ML20029A032

Petitioners Brief in Support of Appeal of ASLB 910108 Memorandum & Order.* No Basis Exists for Amending Petitions or Responding to Amends Until After Commission Issues Decision Re CLI-90-80.W/Certificate of Svc

ML20029A032
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/08/1991
From:	Mcgranery J DOW, LOHNES & ALBERTSON, LONG ISLAND LIGHTING CO., SCIENTISTS & ENGINEERS FOR SECURE ENERGY
To:	Carr K, Curtiss J, Remick R, Rogers K NRC COMMISSION (OCM)
Shared Package
ML20029A029	List: ML20029A028 ML20029A032
References
91-621-01-OLA, 91-621-1-OLA, CLI-90-80, OLA, NUDOCS 9102010083
Download: ML20029A032 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commissioners:

Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick

)

In the Matter of ) Docket No. 50-322-OLA

)

LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-621-01-OLA

)

(Shoreham Nuclear Power Station, ) (Confirmatory Order Modifica-Unit 1) ) tion, Security Plan Amendment

) and' Emergency Preparedness

) Amendment)

PETITIONERS' BRIEF IN SUPPORT OF APPEAL OF ATOMIC SAFETY AND LICENSING BOARD MEMORANDUM AND ORDER OF JANUARY 8, 1991 Petitioners Shoreham-Wading River Central School District

(" School District") and Scientists and Engineers for Secure Energy, Inc. ("SE ") (jointly " Petitioners") invoke the 2

Commission's jurisdiction for this appeal pursuant to 10 C.F.R.

S S 7.14 ( A) (a) (1990) and the Commission's recent Final Rule on Interim Procedures for Agency Appellate Review, 55 Fed. Reg. 42944 (October 24, 1990).

In CLI-90-08, 32 NRC 101 (1990), the Commission held "that the NRC Staff need not file an EA or an EIS reviewing and analyzing ' resumed operation' of Shoreham as a nuclear power plant as an alternative under NEPA." 32 NRC at 209 The Commission emphasized that it were reaching "no other conclusions either regarding the need for an EIS in decommissioning situations in general or with respect to Shoreham in particular 9102010083 91010E PDR O ADOCK 05000322 PDR

-7,_- / '_ 7' 2-regarding what alt 1 sider." ernatives Id. (emphasis such an EA or 2 Petitioners added). an EIS mus*.

kfamount assert that the The Commission r ecited to 'de facto' d actions taken by LIL that

\lity

\

\)') without preparing a ecommissioning of CO and the the Shoreham

'didon the decommissio n ng plan." i n Environmental Impnct the Commission 32 NRC a t 204.

Statemeni' indicate that was itcontradict But at no

' mental that characteriz ation.

1 at Policy Act ("NEPAnot appropriate to b Ncr

") review egin National this time. of itence In fact, of a proposal the Commission'the s opinion ng decommissioni that "the broad to decommission admits ioning will be est NRC action t' o approv a l of relatedstating, among oth er

\ ning will be to Shoreham how ever, accomplished."the decision 32 of how that the Atomic Safet y and NRC at 208 in its Order that Board are "the three licenLicensing se "ASLB")

Board (

decommission "not an impermissibl

. e changes now

'ontend that MtmarAndMm_a.2d_Qrdntsegmentation there is of any the o at 47 contrary, a fair no ~ asis in CLI-90 ssion r -08 recognizes the eading of for this d

that existence CLI-90-08 atesindic thin thethe three licensi of a proposal

" scope" ng actions to of under r eview

," are "interdependethat proposal si on the larger nt parts nce they are action (the decommiof (that) larger ssioning

/--

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or regarding what alternatives such an EA or'an EIS must consider," Id. (emphasis added). The commission recited that "the Petitioners assert that the actions taken by LILCO and the Staff amount to 'de facto' decommissioning-of the Shoreham facility without prepar'ing an Environmental Impact Statement

('EIS') on the decommissioning plan." 32 NRC at 204. But at"no point did the Commission contradict that characterization. Nor did it indicate that it was not appropriate to begin National i

Environmental Policy Act ("NEPA") review of the deccmmissioning proposal at this time. In fact, the Comniusion's opinion admits a

the existence of a proposal to decommission ~ stating, among other-things, that "the broadest NRC action related to Shoreham decommissioning will be approval of the decision of how that

decommi.ssioning will be accomplished." 32 NRC at 208.

l However, the Atomic Safety and Licensing Board'("ASLB")

l determined in its Order that "the three license changesznow

before this Board are not an impermissible - segmentation of any l decision to decommission." Memorandum and Order at 47.

i Petitioners contend that there is no basis in CLI-90-08 for this i holding. To the contrary, a fair reading of CLI-90-08 indicates i

that the Commission recognizes the existence of a proposal to

[

decommission and that the three licensing actions under review are included within the " scope" of t'nat-proposal since they are

" closely related," are "' interdependent parts- of (that) larger-action and depend on the larger action [the decommissioning i

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prepare n d "previously .

Confirmatory"Crder had been issue 5 51.14(b)

(adopted by reference in 10 C.F.R. 1508.25-(1989) to summarily reverse (1990)). k' Petitioners urge the Commissionid further unwarranted delay in this holding of the ASLB to avo ss and to allow the proper l

the initiation of the NEPA proceof i

the decommissioning proposa scoping of environmental rev ew t ry licensing actions including review of the three prepara o i reversal of the Absence such a prompt commiss on presented here. l waste of Commission and ASLB there will be a considerab e d environmental k

Petitioners' resources in pursuing a segmenteing actions individually an consideration of tne three licens in providing information on frustration of the purposes of NEPAthe public and the Commission the decommissioning proposal to NEPA requires that k

itself as the ultimate decision-ma er.l shall be integrated "with environmental review of the proposassible time to ensure that other planning at the earliest po ironmental values, to avoid planning and decisions reflect envto head off potential delays 17+.er in the process, and While beginning such s." 40 C.F.R. 5 1501.2 (1989). roposal at this time is conflie NEPA review of the dacommissioning p" since the decommissioning i

hardly the " earliest possible t me

3-proposal) for their justification," and it is clear ti;at the easing of physical security requirements and emergency preparedness requirements could not proceed unless the Confirmatory order had been issued "previously". Egg 40 C.F.R. $

1508.25 (1989) (adoptod by reference in 10 C.F.R. 5 51.14(b)  !

(1990)).

Petitioners urge the Commission to summarily reverse 1

this holding of the ASLB to avoid further unwarranted delay in the initiation of the NEPA process and to allow the proper scoping of environmental review of the decommissioning proposal including review of the three preparatory licensing actions presented here. Absence such a prompt commission reversal of the ASLB there will be a considerable waste of Commission and Petitioners' resources in pursuing a segmented environmental consideration of the three licensing actic..s individually.and a frustration of the purposes of NEPA in providing information on the decommissioning proposal to the public and th7 Commission itself as the ultimate decision-maker. NEPA requires that environmental review of the proposal shall be integrated "with other planning at the earliest possible time to ensure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts." 40 C.F.R. $ 1501.2 (1989). While beginning such '

NEPA review of the decommissioning proposal at this time is  !

hardly the "carliest possible time" since the decommissioning l

l

)

4-proposal was presented to the NRC on June 30, 1989, now is better i

than later.

Secondly, the ASLB's decision that "the pendency of the request for reconsideration (of CLI-90-08) provides no sound reason for suspending review of the petition" is arbitrary and capricious and wr;ste the resources of both the Commission and Petitioners. Memorandum and Order at 4 n.l. The ASLB Memorandum and Order relies almost totally on CLI-90-08 for its findings of 5

inadequacy of the Petitioners' contentions as to NEPA review, and the Board has ordered Petitionors to amend their petitions within twenty (20) days af ter service of that Order in accordance with its findings based on CLI-90-08. In short, the Board is sending Petitioners barrelling ahead on the basis of a n2D-final order.

This is obvious waste of resources, given the fact that CLI 08 is under reconsideration and both the Chairman of the Council on Environmental Quality and thr U.S. Secretary of Energy.have submitted amicus briefs to the Commission in support of the Petitioners' Petition for Reconsideration..-

Given the primacy of responsibi.'f.ty of these entities for the interpretation of NEPA and U.S. energy policy, respectively, and given the NRC's oblication to follow the CEQ's interpretation of NEPA and the deference that one should expect

, the Commission to give the U.S. Secretary of Energy with respect to energy policy, it is fair to assume that there'is a great likelihood that the Commission is seriously reconsidering and ver,w -- > , - - " e g- r.-* -en s -y e-- e

.. j i

will change the position it originally took in CLI-90-08. This T

l 1s further re-enforced by the Commission's m sconte decision to extend the time for its review of DD-on-08 (December 20, 1990) which was similar11y based on the Commission's original decision in CLI-90-08. That is, if the Commission were inclined.to simply reaf firm CLI-90-08, there would be no-reason for it to extend the time t'or its m sconte review of DD-90-08.

In view of these circumstances there is no basis for J the Petiticners, Staff or LILCO expending resources in amending the pet.itions and responding.to those amendments until after the commission has issued its decision on reconsideration of CLI 08.

F I

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i CONCLUSION WHEREFORE, Petitioners urge the Commission. summarily (1) to vacate the ASLB Memorandum and Order of January 8, 1991 in the above-captioned matter and remand to the Atomic Safety and Licensing Board with instructions to reconsider that order in ,

light of the Commission's decision on reconsideration of CLI - 08 after that decision is issued, (2) to reverse the Licensing Board's holding that the three license changes before the Board are "not an impermicsible segmentation of any decision to 1

decommlssion," and (3) to grant other relief as appropriate.

Respectfully submitted, ha ..

. / r%

). p,s _

James P. McGranery, Jr. gg Dos, Lohnes & Albertson '

-Suite 500 l 1255 Twenty-Third Street, N.W.

l Washington, D.C. 20037 i (202) 857-2929 Counsel for the Petitioners l

1 i

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• 8- T' eer T-

UNITED STATES OF AM2RICA NUCLEAR REGULATORY COMMISSION g Before Administrative Judges:

il JM 25 All:02 Morton B. Margulies, Chairman Dr. George A. Ferguson g,g , y m, <

Dr. Jerry R. Kim, e gg;wa s L.i, e enw

)

In the Matter of ) Docket No. 50 322 OIA

)

LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91621-01 OLA

)

(Shoreham Nuclear Power Station, ) (Confirmatory Order Modifica-Unit 1 ) tion, Security Plan Amendment

) and Emergency Preparedness

) Amen 6 ment)

CERTIFICATE OF SERVICE I hereby certify that copies of the Notice of Appeal of ASLB Order of January 8,1991 and accompanying Brief in the above captioned matter by Shoreham Wading R:ver Central School District and Scientists and Engineers for Secure Energy, Inc. were served upon the following by first class mail, postage prepaid on this 23rd day of January,1991:

Atomic Safety and Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Morton B. Margulies, Chairman Washington, D.C. 20555 Atomic 'jafety and Licensing Board U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Jerry R. Kline Atomic Safety and Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission George A. Ferguson  ;

Washington, D.C. 20555 ASLBP 5307 Al Jones Drive The Honorable Samuel J. Chilk Columbia Beach, Maryland 20764 The Secretary of the Commission Office of the Secretary Michael R. Deland, Chairman U.S. Nuclear Regulatory Commission Council on Environmental Quality Washington, D.C. 20555 Executive Office of the President Washington, D.C. 20500 E, twin J. Reis, Esq.

Deputy Assistant General Counsel Carl R. Schenker, Jr., Esq.

for Reactor Licensing Counsel, Long Island Power Authority Mitzi A. Young, Esq. O'Melveny & Myers Senior Supervisory Trial Attorney 55513th Street, N.W.

Office of the General Counsel Washington, D.C. 20004 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

l-e i

2-Stephen A. Wakefield, Esq. Donald P. Irwin, Esq.

General Counsel Hunton & Williams U.S. Department of Energy P.O. Box 1535 Washington, D.C. 20585 Richmond, Virginia' 23212 Charles M. Pratt, Esq. Samuel A. Cherniak, Esq. -!

Senior Vice President and NYS Department of law ,

General Counsel Bureau of Consumer l 22nd Floor ~ Frauds and Protection Power Authority of State of New York 120 Broadway 1633 Broadway New York, New York 10271 New York, New York 10019 ,

I Stanley B. Klimberg Esq. i Executive Director snd General Counsel 1 Long Island Power Authority 200 Garden City Plaza Suite 201 Garden City, New York 11530 January 23,1991 %_ / ,

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-'c. )-i }

s ,3 James P. McGranery, Jr.  ; //. '

Counsel for Petitioner Intervefiors Shoreham Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.

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