ML20029A042
| ML20029A042 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/24/1991 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | LONG ISLAND LIGHTING CO. |
| References | |
| CON-#191-11340, CON-#191-11341 2.206, CLI-91-01, CLI-91-1, NUDOCS 9102010103 | |
| Download: ML20029A042 (14) | |
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USNRC' NUCLEAR REGULATORY COMMISSION
'91 JAN 24 P3 :36 M MISSIONERS:
Kenneth M. Carr, Chairman
".h,[] dV"Tf i
Kenneth C. Rogers.
James R. Curtiss Forrest J. Remick WED M 2 41991
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In the Matter of
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LONG ISLAND. LIGHTING COMPANY-
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Docket No. 50-322
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(Shoreham Nuclear Power Station,
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Unit 1)
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MEMORANDUM AND ORDER CLI 01 This matter is before the Commission on two virtually identical pleadings styled as " Comments on Proposed No Significant Hazards Consideration and Petition for Leave To Intervene and Request For Prior Hearing" and
" Petition for Leave to Intervene and Request for Prior Hearing" filed by. the Shoreham-Wading River Central School District '(" School District") and the-Scientists and Engineers for Secure Energ1_("SE2") (collectively
" Petitioners"). The petitions concern a request by the Long. Island Lighting-Company ("LILC0") for an amendment;to its license to operate the Shoreham Nuclear Power Plant ("Shoreham"), located on Long-Island in the state of New-York. The amendment would change _ the license from one which authorizes LILCO to " possess, use, and operate" Shoreham to one which authorizes LILC0 to
" possess, use but not operate the facility."
9102010103 910124 PDR ADOCK 05000322 O
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I We have delayed referring these petitions to a Licensing Board for actior, in order to address at the threshold some significant policy questions s.
about ' " operation of our decommissioning regulations in the circumstances i
presen u in this case.
A major issue raised by the petitions is whether the requested amendment constitutes a " possession only" license (" POL") and if so, what if any requirements related to decommissioning does that fact impose on the parties and on the Commission.
in this case, we have determined (1) that the requested amendment would indeed transform the Shoreham operating license into a POL; and (2) that such a POL may be issued without any preliminary or final decommissioning t
information; and (3) that the petitions should be forwarded to the Licensing Board for consideration under the Commission's normal Rules of Practice, LJL.,
10 C.F.R. 2.714, consistent both with this order and our recent decision on
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other petitions filed by the same petitioners. Ett Lona Island Liahtina Comoany (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (Oct.
17, 1990) ("CLI-90-08") (Motion for Reconsideration filed Oct. 29,1990).
I.
Backaround.
On March 3, 1989, we concluded the Shoreham operating license proceeding and authorized the issuance of the full power operating license for the Shoreham facility. S.tg tona Island Liahtina comoany (Shoreham Nuclear Power Station, Unit 1) CLI-89-02, 29 NRC 211-(1989),
However, just prior to the issuance of CLI-89-02, on February 28, 1989, LILCO and the intervenors in the NRC licensing proceeding, the State of New York, the County of Suffolk, and the Town of Southampton reached an agreement memorialized in a signed settlement agreement or contract between LILCO and the State. Under the 2
I agreement, LILCO agreed, inin Alin, to sell the Shoreham facility to the Long Island Power Authority ("LIPA"), an entity created by the New York legislature g
for the express purpose of acquiring and decomissioning Shoreham. In New York Public Authorities Law i 1020,21 ag. (McKinney Supp. 1990).
The agreement became effective on or about June 28, 1989 upon its ratification by the LILC0 Board of Directors.
The agreement also provided that LILC0 would not opera *.e Shoreham as a nuclear power plant.
Consistent with its comitment not to operate Shoreham, LILCO began defueling the Shoreham facility on June 30, 1989 and completed that process on August 9, 1989 Lit.C0 has also initiated the process of reducing staff at the Shoreham facility and has at all times acted as if it intends to abide by the agreement.2 On January 5,1990, Lf LC0 filed an application for an amerament to its operating license which would transform the operating license f ato a 'defueled operating license.' The NRC Staff (' Staff') published notice of the requested amendment and a proposed finding of 'No Significant Hazards Considerations.'
Sn 55 Fed. Reg. 34098 (Aug. 21,1990).
On September 20, 1990, petitioners filed their coments on the proposed finding of "No Significant Hazards Considerations,* requested that the Comission hold prior hearings on the proposed amendment, and sought leave to intervene in the proceeding.
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'The NR; Staff issued :,he Shoreham full power license on April 21, 1989.
8For example, LILCO hus successfully sought or is seeking various amendments to its operating license as well sc exemptions from several applicable NRC Regulations.
The NRC has received Petitions to Intervene and Requests for Hcarings regarding several of the requested license amendments.
En CLI-90-08, ann.
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!!. Arouments.
Briefly, the petitioners argue that (1) the request for a "defueled operating license" constitutes a request for a " possession only" license
(" POL *); (2) the Comission's decomissioning rule,10 C.F.R. 50.82, requires that the licensee subn.it and the NRC Staff approve a decomissioning plan pr_ int to the issuance of a POL; (3) the decomissioning " report" prepared by LIPA and submitted by LILCO on some unspecified date in April of 1990 has not been approved as a 'decomissioning plan' in accordance with the Comission's rules; and (4) the Staff must issue an Environmental Impact Statement ("EIS")
considering " resumed operation" as an alternative to the decision to decomission the facility prior to the issuance of the POL. ItJt sinerally SE2 Petition at 3-11; School District peti ' at 3-11.
In response, on October 3, 1990, e ssued an order directing the Staff and LILCO to respond to two questions: (1) did the requested "defueled operating license' constitute a POL and (2) did the decomissioning rule require submission of a 'decomissioning plan" prior to issuance of a POL.
The October ird Order also accepted comments filed by LIPA on October 12, 1990, and solicited coments from the Department of Energy (" DOE") and the Council on Environmental Quality ('CEQ').
Both the CEQ and the DOE accepted our invitation and filed coments. Moreover, on November 15, 1990, we received coments by the State of New York.3 8The Order of Kovember 15 granted a request from the State of New York to file comments in opposition to the petitioners' Joint Motion for Reconsideration of CLI-90-08 (October 29, 1990) (" Joint Petition').
The order also noted that-the comments filed by the CEQ and the DOE on the matter before us now included comments directed at the Motion for Reconsideration and agreed 4
to consider those comments on that issue as well.
Finally, LIPA has flied i
additional comments in response to the DOE and CEQ coments and in response to the Joint Petition.
We hereby accept those comments in both proceedings. We note that the CEQ and 00E comments are focused on the issues discussed in CL1-4 1
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The Staff agreed with the petitioners that the requested amendment would constitute a POL, but both the Staff and glLCO argued that the decomissioning rule did not require submission of a formal decomissionnig plan prior to the granting of a POL.
Briefly, the Staff, LILCO, and LIPA argue that: (1) the Comission's regulations are silent regarding the timing or requirements for seeking a POL; and (2) that the Statement of Considerations accompanying the Decomissioning Rule specifically notes that the Comission will nurmally issue a POL print to issuing an order permitting decomissioning "to confirm the nonoperating status cf the plant and to reduce some requirements which are important only for operation prior to finalization of decomissioning plans."
Moreover, Staff and LILC0 argue that the Decommissioning Rule specifies only that in filing an application for a Decomissioning Order, "within two years following the permanent cessation of operations," a licensee must " apply to the Comission for authority to surrender (its) license voluntarily and to decomission the facility." They conclude that it is this application for a Decommissioning Order that is to be preceded or accompanied by the licensee's formal decommissioning plan, while the POL need only be accompanied or preceded by a " preliminary decomissioning plan" which includes information analogous to that required by 10 C.F.R. 50.75(f) and demonstrates compliance with the requirements of 10 C.F.R. 51.101.
90-08, anta, rather than the decomissioning issues discussed in this Memorandum and Order.
To the extent they are applicable, we have considered all coments in the preparation of this Order.
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111. Analysis.
A.
The Possession Only License.
Thepetitionersarguethattherequ)stedamendmentconstitutesa
" possession only' license.
The Staff agrees and LILCO does not object to treatment of its request as such. We agree that the requested amendment would, if granted, convert the Shoreham license into a ' possession only' license.
B.
Decomissioning Requirements, petitioners next argue that because the requested amendment constitutes a ' possession only' license, the Comission must deny the request because LILCO has not yet submitted its " decommissioning plan" pursuant to 10 C.F.R. 50.82(a).
We disagree.
Neither regulations, NEPA, nor policy considerations require a decomissioning plan to be submitted in conjunction with the POL application.
The regulation does require that the licensee submit its application "to surrender [its) license voluntarily and to decomission the facility...
within two years following permanent cessation of operations,' and that--
'[elachapplicationmustbeaccompanied,orpreceded,byaproposed decomissioning pl6n."
But clearly, the requested amendment before us today does not constitute an ' application to surrender a license voluntarily....*4 Thus, it neud not be accompanied or preceded by a full-scale decomissioning plan.
10 C,F.R. 50.82(a), utpn.
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'In fact, LILCO has consistently stated that under the contract or settlement agreement with the State of New York and under New York State Law, only LIPA is entitled to decommission the Shoreham facility. h a LILCO Response at 6-7.
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As the Staff points out, our regulations do contemplate that "[ejach licensee shall at or about 5 years priorgo the projected end of operation submit a preiminary decommissioning plan....'
10 C.F.R. 50.75(f) (emphasis added). And the Statement of Considerations accompanying the decomissioning i
rule stated that the "overall approach to decomissioning 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.* 53 Fed. Reg. 24024 (June 27, 1988).
However, this language merely reficcts the normal situation under the rule whereby the preliminary plan will in fact have been filed before the POL application.
See 10 CFR 50.75(f). Nothing in the rule itself or in the Statement of Considerations indicates that POL issuance would be tied to the preliminary plan required by 10 CFR 50.75(f).
In fact, our dece missioning regulations do not require any POL - the Statement of Considerations merely describes the POL as something the licensee may seek in order to be relieved of requirements not necessary for safety in a ' possession only" mode.
Our decocrissioning regulations also include amendments to 10 CFR Part 51 to address NEPA requiren,ents related to decomissioning.
Notably, while the rules themselves included a Generic Environmental Impact Statement and required a supplemental environmental review in connection with approval of the final decomissioning plan,10 CFR 51.95(b), the categorical exclusion applicable to issuance of POLS in 10 CFR 51.22(c)(9) was left unchanged. We believe that the decomissioning rules do not contemplate that a POL would, in normal circumstances, need to be preceded by submission of any particular environmental information or accompanied by any NEPA review related to decomissioning. Accordingly, we do not believe that NEPA or 10 CFR Part 51 7
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serves as a basis for linking a POL with the filing or review of any preliminary decomissioning plan.
Of course there may be special circumstances where snme NEPA review for a POL may be warranted despite the categorical exclusion, for example if the POL clearly could be shown actually to foreclose alternative ways to conduct decomissioning that would mitigate or alleviate some significant environmental impact.
But, from the papers filed with us at this preliminary stage, no such special circumstance appears in this case.
Indeed petitioners are concerned not with alternative ways to decommission, but with operation as an alternative to decomissioning. We have addressed this latter matter in CLI-90-08.
C.
Action Before The Licensing Board.
We hereby forward the two petitions before us now, with their assorted supplements and answers,.in addition to the pleadings filed by LIPA, DOE, CEQ, and the State of New York, to the Licensing Board for further proceedings in accordance with the Comission's Rules of Practice, specifically 10 C.F.R. 2.714(a)(2), and in actordance with the opinions expressed h. ein and in CLI-90-08.
The additional concurring views of Comissioner Curtiss and the dissenting views of Chairman Carr are attached, it is so Ordered, r the Co ission 3
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f SAMUEL NTAILK Secretary of the Comission Datedat1&ctflile, Maryland this @ W day of January 1991.
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Additional Concurrina Views of Co nissioner Curtiss
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I agree with the majority's conclusion that the decomissioning rule does not require the submission of a decomissioning plan, either in preliminary or final form, prior to the issuance of a possession-only license (POL).
With regard to the question of whether the Comission should declare, as a matter of policy, that such a plan should be submitted prior to issuance of a POL, I am persuaded that such an approach would be unwise for the following reasons:
First, I see no connection between the objectives that have been articulated in the decomissioning rule and 'he suggestion that a decomissioning plan should be required prior to issuance of a POL.
As the majority points out, there is no information that would indicate that issuance of a POL will in any way foreclose alternative approaches to decomissioning. Nor will issuance of a POL detract in any way from the ability of the licensee to raise or maintain decomissioning funds.
Indeed, insisting upon a decomissioning plan prior to issuance of a POL may well lead to exactly the oppositc result, with the licensee obligated to continue otherwise unnecessary expenditures to comply with the terms of its full power operating license, when such funds would,-in my view, be more properly husbanded to carry out the ultimate task of decommissioning the facility, once the licensee has reached the decision that this is the course that it wishes to pursue.
Second, to the extent that the objective here, for those who are arguing that a decomissioning plan must be submitted and approved prior to issuance of a POL, is to continue the debate over whether the Shoreham facility should be l
preserved in a fashion that would permit it to operate at some future point in 9
1 1
time, I do not believe that this agency should become the forum for debating l
such broad national policy questions. As.a legal matter, we have addressed t.
our responsibilities in CLI-90-08. Beyond that, we risk considerable damage 4
to our position and responsibility as an independent arbiter of safety questions by entertaining what is essentially e policy dispute over the future of this facility.
Moreover, the precedents that would necessarily be established to accommodate such a debate would almost certainly have significant adverse consequences for future proceedings in other cases, 4
opening the door for both opponents as well as proponents of nuclear power to litigate broad natior.a1 energy policy issues in NRC proceedings. Such a result would, in my judgment, quickly prove to be a costly mistake.
In my view, if questions still remain as to whether the Shoreham facility should be preserved in a fashion that would permit it to operate at some future point in time, there are other more appropriate venues for the conduct of that debate.
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Dissentino Views of Chairman Carr The staf f has argued and I agree that LILb0 must submit a " preliminary plan" containing sufficient information prior to issuance of a defueled operating license or possession only license (POL) to provide tne Commission the necessary assurance that adequate fur. ding for safe decommissioning will be provided on a timely basis. When it adopted its decommissioning rules, the Commission envisioned an orderly progression towards termination of operation and decommissioning of a facility.
Licensees would provide assurance of the availability of funds for decommissioning well before the fac111ty shutdown, by one of several specific means. Egg 10 CFR 50.75 (a)-(e).
Under 10 CFR 50.75(f), five years before the projected end of facility operation, the licensee would submit a preliminary decommissioning plan containing a cost estimate for decommissioning and an up-to-date assessment of the major technical factors that could affect planning for decommissioning. To submit this information the licensee was expected to have evaluated the upcoming decommissioning of its facility sufficiently to anticipate the alternative to be used, the major steps necessary to carry out decommissioning safely, and whether the funds accumulated were sufficient to assure safe decommissioning or whether the level of funds should be adjusted.
Then, within two years of 4
permanent cessation of operation, the Itcensee is required to submit a decommissioning plan with a detailed analysis and description of the steps necessary to safely remove a facility from service and reduce residual radicar,tivity to a-level that permits release of the property for unrestricted use and termination of the license.
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The defueled license which Shoreham has applied for in this case is essentially the same as a possession only. license.
While the Comission s
recognized when it issued its decomissioning rules that a possession only license would ordinarily be issued before decomissioning plans were
" finalized", i.e., before the 10 CFR 50.82 plans were reviewed and approved, some preliminary decomissioning information was needed.
Indeed, that was the I
information expected to be provided under 50.75(f).
While literal application of 50.75(f) is not possible in this case, that is no reason to abandon altogether the rationale behind the Comist, ion's adoption of the step-wise approach to decomissioning requirements in the first place, idL.i. to assure that decomissioning of all licensed facilities will be accomplished in a safe and timely manner and that adequate licensee funds will be available for this purpose.
Indeed, the Comission may have greater reason to be concerned about understanding how p ematurely shutdown facilities intend to proceed with decomissioning and funding than for those which follow the normal 40-year progression to lictnse termination.
The more abrupt the shutdown, the less extensive will be any planning about decommissioning and once a~ facility is no longer generating revenue for its owner, there is less incentive to proceed with a timely and cafe decomissioning, because a source of funds derived directly from the plant will no longer be available for decomissioning.
I also believe that we need preliminary decomissioning information from the licensee prior to issuance of the POL in order to implement the course we established in CLI-90-08 to meet our obligations under the National Environmental Policy ACt (NEPA).
In that decision we indicated that the NEC staff need not prepare an environmental assessment or an environmental impact-12 l
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l a-statement reviewing and analyzing resumed operation of Shoreham as a nuclear power plant as an alternative under NEPA.. However, we concluded that the i
de Connission did have an obligation to assure that NRC action such as issuance i
of a possession only license does net foraciose or materially affect a i
decommissioning option which will be subject to an environmental review upon i
consideration of the licensee's decommissioning plan. Egg CLI-90-08, at 8 3
l n.3.
Consequently, as staff recognized in its filing with the Commission. the Commission would need some preliminary decommissioning information in order to-assess the effect of activities to be carried out under the POL on the 1
reasonable options available for decommissioning.
t For these reasons, I believe the licensee should submit a preliminary decommissioning plan, such as that contemplated under 10 CFR 50.75(f), before a possession only license is issued, and I therefore respectfully dissent from the decision of my colleagues, i
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 5
In the Matter of I
I I
j LONG ISLAND LIGHTING COMPANY l
Docket No. 50-322 (Shoreham Nuclear Power Station.
l (Hearino Petitions)
Unit 1) l AND (2.206)
I CERTIFICATE OF SERVICE I hereby certify that cooles of the-foregoino COMMISSION MEMORANDUM AND ORDER (CL1-91-1) DiD 1/24/91 have been served upon the followino persons by U.S.
mail. first class. except as otherwise noted and in accordance with the reouirements of 10 CFR Sec. 2.712.
Lawrence J. Chandler. Esc.
Michael R.
Deland. Chemn
)
Office of the General Counsel Council on Environmental U.
S. Nuclear Reoulatorv Commission Quality Washington. DC 20555
' Executive Office of the President James P. McGranery. Jr.. Eso.
Washington, DC' 20500 Dow. Lohnes & Albertson 1255 23rd Street.
N.W.
Honorable James D. Watkins Suite 500 Secretary of Energy Washington. DC 20037 Washington. DC 20505 Donald P.
Irwin. Esc.
Samuel A. Cherniak..Eso.
Hunton & Williams NYS Department of Law 707 East Main Street Bureau of Consumer P.
O.
Box'1535 Fruads and Protection Richmond, VA 23212 120 Broadway New York. NY 10271 Carl R. Schneker.
Jr.. Esc.
l O'Melveny & Myers Thomas E. Murley. Director Counsel f or Long Island Power Office of; Nuclear Resctor I
Authority Regulation i
'555 13th Street. NW.
U.-S.-Nuclear Regulatory-Washington. DC 20004 Commission Washington. DC 20555 1
Dated at Rockville. Md. this 24 day of January 1991 Office of.the Secretarv crf the Commission
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