ML20029B599

Environ Conservation Organization Reply to 910215 Order.* ASLB Should Limit Any Rulings Based on Current State of Record to Rulings Which Presume That Petitioner & Members Have Standing Under Atomic Energy Act.W/Certificate of Svc

ML20029B599
Person / Time
Site:	Rancho Seco
Issue date:	03/04/1991
From:	Mcgranery J DOW, LOHNES & ALBERTSON, ENVIRONMENTAL & RESOURCES CONSERVATION ORGANIZATION
To:	Atomic Safety and Licensing Board Panel
References
CON-#191-11497 91-634-06-OLA, 91-634-6-OLA, CLI-91-01, CLI-91-02, CLI-91-08, CLI-91-1, CLI-91-2, CLI-91-8, OLA, NUDOCS 9103130093
Download: ML20029B599 (12)

Text

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UNITED STATES OF AMERICA ML I! D NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD gj g p. 5 p 7 ;j 7 Before Administrative Judges:

of f e:i + u m ;.w John H. Frye, III, Chairman M gj g-[j " U Dr. Richard F.

Cole Frederick J. Shon

)

In the Matter of

)

Docket No. 50-312-OLA

)

Sacramento Municipal Utility

)

ASLBP No. 91-634-06-OLA District

)

)

(Rancho Seco Nuclear Generating

)

Station)

)

)

ECO REPLY TO ORDER OF FEBRUARY 15. 1991 Pursuant to the Atomic Safety ard Licensing Board

("ASLB") Order of February 15, 1991 (served February 12, 1991; received February U, 1991) in the above-captioned matter, the Environmental Conservation-Organization ("ECO") replies to the Sacramento Municipal Utility District ("SMUD") and Nuclear Regulatory Commission ("NRC") Staff filings referred to in that Order.

ECO began as an unincorporated association of individual persons which has since sought incorporation under the laws of the State of California and is seeking tax exempt status under those laws,-as well as'the Internal Revenue Code.

Attached is a letter-from the relevant California authoritics indicating l

l that initial approval has been given for its incorporation (with l

l a slightly-changed name).

Those documents also show that the l

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l requested intervention is germane to its purpose.

Egg Articles 2

of Incorporation at IV.

Petitioner is currently assisting its participants and members in the preparation of the necessary affidavits, which affidavits are expected to be ready submittal to the ASLB VHiin two weeks and, in any event, not later than fifteen (15) days prior to the holding of the first prehearing conference as part of a supplement to ECO's petition to intervene pursuant to 10 C.F.R. 5 2.714 (b) (1) (1990).

As SMUD stated in its answer, "(t]he District's ratepayers decided that the District should discontinae operating c

the plant" in June 1989.

SMUD Answer at 3.

However, this is not the end of the matter, but rather the beginning of the definition of the alternatives to be considered in the National Environmental Policy Act ("NEPA") impact statement on the proposal to decommission Rancho seco.

As distinct from the factual baser commission's decisions with respect to the Shoreham matter, where the Commission has relied on a series of agreements and state laws allegedly pointing to the decommissioning of Shoreham, the public referendum here was of a much more limited nature:

The public referendum here only prevents EMED from operating Rancho Seco; it does not prevent any other entity from operating Rancho Seco.

Therefore, the resumption of operation of Rancho S ;o by another (whether pursuant to lease, sale or other 2orm of arrangement) is a viable alternative to be considered in this case, especially l

since SMUD has considered, and may consider further, such

, 1 l

i

arrangements.

In other words, as distinct from the premise of the Commission's decision in Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC (Slip Op.

at 8, October 17, 1990), there is no " irrevocable decision not to operate" present here.

Moreover, while SMUD correctly cites the supreme Court's decision in Vermont Yankee for the proposition that state regulatory bodies "make the initial decisions regarding the need for power," this ignores the fact that the NRC itself must make the ultimate decision as to the need for power in its NEPA review, as well as in the " Commission's prime area of concern in the licensing context (with) national security,1' public health, and safety."

Egg SMUD Answer at 8-9, citing i

Vermont Yankee Nuclear Power Cord. v. Natural Resources Defense Council Inc., 435 U.S.

519, 550 (1978) (emphasis added).

Also, the Commission has recognized that both the NRC itself and the U.S.

Department of Enargy (" DOE") each have the authority to compel a licensee to operate a nuclear power plant.

I l

Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit

{

1), CLI-91-02, 33 NRC (Slip Op.-February 22, 1991).

Under 1/

A keystone of the newly issued National Energy Strategy is an increase in the installed electric generating capacity in the United States from about 700,000 MWe to about 900,000 MWe by the year 2010 to increase the amount of primary energy consumed in electricity generation from 36% of total primary energy today to 41% in the future.

National Enerav Strateav 6 (First Edition 1991/1992).

One of the principal approaches to-providing that 900,000 MWe is through the license renewal of existing nuclear power plants.

Id. at 108.

Thus, the premature decommissioning of nuclear power plants is-totally at odds with the National Strategy.

This is an issue that should be considered in the NEPA review of the proposal to decommission to Rancho Seco..~.- -. -.. -

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d these circumstances, especially given the fact that the NRC has D2t made a determination that an order to operate hancho Seco-is not appropriate in current circumstances, that issue should also be considered and DOE should be invited to declare its views on whethet it intends to consider whether to order the operation of Rancho Seco or petition the Commiselon to order such operation.

Id. at 13 n.5.

In seeking a full environmental impact statement on the proposal to decommission Rancho Seco on behalf of itself and its members, ECO is seeking to serve NEPA's purposes by allowing for a full consideration of the environmental implications of its proposal for the benefit of the citizens as well as the decision-makers at both SMUD and the Federal level.

At the heart of the misunderstanding of the Commission's powers (by both SMUD and the NRC Staff) is their failure to recognize that the Commission's power to grant or issue a license also implies the commission's power to " refuse to grant a license," including the denial of a possession only license.

Egg 42 U.S.C. 5 2236(a).

As to the scope of information required under the Atomic Energy Act for the issuance of possession only licenso in anticipation of decommissioning, the Board may consider itself bound by-the Commission's-decision in Lona Island Liahtina Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-91-01, 33 NRC (Slip Op. January 24, 1991), but ECO respectfully submits that its position is in line with the dissenting views of Chairman i

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Carr, which ECO believes to be the correct interpretation of the Commission's regulations and in accord with common sense in this area.

Slip Op. at 11-13.

Also, as to the need for an EIS pursuant to NEPA, SMUD argues that an EIS is not necessary because "(t]he decision not operate a plant is the plant operator's, not the NRC's, and so it is not a federal action at all."

SMUD Answer at 15.

This is not the issue.

While a decision "not to operate" a plant for any day or hundreds of days may be the operator's, what is at issue here is not the decision not to operate, but the orocosal to decommission Rancho Seco, including all of the subsidiary actions (e.g..,

application for possession only license) which have no utility independent of the proposal to decommission.

Each decision to grant or deny the license amendments and exemptions involved in that proposal is Federal action, and it is that overall proposal that should be the subject of an EIS before any particular approval implementing that proposal is given by the NRC.. Egg 10 C.F.R. 95 51.100 & 51.101 (1990).

NUREG-0586, " Final Generic Environmentil Impact Statement on Decommissioning of Nuclear Facilities" (August 1988)

("GEIS") is not relevant to the NEPA review of the instant proposed action, because that GEIS considered only. reactors which have reached "end-of-life" by age or accident.

Rancho Seco has suffered no disabling accident and is many years from the end of its licensed life and, perhaps, further from the end of its -...

_._._.___.2.._,

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j useful life if the NRC's mechanism for license renewal is pursued.F Egg note 1 aggra.

q As to the allegation that ECO lacks standing because

).

the petition did not explain "why intervention should be permitted with particular reference to the nature of petitioner's right under Atomic Energy Act," ECO notes that it and its members i

also have rights to intervene under NEPA (10 C.F.R. 6 l

2. 714 (b) (2) (iii) ) and that the affidavits to be submitted on 4-behhlf of ECO and the members whose interests it represents as

[

authorized by its Article of Incorporation (attached) will fully i

support such intervention under both the Atomic Energy Act and NEPA.F CONCLUSION 1

WHEREFORE, Petitioner urges the ASLB to (a) limit any rulings based on the current state of the record to rulings which presume that Petitioner and its members have standing under the Atomic Energy Act and NEPA or (b) defer such rulings for twenty-one (21) days from the date of this submittal to allow Petitioner-i to submit effidavits on behalf of itself and from its members, 2/

The Commission's determination in the GEIS that the "no-action" alternative was not " viable" was based on the scope of that GEIS, namely reactors which had reached "end-of-life" by age or accident; as explained above, that condition does not exist at

-Rancho Seco.

sat SMUD Answer at 19 n.7.

2/

While petitioner's contentions are to be based on the Applicant's Environmental Report pursuant to Section

2. 714 (b) (2 ) (iii), petitioner-notes that.not even the scoping process for that Environmental Report has begun yet.

Sag 10 C.F.R. E 51.29 (1990). J

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and (c) to schedule a prehearing conference for not earlier than fifteen (15) days after the submittal of such affidavits.

Respectfully submitted,

'T f

s.

5-7: 8 March 4, 1991 James P. McGranery,,Ur.

Dow, Lohnes & Albertson Suite 500 1255 Twenty-Third Street, N.W.

Washington, D.C.

(202) 857-2929 Counsel for Petitioner Environmental Conservation and Resources Organization.-

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Febram/ 11, 1991 Envizcmanlai Ct.nScrvation Orgni::at. ion 101 FJrat Stwet, Suite 320 inF. Altos, CA 94022 ret DNITC'CHAL A!O PI.5OUR TS P.MF#11CE OPGANI nTJON (X2 The proposed Articles of Incorporation or Statement and Designation have been approved for filing.

The documents and fees, if submitted, have-been placed in a pending file for a per.od of 60 days.

Trie application for exe rnption from

tax, together with the attachmerts thereto, have been sent to the Franchire Tax Beard so that thef may act i

on the granting of the required letter of exemption,

( )

The prcposed Articles of incorporation or Statement and Designation, have been approved by our office and a copy sent to the Franchise Tax Bo.r d.

The documents and fees, if submitted, have been placed in e pending file for a period of 60 days awaiting the granting of the required exemption letter.

( )

The required Secretary of State filing fee for this document is $30,00.

Please remit the BALANCE DUE OF

( )

Sections 23133 and 2322) of the Revenue and Taxation Code, prohibit the filing of Articles of incorporation or Statement and Designation, until the exemption i

from the pnment of franchise tax hos becn granted, or the ininimum franchise tax of $800.00 is paid.

The Franchise Tax Board will send a letter granting exemption from franchise

. tax, an inquiry requesting additional inf orma tion, or rejection of the application to the address indicated on the application, if exemption is granted, a copy of the-letter will be sent to our office for use in filing the pending Articles of incorporation.

ALL INQUIRIES REG ARDING THE ISSUANCE OF THE TAX EXEMP7 ION -MUST BE DIRECTED TO THE FR ANCHISE TAX BOARD SACR AMENTO, CA, ATTENTION:

EXEMPT SECTION.

'l DOCUMENT FILING SUPPORT USIT (916) f43-0620

-l

EW" ARTICLES OF INCORPORATION or ENVIRONMENTAL AND RESOURCES CONSERVATION ORGANIZATION (ECO)

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The undersigned incorporator for the purpose of forming a nonprofit corporatior. under the laws of the State of California l

hereby certifies:

I The nane of the corporation is ENVIRONMENTAL AND RESOURCES CONSERVATION ORGANIZATION.

II This corporation is a nonprofit public benefit corporation and is It is not organized for the private gain of any person.

organized under the Nonprofit Pcblic Benefit Corporation Law for public or charitable purposes.

III The name and complete residence address in this state of the corporation's initial agent for service of process is:

ENVIRONMENTAL AND RESOURCES CONSERVATION ORGANIZATION 101 TIRST ST., SUITE 320 LOS ALTOS, CA 94022 IV To provide accurate technical and financial information about 1)energy supply and domand in California in the years to come.

Accurate and independently evaluated information on this subject is irportant because while basic data are available from private and governmontal organizations, the evaluation and analysis of the data, the meaning of the results, and their implications for future sources of energy supply are subject to differing points This evaluation is being done by various nonbers of the of view.

Environmontal and Resource Conservation Organization and by their friends and associates.

These efforts began before the organization was established and were part of the reason foras it beca establishing it, 1

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differed trom those of certain utilities and state conmissions.

No corpensation for any of this effort wen, or in to be provided by this organization.

2) To provide expert and objective infornation about the safety and environnental issues concerning nuclear energy in general and the Rancho Soco Nuclear Generating Station in particular.

Sone of the nonbors and friends of this organization are recognized experts in these technical areas.

3) So provide factual infornation to specific parties or organizations to whom this information would be inportant and tinely, and to petition the U. S. Nuclear Regulatory Connission (USNRC) to accept and consider information this organization can provide jn its deliberations concerning licensing activities that relate to the Rancho Seco Nuclear Generating Station.

Decisions concerning the possible deconniosioning and disrantling of this and it generating station are under consideration by the USNRC, is our finding that a full Environmental Impoet Statement must be licewnsing prepared by the USNRC before they can nake final decisions relating to these possible actions.

Therefore we have petitioned USNRC for the right to intervene in any proceedings on these subjects that come before it (Petition dated Noven.bor 8, Some of ite nenbers are residents of California, and 1990).

these actions are important to protect their interests with respect to these actions.

V The corporation is organized and operated strictly for A.

gathering and disseninating information within the neaning of section 501(c)(3) of the Internal Revenue Code.

Notwithstanding any other provision of these articles or B.

the corporation shall not carry on any other activities

bylaws, from not permitted to be carried en (1) by a corporation exerpt federal incone tax under section 501(c)(3) of the Internal by a corporation contributions to which are Bevenue Code or (11) deductible under Section 170(c)(2) of the Internal Revenue Code.

No substantial part of the activities of the corporation C.

and the shall concist of attenpting to influence legislation, corporation shall not participate or intervono in any political campaign (including the publishing or distribution of statements) on behalf of any candidate for public office.

I VI i

2

a The property of the corporation is irrevocably dedicated to the aforementioned informational purposes and no part of the not ineone or assets of the corporation shall ever inure to the benofit of any private person.

Upon dissolution of winding up of the corporatien, its assets remaining after paynent, or provision j

for payment, of all debts and liabilities of the corporation shall be distributed to a nonprofit fund, foundetion or corporation which is organized and operated for educational and informational purposes and which has established its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code.

)

IN WIT!!ESS WHEREOF, the undersigned has executed these Articles of Incorporation.

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A. David Rossin President EllVIRollMENTAL AND RESOURCES C011SERVATION ORGANIZ ATION 1

JANUARY 10, 3991 1

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1 UNITED STATES OF AMERICA d:Ihc '

NUCLEAR REGULAT0RY COMMISSION

'91 MR -5 P 7 :17

)

In the Matter of

)

Docket No. 50-312-OLA.,

Sacramento Municipal Utility ASL3P No.91-63A 6[bl1 i

District

)

)

(Rancho Seco Nuclear Generating

)

Station)

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ECO Reply to order of February 15, 1991 r ve been served upon the following persons by U.S.

nail, first class a.id in accordance with the requir?ments of 10 C.F.,;.

2.712 on this 4th day of March, 19911 Administrative Judge Administrative Judge John H.

Frye, Chairman Richard F. Cole Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C. 20555 Administrative Judge Charles A.

Barth, Esq.

Frederick J. Shon Office of the General Counsel Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washingtm,

D.C.

20555 Washington, D.C.

20555

)

Thomas A.

Baxter, Esq.

Jan Schori, Esq.

David R. Lewis, Esq.

General Counsel Shaw, Pittuan, Potts & Trowbridge Sacramento Municipc1 Utility 2300 N Street, N.W.

District Washington, D.C. 20037 P.O.

Box 15830 Sacramento, CA 95813 1

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M James P. McGraneryg Jr.

Dow, Lohnes & Albertson

'Suito 500 1255 Twenty-Third Street, N.W.

Washington, D.C.

20037 (202) 857-2929 Counsel for Petitioner Environmental Conservation and Resources Organization l

l