ML20028H312
| ML20028H312 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/20/1990 |
| From: | Mcgranery J, Prodell A DOW, LOHNES & ALBERTSON, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20028H311 | List: |
| References | |
| NUDOCS 9011300216 | |
| Download: ML20028H312 (57) | |
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u a n u.
Umt BEFORE THE UNITED STATES i
NUCLEAR REGULATORY COMMISSION g g y gg yu 4 f s sichuAr v
) UUCh! hNG A 'i uvgi
!3R ANCH In the Matter of )
)
Consideration of Issuance of Amendment ) USNRC Docket No.:
To Facility Operating License and ) 50-322 Proposed No Significant Hazards ) License No. NPF-82 consideration Determination and )
? Opportunity for Hearing; Long Island )
Lighting Co. (Defueled Operating )
License) (55 Fed. Reg. 34098, )
August 21, 1990) )
)
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SHORE"AM-NADING RIVER CENTRAL SCHOOL DISTRICT'S COMMENT ON PROPOSED NO SIGNIFICANT HAZARDS CONSIDERATION AND f PETITION FOR LFAVE TO INTERVENE AND REQUEST FOR PRIOR HEARING E
EI On August 21, 1990 the Nuclear Regulatory Commission
("NRC") announced that the Long Island Lighting Company
("LILC0"), full-power licensee of the Shoreham Nuclear Power
[- Station ("Shoreham"), had applied for a license amendment to
" remove the licensee's authority to operate the Shoreham facility." 55 Fed. Reg. 34098, 34099 (1990). The requested 0
license amendment would allow LILCO to "posr-ss, use, but not operate" the Shoreham facility. Id.
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While LILCO prefers to characterize the license resulting from this amendment as a "dafueled operating license," the NRC has confirmed dith the licens6e that the
" proposed amendments may be treated as a requant for a 9011300216 900920 DR ADDCK05000gg2
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' possession only' license." Id. The proposed amendment would delete almost all of the license conditions contained in part 2.C. of the license and the remaining license conditions would be reworded to disallow operation and allow a relaxation of the Physical security and Fire Protection Plans. U.S.N.R.C. Docket No. 50-322, License No. NPF-82 ;
(issued April 21, 1989). The proposed amendment would also allow sweeping changes to the Technical specifications and the Environmental Protection Plan.
The Notice explains that "[t]he Commission has made a proposed determination that the request for amendment l
involves no significant hazards consideration," that the proposed determination "is applicable to each proposed change l to the license . . . or to the aggregate of the proposed license changes," and that various subparts of the j application may be issued while review of remaining subparts l l continues. Id. The August 21, 1990 Notice seeks public 1
comment on the proposed determination and provides that "any ,
person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene." Id. at 34100.
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3 COMMENT ON PROPOSED NO SIGNIFICANT HAZARDS DETERMANATION Shoreham-Wading River Central school District
(" school District") hereby submits this comment in opposition to the proposed no significant hazards determination made in connection with the proposed " possession-only" amendment.
The proposed no significant hazards determination is inappropriate in this case. Issuance of the " possession-only" amendment or any portion thereof on an immediately effective basis would violate both the Commission's own decommissioning regulations and the National Environmental Policy Act of 1969.
On June 17, 1988, the Commission issued a Final Rula I amending its decommissioning regulations. Esa General L
- Requirements for Decommissioning Nuclear Facilities, 53 Fed.
i Rug. 24018 (June 27, 1988). In the Statement of l Consideration section of that rule, the Commission addresses l
l the " Licensing scheme for decommissioning." Id. at 24024.
I Responding to commenters' queries regarding the type of license in effect during decommissioning, the Commission stated that it will follow its customary procedures, set out in 10 CFR Part 2 of the NRC Rules of Practice, in amending Part 50 licenses to implement the decommissioning process.
. . . accordina to the amendments fof the decommissionina reaulational, the overall aceroach to decommissionina must now be antroyed shortiv after the and of operation rather than an amended l
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" possession oniv a Part 50 license beina issued without clans for ultimate disposition.
Id. (emphais added) Thus, the Commission has interpreted its own rules to require approval of a decommissioning plan
" shortly after the end of operation" and to preclude issuance of a " possession-only" in the absence of an approved plan for the " ultimate disposition" of the facility in question.
LILCO has repeatedly emphasized in its communications to the Commission that LILCO will never again operate
-Shoreham. LILCO'has repeatedly alleged that it is legally prevented from operating the plant under the terms of the Settlement Agreement with New York State. LILCO has also repeatedly explained that it plans to transfer the plant to the Long Island Power Authority ("LIPA") or some other entity of New York State which will effect the final decommissioning of the plant. LILCO has, therefore, clearly and repeatedly announced that it considers Shoreham to have permanently ended operation and that LILCO is working with LIPA to effectuate a surrender of the license and the decommissioning of the plant. The NRC regulation governing the implementation of this scheme is 10 C.F.R. 5 50.82.
Section 50.82 provides that an application *for authority to surrender a license voluntarily and to decommission the facility "Enat be made within two years
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l l following permanent cessation of operations" and "[e)ach l
application for termination of license must be accompanied, or proceded, by a proposed decommissioning plan." 10 C.F.R.
I 50.82(a) (1990). The exact date on which LILCO permanently l
ceased operations may be subject to dispute, but a conservative designation would have to be the point at which reactor defueling began in July 19u.. Thus, the two year clock has been ticking for at least a year now, but LILCO has not yet submitted a decommissioning plan.
Subsection (a) of Section 50.82 states that I
- If the decommissioning plan demonstrates that the decommissioning will be performed in accordance with the regulations in this chapter and will not be inimical to the common defense and security or to the health and safety of the public, and after notice to interested persons, the Commission will approve the plan subject to such conditions and limitations as it deems appropriate and necessary and issue an order authoririna the decommissionina.
10 C.F.R. I 50.82(a) (1990)(emphasis added) . Thus, a decommissioning order.follows, or is contemporaneous with, l
approval of the decommissioning plan.
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As noted above, the Commission has explained that "the overall approach to decommissioning must now be approved shortly after the end of operation rather than after an amended ' possession only' Part 50 license being issued without plans for ultimate disposition." Section 50.82
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l effectuates this "overall approach." Thus, until "olans for fthal ultimate diseosition" of the shoreham facility are oroneriv anoroved, the issuance of a anossession-oniv" l
l license is eremature. Moreover, the issuance of a no i 1
significant hazards determination does not allow the commission ignore the dictates of its own duly established I regulations.
LILCO and LIPA obviously realized that the commission's regulations prevented issuance of a " possession-only" license prior to commission approval of the ultimate disposition of the plant. Both entities also appear to want to find ways to proceed with "de facto" decommissioning while delaying as long as possible submission of any clearly denominated " decommissioning plan" to the NRC which would demand Commission review under Section 50.82(a). In turn, such an unmistakable request for approval would indisputably constitute a semantically unavoidable decommissioning plan.
It has been the absence of such a decommissioning application to " trigger" the preparation of an EIS to which the l Commission has so long pointed as the excuse for its delay in effecting environmental review of the decommissioning scheme L underway at Shoreham.
This may explain LILCO's perverse insistence on calling the license to be created by the amendment a
"Defueled operating License" rather than admitting that a
" possession-only" license is sought.M Unfortunately for LILCO, the NRC Staff forced the licenses to admit "(ijn a telephone communication of June 5, 1990, as confirmed by letter from the NRC Staff to the licensee on July 13, 1990 .
. . that (the licensee's) proposed amendments may be treated as a request for a ' possession only' license." 55 Fed. Reg.
at 34099.
This may also explain why LIPA (not a licensee), and not LILCO (tha licensee), prepared the " Decommissioning Report" submitted by LILCO. This " Report" may include material required for a " decommissioning plan" as described in Subsection (b) of Section 50.82. LILCO and LIPA may want to give the NRC some indication of the proposed " ultimate disposition" of the plant and yet not want to trigger NEPA review.
In the cover letter accompanying the " Decommissioning Report", LILCO's Assistant Vice president of Nuclear operations walks a tigherope explaining that 1/ LILCO also attempted to differentiate its request from a request for a " possession-only" license by representing that it sought to " possess, naa, but not operate" Shoreham instead of the usual " possess-but-not-operate" language used in most
" possession-only" amendment requests. Commenters fail to see any substantive difference in the two formulations. And the NRC Staff appears to have similar difficulty in finding a distinction. Egg 55 Fed. Reg. 34098, 34099 (1990).
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(t)he Decommissioning Report and other ,
enclosed documents do not constitute the l decommissioning plan required by 10 CFR I i 50.82. LILeo believes, however, that these documents furnish an accurate description of the current status of LIPA's planning for the ultimate disposition of shoreham, and, in combination with the license amendment L application transmitted by 8NRC-1664, provide i
an adequate basis for approval of LILCO's pending request for a Defueled operating l License.
Esa Letter from William E. Steiger, Jr. to WRC, Ap.il 1990 (SNRC-1713) at 2. .
If LILCO had submitted the exact same document and honestly called it a " decommissioning plan" '.nstead of a
" report" intended to " support () LILeo's pending request for L a defueled operating license," the NRC would have been obligated both to approve the plan before issuing a license amendment and to finally prepara an EIS evaluating the environmental impacts of the proposed disposition and the alternative dispositions including operation and preservation in anticipation of possible future operation all before issuing any approval of the plan.
Such a " cute" move on the part of LILCO cannot be tolerated. It is a blatant attempt to dodge NEPA mandated environmental review yet again and is also a violation of the NRC's decommissioning regulations and and the. commission's own interpretation of those regulations.
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LILco's transparent semantic games -- a "Defueled t operating License" rather than a " possession-only" license and a " Decommissioning Report" rather than a " decommissioning plan" --cannot be allowed to to accomplish their . intended circumvention of the commission's rules and NEPA's mandate.
The " ultimate disposition" of the Shoreham facility has not yet been determined; and any such determination would be invalid unless made after preparation, and proper consideration, of a final EIS on the overall decommissioning proposal. ,
Furthermore, the commission cannot legally approve any decommissioning plan until it has prepared an environmental impact stateme.it evaluating the impacts of, and ,
alternatives to, not only the "deconmissioning plan," which ,
r.pra=ents o_nly the final stana in the ongoing decommissiordng scheme, but also the overall decision whether l to allow decommissioning of the plant. In other words, an adequate EIS in this instance cannot be limited to an l examination of the environmental impacts of, or alternatives to, the method chosen for dealing with residual radiation at the plant since an attempt to so limit the scope of the EIS would constitute illegal segmentation of the proposal to decommission Shoreham.
r Rather, because Shoreham has not reached the end of its useful life or suffered an accident, an EIs must be -
prepared in this case which evaluates the environmental impacts of, and alternatives to the plan to decommission shoreham, and not just those of the method of of finally accomplishing decommissioning.
A final determination that the proposed " possession-only" amendment poses no significant hazards, therefore, is fatally premature. The amendment itself cannot even be ,
considered until the ultimate disposition of the plant has ,
been formally proposed and approved. And the ultimate disposition of the plant cannot be approved without the preparation of an EIS evaluating the impacts of the proposed disposition and the alternatives to that disposition including operation or praservation.
Should the NRC once again ignore commenters' arguments, and choose to issue a final determination of no significant impact, commenters will not hesitiate to seek relief in the U.S. Court of Appeals for the District of Columbia circuit. No lack-of-finality arguments will be tenable. Nor will it be unclear whether or not such a determination constitutes a " final order" under the Hobbs Act. The court should have no difficulty recognizing the illegality of the commission's actions should it render any
part of the instant amendment request immediately effective.
The Commission has repeatedly represented that it is awaiting a request for approval of a decommissioning plan to trigger NEPA review; to now allow LILCO and LIPA to so blatantly sidestep submitting such a plan for Commission review when approval of such a plan is a prerequisite to obtaining a
" possession-only" license would rise to the level of complete abdication of its responsibilities under the Atomic Energy Act and NEPA.
PETITION FOR LEAVE TO INTERVENE AND REOUEST FOR PRIOR HEARING Shoreham-Wading River Central School District
(" School District" or " Petitioner") and its students and employees would be adversely affected by this proposed amendment and, therefore, pursuant to Section 2.714 of the Commission's Rules, the School District requests that it be granted leave to intervene as a party and that a hearing be held to consider the merits of the proposed amendment.
The School District views this Amendment as one part of the larger proposal to decommission Shoreham. Each step in the decommissioning proposal that moves shoreham closer to a fully decommissioned state and further away from full-power operational status violates the dictates of the Atomic Energy Act of 1954 as amended ("AEA"), 42 U.S.C. Si 2011 at
agg. (1988), and the National Environmental Policy Act of 1969 as amended ("NEPA"), 42 U.S.C. Il 4331 at 333 (1988).
Thus, while the issues presented herein directly relate to the request for a " possession-only" amendment, they necessarily include other unlawfully segmented actions taken and/or proposed U by LILCO, and approved the NRC Staff, in l furtherance of the decommissioning scheme.
The School District submitted an enforcement request under Section 2.206 of the Commission's Rules in July 1989, and has submitted several supplements to the request since that time consolidated with the Request of Scientists and Engineers for Secure Energy, Inc. ("SE ") g . In their Section 2.206 requests, the School District and SE2 have argued that LILCO is taking the initial steps in a course of action aimed at decommissioning the Shoreham facility in violation of the terms of the operating license, the Commission's regulations, the AEA, and NEPA. Technically, the request is still pending before the NRC, but the Commission's lack of an explicitly denominated " final decision" has effectively denied petitioners' requests because continuing and significant steps toward da facto implementation of the decommisrioning 2/ In Klanne v. Sierra club, the Supreme Court states that "when several proposals . . . that will have a cumulative or synergistic impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together." 427 U.S. 390, 410, 96 S.Ct. 2718, 2730 (1976).
, proposal proceed unhanpered, with the full knowledge and support of the NRC.
All of the arguments advanced in Petitionsr's Section 2.206 Request, and the supplements thereto, are pertinent to the issues at hand and, therefore, are incorporated herein by reference as additional support for the specific aspects of the issues and contentions as to which Petitioner seeks leave to intervene and requests a hearing.
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I. INTEREST OF PETITIONER AND THE RIGHT TO INTERVENE As the NRC Staff has stated the applicable law: To determine whether a petitioner has sufficient interest to -
intervene in a proceeding, the Commission has held that a licensing board may apply judicial concepts of standing.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976). A petitioner must show that the action sought in the proceeding will cause an injury in fact, and that injury is within the zone of interest protected by the AEA and/or the NEPA. Id. at 613-614; Ninaara Mohawk Power coro., 31 11. (Nine Mile Point
! Nuclear Station, Unit 2) LBP-83-45, 18 NRC 213, 215 (1983).
i In addition, a petitioner must establisht (1) that it l
personally has suffered or will suffer a distinct and l
l palpable harm that constitutes an injury in fact; (2) that the injury can be traced to the challenged action; and (3) that the injury is likely to be remedied by a favorable decision granting the relief sought. Delluma v. NRC, 863 F.2d 968, 971 (D.C. Cir. 1988) ; 392 1152 Nuclear Enaineerina co., InGA, (Sheffield Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).
To establish injury in fact for standing, a I
petitioner must have a a real stake," that is, a genuine or direct interest in the outcome, and the law allows standing i
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even if that interest is thought by others not to be a substantial one. Houston Llahtina and Power Co., at al.
(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 447-48 (1979).
The School DistrictU meets all of the criteria for standing in this matter. The School District is threatened with distinct injuries in fact as a direct consequence of the proposed amendment. These injuries are within the zone of interests protected by both the AEA and NEPA and can be remedied by a favorable decision.
The AEA guarantees any interested person a hearirg in any reactor licensing action which may affect the health at.d safety of the petitioner. 42 U.S.C. I 2239 (1988). In this instance, the issuance of a " possession-only" license which would remove almost all of the license conditions and effect a drastic relaxation of the Technical Specifications, would also unacceptably increase the risk of radiological injury should the plant be returned to operation.
Without the application of full-power license j conditions, Technical Specifications, and NRC regulations and guidance, LILCo, and any future licensee, would be free both to allow the facility to deteriorate and to actively 2/ As used herein, " School District" and " Petitioner" include its employees and students whose personal and property interests it seeks to represent.
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dismantle the systems which are vital to an operating facility but may be unnecessary for a plant headed for decommissioning.
The key point here is that Shorehan's decommissioning is D21 a foregone conclusion. While LILCO and the State of New York wish to steer Shoreham towards decommissioning, the NRC has yet to formally approve any decommissioning plan and before any such approval may issue, the NRC must complete an Environmental Impact Statement ("EIS") which includes consideration of the alternative of operating shoreham.
Because the operation of Shoreham is a viable alternative the consideration of which is essential to an informed decision, any amendment allowing for the deterioration and/or destruction of Shoreham before a final NRC decision on the decommissioning proposal would increase the health and safety risk posed by the plant should the alternative of operation ultimately be pursued. Thus, the proposed amendment would adversely affect the radiological health and safety of Petitioner, its students, its employees, and their property.
Petitioner's interests, as detailed below, will be protected, and the requirements and purposes of the AEA met, if Petitioner is allowed to intervene in a prior hearing held
on this matter and the remedies sought by Petitioner are granted as a result of that proceeding.
LILCO's efforts toward da facto decommissioning without an approved decommissioning plan are a Rar at violation of the AEA and a direct health and safety violation. Until a properly informed decision on decommissioning has been reached, consideration of a
" possession-only" amendment is premature and a violation of the health and safety provisions of the AEA. .
LILCO has failed to maintain the reactor at a full operational level from the moment LILCo decided to decommission Shoreham, and this continuous refusal to abide by the terms of its operating License has severely increased the Petitioner's radiological health and safety risks. And the instant-proposed amendment would only compound the i
increase in these present and future risks.
No concern with full-power coerational safety has been expressed by LILCO, or for that matter by the NRC Staff, since the licensee and the NRC Staff appear to have concluded, improperly and illegally, that the reactor will never again operate. This premature conclusion that the reactor will never again be brought to full power operation must certainly affect the type of care, maintenance ind attention to details at the facility; and the hearing process
i will reveal the health and safety risks caused by LILeo's da facto decommissioning efforts and the NRC Staff's apparent wholesale acquiescence to that position.
NEPA mandates preparation of an Environmental Imprct Statement ("EIS") prior to agency decisionmaking on major federal actions significantly affecting the quality of the ,
1 human environment. The EIS must consider, inter A113, the environmental impacts of, and the reasonable alternatives to, the proposal. Thus, NEPA ensures that agency decisionmaking-not only includes environmental consideration, but also is
- structured in such a way that environmental consideration is l
meaningful.
The School District has determined that its i
responsibilities demand that it seek intervention in this instance in order to protect the interests of the School District, its students and employees and their property.
The area of the School District is about twelve square miles. The Shoreham facility is located within the boundaries of the School District and thus, the School District is within the fifty mile limitation used by the 1
Commission to determine whmther an intervenor expressing contentions under the health and safety provisions of the Atomic Energy Act has an interest sufficient to allow intervention.
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i The School District has an interest in protecting, and F.n obligation to protect, the health and environment of almost 2000 students and 500 employees, who live and/or work in close proximity to the Shoreham facility, from both the possible radiological impacts of the p aosed amendment and the adverse health and other environmental consequences of non-operation of shoreham cognizable under NEPA, for example, the air pollution produced by the oil and/or gas burning plants which would be necessary substitutes for shoreham. -
Among those expressly wishing their interests to be represented by the school District is Albert G. Prode11, ,
President of Shoreham-Wading River School District's Board of Education,.who resides at Remsen Road, Wading River, New York i
11792.
L L Furthermore, the school District depends on LILc0 to t
meet the electric energy needs of the District's physical plant which includes five schools. The District has a vital interest in ensuring that an adequate and reliable supply of electricity will be available to meet its needs and that the electricity provided is available at reasonable rates. As a completed and fully licensed plant, Shoreham is presently capable of meeting the growing electric energy needs of the Long Island area. Actions to decommission the facility and build substitute oil or gas burning plants, on the other
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1 hand, delay any increase in the Region's electric energy production capacity, and also generate significant expenses 1
which will inevitably be passed on to Long Island's ratepayers, including Petitioner and those whose interests it seeks to protect.
Aside from electric rates, the District has an additional economic interest in this matter which stems from the fact that the District derives significant tax revenues The based on the value of Shoreham as an operating plant.
property taxes paid by LILCO for the Shoreham facility constitute approximately ninety percent of the School l District's tax base and the loss of such revenue would detract from the employment, educational and recreational opportunities which the Petitioner offers its employees and students adversely affecting the quality of their environment.
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1 II. PETITIONER'S INTERESTS WILL BE GREATLY AFFECTED l- BY THE AMENDMENT AND THE PROCEEDING 1
The proposed amendment violates the requirements of the AEA at the expense of the Petitioner, its students', and its employees' right to reasonable assurance of radiological health and safety and circumvents their NEFA rights to timely environmental consideration of the decormissioning proposal, including its reasonable alternatives. Petitioner wishes to participate in each and every aspect of the hearing whl h
- touches and concerns these interests as well as the spec.fic aspects identified below and in any amendment of this i
petition hereafter filed.
The School District, o. salf of itself, its l F students, and its employees, seuxs leave to intervene and requests a hearing to determine whether the amendment should be granted, denied, deferred, or a different amendment made under the AEA. The specific aspects of the proposed amendment as to which the School District wishes to intervene ares (1) whether a grant of the proposed amendment requested would be arbitrary, capricious and/or an abuse of discretion c pursuant to the Atomic Energy Act and the Commission's l
l regulations, and subsidiary guidance thereunder * (2) whether, if a decision is made to operate Shoreham, the proposed amendment would significantly delay and increase the cost of
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t returning the plant to an operational modet (3) whether the l.
proposed amendment would constitute an irreversible and ,
irretrievable commitment of the shoreham resourcer and (4) whether the amendment would allow deterioration and dismantling of the facility and thereby undermine the reasonable assurance that full power operation, should it ultimately be pursued, would or could be conducted with reasonable assurance of the public hehith and safety and national defense and security, particularly the reasonable -
assurance of the Petitioner's protection (including their real and personal property) from the radiological hazards of i
operating the facility.
The proposed amendment would nullify almost all of the presently applicable license conditions and Technical Specifications pertaining to operation and thereby opens the door for further maintenance neglect and active decommissioning. The NRC, however, has not yet issued a final decision on whether or not the facility should be rendered inoperative. In these circumstances, the commission certainly has the power and the duty to prevent a particular liceases from taking steps which effectively undermine the the safety and feasibility of operation.
In deciding whether or not such steps should be allowed, the NRC is obligated to consider not only the
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immediate health and safety implications of proposed ,
I decommissioning actions, but also future such implications, j the public interest in the plant as an operational entity, the national security and common defense interest in the t operational plant, and finally, the environmental impacts of, and alternatives to, allowing a plant to be prematurely decommissioned. Until the NRC makes a final decision on the proposal to decommission Shoreham which includes a discussion of all of these issues and a fully articulated explanation of the reasons for the decision, an amendment deleting requirements previously found essential for safe operation are illegal.
l The alternative of operation has not been foreclosed, l
j and, therefore, amendments inconsistent with safe operation l
l are gar as threats to health and safety. Thus, allowing the Shoreham operating license to be degraded at this time unavoidably and significantly increases the direct and/or indirect endangerment of the radiological health and safety and other interests of the school District, its students, and employees under both the AEA and NEPA.
The School District also wishes to have full and fair .
l NEPA consideration given the decommissioning proposal (of which the instant application is an interdependent part),
1 I including the need for power, the cost-benefit analysis of 1
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! decommissioning, and the operation and near-term operation alternatives for Shoreham. Any actions in furtherance of the da 1>e decommissioning proposal, including this proposed amendment, prejudice consideration of such mandatory NEPA analysis by, among other things, making the alternatives further away in time, more costly, and less likely in fact.
NEPA, as implemented in regulations issued thereunder by the Council on Environmental Quality ("CEQ") and the NRC, mandates that no major Federal action significantly affecting the quality of the human environment will be implemented j 1
without first receiving a full environmental review. As more fully detailed below, Petitioner's interests under NEPA will be protected, and the purposes and requirements of NEPA
, served, to the extent that such a review is conducted under the NRC Rules (including a hearing) and the remedies sought
, by Petitioner are granted in the proceeding. Petitioner's l
interests will be adversely affected should this petition or l the relief sought herein be denied.
L The remedies sought by Petitioner specifically include the correction of this presumptuous " decision" that the reactor will never return to full power operation, as well as.a return to the mandates of the NRC's regulations p under the AEA and NEPA which require maintenance of the full power license obligations until an informed decision is made 1
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with all appropriate environmental and economic considerations.
If a full NEPA environmental review is conducted, it may be that the factors which first led to the constructior.
of this $5.5 billion dollar reactor would lead the decisionmaker to favor the continued utilization of this brand new facility and reject the decommissioning proposal.
But the failure to properly maintain and protect the facility in accordance with the full power operating License during this interim period could further erode the alternative of full-power operation by, among other things, increasing the costs, in time and money, of returning to full power operation.
During the interim period, before the necessary environmental evaluations are completed, the reactor must not languish in a " possession-only" mode. Nor should the licensee be permitted by the commission to behave as though the reactor will never again operate. Significant health and safety risks, including those subject to NEPA review, will result from LILco's failure to abide by the full power requirements of the operating License which requires constant efforts to maintain the plant in an operational condition.
The increased risks of radiological harm to Petitioner, its students and employees, as discussed above, l
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also constitute adverse environmental impacts and would also increase the risk that the choice of reasonable alternatives would be limited. As a result, approval of the proposed amendment is barred by 10 C.F.R. I 51.101(a) (1990) until a record of decision is issued following completion of the required NEPA review of the decommissioning proposal. Egg l Alag, 10 C.F.R. I 51.100(a) (1) (1990). I Intervention and a hearing on this proposed amendment, prior to its approval, addressing the aspects identified in this Petition, is the 2nly avenue available to Petitioner before the NRC for protecting not only its own vital interests but also those of its students and employees as to this HRC licensing issue at this time. The i
! consolidated Requests filed pursuant to 10 C.F.R. I 2.206 in July 1989 sought redress of many similar issues, but the Commission has essentially ignored those consolidated section 2.206 requests, which are still pending. The Petitioner must address each incremental, segmented step proposed by the licensee and the NRC staff which would further advance the da facto decommissioning by the licensee in violation of the AEA and NEPA.
The violations of the AEA, by definition, increase l the risk of radiological harm to the School District and l
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students and employees. In violation of the AEA, the NRC l
, staff is presently considering issuance of an amendment which will allow requirements previously considered essential for safe operation to be deleted without either a final and properly informed determination that the plant will never operate again or an articulated basis supported by substantial evidence that each particular requirement is no longer essential.
All of the deletions and changes contemplated by the amendment are premised on the facility's existing non-operating and defueled condition. A non-operating condition, however, is not the appropriate legal prerequisite for a
" possession-only" license. Rather, it appears that the licensee and the staff have an unstated determination that the plant will never operate again as their basis for this amendment. An unstated and unapproved determination that decommissioning will proceed to completion is legally irrelevant and, therefore, cannot to serve as a foundation for the instant license amendment under the AEA.
The-violations of NEPA also deny Petitioner its rignts to information on, and to participate in, the formulation of an environmental review of the impact of, and alternatives to, the ongoing decommissioning of the shoreham facility.
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l Now LILCO seeks a " possession-only" amendment. Under the Commission's regulations such an amendment cannot issue until the Commission has approved a " decommissioning plan" for the facility. LILCO has submitted, but not adopted as its own, a " Decommissioning Report" prepared by the Long Island Power Authority (the would-be transferee of the l
Shoreham license) that allegedly does not call for Commission approval. As explained more fully elsewhere herein, LILCO and LIPA may not circumvent NRC regulations and NEPA requirements in this way.
Three alternatives, thereform, exist. First, LILCO must adopt the " Decommissioning Report", thus making the L
" decommissioning plan" subject to approval by the Commission.
- second, LILCO's request for a " possession-only" license must be denied or deferred pending submission of a decommissioning plan by LILCO, itself, and approval of that plan by the Commission. Or third, LILCO's request for a " possession-l only" license must be denied and triansformation of the shoreham license from a full-power license to a " possession-only" license must await transfer of the license to the entity which will actually perfors' decommissioning and who is 1
the proper party to submit a " decommissioning plan" for approval.
4 All three of these alternatives call for commission approval of a " decommissioning plan" grier to issuance of a
" possession only" license. Such a plan is part of precisely the formal application the Commission has previously stated would trigger NEPA review. 333 Letter from Thomas E. Mur2ey,
-Director, Office of Nuclear Reactor Regulation to James P.
McGranery Jr. dated July 20, 1989 ("Although you are correct that the decommissioning of a facility requires a license amendment necessitating the preparation of an EIS, such an amendment has not yet been applied for in this case").
Petitioner must address the da 18G12 decommissioning at this time because the licensee obviously seeks to abrogate its obligations under its operating license before the NRC issues a final and fully informed decision on the decommissioning proposal, thereby endangering the health and safety and other interests of Petitioner, its students and
-employees, under the AEA, thereby jeopardizing the future viability of-the. reactor, and thereby avoiding a meaningful environmental analysis pursuant to NEPA. Without Petitioner's active involvement, the NRC Staff and the licensee would simply continue to circumvent the law and regulations and thereby deny Petitioner, which is interested in the development of a complete record, the opportunity to
have such full AEA and NEPA consideration before significant alternatives are, for all practical purposes, foreclosed.
.0bviously, neither the NRC Staff nor the licensee appear to be in the least bit interested in representing the Petitioner's valid interests by complying with the t
requirements of the AEA and/or NEPA. Petitioner will bring to light the significant regulatory, health, safety and environmental issues which form the bases for its challenge of the proposed amendment and for all of the licensee's H actions toward da facto decommissioning. These essential I issues are required by law to be addressed, and by addressing l
l them now in this action the Petitioner will hasten their examination and appropriate resolution by the Commission.
III. SPECIFIC ASPECTS AS TO WHICH PETITIONER SEEKS TO INTERVENE A. Specific Aspects of the Subject Matter As To Which Petitioner Seeks to Intervene Under the AEA Sections one, Two, and Three of the AEA set out the
' Declarations, Findings and Purpose of that Act which must b guide the Commission's decisions pursuant to its substantive L
L provisions. 42 U.S.C. Il 2011-2013 (1988).
Section 2(e) of the Act explains that " utilization facilities are affected with the public interest." 42 U.S.C.
I 2012 (1998). Petitioner submits that utilization facilities, such as Shoreham, are licensed to serve the public. interest. In obtaining the benefits that result from the license to operata a plant, a licensee also shoulders the burden of E ataining the plant operational for so long as i
the licensee holds the license and the NRC determines that J- the'public interest.is best served by an operable plant.
The decision as to whether a plant shall.be rendered i 9 inoperable then is not strictly for the licensee to make.
- While the plant'may be privately owned, it was constructed based.on strict regulations established on behalf of the public and with the understanding that it would serve the public for the duration of the plant's useful life unless the proper Federal authorities determine that it is in the public i
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i interar t that the plant prematurely cease operation. Any such determination would have to be based on proper health and safety, environmental, and common defense and security factors. Thus, the fact that LILCO and the State of New York may have determined that they wish Shoreham decommissioned is not the last word on the matter. The commission must make a proper determination of the public interest, from local, state, and national perspectives weighing the environmental, economic, and other impacts and the alternatives before any l:
L operable nuclear plant is decommissioned. Such a 1 determination has yet to be made in this case.
The particular aspects of the proposed amendment as to~which Petitioner wishes to intervene under the AEA are, inter alla, as follows:
- 1. May the Commission issue a possession only license for a utility full power reactor licensee before submittal by the licensee, and approval by the Commission, of the " decommissioning plan" required by 10 C.F.R. I 50.82 (1990)? In this respect the Petitioner notes that the 1
! Statement of Consideration for the General Requirements for Decommissioning Nuclear Facilities (53 Fed. Reg. 24018, 24024 (June 27, 1988)), states that: "according to the amendments, L the overall approach to decommissioning must now be approved shortly after the end of operation, rather than an amended
l l
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' possession-only' Part 50 license being issues without plans for ultimate disposition".
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- 2. May 'the Commission make a proposed determination '
that the amendment in question here (involving at least 22 ,
specific changes to the full power operating license as delineated in the notice) involves no significant harzards consideration before it has completed technical review of all portions of the application? The notice indicates that the $
l Staff has not completed technical review of the application 1
(53 Fed. Reg. at 34009, Col.1) but nonetheless, proposes such a no significant hazards consideration determination. (55 Fed. Reg. at 34100, Col. 1). Prior notice of consideration i
of issuance of amendments of facility licenses related to the ,
1 decommissioning process have indicated that issuance of 1
particular amendments will occur only "after (the Commission) completes its technical review and prior to the completion of l any required hearing if it publishes a1further notice for
-public comment of its proposed findings'of no significant hazards consideration in accordance with 10 C.F.R. 50.91 and-50.92". Sam, 3.g., 54 Fed. Reg. 27081, 27082, Col. 1 & 2 ;
(June 27, 1989), 54 Fed. Reg. 41886, 41887, Col. 2 (October 12, 1989), 54 Fed. Reg. 48958, 48959, Col. 2 (November 28, 1989). Therefore, it'is Petitioner's position that a proposed no significant hazards determination may not be i
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issued before the commission completes its technical review of the proposed changes.
- 3. Do one or more of the 22 proposed changes involves irreversible consequences? 333 10 C.F.R. I
- 50. 92 (b) . There are no detailed findings on any one of the y
proposed 22 changes in the notice.
- 4. Could one or more of the proposed 22 changes to the license create a condition posing a danger to the health and safety of the public in the event of the future full power operation of shoreham? There are no detailed findings on any one of the proposed 22 changes in the notice..
- 5. Do one or more of the 22 proposed changes involve a significant increase in the probability or
, consequences of-an accident previously evaluated, now or in l
L the event of future operation? There are no detailed findings.on any one of the proposed 2' changes in the notice.
- 6. Could or will one or more of the.22? proposed i
, changes create a possibility of a new or different kind of l
accident from any accident previously evaluated in the current state or in the event of future full power operation?
There are no detailed findings on this issue with respect to any of the 22 proposed changes.
- 7. Do one or more of the 22 proposed changes involve a significant reduction in a margin of safety. It is
- . ~.
unarguable that each of the 22 changes does involve a significant reduction in a margin of safety, because each of those requirements was imposed as a license condition indicating the Commission's prior determination of the importance of those requirements to the margin of safety.
- 8. As to each of the 22 proposed changes, are there factual issues as to whether each change would endanger the health and safety of the public now or in the event of future full power operation?
- 9. As to each of the 22 proposed changes, are there factual issues as to whether those changes would be inimical to the common defense and security or to the health and safety of the public? Each of those changes would make prompt operation of the reactor in the public interest more distance in time and less likely.
- 10. Will the proposed activities serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utilized and/or. possessed?
B. Specific Aspects of the Subject Matter As to Which Petitioner Seeks To Intervene Under NEPA.
LILCO's proposed license amendment is one segmented part in implementation of a proposed major Federal action which, if approved, will significantly affect the quality of
i the human environment.- Because preparation of an EIS ano a final decision is required before any part of the decommissioning proposal may be implemented, the proposed amendment is in direct violation of Section 102(2) (C) of NEPA and Petitioner's right to such NEPA review. Therefore, it cannot be approved prior to NEPA review of the whole decommissioning proposal.
Section 102 (2) (C) of NEPA provides that, prior to l making a decision to implement a " proposal" for a " major
. federal action significantly affecting the quality of the human environment," administrative agencies shall prepare an Environmental Impact Statement ("EIS") which evaluates, among other things, the " environmental impacts of" and the
" alternatives to" the proposed action. 42 U.S.C. $ 4332 (1982).
The Council on Environmental Quality ("CEQ")
regulations,-which are " binding on all federal agencies,"
further clarify the NEPA responsibilities of federal agencies. 40'C.F.R. I 1500.3 (1988). Among other things, those regulations (a) mandate application of NEPA "at the 1
earliest possible time to insure that planning and decisions ,
reflect environmental values," (b) require that actions which L
are " interdependent parts of a larger action" be discussed in a single impact statement, and (c) prohibit actions which
l
" limit the choice of reasonable alternatives" until the NEPA process is complete. 40 C.F.R. $$ 1501.2, 1508.25, & 1506.1.
The NRC's own NEPA regulations, which closely parallel those of the CEQ, also prohibit any " decision on a proposed action" or actions, especially one tending to " limit the choice of reasonable alternativss," pending completion of the NEPA process. 10 C.F.R. 55 51.100 and 51.101 (1989).
While the decommissioning proposal has been advanced by LILCo, a non-federal entity, the NRC's on-going supervision of that licensee's activities and the need for i NRC approval of the various aspects of the decommissioning process make what otherwise might be a private action in another industry into a " major federal action." The NRC controls whether the decommissioning proposal may proceed and, therefore, has a non-discretionary duty under NEPA to ensure that neither the Shoreham facility, itself, as the relevant part of the environment under the supervision of the NRC, nor the alternatives to its decommissioning, are adversely affected by premature implementation of the decommissioning proposal. Egg 40 C.F.R. I 1506.1(b) (1988).
To date, the NRC Staff has failed to recognize this duty and, instead, has given LILCo tacit and explicit permissions to implement an ever increasing number of steps G
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in the decommissioning proposal which have no utility independent of that proposal. I 1
LILCO and the NRC Staff claim that no steps have been taken at Shoreham which are irreversible or constitute irretrievable commitments of resources. This claim is subject to significant doubt in view of the judicial interpretation of these concepts in the context of NEPA and the facts of this case. Eta commonwealth of Massachusetts v.
HAti, 716 F.2d 946, 953 (1st Cir. 1983) ("each of these events represents a' link in a chain of bureaucratic commitment that will become increasingly harder to undo the l
l longer it continues"); Sierra Club v. Marsh, 872 F.2d 497, l- 500 (1st Cir. 1989) ("the harm at stake is a harm to the environment, but the harm consists of the added Ilah to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision on the environment").
For example, if the concepts of " irreversible" and "irretreivable" are stretched to their theoretical definitional limits, the same claim could be made even if the l plant had been razed but "could be" rebuilt. The issue is not whether the plant, its equipment and its staff could someday be put back together again, but rather over what l
L duration and at what cost could the feat be achieved. That ist would approval of the proposed amendment increase the risk that the currently available alternative of operation l
night not be reasonably available when the federal '
decisionmaker finally addresses the question of whether or not to authorize decommissioning of Shoreham?
The farther away in time and expense LILCO and the NRC move the reestablishment of operational capability, the less likely it becomes that the alternative of operating shoreham will be pursued. In the Spring and early Summer months of 1989, when LILCO made its intention to cooperate with New York. State in a plan to decommission Shoreham plainly known to the NRC, the Shoreham. plant sat ready for immediate full-power operation. As a fully licensed plant with a complete staff and fully functional equipment and systems, Shoreham constituted a valuable resource for the Long Island area in that it was capable of immediate1v generating electric energy.
The_ proposed amendment is another in a series of l
actions instigated by LILCO, to be approved by the NRC Staff, in furtherance of the decommissioning proposal. As such, the proposed amendment would make the intended benefit and 4 purpose of Shoreham (the supply of 805 MWe in full power operation) more remote in time and less likely in fact. It i.
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would, therefore, violate NEPA and the Commission Rules (in particular, 10 C.F.R. 5 51.101(a)(1) (1989)) if approved at this time.
The Petitioner first urged maintenance of the status gun (that is, full operational readiness at the Shoreham plant), pending. preparation of an EIS and a final decision on the proposal to decommission the facility, in its Section 2.206 request filed in July 1989. Petitioner has reiterated the need for the commission-to take such action in supplements to the initial' request and at meetings between the NRC Staff and LILCO management. The NkC Staff's response i
has. continually'been that, although an'EIS will have to be prepared before decommissioning can take place, no proposal l
l for decommissioning has;yet been presented to the Commission.M. . Petitioner disagrees with this proposition t advanced /by the NRC, and supported by LILCO, that the Commission's NEPA. responsibilities are not triggered until 1/ 'The NRC has stated that while:
~ decommissioning of a facility requires a license amendment necessitating the-preparation of an EIS,~such an amendment has
- not yet been applied for in this case. If the Commission issues a license amendment j
authorizing the decommissioning of the Shoreham facility, an environmental review will be performed . ... .
Interim Reply to the initial section 2.206-Request (dated July 20,_ 1989) (emphasis added).
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the commission receives a formal written application for a license amendment to allow decommissioning.
At the heart of this disagreement is the definition of the term " decommission." The more limited the set of actions that constitute " decommissioning," the more actions
=
LILCo can take which do not satisfy the definition and, therefore, do not trigger NEPA review. LILCO and the NRC
, ultimately premise their delay in initiating the NEPA process on the position that the licensee's current activities are
" consistent with"-its full-power license and that the term
" decommission" only encompasses some narrow, but undefined, set of actions which will not be undertaken until appropriate authorization is given pursuant to a " formal" application to decommission some time in the future. This position ignores both the reality of the present situation and the definition of " decommission" found in Part 50 of the Commission's own Rules. 10 C.F.R. I 50.2 (1989).
The CEQ definition of " proposal" includes the statement: "A proposal may exist in fact as well as by agency declaration that one exists." 40 C.F.R. I 1508.23 (1988)
(explicitly adopted by the Commission at 10 C.F.R. I 51.14(b)
'} (1989)). A hard look at the reality of the present situation makes it abundantly clear that a decommissioning proposal exists "in fact" in this instance.
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LILCO has entered into a Settlement Agreement with various entities of the State of New York that represents a decommissioning proposal. The Agreement (which may be terminated by its own terms or voided by pending suits in state court' provides that LILCO will not operate the plant but will take steps to remove the plant from service in an effort to both reduce costs and facilitate the transfer of the plant-to an entity of New York State which will, in turn, l take the final steps in the decommissioning process.
l l On several occasions, LILCO has made the terms of the ,
Settlement Agreement known to the NRC. Furthermore, since Shoreham was removed from service, LILCO has sought NRC permissions in various forms including license amendment applications (some of which-have been granted). Petitioner contends that those permissions implement stages of the decommissioning proposal outlined in the Settlement Agreement.
1 LILCO began by transferring the fuel from the reactor to the-spent fuel pool. The NRC Staff found that this was not inconsistent with the terms 1of the operating license 1
d5 spite the- fact that LILCO had no plans to replace the fuel l and thus was defuelina, an activity that is not anticipated in the operating License, as opposed to refuelina which la an activity addressed by the Technical Specifications. LILCO I
has also presented a plan to discontinue upgrading, maintenance, and operator training programs, and to drastically reduce the staff at the Shoreham plant, among other things. Despite the fact that Petitioner has argued that these actions are clearly inconsistent with the purpose and terms of the Operating License, the NRC Staff has made findings of consistency and allowed LILCO to go forward with these actions.
Following implementation of the destaffing plan, LILCO presented a plan for "mothballing" (" system layup") of equipment and systems that make up the plant. Although LILCO holds a full-power Operating License and is, therefore,
[
committed to maintaining the plant in safe and coerational condition, the NRC gave LILCO explicit permission to pursue the layup plans.
In addition to these activities, LILCO has submitted several applications for relief from various requirements contained in the license, in the Technical Specifications, and in the NRC Regulations. All of these proposals are inconsistent with the terms of LILCO's full-power Operating L'icense-and various parts (including Parts 50, 51 and 73) of the NRC8s regulations. The Settlement Agreement and LILCO's actions in pursuit of that Agreement have clearly put the NRC on notice that a decommissioning proposal exists "in fact" in
l this case. Thus, the NRC position (that it will not consider a proposal to decommission to exist until the licensee submits a formal application for a license amendment to allow decommissioning) is not tenable.
Aside from the reality of the situation which makes it abundantly clear that a proposal for decommissioning-presently exists and is being prematurely implemented at the Shoreham plant, the Commission's own definition of the term I
" decommission" supports Petitioner's contention that LILCO's actions to date constitute decommissioning. The Commission
! defines " decommission" as meaning "to remove (as a facility) l safely from service and reduce residual radioactivity to a lavel that paraits the release of the property for unrestricted use." 10 C.F.R. 5 50.2 - (1989) (emphasis added) .
Thus, under the Commission's definition, decommissioning is a continuina process bacinnina with actions to remove a facility safely from service and continuina through to actions to reduce the level of residual radioactivity at the site until it is released for unrestricted use.
The NRC Staff's argument that it has not yet received a' decommissioning proposal is inconsistent with its.own L definition in that, although the licensee has not yet submitted an application for a license amendment explicitly denominated as a " Application to Decommission", LILCO has l
l_. . _ , ,
submitted several applications which are intended to further confirmU the removal of the facility from service and which L have no utility independent of decommissioning. Thus, an unauthorized decommissioning has, in fact, begun. i In the typical situation, when a plant is at the end of its useful life, by age or accident, there is no question whether,the plant =shall be operated further, and thus no L decision =whether to safely remove the plant from service.
That' occurrence is nothing more than a ministerial recognition of a fact which then initiates all licensee ,
duties as to the " actual" decommissioning.
The shoreham situation is anything but typical.
Shoreham is'at the bacinnina of its useful life and the initial step in decommissioning (safely removing the plant from service)Lcannot be ignored as inconseguential or unrelated to the process of decommissioning. ,
Moreover, the settlement Agreement-between LILCO and New York State. exactly parallels the Commission's definition 4
of " decommissioning" in that it outlines a plan for decommissioning that begins with LILCO's actions to remove 1/ Among the considerations listed by the CEQ as indicative of the " significance" of the impacts of an action is "[t]he degree of which'the action . . . represents a decision in principle about a future consideration." 40 C.F.R. I 1508.27(6) (1988).
The proposed' amendment, which implicitly rests on the premise that decommissioning is a foregone conclusion, therefore, represents such a " decision in principle."
the plant from service and anticipates that an entity of New York State shall take the final actions necessary to complete decommissioning of the plant, while LILCo will remain ;
financially liable for those actions. The NRC Staff's present position, that the NEPA process is not triggered until a licensee submits an application explicitly ,
denominated as an " Application to Decommission", ignores the l fact that LILCO is presently taking actions further 1
L confirming the removal of Shoreham from service and, l therefore, has not only begun decommissioning, but is aggressively implementing that proposal.
i l The proposed amendment violates Petitioner's rights under NEPA, and the-NEPA regulations promulgated by the CEQ and the NRC, both (a) to have decisions on interdependent parts of a proposal for a major federal action informed by a-l Final.EIS evaluating the proposal as a whole and also-(b) to _
have alternatives to a proposed action preserved pending the preparation of an FEIS and the issuance of a final decision ,
l-l on the proposal as a whole. ;
The proposed amendment is'another step in the decommissioning process in that issuance of a " possession only" license not only implies that LILCO and the NRC view Shoreham's decommissioning as inevitable, but.also makes the alternative of operation further away in time since refitting
and requalification of the Shoreham facility could take considerable time and money.
The fully licensed and functioning Shoreham plant is
-not just the sum of its equipment and systems. Rather, shoreham is the hardware And the personnel ADA Procedures which allow it.to operate and operate safely. The ,
discontinuance of the procedures required in the license itself would be, therefore, no different than dismantling the hardware that make up other vital safety features. Thus, the j proposed amendment constitutes a negative impact on an existing resource and may also tend to limit the reasonable alternatives. Decisions which place a resource at risk of adverse impacts and tend to limit reasonable alternatives j cannot be made until the NEPA process is complete and, thus, the proposed amendment should be denied or deferred in L
accordance with NEPA's mandates.
Before this further step in the decommissioning plan is taken, an environmental evaluation of the decommissioning l plan as a whole must be undertaken. The D.C. Circuit has stated that "NEPA. creates a right to information on the sbvironmental effects of government actions; any infringement of that right constitutes a constitutionally cognizable injury'. . .a comoetitive EnterDrise Inst.. et. al. v. Nat'l Hiahway Traffic Safety Admin., No. 89-1278, slip op. at 28
(D.C. Cir. Jan. 19, 1990). Until an EIS has been prepared on the total decommissioning proposal, no part of that plan, I including this proposed amendment, may be implemented. !
In addition to failing to recognize this proposed amendment as yet another step in the inching implementation of the larger decommissioning proposal, the NRC has failed to prepare an environmental assessment for this amendment.
Section 51.21 of the Commission's regulations states that
"(all1. licensing . . . actions subject to this subpart require an environmental assessment except those identified in $: 51.20(b) as requiring an environmental impact statement, those identified in 5 51.22(c) as categorical exclusions, and-those identified in Section 51.22(d) as other actions not requiring environmental review." 10 C.F.R. $ 51.21 (1989).
Assuming arauendo, that the proposed amendment may be ,
considered a discrete action, distinct from the larger decommissioning proposal, it is not among those actions listed in Section 51.20(b) which require preparation of an EIS. Likewise, the proposed-amendment.is not among the actions listed in subsections-(c)'or (d) of Secton 51.22 which constitutes categorical exclusions from environmental review. Thus, Section 51.21 mandates preparation of at least anienvironmental assessment ("EA") addressing the environmental impacts of, and alternatives to, this licensing
action. Further, Petitioner requests an EA and also asserts that the proposed amendment involves unresolved conflicts concerning alternative uses of available resources. Egg 10 C.F.R. I 51.22(b) (1989).
An environmental assessment is intended to provide a basis for a decision whether a proposed action merits preparation of an EIS or a finding of no significant impact.
This determination hinges on whether the proposed action will or will not "have a sianificant effect on the quality of the L human environment." 10 C.F.R. 5 51.32 (a) (3) (emphasis
,_ added); ESA ale 2 42 U.S.C. I 4372(2) (c) .
Thus, the level of enviromental scrutiny a proposed action must undergo is determined by the'" significance" of the action's environmental effects.
The CEQ regulations provide guidance as to the meaning of "'significantly' as used in NEPA." 40 C.F.R. 5 1508.27 (1988). Among the factors listed by the CEQ to be considered by an agency in evaluating whether a proposed action will "significantly affect the quality.of the human environment" is:
Whether the action is related to other actions with individually insignificant but cumulative 1v sianificant imoacts. Significance exists if it is reasonable to anticipate a cumulatively significant-impact on the environment. Sionificance cannot be avoided by terming an action temporary or by breakina it down irto small comoonent Darts.
40 C.F.R. I 1508.27 (b) (7) (1988) (emphasis added). An environmental assessment of this proposed amendment must, therefore, consider the cumulative impacts of the proposed amendment and the other related actions which have or will be taken in furtherance of the decommissioning scheme.
Furthermore, the CEQ defines " cumulative impact" as:
L the impact on the environment which results from the incremental impact of the action when added to other east. crement and reasonably foreseeable future actions reoardless of what acancy (Federal or non-Federal).or eerson undertakes such other actions. '
- Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. ,
! 4 0 C . F . :R. I 1508.7 (1988) (emphasis added). Thus, the l
proposed amendment cannot be-isolated.from the continuum of "past, present, and reasonable foreseeable future actions" in
. furtherance of' decommissioning. Rather, a proper environmental assessment will necessarily consider.the proposed amendment in the context of the decommissioning .
proposal which has been, and continues to be, implemented in a.;. segmented fashion. Such consideration must inevitably yield the conclusion that the piecemeal implementation of the individual steps in the. decommissioning process cannot continue until an EIS evaluating the environmental impacts of, and alternatives to, the decommissioning scheme as a i
whole has been prepared and a-final decision on that proposal i made.
Petitioner has thus shown an injury in fact that will result from the proposed amendment that is within the zone of interests protected by NEPA and that can be redressed by a decision not to grant the amendment and by granting the other remedies sought.
The particular aspects of the proposed amendment as to which Petitioner wishes to intervene under NEPA are, inter Alla, as follows:
l '. Does a proposal to decommission the Shoreham Plant exist "in fact"?
- 2. Would issuance of the proposed amendment or portions thereof violate the Commission's NEPA regulations, including without limitation, 10 C.F.R. $$ 51.100 & 51.101 (1989)?
- 3. Does NEPA', and the-CEQ and NRC regulations promulgated thereunder, require that the licensee maintain all full power license conditions in full accord with readiness for operation at full power pursuant to its full-power operating License,.the Technical specifications and licensee commitments thereunder, as well as the Atomic Energy ,
Act, the regulations and other normal NRC Staff requirements of a full power licensee, until such time as full NEPA review l
4 >
of the decommissioning proposal is completed and published L
and a decision on that proposal is subsequently made?
L 4. Does the proposed amendment or portions thereof require an environmental assessement ("EA") prior to becoming effective?
- 5. If the proposed amendment or portions thereof does require an EA prior to becaming effective, what is the proper scope of that EA? That is, (a) should the EA be limited to the amendment as defined in the Notice, (b) should the scope of the EA also include all other pending and/or approved requests by the licensee for amendments to, exemptions from, and.other variances to its full-power operating License, which are pending at this time, or (c)
I should the scope of the'EA include all other proposals in fact,. currently pending before the NRC (for exc.:ple, the decommissioning report, submitted by the licensees' SNRC-1713 dated April 16, (190)?
- 6. Is the Staff's determination that an EIS is necessary for the decommissioning of Shoreham in its response to Petitioner's counsel dated JulE 20, 1989 determinative of the need for an EIS?
- 7. If the NRC Staff's July 20, 1989 determination of the need for an EIS is binding on the Staff, does NEPA require initiation of the EIS process at this time?
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- 8. Does the Commission's approval of SECY-89-247 require the initiation of the preparation of an EIS beginning now?
O i
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, 1 IV. REMEDIES The Petitioner seeks the following remedies:
- 1. An order permitting the Petitioner's intervention as to the subject of the captioned notice.
- 1
- 2. An order directing a hearing on the issues presented by the captioned notice as detailed in this a -petition as it may be amended.
- 3. An order requiring the NRC Staff not to issue J the proposed amendment or any part(s) thereof pendente lita toLallow for an independent assessment by the Atomic Safety and Licensing-Board-of the issues identified herein.
o
- 4. An order consolidating this petition with the petition'of Scientists and Engineers for Secure Energy, Inc.
insofar as the two petitioners have common interests.
- 5. An order consolidating this matter with related matters pending before the commission for which notices of an opportunity for hearing _have been and/or_will be issued with-respect to shoreham.
l E. An order finding that there exists a proposal :
L L 'for the decommissioning of Shoreham, which is a major federal p
[ action significantly affecting the quality of the human l
L environment and, therefore,. ordering the licensea to prepare P
and subrit an Environmental Report on the-scope of that ,
pteresal (including, inter alla, the alternatives relating to 1
L l full-power operetion) ; and, further ordering, that all Shoreham proceed:.ngs not related to enhancing full-power l operation be held in abeyance pending the submission of that l
Environmental Report, the subsequent preparation and l publication of a Draft Environmental Impact Statement by the NRC Staff and further proceedings culminating in the Final Environmental Impact Statement.
- 7. An o-der requiring the NRC Staff and the licensee to furnish the petitioner's attorney with all future communications and/or governmental filings originated by those parties or either of them, by telecopy, express mail, or overnight courier, which communications relate to Shoreham and/or issues affecting Shoreham.
- 8. An order denying the amendment sought.
- 9. IfLthe Commission decides to issue a final determination of no significant hazards consideration, Petitioner requests the Commission to stay the effectiveness of the issuance of any and all approvals of any portions of the requested amendment for ten (10) days after publication of that' final determination in the Federal Register to allow 1
the Petitioner to seek relief pursuant to the Hobbs Act. l l
- 10. Order (s) granting such other relief deemed necessary.and/or appropriate.
l l
- 4. .
f CONCINSION l l
WHEREFORE, for the above-stated reasons, the Petition l i: I for Leave to Intervene -?. auld be granted, a hearing should be held prior to the issuance of the proposed amendment or any portions thereof, and the other remedies herein sought should be granted, c
Respectfully submitted, i September 19, 1990 L
- A A Albert G. Prodell President of the Board of Education Shoreham-Wading River Central
-School District District Office P Shoreham, New York 11786 S
September 20, 1990 By: - A' 'A
- Jhmes P. McGranery,/pr. , Esquire Dow, Lohnes.& Albdttson 1255 23rd Street, N.W.
Suite'500.
Washington, D.C. 20037 (202) 857-2929 Attorney for Petitioner Shoreham-Wading River Central
- l. School District u
l In accordance with 10 C.F.R. 55 2.708(e) and 2.712(b),
l service may be made upon the above-designated Attorneys for L Petitioner.
N
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4 CERTIFICATE OF SERVICE i
Pursuant to the notice requi.rements set forth in the Federal Register (55 Fed. Reg. 34098, August 21, 1990) and the ,
l service requirements of 10 C.F.R. I 2.712 (1990), I hereby i certify that on September 20, 1990 the foregoing Comment on Proposed Wo Gignificant Hazards Determination and Petition for l IAave to Intervene and Request for Prior Hearing and Notice of
! Appearance were served, via first class U.S. mail, postage prepaid, upon the following:
The Honorable Samuel J. Chilk The Secretary of the Commission Office of the Secretary U.S. Nuclear Regulatory Commission t f Washington, D.C. 20555 {m.
ATTN: Docketing and service Branch ,, J ',"
- +
g ej.,
v -,
Office of the General Counsel x$C W h,o U.S. Nuclear Regd atory Commission 'r ,;9.
- h Washington, D.C. 20555 Q M u,
-J W. Taylor Revaley, III, Esquire Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 J,ames P. McGranery/gr.
Counsel for Petitioner shoreham-Wading River central school District
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