ML20033B315
| ML20033B315 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 11/12/1981 |
| From: | Beers R BEERS & DICKSON, CARSTENS, A.S. |
| To: | Harold Denton Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20033B310 | List: |
| References | |
| NUDOCS 8112010221 | |
| Download: ML20033B315 (10) | |
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BEERS 8 DICKSON 00CKETE0 380 H4YES STREET, SUITE ONE UNC CIVIC CENTER 54n rRanCiSCo.cauroRNia uio2 81 NOV 24 P12:12 tais) sei-14oi goctx,eeg3 KATHAYN Bt'RKETT DICK 5ON November
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...1 Mr. Harold Denton Director of Nuclear Reactor Regulation United States Nuclear Regulatory Commission Washington, D.C.
20555 Re:
San Onofre Nuclear Generating Station, Units II and III
Dear Mr. Denton:
We are attorneys for August S.
Carstens, an intervenor in the licensing proceedings for San Onofre Nuclear Generating Station, Units 2 and 3.
Mr. Carstens is represented in such proceeding by Richard Wharton, and together with Mr. Wharton, we have been retained to represent Mr. Carstens with respect to the failure to date of Southern California Edison ("SCE") and the NRC to comply with the provisions of the federal Coastal Zone Management Act ("CZMA"), in connection with applications for licenses for San Onofre Units 2 and 3.
In particular, on Mr.
Carstens' behalf, we wish to advise you that the issuance of a low power testing license to SCE for San Onofre Units 2 and 3, is specifically prohibited by section 307 (c) (3) (A) of the CZMA, 16 U.S.C.
S1456 (c) (3) ( A), unless and until the " consistency" procedures set forth therein are complied with in full.
The California Coastal Commission, by letters dated September 25 and October 1, 1981, has notified the NRC that it has so far failed to receive the required certification of consistency for 8112010221 811112 PDR ADOCK 05000361 G
e s
V this license and the operating license.
Mr. Carstens, registers his similar objection as an.intervenor in the licensing proceeding.
In brief, Section '307 (c) (3) ( A) of CZMA requires that an applicant for a federal license certify that the activities authorized by the license which will affect land or water uses of the coastal zone of a state, are " consistent" with the state's coastal zone management program.
In this instance, no such certification has been made, and accordingly intervenor.Carstens requests that-the application for a low power testing license be denied until such certification has been tendered by SCE and the procedures for state review of such certification have been completed.
Section 307 (c) (3) (A) of the CZMA, provides in pertinent part, as follows:
After final approval by the Secretary of a state's management program, any 4
applicant for a required Federal license or permit to conduct an activity j
affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state's approved program and that such activity will.be conducted in a manner consistent with the program.
At
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the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data.
Section 307 (c) (3) (A) further requires that states receiving e
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such a certification notify the fedcral agency within six months of whether it concurs in or objects to the applicant's certification.
That provision unequivocally states that " [nl o license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification," unless the state fails to act within the six month period or unless a state's objection is overriden by the Secretary of Commerce.
The regulations implementing the provision further provide that a state agency shall develop, as part of its management program,a list of federal license and permit activities which 15 automatically require such certification by the applicant.
C.F.R. S930.53(b).
They establish procedures for the applicant's submission, and state review of,this certification (15 C.F.R. 55930.50.65), and confirm that "[n] o Federal license or permit described on an approved list shall be issued by a Federal agency until the requirements of this subpart have been satisfied." 15 C.F.R.
S9 30. 53 (e).
California's coastal zone management program was finally approved by the Secretary of Commerce in early 1978.
That management program contains a list of federal agency licenses and permits which are subject to the certification process, and included in that list are all Nuclear Regulatory Commission
"[p]ermits and licenses required for siting and operation of nuclear power plants." U.S. Dept. of Commerce, State of California Coastal Management Program and Final Environmental Impect Statement, 93 (1977).
is clear that an application for a low power testing It license is included within the category of NRC permits or t
p licenses, for which " consistency" certification is requi' red.
The NRC regulations providing for the issuance of such a license specifically refer to it as an " operating license."
SCE's application for this special operating license was submitted in the form of a motion,l/
filed in 1981, subsequent to the approval of California's coastal zone management program.
It is equally clear that the activity for which the license in this instance is sought--low power tasting operation of San Onofre Units 2 and 3--does affect land or water uses in the coastal zone.
Among other things, a low power testing license would presumably require, as a condition of operation under that license, that the applicant implement, in whole or in part, the exclusion area plan, finally approved by the NRC Appeal Board on September 14, 1977.
See ALAB-432, 6 NRC 465; CCH Nuc. Reg. Rptr. 530,226.
In that decision the Appeal Board recognized that in the exclusion area plan, "the applicants have committed themselves to take certain actions (including the installation of a walkway and fences and the posting of signs) which might well be expected to reduce still further the utiliza-tion of the tidal beach within the exclusion area."
CCH Nuc. Reg.
1/
-It makes no difference to the coverage of the consistency provisions that this application was made in the form of a motion.
The term " Federal license or permit" is broadly defined to include any " authorization, certification, approval or other form of permission which any Federal agency is empowered to issue to an applicant." 15 C.F.R. S930.51(a).
Rptr. 5 30,2 26. 01 at p. 9 7,2 06.2/
The restrictions on beach access in the exclusion area plan in themselves clearly " affect land and water uses" in California's coastal zone.
Thus, there can be no question that SCE is required by Section 307 (c) (3) (A) of the CZMA to certify that the activities authorized by the low power testing license are " consistent" with California's coastal zone management program.
Moreover, unless and until this certification is submitted by SCE and state concurrence with the certification occurs, the NRC is absolutely prohibited from issuing the low power testing license.
In this case, compliance with this procedure is not simply a' technicality--because there is in fact, a direct conflict between the beach access requirements of the state's coastal zone management program and the exclusion area plan which would presumably be implemented, in whole or in part, under any low power testing license granted by the NRC to SCE.
The California Coastal Act of 1976, Public Resources Code SS30000 et seq.,
as part of the state's approved coastal zone management program, establishes a strong state policy of preserving and maximizing public access to the coastal zone.3/-
hhe details of.this exclusion area plan are found in Amendment No. 22 of the Applicants' Preliminary Safety Analysis Report, San Onofre Nuclear Generating Station Units 2 and 3.
3 hor example, 530001.5(c). states that "[t]he Legislature further finds and declares that the basic goals of the state for the coastal zone are to:... (c) Maximize public access to and along the coast -
oc s-In this case, these state policies favoring public a'ccess have been specifically articulated and applied by the State Coastal Commission to San Onofre Units 2 and 3 in the permit issued to SCE by the Coastal Commission for construction of those units.
In particular, Condition D.3 of Permit No. 183-73, issued by the Coastal Commission to SCE in 1974, requires SCE to maintain
" full and uninterrupted public access to the beach", in proximity to Units 2-and 3.
Pursuant to Section 30609 of the California Coastal Act of.1976, this permit condition was continued "in full force and effect" and became part of the state's approved management program.
The Coastal Commission has consistently taken the position that the exclusion area plan, adopted af ter the issuance of its permit to SCE, would violate the terms of the permit requiring the maintenance of full beach access and was contrary to SCE's representations to 3/ cont.and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private-property owners."
In this act, " Coastal zone" means the " land and water areas.. extending inland generally 1,000 yards from the mean high tide line of the sea."
Other sections in this which favor public access to the entire coastal zone are:
S30210 broviding maximum access and recreational areas in~ order to carry out the re~quirement of Section 4 of Article X of the California Constitution); S30211 (requiring development not to interfere with the public right of access to the sea including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestial vegetation) ; S30212 (providing public access from the nearest roadway to the shoreline and along the coast in new development projects); S30220-(pro-tecting coastal areas suited for water-oriented recreational activities that cannot be readily provided at inland water areas); S30221 (protecting oceanfront land suitable for recreational use); S30221 (declaring that the use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation have priority over private residential, general industrial, or general commercial development) ; and S30223 (reserving, if feasible, upland areas necessary to support coastal recreational use).
the Commission that full access would be maintained.A!
The NRC did not consider this conflict between the exclusion area plan and the Coastal Commission's permit conditions in its decision regarding the exclusion area plan, but rather specifically deferred the question until such time as the Coastal Commisssion determined to enforce its permit conditions regarding beach access against SCE.
In its decision of January 22, 1976, (ALAB-308),
the Appeal Board, stated:
The Consolidated Intervenors also claim that the alternative exclusion area proposal does not comport with the terms of the permit which the applicants received from the California Coastal Zone Conservation Com-mission to build Units 2 and 3 of the San Onofre facility.
The applicants dispute this claim.
We do not reach the question.
It is for the Coastal Zone Commission to in-terpret and er. force the terms of its own permit.
The Nuclear Regulatory Commis-sion will need to concern itself with the matter only if and when the Coastal Zone Commission calls upon the applicants to modify their exclusion area proposal. CCH Nuc. Reg. Rptr.
530,039.05 at p.
27,234.
The Coastal Commission has unequivocally stated its intent to sue to enforce these permit conditions upon implementation of the exclusion area plan.
That implementation will first occur under a low power testing license, if one is issued.
The Commission has also recently advised the NRC that the application for this license requires consistency certification by the applicant and state review of that certification.
Thus, based on the foregoing, intervenor August S. Carstens submits that the NRC should require the applicant to submit such a
-4/ For example, a copy of a letter from the Commission to SCE, dated April 10, 1978, setting forth this position, is attached hereto as Exhibit 1.
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9 consistency certification in connection with its application for a low power testing license.
Failing such submission and the succeeding state review, the NRC is absolutely prohibited from issuing a low power testing license to SCE for San Onofre Units 2 and 3.
Sincerely, Roger Beers cc: August S.
Carstens Richard-Wharton Charles R.
Kocher, Southern California Edison Company Michael Dudley, San Diego Gas & Electric Company William Matuszeski, Acting Assistant Administrator, Office of Coastal Zone Management Tom Crandall, Director, San Diego District Office, California Coastal Commission Lawrence Chandler, Nuclear Regulatory Commission Mary Hudson, California Coastal Commission RB/ja
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g,q.;g ;g, i. 9 "oni. barn 1 :a liforni.n Edison Company l.').
D-ex ItfV) 1;nrrmead, California 91770 Al.l ent, ion:
1ir. Ilichael M. IIcrt.cl li":
Pennil A-1113 /_) (San Onofre)
Ihar fir. liertcl:
lly ULnf f har. reviewed your loller of.lannary 9, 10781 nn well n r. t,h c
'%, ni nnion illn for P.crmit, A-111.b.71 ror San Onofre Hucinar Genernt.ing St.,t. i nn.
Af ter consullation wi.l.h t,hc Al.l.ornay Ganct al'n Office w" conclu le I b.i t
enor exclunion nren pinn ein"n rennLitute a matarini chnnge 1.o I.he pro.inct, approved by t,he predecronor St,at,c Commission in 1974 s
Osu decinion in bancel on f ler At,l.orney Gonernl'n nilvice th,t, axcept.
vn conelil..innati h,- f.hc Commissinn, a permi.t, in inancel as npp]. icd for and 1.19 levelopment, newt. be concl.rnet.cri nn propor,cd nulenr. l.hc permi t. is amen.In.1 by thn C(mcii nci on.
In I.hin cann, t.he daner.ipl. ion of t,he In n.locL Pr"V i'11d by bot.h t.ha projecL's envi.rnnnnut,nl documenLn I, hat, were parl, nf tha roan'.nl parmi t, applicat,l on, anel ynne reprenen!. ive 's nl.nt.ement.n t.o t h" '11.at,e v ;mmi t. :i on m7hn cle,r I.f rd. t he 1/2miln of beach frnni,ine on t hn pro.l. el, ni l.a won 1 1 he only I.emg.orari ly cloncel t.n L.lin '~ibl i c durins con-
-1.
.. l.lon nul uon t el, a f t,er conni. cort inn, he fu t ly accennible to I ho public.
I c:.tl your att,ent. ion to the inilowing nt.at.emenLn:
"Ilse of the bn ich will noi.
..e vant.ri ct.ed,fl.cr e,nntne:1. inn i n com.
(l'iin i Kuvi ronment,nl St.alem"ot. relat,nd I.n 1.ha p l a'.o. "
proposed hn Onorra ll e 'ene G"narallin; St.at, ion linil.n ? :nul 1.
- 11. 5. A. M. t!. Ihrch 197 4, p.
- 1I.) "Foi)owing di r.',t ibul.lon nf I.hin cond by wavo act inn the publin vi ii b" tble to re'.nrn :n:nin 1.0 thin vi el r rend improv"<l hench nran."
(.%pple-in"nt, l.n th Appl iennt.'s lhvironm nt.n l lleport. '!onnl nief. inn Pennit. "I..*i'.a.
l. II. San Onnfra lluclear Gen"rnl, ins,; St.at,Lon lini t.n 2 nuel 3 SM and uem p. i,.p_).)
oc.,ncl.rnet. ion of lini t.r, '2 nnel 3 wil 1. rannl t. i n I.h -
ui.l. ninr, of 1.ha ennel arca of I.b. ii. ?ch.
Thin nron vill remain ep"n and n.:r-
-i bl e t.n tha publi.c, exr; opt eluri.nr. cunnt,ruel. inn or I.hc facilit.i.ca."
(" opp)" ment. Lo Applicant'n Envi roirnrnt al lleport. Conr.l.rnet, inn Pennil. St,nt,n W.I. Ii.
%n Onorra thic1 car Genaral.ine St.nl. inn linil.a ? nini 3 SCR and ilGM p. 1,.? 1.) " An const,rnel. inn enmon I.o an enel, l.he 1,(VO fl.. nfIench 1.1. 5 bo n ie r > t h"
- i t o uill be rel.o rnrd 1.n potil ie i no. "
(l'i na l lire i ronm6nt.a l S8 i'. ment. Po l11.rd t o the In op. :e.1 ' :in t innfre linr icar t!rnoral. ins; St.nl. inn Uniti.' anil L.
II. ;. A. E. l!. Pl.rch
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f, 4. p'. p%
EXHIBI.T ONE qf
.qi
.o p, w. w ? '
i.
7 sy In,
., n t
t-In public 1.cnl.imony before I.lr-1 anch nnd t,he n tallabil.it.y of t heoverall net, errect of I.le adtli "lha i
1.o 1.le-The company'n reper sentat,ive we nt, on to sny:innel for ut.hcr itsen will be ner.
ing access (,o the beach."lu oposcri linita 2 and 3 will, i,horefore, ha o f t,ha The assumpt, ion 1, hat. t.hc publie wtn.:1.d be oniy I.a P.nm:nission's approval of the power plantla the bench was, l
)
, c predecennor i
public of 1/2 mile of sandy bench can hardly be a mal,l.cr of minimal co I
expansion.
cit.hcr t,o I.hc predecessor Comminciou under t,he 1972 Coast al Act or t d
n present Commission uncler the 17/4 Coantal Act..
.o the l
elit, ions were-inclnded to nacure int.crim accens 1 bro intt, rather because it believed t,hin already assttred.wan nol h e const.ruction arca, y
which rnist s acidit.ional point,n, wit,h which we are c j
and which are not addressed in your IcLt,cr of January 9
- ment, tio must, requant, t.hnt, yon rile nn applical. ion 1.o amend Permit 1.o rartect, yo'tr proposed excitinion nrea plan 1,o provide for publi
. A-183//1 runl due considerat, ion by t,he Conodssion of this inat,ter.
c hearing-
'Very Lnity yourt;,.
11lCHAl:1 1,. Fl."Cill:lt Excent ive Direct,or liicinrd Wharton t/
cc:
Lawrence Chandler Enclosures 9
..