ML20029B612
| ML20029B612 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/06/1991 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC), SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| References | |
| CON-#191-11506 91-631-03-OLA-2, 91-631-3-OLA-2, LBP-91-07, LBP-91-7, OLA-2, NUDOCS 9103130126 | |
| Download: ML20029B612 (34) | |
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UNITED STATES OF AMERICA LDP-91-7
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NUCLEAR REGULATORY COMMISSION O,'
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ATOMIC SAFETY AND LICENSING BOARD,s,'
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Before Administrative Judges
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Norton B. Margulies, Chairman gg
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Dr. George G.
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Dr. Jerry R. Kline W me A,'
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In the Matter of
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Docket No. 50-322-OLA-2
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LONG ISLAND LIGHTING COMPANY
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ASLDP No. 91-631-03-OLA-2
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(Shoreham Nuclear Power
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(Possession only License)
Station, Unit 1)
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March 6, 1991 MEMORANDUM AND ORDER (Ruling on Requests For Intervention)
I.
INTRODUCTION The Commission, in Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) CLI-91-01, 33 NRC _ (slip op.
Jan. 24,-1991)(Carr, Chair., dissenting), assigned for disposition by the Licensing Board two nearly identical pleadings styled as " Comment On Proposed No Significant Hazards Consideration And Petition For Leave To Intervene And Request For Prior Hearing."
They were filed September 20, 1990, by the Scientists and Engineers-for Secure Energy (SE2) and the Shoreham Wading River Central School Disttict (School District).'
The petitions were forwarded to this Licensing Board with their related supplements and answers in addition to amicus pleadings filed by the Long Island Power Authority (LIPA),
the Department of Energy (DOE), the Council on Environmental Quality 9103130126 910306 8
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The petitions relate to a January 5, 1990 application by Long Island Lighting company (LILco) to amend its full power i
operating license for the Shoreham Nuclear Power Station, Unit 1 to one to " possess, use, but not operate Shoreham."
Licensee proposed that its full power operating license be amended to become "a defueled operating license" which may be treated as a
" possession only license."
Additionally, the amendment would prohibit the placement of fuel in the reactor and delete provisions which Licensee considers are not pertinent to a situation where fuel may not be put into the reactor vessel and the reactor will not be operated.
-Generally, the license conditions regarding the Flux Monitor, Instrumentation and Control Systems Required for Safe Shutdown, Steam Condensing Mode of RHR, Emergency Diesel Generator, Fission Gas Release and Ballooning and Rupture, Strike Shutdown, Hurricane Shutdown, County Liaison, Brentwood Staffing, and Quarterly Drills would be deleted.
The Licensee would not be allowed to operate the facility at any core power level.
. Notice of the application to amend the license was published in the Federal Register.
The notice listed the 22 proposed changes to the Technical Specifications of the Shoreham operating license.
Also, it advised that the--Licensee had determined, on the basis of its own analysis, that the proposed changes do not involve a significant hazards consideration.
The notice further (CEQ) and the State of New York (State).
4 i stated, following a restatement of the Licensee's analysis, that the Commission had made a proposed determination that the amendment request involves no significant hazards consideration and that the Commission may decide to issue license amendments authorizing various portions of the application, while-it continues to review the remaining portions of the application.
55 Fed. Reg. 34098-34101 (Aug. 21, 1990).2 i
The Commission sought public comment on the proposed determination and offered any person whose interest may be affected by the application the opportunity to file a request to intervene in a hearing on the proposed amendmento to the operating license.
Id2 at 34100-34101.
In response, SE2 and School District, on September 10, 1990, filed their petitions in which they_ argued, inter alia, that a final determination by the commission that the proposed amendment poses no significant hazard is'" fatally" premature, that Petitioners be permitted to intervene and that a. hearing be held on the issues presented by the proposed amendment to the full power license.3 By order of October 3, 1990, the Commission requested LILCO
- and the NRC Staff (Staff) to address Petitioners' arguments on 2
A Federal Register Notice of September 5, 1990, described
.the amendment request es removing LILCO's authority to operate Shoreham and would result in the issuance of a " possession only" license.
3 Petitioner's on October 10, 1990, filed supplements to their September 10, 19.90 petitions citing further reasons for the relief sought.
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the subject matter (1) that a proposed "defueled operating license" actually constitutes a " possession only license" (POL) and (2) that under 10 CFR 50.82, LILCO must submit and Staff must approve a decommissioning plan prior to the submission of an application for a POL.
LILCO, on October 12, 1990, responded to petitioners' petitions filed September 20, 1990, and the Commirssion's or October 3, 1990.
Licensee requested that the petitions f to intervene and requests for hearing be denied.
Staff on October 24, 1990, responded to the petitions and the Commission's order of October 3, 1990.
In addition to answering the Commission's October ' request, it opposed the J
petitions to intervene on the grounds that petitioners havr not shown that they would suffer an injury in fact by the granting of LILCO's application for a POL or that they have raised issues entitling them to a hearing.
In a separate matter, on October 17, 1990, the Commission had issued a Memorandum and Order involving three separate proposed changes to the Shoreham full power operating license stemming from Licensee's agreement with State not to operate Shoreham and the plant's defueled status.
The changes to the Shoreham-license-involved a Confirmatory Order that prohibits LILCO from placing any nuclear fuel in the Shoreham reactor vessel without prior NRC approval; an amendment that would allow changes in.the physical security plan and a reduction in the security forces; and an amendment that would remove certain
. license conditions regarding offsite emergency preparedness activities.
Lono Island Liahtino Co. (Shoreham Nuclear Power Station, Unit 1) CLI-90-08, 32 NRC 201 (1990) aff'd on reconsideration, CLI-91-02, 33 NRC __ (slip ot. Feb. 22, 1991).
The Commission, in ruling on certain aspects of the petitions filed by SE2 and School District in those matters, determined, in part, that the National Environmental Policy Act (NEPA) and the Atomic Energy Act (AEA) do not require the NRC to consider resumed operation of Shoreham as an alternative to decommissioning under the facts of the proceeding.
SE2's and School District's petitions to intervene and to hold a hearing were forwarded by the Commission for handling by a Licensing Board, which is composed of the same members as this Licensing Board.
The Licensing Board was directed to review the three matters and resolve all other aspects of the hearing requests in a manner consistent with the opinion.'
In the subject proceeding, the Commission has accepted comments filed by LIPA, DOE, CEQ and State.
CLI-91-01, slip op.
at 4, n.3.
In its January 24, 1991 Memorandum and Order, CLI-91-01, the Commission determined (1) that the requested amendment would On January 8, 1991, the Licensing Board issued a Memorandum and Order, LBP-91-1, 33 NRC (slip op. Jan.
8, 1991), in which it found that Petitione_r_s had failed to meet the requirements of 10 CFR 2.714 (a) (2) to permit intervention.
Petitioners were permitted to file amended petiticns, which they did on February 4, 1991.
On January 23, 1991, Petitioners had appealed the Memorandum and Order, LDP-91-1, to the Commission.
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j transform the Shoreham operating license into a POL; (2) that such a POL may be issued without any preliminary or final decommissioning information; and (3) that the petitions should be forwarded to the Licensing Board for consideration under 10 CTR f
2.714 and in accordance with the opinions expressed in CLI-91-01 i
j and CLI-90-06.
In this Memorandum and Order, the Licensing Board rules on the petitions requesting intervention and hearing.
We find, based on the filings before us, that Petitioners have failed to meet the requirements of 10 CFR 2.714 (a) (2) to permit intervention.
In accordance with Commission practice, Petitioners are given the opportunity to file amended petitions that may cure the defects that the Licensing Bosrd has found.
II.
SCOPE OF PROCEEDING A.
The Hearing Notice And Commission Guidance Define The Scope Of The Proceading In licensing matters, the Commission has followed the rule that the hearing notice, published by the agency for the proceeding, defines the scope of the proceeding and its issues.
The hearing notice limits the Licensing Board's jurisdiction.
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 565 (1980); Commonwealth Edison 7
E22 (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980).
i Furthermore, the Commission has inherent supervisory authority over adjudicatory proceedings and can step in to decide 1
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i any matter itself.
In so doing, the Licensing Board is bound by i
the guidance or direction given in determining the scope of the proceeding.
Lona-Island Lichtina Co. (Shoreham Nuclear Power Station, unit 1), CLI-91-02, 33 NRC __ (Feb. 22, 1991, slip op.
at 13-14).
The Commission, in forwarding the matter for handling by the Licensing Board, advised that the petitions should be decided in i
acco.Jance the opinions in CLI-91-01 and CLI-90-08.
Our jurisdiction on the scope of 'the issues is limited accordingly.
B.
The Hearing Notice The hearing notice was publiched in the Federal Register, as one part of a notice titled " Consideration of Issuance of i
Amendment To Facility operating License And Proposed No Significant Hazards Consideration Determination And Opportunity For Hearing; Long Island Lighting Co." 55 Fed. Reg. 34098-34101 (Aug. 21, 1990).
As previously described, the proposed amendment would remove-the Licensee's authority to operate the facility as an operating reactor.
There would be 22 changes to the Shoreham full power operating license.
The changes would for the most part eliminate Technical Specifications LILCo has to comply with as the-holder of a full power license.
The notice recited that the Commission had made a proposed determination based on the Licensee's analysis, that the request for amendment involves no significant hasards consideration and that the Commission may decide to grant portions of the request,
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. in whole or part.
The commission sought public comment on the l
proposed determination and gave notice of opportunity for hearing on the amendment.
A determination of no significant hazards consideration is i
not a substantive determination of public health and safety issues for the hearing on the proposed amendment.
The only effect of such a determination on the hearing is to establish whether the amendment may be approved before a hearing is held or, if there is a finding of significant hazards consideration, a final decision must avait the conclusion of the hearing.
Commission regulation is very clear that a Licensing Board is without authority to review Staff's significant hazards consideration determination.
10 CFR 50. 58 (b) (6).
The Licensing l
Board will abide by the regulation and not consider any challenge to a significant hazards consideration determination by Staff.
That part of the Commission's notice of Aug. 21, 1990, relating to Staff's significant hazards consideration determination is beyond the scope of the hearing on the proposed amendment.
As to that part of the Commission's notice offering the opportunity for intervention, to a person whose interest may be affected by the issuance of the amendment, the scope of the hearing is whether the proposed amendment should be granted under the applicable law and regulation.
C.
Commission Guidance (1)
CLI-90-08, 32 NRC 201 (Oct. 17, 1990)
, Petitioners submitted comments on three license changes to the Shoreham operating license, and each requested a hearing.
The Commission delayed forwarding the petitions for handling by a licensing board in order to address at the threshold some 6
significant policy questions about the operation of the decommissioning regulations that had been raised by Petitioners.
The Commission has ruled that LILCO is entitled to make an irrevocable decision not to operate Shoreham without NRC 4
approval.
The alternatives of resumed operation, or other methods of generating electricity, are alternatives to the decision not to operate Shoreham and thus are beyond Commission consideration in any NEPA review of decommissioning.
The Co 21ssion has concluded that it has no legal authority, except under special circumstances not applicable here, to order the operation of c nuclear power plant.5 The Staff therefore need not consider resumed operation of choreham as an alternative course of action in any environmental review of decommissioning
- it performs.
The Commission found that the broadest NRC action related to Shoreham decommissioning will be approval of the decision of how decommissioning will be accomplished not whether to decommission.
With respect to three licensing actions then under consideration, it concluded that NRC's only concern under NEPA was whether the 5
See Sections 108, 186(c) and 188 of the Atomic Energy Act of 1954, as amended.
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actions would prejudice decisions concerning the means of decommissioning.'
(2)
CL1-91-01, 33 NRC __ (slip op. Jan. 24, 1991)
In a policy review of LILCo's application for amendment of the Shoreham license, the conmission determined that the requested "defueled operating license," if granted, would convert the Shoreham opereting license into a POL.
It also ruled that the request for POL need not be preceded or acconpanied by either a decommissioning plan, or particular enviro:' mental information, or r NEPA review related to decommissioning.
However, a 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 Cecommissioning that would mitigate or alleviate some signifi. cant environmental impact.
The Commission found that neither NEPA, nor 10 CFR Part 51, serves as a basis for linking a POL with the filing or review of any prelimincry decommissioning plan.7 5
The Commission affirmed on reconsideration its ruling on l
decommissioning policy in CLI-90-08.
Lona Island Lichtina Co2
('Shoreham Nuclear Pownr Station, Unit 1), CLI-91-02, 33 NRC __
(slip op. Feb. 22, 1991).
7 In making its policy determinations, the Commission considered comments from LIPA, DOE, CEQ and State.
Thest l
commenters uddressed bread policy issues related 5.o NRC's decommissioning regulations but did not comment specifically on the proposed amendment or any of its subparta, or on either of the Petitioner's T,2rticular bases for standing in this proceeding.
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Licensing Board Cinclusion Upon review of CLI-90-08 and CLD.91-01, the Licensing Board concludes that it is without authority to issue an order for the put oose of causing or preserving the option of resumed operation of Shore am.
The Licensing Board will not antartain any issue in the POL pro eedjng for which the relief sought % an order leading dir w ly or indirectly to resumed operation of Shoreham as an alternat 4ve under NEPA.
g The Liev.a.ing Board also concludes that, except in special c.s..atancea which have not been asserted here, P lacks authority to order an environmental review in the regest for a PGL, or the prior filing of a decommissioning plan ac, condition for approV11 et 14LCO's request for a POL.
The Licensi B Aoard will theret n e nu entertain any issue for which t%t reW is sought in this prs meding.
III.
LEGAL REQUIRDiUNTS FOR INTERVENTION Section 189(a)(1) of the Atomic Energy Act, which provides for a (liflA to any person whose. interest may be affected by the acanding of a 1 Dense, is implemented in 10 CPR 2.714.
10 CFR 2. 714 (a) (1) states ' hat $ xy person whose interest may be at'fected by a proceeMM and who desires to participate as a party shall file a writtere petition to intervene."
Requirements for such ;etition.s are contained in 10 CFR 2.714(a)(2), whfch provides:
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. The petition shall set forth vith particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to I
the f actors in paragraph (d) (1) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
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.
5.
Portland General.ElcetrJc Co. (Pobble Spri;.gs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
Judicial concepts of standing require L showing that (a) the action sought in a proceeding will cause injury in fact and (b) the injury is arguably within the zone of interests protected by statutes covering the proceeding.
Metronolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, la NRC 327, 332 (1983).
A petitioner should allege, in an NRC proceeding, an injury in fact that is within the zone of interests protected by the AEA or NEPA.
Efaaara Mohawk Power Corn. (Nine Mile Point Nuclear Station, Unit 2), LBP-83-45, 18 NRC 213, 215 (1983).
In addition, the petitioner must establish (1) that it personally has suffered, or will suffer, a distinct and palpable harm that constitutes an injury in fact; (2) that the injury can he traced to the challenged action; and (3) that the injury is likely to be remedied by a favorable decision granting the relief sought.
Dellums v _HEQ, 863 F.2d 968, 971 (D.C. Cir. 1988); ER2 u
also Nuclear Enaineerina co.. Inc. (3heffield, Illinois, Low-
t Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 7.
(1978).
For an organization to have standing, it must show injury in fact to its organizational interests or to the interest of members who have authorized it to act for them.
If the organization is depending upon injury to the interests of its members to establish standing, the organization must provide with its pstition identification of at least one member who will be injured, a description of the' nature of that injury, and an authorization for the organization to represent that individual in the proceeding.
Philadelchia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1437 (1982).
A petitioner may base its standing upon a showing that an organization or its members are within the geographic zone that might be affected by an accidental release of fission products.
Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 443 (1979).
Close proximity under those circumstances has been deemed standing alone, to establish the requisite interest for intervention.
In such a case, the petitioner need not show that the concerns are well founded in fact.
. Distances of as much as 50 miles have been held to fall within the zone.
Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979); Duauesne Licht Co. (Beaver Valley Power Station, Unit 2),
LBP-84-6, 19 NRC 393, 410, 429 (1984).
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- 14 The Commission does not allow the presumption to be applied to all license amendments.
It only does so in those instances involving an obvious potential for offsite. consequences.
Those include applications for construction permits, operating licenses or significant amendments thereto such as the expannion of the capacity of a spent fuel pool.
Those cases involve the operation of the reactor itself, or major alterations to the facility with a clear potential for offsite consequences.
Absent situations with obvious potential for offsite consequences, a petitioner must allege some specific injury in fact that will result from the action taken.
Florida Power and Licht Co. (St. Lucie Nuclear Power plant, Units 1 and 2), CLI-89-21, 30 NRC 325 329 (1989).
Economic interest as a ratepayer does not confer standing in NRC licensing proceedings.
Metrooolitan Edison Co. (Three Mile l
Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332 n. 4 (1983).
Those economic concerns are more properly raised before state economic regulatory agencies.
Public Service Co. of New Hamoshire (Seabrook Station, Unit 2) CLI-84-6, 19 NRC 975, 978 l
(1984); Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1447 (1984).
Assertions of bread public interest in (a) regulatory matters, (b). the administrative process, and (c) the development of economical energy resources do not establish the particularized interest necessary for participation by an individual or group in the nuclear regulatory adjudicatory I
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e process.
Betrocolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332 (1983).
IV.
REQUESTS FOR INTERVENTION AND TO HOLD A HEARING A.
SE2's Position SE2 claims it meets all criteria for standing.
It describes itself as an organization dedicated to correcting s
misundersta.. dings on fundamental scientific and technological issues permeating the " national energy debate."
Petitioner offers its views, based on the expertise of its members, to the public cnd to governmental agencies with respons3bility for the resolution of energy issues.
Many of its members are said ta.ive, work and have property interests in the vicinity of the nuclear plant.
SE2 claims that the organization and its members have a special interest in the radiologically safe and environmentally benign operation of Shoreham to provide them with reliable electricity and to avotd the substitution of fossil fuel plants and their adverse effects, i.e., relying on imported gas and oil which have adverse effects on the physical environment, the trade deficit and national energy security.
Petitioner overall views LILCO's application for a POL as another effort toward 512 f acto decommissioning of the Shoreham plant without an approved decommissioning plan.
SE2 claims its a PSI E2 violation of the AEA and a health and safety violation.
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It believes that with the relaxation of the Technical Specifications, as requested, LILCO would be free to allow the facility to deteriorate and to actively dismantle systems which are vital to an operating system.
SE2's key point is that Shoreham's decommissioning is not a foregone conclusion and that the NRC must complete an Environmental Impact Statement (EIS) before any such approval for decommissioning may be given.
It argues that the EIS must include as an alternative the operation of Shoreham.
SE2 further asserts that granting the POL with drastically relaxed Technical Specifications, which were considered necessary for safe operation, would increase the health and safety risk posed by the. plant should the resumed operation alternative ultimately be pursued.
In summary, Petitioner concludes that a staff approved decommissioning plan is required prior to the-issuance of a POLI that prior to the issuance of a POL, the Staff must issue an EIS; and the EIS must consider resumed operation as an alternative decision to decommissioning the facility p; lor to the issuance of the POL.
Petitioner also claims that LILCO has failed to maintain the reactor at a full operational level a-that Licensee by not abiding by its full power operating license had increased Petitioner's radiological health and safety risks.
SE2 stated that the proposed amendment would only further compound the risks.
Petitioner views the granting of the amendment as an
. endangerment to the radiological health, safety and other interests of its members under the AEA and NEPA.a SE2 seaks organizational standing asserting, inter alia, that the Commission interferes with its informational purposes by its refusal to conduct a NEPA study which deprives the organization of its ability to carry out its organizational purposes.
Its Executive Director is a signer of the petition.
SE2 asserted that it is injured by Staff's refusal to prepare an EIS on the decommissioning of Shoreham because that deprives Petitioner of the ability to:
(1) comment directly on the environmental report prepared by LILCO and the Draft EIS prepared by the Staff;' (2) advise its members of the
. environmental risks involved with each alternative explored by the environmental studies; and (3) report the findings and recommendations based upon the environmental evaluations to the public and political leadership as set forth in SE2's charter.
Petitioner cites in support of its position Comnetitive Enternrise Inst.. et al.
- v. National Hichway Traffic Safety 8
On October 10, 1990, each petitioner filed a document titled " Supplement To Comments on Proposed No Significant Hazards Determination, Petition To Intervene, And Request For Hearing."
Petitioners' assert that LILCO, on August 21, 1990,-sought to change the Technical Specifications by removing an independent engineering group previously determined by NRC to be essential to licensed activities.
They allege that by this request "LILCO seeks removal of this important mechanism which is required to assure the safe conduct of all licensed activities, regardless of whether electricity is produced."
No Draft EIS was prepared by the Staff.
Petitioner's assertion is a repeat of that made in its prior petitions to
-intervene on other changes to the Shoreham license.
. Admin., 901 F.2d 107 (D.C. Cir. 1990) for the proposition that organizational standing is established whenever the agency's action interferes with the organization's informational purposes to the extent that it interferes with the organization's activities.
Representational standing is sought on the basis of five named individuals with mailing addresses in Shoreham, port Jefferson and Westbury, New York.
They are said to live and/or work and have property interests within a 50 mile radius of Shoreham and have an interest in whether the proposed amendment-provides retsonable assurance of their radiological health and safety under AEA and whether the decision on the proposed amendment and the larger decommissioning proposal, of which it is a part, is made in accordance with NEPA.
Members have an interest in obtaining sufficient amounts of electricity at reasonable rates.
They are concerned that dismantling-Shoreham and building substitute oil or. gas burning plants will delay any increase in energy-production capacity and increase costs which will be passed on to the ratepayers.
-SE2 seeks to protect its members from adverse health consequences that would result from the substitute oil burning plants.
The specific aspects that SE2 states that it wishes to intervene on includa:
the adequacy of the evidence to support a
-grant of the proposed amendment; resumed plant operation; decommissioning; the need for a decommissioning plan; the no significant hazard consideration standards and_ determination;
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. whether the proposed changes would endenger the public health and
'afety or be inimical to the common defense and security, now or in the event of a full power operation; and whether the amendment will serve a useful purpose proportional to the quantities of special nuclear material or source material to be possessed.
Further, Petitioner seeks to have a full and fair NEPA consideration of what it terms the decommissioning proposal and considers the instant application to te an interdependent part.
It lists eight aspects under NEPA on which it seeks to intervene.
Petitioner seeks ten remedies in the proceeding.
The first two involve requesting an order permitting Petitioner's intervention and directing a hearing on the issues presented.
The others are far ranging.
They extend from requesting an order to bar Staff, pendente lite, from issuing the proposed amendment in order to allow for Licensing Board review of the issues, to requesting the commission to stay the effectiveness of any final l
decision of a no significant hazards determination, until ten l-days after publication of that final decision in the Federal Register,-in order to allow Petitioner to seek a court determination.
B.
Staff's Response To SE2's Petition On The POL
-Staff contends that SE2 has failed to show that the proposed amendment may reasonably be found to have scre adverse impact upon any interest Petitioner may have identified; and that SE2 has failed to show that such injury can fairly oe traced to the l
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. challenged action, or that such injury could be redressed by a favorable decision in this proceeding.
Staff looks upon Petitioner as having an academic and an economic interest neither of which contribute to standing.
Staff asserts that the petition fails to identify how the proposed amendment would have a direct and adverse impact on SE2's cognizable interests.
It states that Petitioner's interests do not relate to the proposed POL, but to the abandonment of Shoreham which SE2 claims may be returned to operation at some future date.
Staff states that Petitioner does not contend that the public health would be endangered by granting the instant amendment but that the amendment would cause undue deterioration of the facility and increased costs, if the Licensee should seek to commence full power operation, a matter not at issue.
Staff further states that Petitioner's bare allegation of adverse impacts is insufficient to demonstrate a potential adverse effect upon its interest and does not confer. standing.
Additionally, Staff argued that (a) a POL may issue before a final decommissioning plan is finalized or approved and (b) the
. proposed no significant hazards consideration does not permit a hearing on that matter.
C.
LILCO's Response To SE2's Petition On The POL LILCO opposes SE2 's-petition for intervention and a hearin<..
Licensee asserts Petitioner must specifically allege thei t'
granting the amendment presents a radiological health and safety threat cognizable'under the AEA.
It is not enough to advance
. vague, unparticularized allegations that the proposed amendment would violate the AEA, as Petitioner has done.
LILCO alleges that SE2 never explained hov the license amendment, that is directed toward the shutdown of Shoreham, increases their radiological risk.
Licensee disputes Petitioner's claim that NRC approval of a full decommissioning plan is a prerequisite for issuance of a POL and that granting the license amendment might present a radiological health and safety threat should some future decision be made to operate Shoreham.
Licensee states that the latter claim is not relevant bec%use it concerns the hypothetical future operation of Shoreham.
LILCO contends that even if Petitioner's speculation proves true regarding the need for building fossil fuel plants, because of the shutdown of Shoreham, NEPA does not require either an assessment of the alleged indirect effects of the plant's abandonment or a discussion of the alternative of plant operation.
LILCO argues that the decision not to operate Shoreham is its own private decision and not a major federal action which is governed by NEPA.
Licensee states it vill not operate the plant irrespective of whether.the amendment is granted.
D.
School District Position School District's petition differs from that of SE2 only insof ar as the description of the petitioner, its organizational
t purpose, those whom it seeks to represent and the nature of their interests.
Its petition. differs from that of SE2 as follow.
School District alleges it seeks intervention in order to protect the interests of School District, its students and employees.
The School District is reported to be about 12 square miles in size with the Shoreham facility located within its boundaries.
Petitioner asserts that it is located within the 50 mile limitation used by the Commission to determine whether an intervenor, expressing contentions under the health and safety provisions of the AEA, has an interest sufficient to allow intervention.
Petitioner depends on LILCO to meet the energy needs of its physical plant which includes five schools.
School District's stated interest is to ensure an adequate supply of electricity at reasonable rates.
In its view, any actions to dismantle the i
facility, and to build substitute oil burning plants, will harm i
the region's electric energy production capacity and increase rates.
Another economic interest of the School District is that the property taxes paid by LILCO for Shoreham constituten approximately 90 percent of School District's tax base.
School District also claims it has an interest in protecting the health and environment of almost 2000 students and 500 employees, who live and/or:Vork in close proximity to the Shoreham facility, from the radiological impacts of the proposed amendment and the adverse health and other environmental l
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. consequences of nonoperation of Shoreham.
These are said to be air pollution produced by substitute oil and gas plants.
The harm is said to be cognizable under NEPA.
It seeks representational status for the President of the Board of Education, a resident of Wading-River, New York.
He was a signer of School District's petition.
E.
Staff And LILCO's Responses To School District's Petition Staff and LILCO each filed a single response to both petitions.
Their responses did not identify any significant differences between the petitions.
In effect, they responded ta both petitions in the same way.
Licensing Board's Ruling on SP2.'s Petition on POL F.
The Licensing Board finds that SE2 has failed to satisfy *he requirements of 10 CPR 2.714 (a) (2).
Petitioner, as an organization, has not established that it will suffer a distinct and palpable harm that constitutes an injury in fact.
Its organizational interest is educational and informational in nature on the subject of the " national _ energy debate."
SE2's principal claim of injury is based on Staff's refusal to prepare an EIS on the decommissioning of Shoreham.
Petitioner states this deprives it of its right to comment directly on the EIS, to advise its members on its meaning and to nake i
recommendations to the public and political leadership on Petitioner's evaluation of the EIS.
t er
i
-. The Commission ruled in CLI-91-01 that the POL may be issued without any environmental review.
Petitioner does not have a cognizable claim of injury where Staff did not prepare an EIS, an action the Commission found Staff is not required to perform.
Staff's failure to prepare an EIS is a nonissue.
Petitioners claim of organizational standing based on Staff's refusal to conduct a HEPA review, which SE2 states interferes with its organizational purposes and activities, was rendered moot by the
' Commission's action denying the need for the NEPA review.
The Commission was very clear in CLI-91-01 in denying SE2's claim that a Staff approved decommissioning plan is required prior'to the issuance of a POL; that prior to the issuance of a POL, the Staff must issue an EIS; and the EIS must consider resumed operation as an alternative decision to decommissioning.
The Commission's action deprived Petitioner of the most important bases of its claim for intervention.
Furthermore, Petitioner's broad public educational and informational interest, under Commission decision, does not establish the particularized interest necessary for participation L
l in the adjudicatory process.
Metrooolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332 (1983).
SE2's petition is additionally defective in.that it has failed to identify any particular injury that can be traced to the challenged action.
Dellums v. NPC, 863 F.2d 968, 971 (D.C.
Cir. 1988).
~
~
-i
., The matter at issue in the POL amendment is whether the changes requested in the Technical Specifications can be accomplished without endangering public health and safety.
SE2 did not identify within the scope of the proceeding any particularized injury that would stem from this proposed action.
SE2 claims that injury would result from the relaxation of the Technical Specifications because it would cause plant deterioration and be incompatible with maintaining the plant in an operational mode, which is necessary should resumed operation ultimately be pursued.
This alleged injury is also a matter beyond the scope of this proceeding.
The Commission, in CLI 08 and CLI-91-01, ruled out consideration of any alleged injury relating to resumed operation.
SE2 also makes a bare allegation that Licensee, by not L
abiding by its full power operating license and by reducing the L
Techni-11 Specifications requirements increases radiological l
health and safety risks.
The proposed amendment is directed at I
shutting down a defueled, nonoperating plant.
To make such an l
assertion without identifying a particularized injury that may be caused by the proposed amendment, results in failure by l
Petitioner to establish the necessary elements for standing.
Dellums v. FRC, supra.
Also, no nexus was shown between the proposed amendment and the alleged harm from the future I
construction of substitute fossil fuel plants.
As to representational standing, SE2 has not stated that-its -
organizational purpose provides authority to represent members in
' 1 adjudicatory proceedings such as this one.
Even if this can be inferred from the fact that its Executive Director is a signer of s
3 che Petition, SE2 has not satisfied the.equirements for representational standing.
Petitioner states that the five members whom it seeks to represent have-authorized it to do so.
Their interests were not broken down individually but were stated collectively by Petitioner.
For an organization to rely-upon injury to the interests of its members, it must provide, with its petition, identification of at least one of the persons it seeks to represent, a
description of the nature of injury to the person and demonstrate that the person to be represented has in fact authorized such representation. - Philadelchia Electric Co. (Limerick Generating Station, Units 1 and 2), - LBP-82-43A, 15 NRC 14 23, 1437 (1982).
No supporting statement containing that information was submitted i' _
from any member sought to be represented, as is required.
L Although the members are said to live and/or work and have 1 property interests within a 50 mile radius of shoreham these facts do-not create a presumption of standing because it is not a proceeding for a construction permit, - an operating-license or a significant amendment which would involve an obvious potential-for offsite consequences.
Florida Power and Licht Co.
(St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, (1989).
. Shoreham is a defueled nuclear power plant that has not been used commercially.
To satisfy standing requirements, it would have to be shown by SE2 that a member's particularized injury in fact results from the proposed relaxed Technical Specifications that were for a full power operating license.
Under the proposed amendment, Licensee could not operate the Shoreham plant.
Petitioner has failed to make this necessary showing for itself, or its members.
Merely maxing bare allegations of radiological harm, as previously discussed, is legally insufficient to establish standing.
As to SE2 vanting to protect its members from alleged adverse health consequences that would result from substitute oil burning plants, there was no nexus shown between the proposed amendment and the alleged resultant construction of substitute oil burning plants and the harm that would be created.
Member interest, in part, is described as obtaining sufficient amounts of electricity at reasonable rates.
It is very well settled in commission practice that a ratepayer's interest does not confer standing in NRC licensing proceeding.
SE2 has not established the requisite interest for standing, organizationally or representationally.
A petition to intervene must contain the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
Petitioner submitted three groupings of aspects.
One grouping is general in nature and overlaps a second grouping that
. -. -. ~. -. -..... ~... --~ -.-.. -. -.. -
4 L
2 8 --
p-relates-to AEA issues.
The third grouping pertains to NEPA c"
issues. - NEPA is not at issue therefore, those aspects are
-inappropriate for this proceeding and will not be discussed further.
As to'the remaining aspects, there were a sufficient number to satisfy the aspect requirements of 10 CFR 2.714 (a) (2).
There vers others that are beyond the scope of the proceeding.
Those aspects that relate to the subject matter of the proceeding include:
whether the proposed changes involve a significant increase in the probability of an accident previously evaluated; whether the proposed changes create possibility of a new or different kind of an accident previously evaluated; and whether the proposed changes involve a significant reduction in a margin of safety.
Also included as acceptable aspects are those involving lthe adequacy of the evidence to support a grant of the application.and whether the proposed changes would endanger public health-and safety.
At this stage-it is premature to determine whether questions-involving common defense and security and whether the proposed activities' serve a useful purpose proportional to the quantities
- of-special nuclear material or source material to be possessed will be atLissue in the proceeding.
Those_ aspects set forth by the Petitioner that deal with
. decommissioning, resumed operations, and the Staff's no significant hazards consideration determination are not relevant to the issues in the proceeding and will not be considered.
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- As to the remaining issue of Petitioner's ten requests for relief, no ruling will be made at this time because it har not established standing in this proceeding.
G.
Licensing Board's Ruling On School District's Petition On POL The School District's petition is identical to that of SE2 in many areas.
To the extent that the two petitions are the same, we make the same rulings we did on the SE2 petition.
We will discuss those areas where the petitions differ and rule accordingly.
The Board finds that School District has failed to satisfy the requirements of 10 CFR 2.714 (a) (2) to establish standing.
School District's organizational interest is that of a ratepayer and a tax recipient.
These are economic concerns which are outside of the Commission's jurisdiction.
The Commission has no regulatory responsibility for rates and tax distribution.
They do not confer standing in NRC licensing proceedings and L
therefore-School District has no basis for organizational rtanding.
l As to its representational standing, School District wishes to protect the health and environment of its employees, one of whom has been identified as the President of the Board of Education.
He is a signer of the petition and his address is
'Shoreham, N. Y.
Again, the fact that the individual may reside or work in close proximity to the nuclear facility does not create a
4
- presumption of standing.
There is no obvious potential for offsite consequences where the action complained of requires that the Licensee not operate the plant.
The School District's petition, like that of SE2 fails to particularize any injury, within the scope of the proceeding, that it can trace to granting of the POL.
Any alleged harm relating to abandonment of Shoreham, failure to maintain the facility so that it can resume full power operation, the need for a NEPA review and restart of Shoreham as a NEPA alternative are all beyond the scope of this proceeding.
The bare allegation of employee adverse health and safety effects, stemming from the proposed amendment does not establish necessary elements for standing.
Dellums v. NRC, gupta.
School District has not particularized a distinct and palpable harm that constitutes an injury in fact nor does it trace such injury back to the challenged action, under which Licensee could not operate the Shoreham plant.
The mere allegation, without specifics, does 4
not meet the regulatory requirements.
School District has failed to establish the requisite interest for standing, organizationally or representationally.
V.
CONCLUSION The Board having reviewed each " Petition To Intervene And Request For Hearing" has determined that Petitioners have failed to establish standing, as required by 10 CFR 2.714 (a) (2).
The
.a
., _ deficiencies that' have been found to exist have been discussed in f
dstaillin'this Memorandum.
i Petitioners have, for the most part, based their cases on tho claims that the POL is part of the da facto decommissioning of Shoreham, that the POL application should be preceded by a d commissioning plan; that prior to the issuance of a POL Staff nu0t issue an EIS, that the EIS must consider resumed operation
'co an alternative to decommissioning because it is a viable altornative.
The Commission's policy decisions in CLI-90-08 and
'CLI-91-02 stripped away Petitioners' main arguments for standing.
Petitioners did not have the benefit of the Commission's two
. precedental policy decisions at the time they filed their petitions to intervene.
Their petitions focused on matters that the Commission subsequently determined to be beyond the scope of concideration in this proceeding.
The Licensing Board concludes that because of these circumstances Petitioners should be
<cfforded.the. opportunity to amend their petitions to' intervene to ttko-into account the recent Commission decisions and the
- d0ficiencies in their petitions that are specified in this 5 e2crandum.
M LThis conclusion is predicated, in part, on the Commission i
being_rather liberal in permitting petitioners the opportunity to cura dofective-petitions to intervene.
It has done so on the jbacco that, "the participation of intervenors in licensing lprocandings-can furnish valuable assistance to the adjudicatory
4
-. process."
yiroinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631 (1973).
ORDER Based upon all of the foregoing, petitioners are afforded the. opportunity to amend their petitions to cure the defects found by the Licensing Board.
Amended petitions are required to be filed within twenty five-(25) days after service of this Order.
LILCO shall file its response within ten (10) days of service of the amended petitions and Staff shall have an additional five (5) days within which to respond.
FOR THE ATOMIC SAFETY AND LICENSING BOARD.
?w
_J Morton B. Marg'ulie, Chairman ADMINISTRATIVELAWgJUDGE Bethesda, Maryland March 6, 1991 I
' g.
UNITED STATEG OF anERICA NUCLEAR REGULATORY-::MMISSION in the datter of i
$0NG liLAND LIGHTING COMPANY i
Docket No.(s) 50-322 OLA-2 ishorenam Nuclear Power Station)
CERTIFICATE OF SERVICE 1 hereby certify that copies of the foregoino M60 LBP-91-7 DATED 3/7/91 have been served upon the followino persons ev U.S. mail, first class. except de otherntse noteo ano in accordance with the recutrements of 10 CFR Sec. 2.712.
Atomic Safety and Licensino Acceal Administrative Judge Boarc Morton B. Margulles, Chatrean J.E. Nuclear Reculatory Commission Atomic Safety and Licensino Boarc Wasntngten. DC 20555 U.S. Nuclear Regulatory Comalttion Wasntnoten. DC 20555 Administrative Judge Jerry R. Kline Administrative Judge George A. Ferguson Atomic Safety ano Licensing Board ASLBP U.S. Nuclear Regulatory Commission 5307 Al Jones Drive Washington, DC 20555 Columet a Beach, MD 20764
-Donald P.
Irwin, Esc.
~.0ffice of the General Couns64 Hunton & Williams
'U.S. Nuclear-Reculatory Commission P.O. Box 1535 Washinoton, DC 20555 Richmond, VA 23212 Carl R. Schenker, Jr., Esc.
Gerald C. Goldsteto. Eso.
O'Melveny and Myers 555'13th Street, N.W.
New York Power Authority Of fice of tr.e Beneral Counsel Washington. DC 20004-1633 Broadwa,
.New York, NY 10019
' James P..McGranery.-Jr., Esc.
Nicholas'S. Reynolds Eso.
Dow. Lohnes & Albertson David A.'Recka, Eso.
1255 23rd St., N.W., Suite 500 Winston & Strawn
'Wasninoton. DC 20037 1400 L Street, NW.
Washington, DC.
20005
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LAIEI ;/7/91
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t,lteDere. Eno.
- steonen A. Wakeiteld
..:no !alano Fuwer Autnority General Counsel
..v0 Garcen City flata. Butte 201 Decartment of Eneroy
- .rcen City. NY
- 1530 Walhtnoten. DC 10535 immuel A. Cherntal. Eso, t.YS Department of 1.aw. Eursau of Consumer Frauos & Frotection 120 Broaoway dew York. NY 10271
'4teo at Rockville. No. this day of March 1991
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OfficN of the Secretary of the Commissten