ML20024F831
| ML20024F831 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 11/30/1990 |
| From: | Baxter T SACRAMENTO MUNICIPAL UTILITY DISTRICT, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#490-11126 HP-1B, OLA, NUDOCS 9012260194 | |
| Download: ML20024F831 (39) | |
Text
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DOCKET NUMBER w
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In the Matter of
)
)
SACRAMENTO MUNICIPAL UTILITY
)
DISTRICT
)
Docket No. 50-312-OLA
)
(Rancho Seco Nuclear Generating
)
Station)
)
LICENSEE'S ANSWER TO ENVIRONMENTAL CONSERVATION ORGANIZATION'S PETITION Thomas A.
Baxter David R. Lewis SRAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-8000 Jan Schori General Counsel SACRAMENTO MUNICIPAL UTILITY DISTRICT P.O.
Box 15830 Sacramento, California 95813 (916) 732-6123 Counsel for Licensee Dated:
November 30, 1990 i
9012260194 901130 PDR ADOCK 05000312 PDR G
3
t 4
TABLE OF CONTENTS Pace I.
Introduction..............................................
1 II.
Background................................................
3 III.
Argument..................................................
6 F..
ECO Has Not Identified a Cognizable Asp 6ct of the Subject Matter.........................
6 1.
The AEA Neither Requires Nor Permits the NRC to Second-Guess a Licensee's Decision to Cease Operations.............................
8 2.
NEPA Does Not Require the NRC to Prepare An EIS Evaluating Continued Operation As An Alternative to Decommissioning........... 14 B.
ECO Lacks Standing..................................
22 1.
ECO Has Not Demonstrated Standing In Its Own Right......................................
25 2.
ECO Has Not Demonstrated Representational S t a nd i n g....................................... 2 6 C.
No Licensing Actions Should Be Delayed..............
30 IV.
Conclusion...............................................
31
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November 30, 1990 LNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
SACRAMENTO MUNICIPAL UTILITY
)
DISTRICT
)
Docket No. 50-312-OLA
)
(Rancho Seco Nuclear Generating
)
Station)
)
LICENSEE' S ANSWER TO ENVIRONMENTAL CONSERVATION ORGANIZATION'S PETITION I.
Introduction Sacramento Municipal Utility District (" Licensee" or the
" District") hereby responds to and opposes " Environmental Conser-vation Organization's Comment on Proposed No Significant Hazards Consideration and Petition for Leave to Intervene and Request for Prior Hearing" (hereinafter the "ECO Petition"), which was trans-mitted to the Commission under cover letter dated November 8, 1990.
The ECO Petition requests a hearing on Licensee's applica-tion for an amendment removing operating authority from the Rancho Seco Nuclear Generating Station license (i.e., converting it to a " possession-only" license).
ECO is not entitled to a hearing because it lacks standing and because it seeks to
t litigate issues that are beyond the NRC's jurisdiction and the scope of the proposed amendment.
The gravamen of the ECO Petition is that both the Atomic Energy Act ("AEA") and the National Environmental Policy Act
("NEPA") prohibit the NRC from granting a possession-only license prior to NRC review of the District's decision ceasing operation of Rancho Seco and NRC approval of a final decommissioning plan.
In effect, ECO wants the NRC to usurp the District's authority to close its own plant.
As discussed further below, the District's decision to cease operation of Rancho Seco is beyond the NRC's jurisdiction; and the eventual plans for decommissioning are beyond the subject matter of this proceeding.
ECO's legal argu-ments to the contrary are patently wrong and fly in the face of the Commission's October 17, 1990 Memorandum and Order in the Shoreham proceeding.
Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 N.R.C.
(slip op.
Oct. 17, 1990).
Accordingly, ECO has failed to identify a cogni-zable aspect of the subject matter on which a hearing may be held.
ECO.has also failed to demonstrate its standing.
It has not shown that it is a legally recognizable entity _ entitled to a L
hearing, or that the requested intervention is germane to its purpose, or that it has been properly authorized to represent anyone.
Further, it has made no showing that either it or any L _ _
l purported member vill suffer injury in fact causally related to the issuance of a possession-only license.
Accordingly, Licensee submits that ECO's petition should be summarily rejected.
ECO's petition is so at odds with NRC pro-nouncements, and so deficient in any showing of standing, that it is not even worth referring to an Atomic Safety and Licensing Board panel.
Further, the NRC should put an end to the ploy, which is being perpetrated here and in Shoreham, of misusing NRC hearing procedures to interfere with lawful closure decisions.
This abusive practice delays the plant lay-up process and requires the continued maintenance of unnecessary equipment (equipment that has absolutely no safety or other function in a non-operating plant) at a substantial cost.
II.
Backaround The District shut down Rancho Seco in response to a public referendum, held in June 1989, in which the District's ratepayers decided that the District should discontinue operating the plant.
The reactor has been defueled and the reactor fuel is currently stored in the on-site spent fuel pool.
On April 26, 1990, the District filed with the NRC an appli-cation to amend its Operating License DPR-54 (Proposed Amendment No. 184) to a possession-only license, which would authorize the District to possess nuclear material, but not to operate the _
r 4-reactor.
The NRC noticed the application in its Biweekly Notice of Applications and Amendments to Operating Licenses Involving-No Significant Hazards Considerations, published in the Federal Reg-ister on September 5, 1990.
See 55 Fed. Reg. 36,337, 36,349 (1990).
Licensee subsequently received a copy of a letter to NRC Chairman Carr, dated September 17, 1990, from Mr. A. David Rossin on behalf of ECO.
The letter cited the Notice of the proposed
- amendment-and stated that "ECO wishes leave to intervene and become a' party in any hearing related to this subject."
The three-page letter asserted that the Commission was obligated to prepare a ful'l. Environmental Impact Statement (EIS) before amend-ing the: Rancho Seco license to a possession-only license, and added that "the NRC must make its'own independent evaluation of the environmental-impact and need for power issues."
ECO admit-
.ted', however, that the NRC was. correct-.in determining that the
- proposed-licensing action involved no significant hazards consid-
. eration.-
"ECO's-members are experienced nuclear engineers, and recognize that the actions involved-in the Proposed Amendment'do not involve any significant hazards."
ECO letter, p. 1
.(Sept. 17, 1990).
Both the Licensee and the NRC Staff submitted answers-to the LECO letter.
Licensee's Answer to-the Possible Request for Hear-ing. Filed by Environmental Conservation Organization (Oct. 2,
-4
t
-1990);-NRC; Staff-Response to Petition to Intervene on proposed License Amendment Filed By the Environmental Conservation Organi-zat-lon (Oct. 2, 1990).
Both.the Licensee and the.NRC pointed out y
that ECO had failed to establish its entitlement to a hearing.
On October 10, 1990,- the NRC republished-its Federal Regis-ter-notice.
The republished notice corrected some-minor typo-graphical ~ errors.
55 Fed. Reg. 41,280 (1990).
1 On October 17, 1990, the Nuclear Regulatory Commission issued a Memorandum and. Order,-resolving the application of NEPA to plant closure decisions.
Shoreham, supra, CLI-90-08, (slio op. Oct. 17, 1990).
In this memorandum and order, the Commission
~ held that neither NEPA nor the AEA required the NRC to consider resumed operation as an.-alternative to decommissioning.
The NRC stated that the.-licensee "is legally entitled under the Atomic LEnergy Act and our regulations to make, without any NRC approval, annirrevocable(decision _not to operate (a nuclear plant]."
id.
4 at 8.
.On November 8,11990, ECO filed its current petition, over-forty pages inElength.
Although the ECO Petition.makes no men-
. tion:of'ECO's prior' submittal, the'ECO Petition is again devoted-ito1the argumentTthat the NRC.must, before issuing a-possession-only-license,. evaluate the continued operation of Rancho Seco as 1
an alternative to its decommissioning.
Unlike the prior submit-tal, the ECO Petition suggests-that such evaluation'is required - - -
I by not only NEPA but the AEA as well.
Although ECO's positions are contrary to the rulings in NRC's October 17, 1990 Memorandum and Order, the ECO Petition provides only one passing reference dismissing the Commission's recent, dispositive decision.
See ECO Petition at 10.
III. Aroument The NRC's Rules of Practice, at 10 C.F.R. 5 2.714(a)(2),
require a person petitioning to intervene in an NRC proceeding (1) to identify the " specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to inter-vene" and (2) to demonstrate that it has a sufficient interest that may be affected by the results of the proceeding (i.e.,
i that it has standing).
Although advised of these responsibilities in the Federal Register notices referred to above, ECO has met nei-ther requirement.
A.
ECO Has Not Identified a Cognizable Aspect of the Subiect Matter 4
As stated above, a petitioner must identify "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene."
10 C.F.R. 5 2.714(a)(2).
Licensee submits that this provision requires a petitioner to show that the general areas sought to be litigated are cognizable in the proceeding.
The aspects must be within the " subject mat-ter of the proceeding."
If a petitioner identifies general -
Jissues that are not'within the jurisdiction of the NRC or the scope of the proceeding, the petitioner has not satisfied section 2.714(a)(2), and his petition should be summarily rejected.1/
The specific " aspects" that ECO identifies are not within the subject matter of this proceeding.
In essence, ECO seeks an NRC review of the District's decision to shut down Rancho Seco.
The District's decision is beyond the NRC's jurisdiction and out-side of the subject matter of this proceeding.
1/
Before 1978, 10 C.F.R. 5 2.714 required a petitioner to plead its. contentions as part of the petition to intervene, and mandated the rejection of any petition that related only' to matters outside.the jurisdiction of the Commission.
10 C.F.R. 5 2.714(b) (1977).
In 1979, the Commission amended section 2.714 to allow a' petitioner-to-identify its conten-tions in a supplement to the petition.
The NRC, however, retained-the requirement that the initial petition identify specific aspects of the subject matter of the proceeding as to which-petitioner wishes to intervene.
See 10 C.F.R. 5 2.714(a)(2); 43 Fed. Reg. 17,798 (1978)..Although this requirement is-not explained in the Federal Register notice, it presumably-reflects the NRC's intent that there continues to be a threshold showing that the areas sought to be liti-gated are cognizable (i.e., within the NRC's jurisdiction
~
and the subject matter of the proceeding).
This makes sense, for it would be a waste _of everybody's time and-resources to convene a Licensing Board panel, submit-and respond to_ content.ons, and attend prehearing conferences, when the-basic areas-sought to be litigated are outside of the subject matter.of the proceeding.
As has.been observed
-by the Atomic Safety and Licensing Appeal Board in the past, albeit.in a different factual context, "(ilt is difficult f'
for us to perceive any rational basis for triggering the
-hearing mechanism without-regard to whether there are,'in fact, any questions-which even possibly might warrant reso-
'lution in an adjudicatory proceeding."
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and.2), ALAB-107, 6 A.E.C. 188, 192 (1973). 4
More specifically, ECO identifies two specific " aspects" that it seeks to litigate, one supposedly relating to the AEA and the other to NEPA.
Purportedly relating to the AEA, ECO contends at pages 31-32 of its Petition that a licensee must maintain a plant operational "for so long as.
the NRC determines that the public interest is best served by an operable plant."
According to ECO, "(t}he decision as to whether a plant shall be rendered inoperable then is not strictly for the licensee to make."
ECO adds that a possession-only license may not be issued 3
until a licensee submits and the NRC approves the decommissioning plan required by 10 C.F.R.
S 50.82 (i.e.,
the final decommission-ing plan).
At pages 33-38, ECO contends that NEPA requires the NRC, before approving any proposal to decommission Rancho Seco, to prepare an EIS evaluating continued operation as an alterna-tive to decommissioning.
ECO's contentions are patently, legally wrong.
1.
The AEA Neither Requires Nor Permits the NRC to Second-Guess a Licensee's Decision to Cease Operations ECO's suggestion that the AEA re iires the NRC to determine whether the public interest is best served by an operable plant ignores Supreme Court rulings and NRC pronouncements alike.
In delimiting the NRC's jurisdiction, the Supreme Court has observed:
There is little doubt that under the Atomic Energy Act of 1954, state public utility com-missions or similar bodies are empowered to i
_a_
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1 u L
c make the. initial decisions regarding the need i
for power.
42 U.S.C. 5 2021(k)
The Commission's prime area of concern in the i
licensing context, on the other hand, is naticnal security, public health, and safety.
55 2132, 2133, 2201.
i-Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense gpuncil. Inc1, 435 U.S. 519, 550 (1978).
Similarly, in Pacific Gas & Electric Co. v State Enerav Resources Conservation &
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- Development Comm'n, 461 U.S. 190, 218-19 (1983), the Supreme Court pronounced that NRC "does not and could not compel a util-ity to develop-a nuclear plant."
The NRC determinas "only that it is safe to proceed with such plants, not that it is economi-cally wise'to do so "
It follows that it is equally inappropri-ate for the NRC to attempt to compel a utility to operate a nuclear plant (except in a'few emergency situations not relevant here /),-or to determine that a shutdown after 15 years of opera-A
~
tion is economically unwise.
Reflecting this. clear division of authority, the NRC stated, when it promulgated its decommissioning rule, that "(t]he 2/
Section 108 of the AEA,-42 U.S.C. 5 2138, permits the NRC to order the operation of.a nuclear-plant when Congress has declared a state of-war or national emergency and c.he NRC finds such operation necessary to the common defense and security.
In addition,-under secti :s 186 and 188 of-the AEA,-42 U.S.C. SS 2236,-2238, whera.he NRC bas revoked a license because.of regulatory siolations but continued oper-ation is of extreme importance to the.nscional defense and security or public health and safety or required by the pub-lic conv3nience and necessity, the.NRC may take possession-and.opetate a facility, paying just compensation.
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i dec' in as to whether a shutdown vill be permanent is, of j
cout;<, the licensee s."
50 Fed. Reg. 5,600, 5,605 (1985).
More recently, in Shoreham, CLI-90-08, suora, the Commission held Under NRC regulations, the NRC must approve a licensee's decommissioning plan (311 10 CFR 5 50.82), including consideration of alterna-tive ways whereby decommissioning may be accomplished; but nowhere in our regulations is it contemplated that the i,'RC would need to approve a licensee's decision that a plant should not ce operated.
Indeed, except in highly unusual circumstances not present here (Eig Sections 108, 186(c), and 188 of the Atomic Energy Act), the NRC lacks authority to-direct a licensee to operate a licensed
[-
facility.
t id., Elig gg. at 7-8.
Accordingly, the NRC held tl.at the utility "is legally entitled under the Atomic Energy Act and our regulo-
.tions to make, without NRC approval, an irrevocable decision not to opfrate (a nuclear plant)."
14.-at 8.
ECO's suggestion that a possession-only license may not be issued until the NRC approves a final decommissioning plan is similarly devoid of merit.
Nowhere in the NRC's regulations is there any requirement that a final decommissioning plan be approved before a possession-only license may be issued.
This is not an oversight.
The NRC's statements make it abundantly. clear that a possession-only license _ precedes-decisions on decommissioning.
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l The NRC's long-standing and unchallenged practice has been to grant a possession-only license when a licensee decides to s-l permanently cease. reactor operations.
Decommissioning plans have been submitted later.2/
As explained in NRC Regulatory Guide
- (
1.66:
When a licensee decides to terminate his nuclear reactor operating license, he may, Ts as a first steo in the orocess, request that h operatang license be amended to restrict him to possess but not operate the facility.- The advantage to the licensee of converting to such a possession-only license is reduced surveillance requirements in that periodic f
survelliance of equipment important to the l
safety of reactor operation is no longer t
required.
Once this possession-only license l
is issued, reactor operation is not permit-1 ted.
Other activities related to cessation of operations such as unloading fuel from the reactor and placin onsite or offsite)g it in storage (either may be continued.
-(Emphasis added.)
The NRC's new decommissioning rule codifies this consis-tently followed past practice.
The explanatory statement accom-panying the rule states:
1/
This procedure has been consistently followed at the plants that are no longer operating,. including commercial reactors such as Indian Point.1, Dresden-1,- and La Crosse.
Possession-only licensing has not been predicated on a decommissioning plan or a NEPA review of closure or decom -
missioning.
The NHC prepared no EIS for the closure or license conversion of either Indian Point 1, Dresden 1, or La Crosse.
l t
1 Normally an amended Part 50 !icense authoriz-ing possession only will be issued orlor to the decommissionina order to confirm the nonoperating status of the plant and to reduce some requirements which are important i
only for operation orier to finalization of J
decommissionino olans.
Subsequent license amendments will be issued as appropriate.
53 Fed. Reg. 24,018, 24,024 (1988) (emphasis added).
As further explained, there has been no change in the prac-tice of issuing amended possession-only licenses.
In the past, the period'of safe storage or that following entombment has been covered by an amended " possession-only" part 50 license which does not authorize facility operation with the term " order" used only in the case of a dismantling order, due to the more active nature of this stage of decommission-ing.
Except for the use of the term "decom-missioning order," there has~been no chance from cast oractice.
The term " decommission-ing order" has been used in lieu of "disman-tling order" because, according.to the amend-ments, the overall approach must now be approved shortly'after the end of operation rather than an amended " possession-only" Part 50 license being issued without plans for ultimate disposition.
Id. (emphasis added).
The last sentence quoted above, which states that "the over-all_3pproach-[to decommissioning) must now be approved shortly after the end of operation rather than an amended ' possession-only' Part 50 license being issued without plans for ultimate disposition," means that extended storage (SAFSTOR) must now be
-_. - _. _. _ _ _.. _., _. _ _ _ -. ~. _
l 1
approved in a decommissioning order.
A utility can no longer maintain its plant in a storage condition until dismantlement simply by virtue of a possession-only license, but must instead submit an application for license termination, accompanied or preceded by a final decommissioning plan and obtain NRC approval in the form of a decommissioning order.
The ECO Petition misconstrues the sentence quoted above as requiring sub.ission and approval of a final decommissioning plan prior to possession-only licensing.
See ECO Petition at 32.
ECO's misinterpretation is inconsistent with the NRC's regulatory scheme, which gives a licensee up to two years after permanent cessation of operation to submit an application for license ter-mination and a final decommissioning plan; this application for license termination is distinct from the application to amend a license to possession-only status submitted as the "first step" in +.he process.
ECO's misinterpretation is also inconsistent with the NRC's pronouncements.
In light of the NRC's explicit statements that possession-only licensing occurs orlor to the decommissionina order and orior 1g the finalization of decommis-sionina plans (53 Fed. Reg. at 24,024), ECO's erroneous assertion-
4, 4
that a final decommissioning plan must be submitted and approved before possession-only licensing is remarkable.1/
2.
NEPA Does Not Require the NRC to prepare An EIS Evaluating Continued Operation As An Alternative to Decommissioning ECO's assertion that NEPA requires the NRC to prepare an EIS
-evaluating continued operation as an alternative to decommission-ing is equally ~ infirm as ECO's arguments under the AEA.
NEPA does not require the NRC to evaluate continued operation, and the NRC has so held.
NEPA requires-federal agenciec to prepare environmental impact statements before taking " major federal actions" (includ-ing major licensing decisions) "significantly affecting the 1/
The only technical decommissioning information that would normally be submitted to the NRC prior to a licensee's ces-sation of operations is the preliminary information speci-fled in 10'C.F.R. S 50.~75(f).
This preliminary information is normally submitted.five years before the expected cessa-tiontof operations so that decommissioning funding may be-adjusted to. appropriate levels.
In a filing in the Shoreham proceeding, the Staff has suggested that information analo-
_gous to that called for in section 50.75(f) should be sub-mitted'before a possession-only-license is issued.
NRC Staff's Response to Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy'Inc.
-Petitions to Intervene and Requests for Hearings on Proposed
" Possession-Only" License Amendment,. Docket No. 50-322, (Oct. 24, 1990) at 10.,
Although Licensee does not agree with~this position (there is no connection between this pre-
'liminary information and a possession-only license), we note
.that such information has already been submitted for-Rancho Seco._ Letter, D.:Keuter (SMUD) to NRC (July-12, 1990) transmitting Licensee's Plan for tiltimate Disposition of the Facility.
See also 55 Fed. Reg. at 41,280. --
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quality of the human environment."
42 U.S.C. S 4332(2)(C).
The l
permanent cessation of operations does not invoke this require-i ment.
The decision not to operate a plant is the plant operator's, not the NRC's, and so is not a federal action at all.
The federal actions that are or will be before the NRC to decide consist solely of currently proposed license amendments to convert.the facility license to a possession-only licence and to
,y eliminate certain equipment requirements, and the future and sep-arate license amendment eventually dealing with decommissioning.
Obviously, possession-only licensing is not an action signifi-cantly affecting the environment because, in the words of the 4
1
~
NRC, it merely " confirm [s] the nonoperating status of the plant and.
reduce (s) some requirements which are important only
- for operation...."
53 Fed. Reg at 24,024.
With' respect to decommissioning, the NRC has already evalu-U atedLthe environmental impacts associated with permissible meth-ods in a Generic Environmental Impact Statement prepared in con-nect.on with the decommissioning rulemaking and has found those impacts to be insignificant.- NUREG-0586, " Final' Generic Environ-mental Impact-Statement on Decommissioning of Nuclear Facili-ties,"~5_15.1.5-(Aug. 1988) ("GEIS").
The NRC-has-therefore determined that i t. will: make findings of no' significant. impact, andino-additional 1EIS will be prepared in connection with the decommissioning.of a particular site unless, because of c
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site-specific considerations, the impacts for a particular plant are significantly different from those studied generically.
53 Fed. Reg, at 24,039.
There is no basis to suppose that Rancho Seco falls outside the scope of the GEIS.E Despite these facts, the ECO Petition suggests that licens-ing actions such as issuance of a possession-only license and relief from equipment maintenance and surveillance requirements are barred because of the remote possibility that an EIS would be required and such actions would improperly " segment" the environ-mental review.
This suggestion is incorrect.
Neither NEPA, the case law on segmentation, nor the NRC's regulations preclude such preliminary licensing actions.
" Segmentation" refers to an agency's consideration of a project in a piecemeal fashion that avoids recognizing the envi-ronmental significance of the project as a whole.
"Piecemealing" or " Segmentation" allows an agency to avoid the NEPA requirement that an EIS be prepared for all major federal actions with significant environmental impacts by dividing an overall plan into component parts, each involving action with less sig-nificant environmental effects.
West Chi-caao, 111. v. U.S. Nuclear Reaulatory Comm'n, 701 F.2d at 650.
The rule against segmenta-tion was developed to insure that E/
The fact that Rancho Seco operated for 15 rather than 30 to 40 years does not affect the environmental impacts of the decommissioning activities or place Rancho Seco outside the scope of the GEIS.
If anything, the environmental impacts from a plant that has operated for only 15 years would be less than those estimated in the GEIS.
l interrelated projects the overall effect of which is environmentally significant, not be fractionalized into smaller, less significant actions.
See cenerallv, Piedmont Heichts Civic Club. Inc. v. Moreland, 637 F.2d 430 (5th Cir. 1981); Swain v.
Brinecar, 542 F.2d 364 (7th Cir. 1976) (ED banc).
laxpayers Watchdoc, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir.
1987).
It is obvious that neither the issuance of a possession-only license nor the granting of relief from equipment mainte-nance and surveillance requirements vould circumvent NEPA requirements by reducing the significance of the overall impacts of decommissioning to the point where no EIS is required.
Not only are there no impacts associated with possession-only licens-ing, but the NRC has already determined generically that the total impacts from all decommissioning activities are insignificant.
Further, the courts have recognized that it is not improper for an agency to proceed with a segment of a project if it is discrete, has independent utility, and does not foreclose the opportunity to consider alternatives.
See Piedmont Heichts Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir. 1981), and cases cited therein.
Both the Guidelines of the Council on Envi-ronmental Quality and the NRC's regulations codify the "indepen-dent utility" cases.
They provide that no action on a proposal may be taken before an agency issues a NEPA record of decision if the action (1) has an adverse environmental impact, or (2) limits _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ - _ _ - _ _ -
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.the choice of reasonable alternatives.
10 C.F.R. 5 51.101(a); 40 e
C.F.R. 5 1506.1(a) 5/
By clear implication, these regulations permit an action if it does not have an adverse environmental j
impact and does not limit the reasonable choice of alternatives.
l West Chicaco v. NRC, 701 F.2d 632 (7th Cir. 1983) illus-trates these principles.
In that case, the NRC was reviewing plans to decommission a facility and was preparing an EIS. The L
NRC, however, permitted the licensee to proceed with the demoli-tion of several buildings.
The Court held that this was permis-p sible because-there were no significant impacts and the demoli-b tion would not prejudice any disposal alternatives which might later be selected.
- 14. at 648-49, 651-52.
~
Again, neither the granting of a possession-only license nor the relief from equipment maintenance or surveillance require-ments for equipment no longer needed once a reactor is defueled i
has an environmental impact.
No release of radioactivity or other. degradation of the environment is associated with these actions.
e Further, such actions do not limit the choice of reasonable alternatives.
In this respect, the " reasonable alternatives" that must be considered are the methods of decommissioning, t
5/'
Even 'if-the action has a significant environmental impact, i.
it-may be taken.if.it is justified independently, is evalu-ated in'an EIS, and does not-prejudice the ultimate deci-sion.
10 C.F.R. 5 51.101(b): 40 C.F.R. 5 1506.1(c). i
.I
1 4
directly analogous to the " disposal alternatives" in the West Chicaco case.
Neither possession-only licensing nor relief from maintenance and surveillance and programmatic requirements per-taining to power cperations limits the choice among the three permissible methods of decommissioning -- SAFSTOR, DECON, and ENTOMB.
Similarly, neither possession-only licensing nor relief from equipment maintenance and surveillance and other program-matic requirements limits the choice of the no-action alternative
-- the alternative of not applying SAFSTCR, DECON, or ENTOMB to the already shutdown plant.
Only if one improperly interpreted NE requiring the NRC to decide whether Rancho Seco should retui o operation could possession-only licensing and relief from equipment preservation
.equirements even arguably have an effect on the consideration of alternatives to decommissioning.
But resumed operation is not a cognizable alternative.
It is not the "no-action alternative,"
which courts have uniformly recognized as the "do nothing" or
" status quo " alternative.
Rancho Seco has already permanently ceased operation, and "no action" would simply constitute a con-tinuation of its present, permanently shut-down but not yet decommissioned state.2 And except for the no-action 2/
The NRC recognized in its GEIS on decommissioning that the no-action alternative is the alternative of not decommis-sioning a facility after operations have ceased.
The GEIS concluded that this alternative was not viable.
GEIS 5 2.4.1. _ - _ _ _ _ _ - _ _ _ - _ _ _ _ - - _ - _ _ _.
alternative, an agency's consideration ef alternatives is limited to those which further the objectives of the proposal.E#
Process Gas Consumers Group v. U.S. Deo't_ of Acriculture, 694 F.2d 728, 769 (D.C. Cir. 1981), cert, denied sub nom. Louisiana v.
- FERC, 461 U.S. 905 (1983) ("The range of alternatives need not extend beyond th(ojse reasonably related to the purposes of the project."); Trout Unlimited v.
Morton, 509 F.2d 1276, 1286 (9th Cir. 1974); see also City of Anacon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987) ("When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.");
City of New */ork v.
U.S. Dep't of Transo., 715 F.2d 732, 742-43 (2nd Cir. 1983), cert. denied 465 U.S. 1055 (1984).
Viewed another way, the courts have held that an agency is not required to develop an alternative that is essentially an entirely different project.
Miller v.
United States, 654 F.2d 513, 514 (8th Cir. 1981).
Thus, for example, in Sierra Club v.
Lynn, 502 F.2d 43, 62 (5th Cir. 1974), cert. denied sub nom.
Sierra Club v. Hills, 421 U.S.
994 (1975), the Court held that where an agency was considering approving the funding of the development of a new community, there was no need to consider alternative uses of the land, such as acquiring it for a park.
E/
The NRC's GEIS on decommissioning correctly recognized that the alternatives to be considered are alternative methods of accomplishing decommissioning.
See GEIS S 1.3. -.
4 l
In the case at bar, resumed operation is undeniably a project entirely-different from the decommissioning.
Resumed operation of Rancho Seco is not a project being proposed by SMUD and may not be considered by the NRC.
1 The Commission's October 17, 1990 Memorandum and Order fol-loved this same logic and precedents to the inexorable conclusion
-- that NEPA does not require the NRC to consider continued operation.
The decision on a method for decommis-sioning a facility - as opposed to the deci-sion whether to decommission a facility - is a decision which requires NRC review and i
approval.- Once a licensee decides to seek NRC approval of a plan to decommission a facility, our function is to review the plan to assure that it provides for safe and envi-ronmentally sound decommissioning.
The "pur-pose" of such a project, i.e.,-the purpose of decommissioning, would be to return the facility to a condition which " permits release of the property for unrestricted 10 C.F.R. 5 50.2 (1990).
This use....
purpose determines the scope of the alterna-tives the NRC must consider.
Thus, in con-sidering a proposed decommissioning plan, the-NRC need only consider alternatives to the methodof,pecommissioningtheplan proposes.-
In summary, the broadest NRC action-related to Shoreham decommissioning will be L
approval of the decision of how that decom-l missioning will be accomplished.
Thus, it follows that NRC need be concerned at present-L under NEPA only with whether the three-L actions which are the subject of the hearing requests will prejudice that action.
Clearly-they do-not, because they have no prejudicial ~
effect on how decommissioning will be accom-plished.
Therefore, because decommissioning actions are directed solely at assuring safe.
and environmentally sound decommissioning, it follows that alternatives to the decision not to operate the plant are beyond the scope of our reviev and need not be considered under NEPA.
.See ERDC v. EPA, 822 F.2d 104, 126-31 (D.C. Cir. 1987).
1/
In this regard, a recent letter from the Council on Environmental Quality on a related matter misperceives our authority under NEPA.
See Ltr. from Michael R. Deland, Chrm., CEQ, to Chrm. Kenneth M. Carr, NRC (October 9, 1990).
Because we have no authority to man-date operation of the facility, we have no authority over the decision whether to decom-mission the facility.
Instead, the " Federal action" in this case is the NRC approval of a method of decommissioning a facility.
There-fore, if and when a licensee proposes to decommission a facility, the NRC's environ-mental evaluation vill review the proposed method of decommissioning and any alternative decommissioning plans.
Shoreham, suora, CLI-90-08, slio o2, at 9-10.E#
B.
ECO Lacks Standina In addition to the requirement to identify specific aspects of the subject matter as to which intervention is sought, 10 C.F.R. 5 2.714(a)(2) requires a petitioner to set forth with 2/
The Commission, in its Shoreham decision, also held that even if " resumed operation" were an alternative to decommis-sioning, the NRC vould not be required to consider it under the NEPA rule of reason.
Shoreham, supra, CLI-9u-06, 2112 op. at 10.
Under the rule of reason, an agency need not consider alternatives barred by law.
Id.
Rancho Seco is shut down as a result of a referendum, which the District is implementing as a State agency.
Accordingly, the alterna-tive theory espoused in the Shoreham decision applies equally to Rancho Seco..
8 particularity the interest of the petitioner in the proceeding l
l and how that interest may be affected by the results of the pro-
)
ceeding..The petition must explain why intervention should be permitted with particular reference to the nature of petitioner's right under the Atomic Energy Act to be made a party to the pro-ceeding.
10 C.F.R. 55 2.714(a)(2), 2.714(d)(2).
4 The NRC applies " contemporaneous judicial concepts" of standing to determine whether a petitioner has a sufficient i
interest in a proceeding to be entitled to intervene.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),_CLI-76-27, 4 N.R.C. 610, 614 (1976).
Under these standards, a petitioner must establish that it personally has suffered or will suffer a " distinct and palpable harm" that constitutes-injury-in-fact, that the injury can be traced to the challenged action, and.that the injury is likely to be redressed by a favor-able decision in the proceeding._.Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir. 1988).
While standing may be-based on a threat-ened injury, a " realistic danger of sustaining a direct injury" must be demonstrated.
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979).
The threat of injury must be real and t
immediate, not conjectural or hypothetical.
Los Anceles v.
Lyons, 461 U.S. 95, 101-02 (1983);- California Bankers Ass'n v.
Schultz, 416 U.S.
21, 69 (1974).
Unadorned speculation will not suffice.
Diamond v. Charles, 476 U.S. 54, 66 (1986); Simon v.
Eastern Kentucky Welfare Richts Oro., 426 U.S. 26, 44 (1976).
~23-j
--.-.m-. ---
An organization may have standing if it satisfies these same tests, or it may derive standing from a member who has the requi-site interest and authorizes representation.
Warth v. Seldin, 422 U.S. 490, 511 (1975).
An organization may invoke representa-tional standing when (1) its members would otherwise have stand-ing to sue in their own right; (2) the interests it seeks to pro-tect are germane to the organization's purpose; and (3,.1either the claim asserted nor the relief requested requires the partici-pation of the individual members.
Hunt v. Washinoton State Apple Advertisino Commission, 432 U.S. 333, 343 (1977).
In cases where authorized representation cannot be inferred (as in those instances where it is not clear that the sole or primary purpose of an organization is to oppose nuclear power in general or the particular plant), a specific representational authorization must be provided.
Houston Lichtino & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 N.R.C.
377, 396-97 (1979).
"(U)nless an organization's charter provides to the con-trary, mere membership in it does not ordinarily constitute blan-ket authorization for the organization to represent any of the member's personal interests it cares to without his or her con-sent."
id. at 396.,
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1.
ECO Has Not Demonstrated Standino_In Its Own Richt
~
ECO does not demonstrate that it has standing personally.
ECO does not demonstrate that it as an organization vill suffer some " distinct and palpable harm," such as the destruction of business or property.
It alleges no personal injury within the l
zone of interest of the Atomic Energy Act.
At most, ECO suggests that perhaps some vague "informa-tional" interest is being affected, and cites competitive Enter-prises Institute v. Nat'l Hiohway Traffic Safety Admin., 901 F.2d 107 (D.C. Cir. 1990).
ECO Petition at 23.
That case held that an informational interest is not sufficient to establish an organization's standing under NEPA, absent concrete showings that an agency's action withholds specific information related to the environmental interests that NEPA was intended to protect, that the information is essential to the organization's activities, and that the lack of information vill render those activities infeasible.
901 F.2d at 122-24.
ECO does not come close to making this showing.
ECO does not demonstrate that it is being deprived of any environmental information essential to its activities.
It does not even ade-quately identify those activities for which it was chartered, or for that matter, whether it has a charter at all.
There is not even any indication that ECO is a legally recognizable organiza-i l
tion with any purpose or function.
In any event, for the reasons -
e previously discussed, the information that ECO seeks -- an evalu-ation of the continued operation of Rancho Seco -- is not infor-mation that NEPA requires in this or any relatt-2AC proceeding.
2.
ECO Has Not Demonstrated Representational Standino ECO's attempts to invoke representational standing fare no better.
The ECO Petition (at 21) purports to identify two mem-bers, but no affidavits are provided authorizing ECO to represent their interest.
Since this authorization cannot be inferred (ECO has not described its charter showing it is organized to inter-vene on behalf of members and one certainly cannot deduce such authorization from ECO's name), such affidavits are required.
Allens Creek, supra, ALAB-535, 9 N.R.C. at 396-07.
Further, there is no showing that the interests that ECO seeks to protect are germane to its organizational purpose.
Hunt, supra, 432 U.S. at 343.
Again, there is no proof that ECO has any specific organizational purpose.
Finally, there is no showing that ECO's members will suffer any distinct, palpable harm causally related to the issuance of the possession-only license and protected by the jurisdictional statutes.
There is no showing that ECO's members have a particu-larized interest that will be affected "by the results of th(is) proceeding."
See 10 C.F.R. 5 '.714(a)(2),
l 1 l
i The ECO Petition alleges that the two members " live and/or vork... and own, lease and/or use real property within a 50 mile radius.
ECO Petition at 22.
Where, as here, a l
- licensing action' involves no potential for off-site consequences, l
a specific resulting injury in fact i s required and not mere proximity to the plant.
Florida Power &_ Licht Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 N.R.C.
- 325, 329-30 (1989).
Perhaps recognizing that proximity alone does not create i
standing,-ECO further suggests that i f the possession-only license.is granted, and if as a result Licensee is permitted to
_ let systems important for power operations degrade, and if it is later decided to resume power operations, ECO's members in the vicinity of the plant might be exposed to greater-risk.
ECO Petition at 11-12.
This convoluted argument-is entirely inade-quate.: Where there is no current injury and a party relies wholly on the threat of future injury, the fact that one can imagine-circumstances where the party could be affected is not enough._ A plaintiff must demonstrate a realistic danger:-- an tinjury that is_certainly impending.. Northwest Airlines, Inc. v.
FAA, 795 F.2d 195,-201 (D.C. Cir. 1986).
133 also cases cited above on page 23.
As ECO acknowledged in its September 17, 1990-
- letter, "ECO's' members are experienced nuclear engineers, and recognize that.the actions involved in the Proposed Amendment do not involve any significant hazards.".
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In the same vein, there must be a sufficient causal connec-tion between a threatened injury and a proposed action for stand-ing to exist.
The attenuated risk hypothesized by ECO, in com-parison, cannot result from the issuance of the possession-only license but instead would be caused only by some uncontemplated future licensing action authorizing resumed operation of Rancho seco in a degraded condition.
In sum, the remote and speculative risk alleged by ECO cannot result from the outcome of this proceeding.
ECO also alleges that its members have an affected interest in ensuring the supply of electricity at reasonable rates.
ECO Petition at 22.
Neither energy reliability nor rates per se are within the zone of interests ci the Atomic Energy Act or of NEPA.
Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 N.R.C. 122, 128 (1977); Eprtland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
ALAB-333, 3 N.R.C. 804, 806 (1976), aff'd, CLI-76-25, 4 N.R.C.
610, 614 (1976).1S/
Further, the suggestion that these economic interests might be affected is entirely speculative.
- Finally, even if ratepayer interest vere protected (it is not) and vere affected (it is not), there would be no causal connection to the proposed licensing action before the NRC.
Any hypothesized lE/
Economic injury gives standing under NEPA only if it is environmentally related.
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 N.R.C.
- 1418, 1421 (1977). l
f l
l l
effect on energy supply or cost would be causally related to the District's sole decision to cease operations -- a decision that is beyond the NRC's jurisdiction and outside of the scope of this proceeding.
Last, ECO suggests that its members may be exposed to envi-ronmental affects, such as air pollution, from the substitution of fossil fuel plants.
While such an environmental impact would be within NEPA's zone of interest, there is nothing but the most flimsy speculation that such injury vill occur and again abso-lutely no causal connection to the possession-only license.
As the ECO Petition acknowledges, the District is committed to Demand Side Management programs obviating new capacity.
See ECO Petition at 14, 20.
Further, the District is committed to gener-ating electricity with a minimum impact on air quality.
Id. at 14.
There is, therefore, absolutely no basis to assure that Rancho Seco's retirement will occasion the construction of pol-luting fossil-fuel replacementt.
" Unadorned speculation" to the contrary does not suffice.
Diamond v. Charles, supra, 476 U.S.
at 66.
And in any event, even if there were a need for replace-ment facilities, that need would be causally connected to the June 1989 referendum and the District's closure decision.
There is no direct, traceable link to the NRC's granting of a possession-only license. _ _ _ - _ _ - _ - _ - _ _.
C.
No Licensina Actions should Be Delayed The ECO Petition, in addition to requesting a hearing, com-ments on the NRC's determination that amending the Rancho Seco license to a possession-only license involves no significant haz-ards considerations.
See ECO Petition at 2-6.
ECO's comments, however, merely reiterate its frivolous legal contentions.
ECO does not claim that there are any significant hazards associated with the possession-only license and indeed admitted in its Septembar 17, 1990 letter that there are none.
Further, ECO does not claim that the proposed amendment is irreversible.
Accord-ingly, there is no justification for delaying the issuance of the possession-only license.
In the same vein, the ECO Petition presents a laundry list of " remedies," which include orders directing the NRC Staff not to take actions on the different licensing proposals and an auto-matic stay of any adverse ruling.
ECO Petition at 39-41.
Other than the proposal for a possession-only license, ECO has not sought to comment on, intervene with respect to, or oppose any of the listed licensing proposals.
For example, Licensee applied for a license amendment to add new long-term defueled technical specifications in submittals in December 1989, and April 1990; and the NRC provided public notice of the application on July 25, 1990.
See 55 Fed. Reg. 30,290, 30,311 (1990).
The time to con-test this application has therefore expired, and ECO's attempt to _ _ _ _ _ _ -
bootstrap untimely challenges to this and the other proposals is impermissible.
ECO's requer.t that any adverse ruling be automat-ically stayed is equally intolerable in the absence of any justi-fication for such extraordinary relief.
IV.
Conclusion For the reasons discussed above, the ECO Petition seeks to litigate issues that are beyond the NRC's jurisdiction and the scope of the proposed license amendment.
In effect, ECO seeks to have the NRC usurp the District's decisionmakir.7 authority and dismisses with virtually no comment or analysis the NRC's recent determination that it has no au*hority to do so.
Because the ECO
Petition raises issues that are not cognizable, fails to demon-strate standing, and is in general an abuse of practice, the ECO Petition should be denied, immediately and in toto.
Respectfully submitted, b
Thomas A.
Baxter David R.
Lewis SIIAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-8000 Jan Schori General Counsel SACRAMENTO MUNICIPAL UTILITY DISTRICT P.O.
Box 15830 Sacramento, California 95813 (916) 732-6123 Counsel for Licenseei/
Dated:
November 30, 1990 1/
Pursuant to 10 C.F.R. 5 2.708(e), this is to advise that service upon Licensee in this proceeding should be made upon the attor-neys here l'.sted.
1
/ '
t i
November 30, 1990 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
SACRAMENTO MUNICIPAL UTILITY
)
DISTRICT
)
Docket No. 50-312-OLA
)
(Rancho Seco Nuclear Generating
)
Station)
)
NOTICE OF APPEARANCE The' undersigned, being an attorney at law in good standing admitted to practice-before the courts of the District of Colum-bia, hereby enters his appearance as counsel on behalf of lic-ensee Sacramento Municipal Utility District in any proceeding related to the above-captioned matter.
.I w~
Thomas A. Daxter SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-8000 l
l November 30, 1990 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
SACRAMENTO MUKICIPAL UTILITY
)
DISTRICT
)
Docket No. 50-312-OLA
)
(Rancho Seco Nuclear Generating
)
Station)
)
NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the courts of the District of Colum-bia, hereby enters his appearance as counsel on behalf of lic-ensee Sacramento >:unicipal Utility District in any proceeding related to the above-captioned matter.
A David R.
Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-8000
_... _.. _ _. _.... _. _ _. ~ _.. _ _ _ _ _ _ _. _.... _. _ _,..
-t
'l November 28, 1990 i
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
In the Matter of
)
)
i SACRAMENTO MUNICIPAL UTILITY
)
DISTRICT
)
Docket No. 50-312-OLA
)
(Rancho Seco Nuclaar Generating
)
Station)
)
.o t
NOTICE OF APPEARANCE
- The undersigned, being an attorney at law in good standing-i
-admitted to practice before the courts of the State of Califor-r nia, hereby enters her appearance as counsel on behalf of the Sacramento Municipal Utility District in proceedings related to the above-captioned' matter.
Respectfully submitted, b
k Jan Gc ori General Counse3 SACRAMENTO-MUNICIPAL UTILITY DISTRICT l
L
- P.O. Box 15830
'?
6201 S Street (for messenger delivery)
- Sacramento, CA 95813 (916) 732-6123 l
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s b h f. l. If UAhC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIoM N3V 33 P4 :06 In the Matter of
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bSh["$
)
iR A M. o SACRAMENTO MUNICIPAL UTILITY
)
DISTRICT
)
Docket No. 50-312-OLA
)
(Rancho Seco Nuclear Generating
)
Statio.'.)
)
CERTIFICATE OF SERVICE I liereby certify that a copy of the foregoing " Licensee's Answer to Et.vironmental Conservation Organization't Petition" datef November 30, 1990, and Notices of Appearance for Thomas A.
- Baxter, David R. Levis and Jan Schori, were served upon the following by L
deposit in the United States mail, first class, this 30th day of November, 1990:
Docketing and Service Branch Michael B.
Blume, Esq.
Office of the Secretary Regional Cour.sel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Com;o ss ion Washington,-D.C.
20555 1450 Maria Lane, Suite 210 Walnut Creek, CA 94596 Adjudicatory File Jan Schori, Esq.
Atomic Safety and Licensing General Counsel Board Panel Sacramento Municipal Utility U.S. Nuclear Regulatory District Commission P. O. Box.15830 Washington, D.C.
20555 Sacramento,-CA 95813 B. Paul Cotter, Jr., Esq.
Mr. A. David Rossin Chief Administrative Judge Environmental Ccnservation Atomic Safety and Licensing Organization l
Board Panel 101 First Street, Suite 320 U.S.' Nuclear Regulatory Los Altos, CA 94022 Commission Washington, D.C.
20555 I
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4 Edwin J. Reis, Esq.
James P. McGranery, Jr., Esq.
Charles A.
Barth, Esq.
Dow, Lohnes & Albertson Offics of the General Counsel Suite 500 U.S. Nuclear Regulatory 1255 23rd Street, N.W.
Commission Washington, D.C.
20037 Washington, D.C.
20555 Yo-k.
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Thomas A.
Baxter kn