk County's Motion To T'erminate to the Appeal Board And Certifying Low-Power License Question to the Commission (Through the 2/
Appeal Board) at 11-12 (April 20, 1983).
Likewise, at least two Commissioners have questioned whether LILCO will be able to meet the emergency planning requirements for full power operation. During hearings 2/ While the NRC later ruled that Section 50.47 (d) does apply, it made clear that the emergency planning issues were difficult and that a low oower " authorization would in no way assure LILCO that it'will be granted a full-power license . . . . " CLI-83-17, pp. 4, 5 (June 30, 1983).
. - , _ ._ y _ _, _ _ _m,, . - , . , - - , , .
on April 15, 1983, before the Senate Subcommittee on Nuclear i Regulation, chaired by Senator Alan K. Simpson, Commissioner Asselstine stated:
I think it is going to be very difficult
-- as I think the Chairman recognized earlier - 'to find an adequate level of
' preparedness if you simply don't have, for one reason or another, the partici-
- pation and involvement either in the - -
planning or in the execution of plans by State or local government officials.
Tr. at 21. Commissioner Gilinsky agreed, id,., and reiterated this point in his dissent to the Commission's Memorandum and Order of May 12, 1983, which affirmed the Board's denial of the County's Motion to Terminate the Shoreham proceeding:
i Can there be adequate emergency preparedness (as distinct from planning) if neither the State nor the County Governments will participate?
The answer is clearly, No. There cannot be adequate emergency preparedness for the surrounding population without the partici-pation of a responsible government entity.
And, however they may qualify their views now, I do not believe that a single Commissioner would actually approve the operation of the plant without such participation.
Memorandum and Order, CLI-83-13 (May 12, 1983), Commissioner Gilinsky's Separate Views (Shoreham Offsite Emergency Preparedness) at 1 (emphasis added).
Even representatives from FEMA, which must evaluate and
- - make findings on the adequacy of offsite emergency preparedness before a full power license can be issued, have cast doubts 4 -w4, e,w e,ew- ppsy <- maiene-,+-smi-y- eg--- ww'*tt ve+'g
8-i on LILCO's ability to meet the emergency planning regulations.
As Richard Krimm, Assistant Associate Director, Office of Natural and Technological Hazards, testified before Senator Simpson's subcommittee:
I would not consider it likely in the most conceivable circumstances that a plan from other than appropriate local, State and government sources could meet , '
FEMA's criteria.
We would have to advise the Nuclear Regulatory Commission that because the State and local governments did not endorse this plan or were not partici-pating, that we could not guarantee the adequacy of off-site preparedness or the safety of the public around a nuclear facility.
4 Tr. at 54. Without FEMA approval of an offsite plan, "the odds of a licensing board approving that plan [and thus ,
authorizing a license for its operation] are quite negative."
Testimony of William J. Dircks, Executive Director for Operations, Nuclear Regulatory Commission Before the House Subcommittee on oversight and Investigation at 255 (April 18, 1983) (unofficial transcript).
Based'on the foregoing, it is clear that the possibility i .
of Shoreham being denied a full power license is not simply speculation, as LILCO and the Staff assert. Rather, it is a well-defined, realistic possibility, similar to other events l for which the courts have required a supplement to the FEIS. j l
e m -----t 9 ,.m-* - + - - . ,--w , , - - -e- i -- y.-+e- w -- w wy---- --,--+m -m+-----ew+ --------e-- ---ev--- - m-
- _g_
l B. The Case Law Supports The County's view That Supplementation of the FEIS Is Required NEPA does not require a supplement to the FEIS based The upon allegations of purely " speculative" information. '
courts, however, have required supplementation even when Indeed, it is rare the information.is less than certain. .
that the significant new information or a potential change 4
in the activity is so clear that there is not some uncertainty involved.
In a number of cases the courts have addressed the question of how certain new data must be in order to overcome 4
the barrier of " speculation." In Warm Springs Dam Task Force
- v. Gribble, 621 F.2d 1017 (9th Cir. 1980), the new information concerned a fault of potentially more destructive force than .
the fault used in designing a dam. The court realized that l
It was the information " dealt in possibilities and speculation.
more significant for the questions it raised than for the Had the Army Corps of Engineers
' answers it gave." Id. at 1025.
not already done so, the court was prepared to require the Corps to take another hard look at the issues by supplementing Id. In Chelsea:
the EIS or justifying its decision not to do so.
Neighborhood Ass'n v. United States Postal Service, 516 F.2d 378 (2d Cir. 1975), the Postal Service was required to supple-ment a FEIS.
The FEIS involved a vehicle maintenance facility with an apartment building proposed for the airspace above it.
The court found the FEIS deficient, in part, because of its e- eek r or wm,$ wu- -w- - -w- e wwe-p- w er e-e_. am, ,w% a -,g--e-r----m, ,gye.p%- --
w, , *---,,+g-erW ,e--+w yy wa-.--.me+-.r- y,my uw--pp.-.9 ---,y.ew----e,ym,y
failure "to disclose that the housing might never be built Id. at 389.
at all . . . , " a speculative eventuality at best.
The Chelsea court noted that if the housing were not built, it would reduce the " benefits" used to justify the " costs" Thus, in both Warm incurred by the postal facility. Id.
Springs and Chelsea, the information that created the need for further environmental analysis was arguably speculative, but was of sufficient definition that it could be factored into the calculus of costs and benefits in the FEIS.
In Union of Concerned Scientists v. Atomic Energ" Commission, 499 F.2d 1069 (D.C. Cir. 1974),'on the other hand, the court declined to order further environmental analyses because the uncertainties did not permit the new data to be factored into the cost / benefit analysis. The UCS court 4
considered whether the FEIS for a nuclear power plant "would consider the balance of costs and benefits at less than capacity cperation, under which circumstances the benefits Id,. at 1083 would presumably be reduced proportionately."
c-(emphasis in original) . The court stated that " consideration of derating to an unknowable _ level as the result in the [FEIS]
of then as yet unformulated criteria would have been speculative Id. at 1084 (emphasis added).
to the point of uselessness."
The situation in the present care is far more similar to Warm Springs than to UCS. Unlike UCS,,
the criterion which would require denial of a full power license -- failure to meet emergency planning regulatory requirements -- is well known and has been commented on by the Board, NRC C'ommissioners, and a e
- --- r- w ' = - - -t-rw-~~> - -- - --r---+ e9 w * - - - ' =' --" w<*r- -- w
l
. . _11_ j l
FEMA official as a real possibility. Similarly, the level of operation resulting from denial of the license is equally well The likely known -- no commercial power production whatsoever.
outcome for Shoreham -- denial of a full power license -- is thus of sufficient definition to be factored into the FEIS calculus and should be so at this time, before additional environmental costs'are incurred.
Finally, LILCO and the NRC Staff contend.that adopting suffolk County's position would expose every FEIS to a This is
" Pandora's box" of repeated spurious challenges.
merely an attempt to obscure the issue of whether in this case the FEIS needs to be supplemented. NEPA was enacted to ensure that the decision maker takes a hard look at the pros and cons of the proposed action. See conservation Law As the Warm Springs _
Foundation, supra, 560 F. Supp. at 571.
Dam court said:
When new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures. Reasonableness depends on such factors as the environmental significance of the new information, the probable accuracy of the information, the -
degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanatien or additional data.
(
In the present case, the Staff has failed 621 F.'2d at 1024.
I to make a reasonable determination of the significance of the
~
- - new information because it has failed completely to analyze the relative costs and benefits of operating Shoreham at low power and then abandoning it.-3/ The law requires no less than such a hard look. Absent completion of the required environ-mental analyses, any low power license would be illegal.
, Respectfully submitted, David J. Gilmartin - -
PatriciaiA. Dempsey Suffolk County Department of Law
~(N Veterans Memorial Highway #
Happpauge, New York 117,88 (m s
\'
s~ .
D,M d _M - 2 Iferbert H. 13rown' , "
^/-,
- Lawrence Coe Lanpher ChristopheriM. JcMurray
'y ' KIRKPATR,ICKf'LOCKHART,-HIL&/
- . J e ,.' CHRISTOPHER D PHILLIPS -
' S
- - 1900 M .9treet, N.W.
'~
)
.- Washington", D.C.
20036
, .. e. _
n.
July 29, 1983 Aktqrneys-fer Suffolk Countyt. .
s.
. .4 '
xs -
.- s. - ,
, \x
.s , -
1
,, [ s *
.; ' . N , _N ..~ ,
3
..N ,.
\
' - s <%
9 . N. '
%, . , xs s N . .,., g x - .
r .
w
~' ... .
, .e" -
.s N -
(
' = .
., g g' '+
+,
p -. , . -
% % '- - + ,.
s 6.. . ,
w.
-3/ InQaed'b the' Staff has not even conducted an environmental impact,appra.tsal to cLnsider whpther to supplement the FEIST't*' +
c.
, .~,. ss c-g ,
W g
- * 'g '
,1
,' s 1 m ,'
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND IJrygqhBOARD
. gr .--- a g 9
In the Matter of 4gp hv LONG ISLAND LIGHTING COMPANY ) /g -10
) Mg Ee322 (0.L.)
(Shoreham Nuclear Power Station; )'
- f/
f Unit 1) )
G
) _
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY MOTION FOR LEAVE TO RESPOND TO LILCO AND NRC STAFF NEPA ARGUMENTS and SUFFOLK COUNTY RESPONSE TO LILCO AND NRC STAFF ARGUMENTS THAT THE SHOREHAM FINAL ENVIRONMENTAL IMPACT STATEMENT DOES NOT NEED TO BE SUPPLE-MENTED have been served to the following this 29th day of July, 1983, by U.S. mail, first class.
Lawrence J. Brer.ner; Esq. Ralph ~Shapiro, Esq.
Administrative Judge cammer and Shapiro 7
Atomic Safety and Licensing Board 9 East' 40th Street U.S. Nuclear Regulatory Commission New York, New York 10016 Washington; b.C. 20555 Howard L. Blau; Esq.
Dr. George A. Ferguson 217 Newbridge Road Administrative Judge Hicksville, New York 11801 Atomic Safety and Licensing Board School of Engineering W. Taylor Reveley III, Es q.
Howard University Hunton & Williams 2300 5th Street, N. W. P.O. Box 1535 Washington; D.C. 20059 707 East Main St.
Richmond, Virginia 23212 Dr. Peter A. Morris
{ Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger 20555 New York State Energy Office Washington, D.C.
Agency Building 2 Edward M. Barrett; Esq. Empire State Plaza Albany; New York 12223 General Counsel Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Stephen B. Latham, Esq.
Twomey; Latham & Shea
- Mr. Brian McCaffrey P.O. Box 398 Long , Island Lighting Company 33 West Second Street 175 East Old Country Road Riverhead, New York 11901 Hicksville, New York 11801 ryr w-tT +rw ,y --g- ,_ogy ye--,ip _,,--m,..,,.g.em,,.- - - , , - - _ . , , rg.-,_.-m, p,,-g,w,_-4,-_-,s,.,.-._-,,-------mv+-e w e --Yv--rMs-Mt em v" ve w wwww-+'9f AMP &3g--e
l Marc W. Goldsmith Mr. Jeff Smith Energy Research Group, Inc. Shoreham Nuclear Power Station 400-1 Totten Pond Road P.O. Box 618 Waltham, Massachusetts 02154 North Country Road ;
Wading River, New York 11792 Joel Blau, Esq. MBB Technical Associates i New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K l Building San Jose, California 95125 :
Empire State Plaza Albany, New York 12223 Hon. Peter Cohalan Suffolk County Executive David J. Gilmartin, Esq. H. Lee Dennison Suffolk County Attorney Building H. Lee Dennison Build,ing Veterans Memorial Highway Veterans Memorial Highway Hauppauge,' New York 11788 Hauppauge, New York 11788 Ezra I. Bialik, Esq.
Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau:
U.S. Nuclear Regulatory Commission New York State Department of Washington, D.C. 20555 Law 2 Wor 1.d Trade Center Docketing and Service Section New York, New York 10047 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Bernard M. Bordenick, Esq. Commission David A. Repka, Esq. Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jenathan D. Feinberg, Esq.
Staff Counsel, New York Stuart Diamond State Public Service Comm.
Environment / Energy Writer 3 Rockefeller Plaza NEWSDAY Albany, New York 12223 Lo'ng Island, New York 11747 Stewart M. Glass, Esq.
taniel F. Brown, Esq. Regional Counsel Atomic Safety and Faderal Emergency Management Licensing Board Panel Agency U.S. Nuclear Regulatory Commission 26 Federal Plaza Washington,-D.C. 20555 New York, New York 10278 James B. Dougherty, Esq.
3045 Porter Street, N.W.
Washington, D.C. 20008 i
/ W Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS DATE: Uuly 29, 1983 1900 M Street, N.W., 8th Floor Washington, D.C. 20036 e w +--w wy e.,w -
g.- --,y r ,eg g.- am.--,9,w--w---e- - - - - - awv+e- .-
g.y-- , . -m.,------w m-w-v- w-,-vmve---,+-e rye---- -, e-m