ML20055F842

Forwards Application for Proposed Decommissioning of Plant. Util Needs Relief from Equipment Maint,Surveillance,Staffing & Other Requirements Not Necessary to Protect Public Health & Safety During Defueled Condition

ML20055F842
Person / Time
Site:	Rancho Seco
Issue date:	07/13/1990
From:	Scott Freeman SACRAMENTO MUNICIPAL UTILITY DISTRICT
To:	Carr K NRC COMMISSION (OCM)
References
GM-90-407, NUDOCS 9007190280
Download: ML20055F842 (21)

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SMUD SACRAMENTO MUSNCIPAL UTIUTY DettfuCT C P. O. Box' 1583o, Sacremento CA 95852 1830,1916) 452 3211 AN ELECTRIC SYSTEM SERVING THE HEART OF CAllFORNIA

-GM 90 407~

July 13, 1990 a

-Honorable Kenneth M. Carr, Chairman

U.S. Nuclear Regulatory Commission Washington, DC 20555-

Dear. Chairman'Carr:

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SUBJECT:

RANCHO SEC0 NUCLEAR GENERATING STATION D0CKET N0. 50-312 q

I have' received a copy'of the June 27, 1990, letter to you from Mr. A.-David-i Rossin of the Environmental Conservation Organization (ECO), on the closure and

- proposed decommissioning of the - District's Rancho Seco. Nuclear : Generating Station.

Since 'it is my-understanding that.-the Commission has under consideration a proposed policy on the application of the National Environmental-Policy Act (NEPA) to NRC review of nuclear plant closure 'and decommissioning i

proposals, I want to respond briefly to the pertinent points: raised by ECO.

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ECO addresses the District's application of April 26,1990, to convert the operating license for Ranchol Seco to a " possession : only" license.

(ECO erroneously reports that the application has been returned to the District. The 1

NRC staff has simply-requested additional information.)-

EC0 acknowledges that the closure and decommissioning of Rancho Seco "... can be conducted safely, without undue or even any significant risk.to the health and safety of. the public."

But;ECO appears to. contend;that NEPA requires the NRC to prepare an. environmental impact statement' (EIS) on the District's j

proposals, which would consider as an alternative the resumed operation of Rancho

-Seco as a nuclear generating station.

ECO argues that-until such an EIS is prepared (and considered in hearings), the NRC may not "... allow any actions 7

by SMUD which might compromise in.any way the potential future operability of Rancho Seco.as a nuclear power plant again~."

Last year, the District provided the NRC.with:its analysistof the NEPA review standards which should apply to your consideration of the District's closure'and decommissioning proposals, including " possession only" licensing.

(Letter, December 22, 1989, J. Schori (SMUD) to W. Parler (NRC).) For your convenience.

a copy of thr.t analysis is provided as Attachment 1 to this letter. Since Ilust.

became General Manager of the District on1 June 1,E1990, I-want to take this occasion to let you know that I strongly endorse the Listrict'.s position, Land i

I trust you will consider our views fully.

j Rancho 'Seco was closed. by the District pursuant to a vote of our -local electorate.

The District may not legally operate the-plant again.

The-NRC 9007190280 900713 P

PDR ADOCK 05000312 P-PDC in:'

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k UtsTRICT HEADQUARTERS O 6201 S Street, Sacramento CA 96817 1899:

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w Honorable Kenneth M. Carr, July 13, 1990 Chairman GM 90-407 j

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should evaluate the District's closure activities and " possession only" license application without assessing the decision Lof the District's-voters to cease

.l plant operation.

1 A) proval of a " possession only" license application does not have an effect on j

tie environment. In the NRC's own words, it merely " confirm [s] the nonoperating -

. status-of the-plant and..-.i reduce [s] some requirements which are important only for operation....." 53 Fed.' Reg. at 24,024 (1938).

As long as the NRC's actions, including review of the " possession only" license, do not foreclose consideration of various decommissioning alternatives, no NEPA issue-arises which would-compromise. the NRC's decomissioning review.

The decision not to operate Rancho Seco was made by the voters, and resumed operation by SMUD is not a legal option.. - We believe quite st' ongly that resumed r

operation is not-an alternative cognizable: in the' NRC's Rancho Seco decomissioning review, since it.is not an alternative means of accomplishing-the objective-of decomissioning the plant.

Neither is resumed operation the

'"no action" alternative.

In your decomissioning review, the no action ~ option -

is not decontaminating a' facility which has ceased operation.

The District needs relief from equipment maintenance, surveillance.c staffing and other requirements which are not necessary to protect public health and safety at Rancho.Seco in its defueled condition.

We ' appreciate your assistance and timely review of ourirequests.

l Thank'you for this' opportunity to express my views.

Sincerely, N

S. David Freeman-General Manager Attachment cc:

Comissioner Kenneth C. Rogers Comissioner James R. Curtiss 3

1 Comissioner Forrest J. Remick -

Mr. James Taylor DraThomas sew Murley Mr. Jack B. Martin William C. Parler,.Esq.

Mr. A.- David Rossin l

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To:

Jan Schori, Esquire General Counsel Sacramento Municipal Utility District LFrom:

Thomas A.

Baxter David-R. Lewis' Edward C.'Schweitzer,:Jr.

Subject:

Application of the' National Environmental Policy _Act to the closure and Decommissioning of>RanchoiSeco-Date:

December 21, 1989 On November 27, 1989, the NRC Staff sent SMUD a' letter regarding the closure of the Rancho Seco Nuclear Generating"Sta-t tion.

The letter states,~among other things, that'"NRC regula-t 7

tions do not permit' segmented decommissioning'of the plant by a process that bypasses regulatory requirements.to" evaluate the full scope of the proposed action" and that "(blefore initiating irreversible-steps toward decommissioning, you (SMUD] will be required to submit a decommissioning plan pursuant,to 10 CFR l"

50.82 and a supplemental environmental report as described by_

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i 10 CFR 51.53 and will need NRC review and approval of<the decom-missioning plan."

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decommissioning" (the first irreversible step toward decommis-sioning was taken in'1974 when the. operating license vas issued for Rancho Seco'), these statements appear to us to be inconsis-tent with the NRC. regulations, with NRC. practice,-and with NEPA.

In particular, SMUD intends to apply for a " possession-only" license before submitting a4 decommissioning plan.

This submittal

.j is consistent with past. practice:and. current regulations,,,and it l

should be promptly acted upon and granted by the NRC.-

As part of this-application, SMUD intends to seek relief from the require-ments to inspect and maintain certain systems and other program--

matic requirements-that are no longer required, again in complete accord with NRC practice and requirements.

The.NRC should evalu-ate and grant this relief without first' requiring a decommission-ing plan or performing a NEPA review of decommissioning.

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refusal'by the NRC to' consider or act upon SMUD's application:for.

a possession-only license and relief from superfluous equipment and programmatic. requirements would be arbitrary and capricious,.

and contrary-to law.

The basis.forithese conclusions is pre-sented below.

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SHAw, PITTMAN, PoTTs & TROWBRIDGE A DAertsege& step seeCLw088e4 '#OFC8%sCNAL CORPORATIONS The NRC's Aeoulations and Practice; The NRC's long standing and unchallenged practice has been to grant a possession-only license when a licensee decides to permanently cease reactor operations. -Decommissioning. plans have i

l been submitted later.

As explained in'NRC Regulatory. Guide 1.86:

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J When.a licensee decides to terminate his j

nuclear reactor operating license, he may, A1-a-first steo in the process, request that his operating-license be amended to restrict him 1

to possess but not operate the facility.

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advantage.to.the licensee of. converting to such a possession-only license-is reduced surveillance requirements-in'that periodic surveillance of equipment important to the safety of reactor operation is no longer required.

once this possession-only-license

~is issued,.reactorfoperation is not permit-ted.. Other activities related to cessation.

4 of operations such as unloading: fuel from:the onsite or offsite)g it in storageJ(either-reactor and placin l

may be continued.

(Emphasis added.)

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'This procedure has been consistently.followed at the plants-that are no longer operating, including commercial reactors such L

as Indian Point 1,1Dresden 1, and La Crosse.

Possession-only;

-licensing.has not been predicated on"a decommissioning plan or a NEPA' review of closure or decommissioning.. The.NRC preparedino EIS for the closure or. license conversion'of either Indian Point 1, Dresden 1, or La Crosse.

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I The NRC's new decommissioning rule codifies this consis-tently_followed, past practice.

The explanatory' statement accom-panying the rule states:

l' Normally an amended Part.50 license will be o

issued orior to the decommissionina nrder, to confirm the non-eperating status of':he. plant-and to reduce some-requirements whichiare.

l important only for operation orior to final-

. i ization of-decommissionino-olans.-

Subsequent license.anendments will; be : issued, j

as. appropriate.

i 53 Fed. Reg. 24,018, 24,024 (1988)-(emphasis.added).

As further. explained, there'has been-no change in:thi prac-tice of issuing amended possession-only' licenses.

In the past, the period of safe storage or that following entombment hasibeenicovered by.

an amended " possession-only" part-50-license l

which-does not~ authorize 1 facility operation l

with the term " order" used only in the caset of a-dismantling order, due.to the more

.J active nature of this stage-of decommission--

ing.

Except for~the use of the term "decom-missioning order," there~has'been=no chance from cast oractice.

.The term " decommission-ing-order"-has been used in lieu of "disman-tling order" because,.according.to the amend-i L

ments, the overall approach must now be approved shortly after the end of operation rather than an amended " possession-only" i

Part 50 license'being: issued without' plans-L for ultimate disposition, p

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A DARTwgpSMsp INCLW0s.e0 pecrgSSCNAk ConsonatioNS 16._(emphasis added).. Thus,'in.the past,. possession-only licens-ing has been used to reflect the non-operating status of the plant, and a separate-(and in practice,-subsequent) " dismantling t

order" has been used to authorize decommissior.ing.

The only change is that, rather than issuing a " dismantling. order" cover-ing only DECON,'the Commission will now issue a " decommissioning order" encompassing SAFSTOR or ENTOMB as well.

This change does

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not affect the basic dichotomy. preserved by the rule -- the ini-tial amendment of a license to authorize possess' ion only,. and the subsequent' issuance of an order dealing with decommissioning.

We do not suggest that the'new decommissioning rule has done nothing.

The last sentence in the quote above indicates that SAFSTOR and ENTOMB are not authorized automatically by' possession-only-licensing,:but must now beLaddressed in decommis-sioning plans which_are submitted within two years.after opera-

.tions permanently cease, which include ultimate disposition of the plant,.and which will be approved _by the NRC in^a'decommis-

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sioning order.

This sentence does not indicate that-possession-

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only licensing and the activities permitted:under.a possession-only license'in= preparation'for SAFSTOR or ENTOMB must-await the decommissioning order-(or even the submittal of decommissioning 1

plans).

To the contrary, the explanatory statement explicitly _

states that possession-only licensing occurs orlor to-the j' a j

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.decommissionino order and orlor to-the finalization of decommis-sionino olans, and it further indicates that in this respect t

there has been__no chance'in nest oractice.

53. Fed. Reg. at f

24,024.

1 consistent with_these pronouncements, new 10 C.F.R. 55-50.82 and 51.53 require that an application to terminate a. license, e

accompanied or preceded by=a dec'ommissioning plan and an environ-mental report, be submitted within two years following permanent cessation of operations.- As the Commission has stated, "The decision as to whethe

a. shutdown.willEbe permanent is, of course, the licensee's."

50 Fed. Reg. 5,600, 5,605 (1985);

NUREG-1221, " Summary, Analysis and Response for Public Comments" at C.3.

Thus-the rule gives the licensee'two years after perma-nent cessation of operation (which-is determined exclusively by the licensee) to submit an application forLlicense termination, o

decommissioning plan and environmental. report.

ThisLapplication i

for license. termination is distinct from the application.to; amend a license to possession-only status submitted as ther".'irst step" in the process and before the finalization of plans.

_The NRC's

. decommissioning order will be issued even later (perhaps vear 4

or more after the application for license termination)..This scheme is entirely inconsistent with~any suggestion that a decom-missioning plan must be provided.immediately or that such plans a

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-and/or a decommissioning order must precede issuance of a possession-only licensis.

When a licensee-permanently ceases operation of its plant, it must make plans for the ultimate dis-position of the plant but has two years to do so.I#

It would be not only inconsistent with the regulations, but absurd, to require a licensee to expend millions of-dollars to maintain all of the systems-in its. plant (systems that have no

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l present or future use) in an operational condition and to main-

.i tain staffing and preparedness programs necessary only for power-j operations for years until a decommissioning order is issued.

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is, of course, also contrary to.the NRC's mandate to the public health and safety to allow a-licensee to retain the authority to conduct power operations at a permanently shut-down and-defueled reactor; and it is equally inconsistent with the public health-and safety to require a? licensee to divert and dilutesits L

resources, attention, and manpower.-by expending them on activi-I ties with no benefit whatsoever, i

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Nothing in the regulatory guidance issued byithe NRC.to'date on meeting:the decommissioning regulations?even remotely

-would suggest that the possession-only step has'been elimi-nated, or.that a plant must remain operational:until a decommissioning plan is. approved, or=that justification for (and alternatives to) the closure decision must be supplied.

In' fact, the'NRC states, "This plan must be approved-by the NRC'before maior decommissioning procedures are started."

Draft Regulatory Guide DG-1005 (Sept. 1989) at v.

-(Emphasis supplied.)

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NEPA's Recuirements NEPA requires federal agencies to prepare environmental impact statements before taking " major federal actions" (includ-ing. major licensing decisions) "significantly affecting the qual--

-ity of the human environment."R42 U.S.C. 5~4332(2)(c).

The per-manent cessation of operations does not invoke:this requirement.

L The decision not to operate a plant is.the plant operator's, not the NRC's, and:so_-is-not a federal action at all.

The absence of NRC-involvement in and lack of authority over shut-down' decisions-

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are acknowledged by the.Comm!.ssion in its statement.that 9(t]he-decision as to'whether a shutdown will be permanent is,-of course, the licensee's."

50 Fed. Reg, at 5,u.3 The i

Commission's-lack of authority in this matter.is also indicated in Supreme-Court cases delimiting;the NRC's jurisdiction.

The Supreme Court has observed:

There'is little doubt that under the Atomic-Energy Act of 1954,-' state public utility com-missions:or similar bodies are empoweredt to make the-initial decisions regarding-theLneed for, power.

42 U.S.C. 5 2021(k).

The Commission's prime area of concern in the licensing context, on the other-hand llis a

national security, public health, and safety..

SS 2132, 2133; 2201.

i Vermont Yankee Nuclear Power Coro, v. Natural Resources Defense Council

'Inc., 435 U.S. 519, 550 (1978).

Similarly, in Pacific r

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Gas & Electric Co. v. Stale Enercy Resources Conservation &

l Develooment Comm'n, 461 U.S. 190, 218-1F (1983), the Supreme j

Court pronounced that NRC "does not and could not compel a util-ity to develop a nuclear plant."

The NRC'datermines "only that it is safe to proceed with such plants, not that it is economi -

cally wise to do so."

It follows that it is equally inappropri-ate for the NRC to attempt to compel a utility to operate a nuclear plant (except in a few emergency situations not relevant i

here /), or to determine that a shutdown after 15 years of opera-A tion is economically unwise, f

The federal actions that will be-before the NRC to decide, therefore, consist solely of proposed-license amendments to con-vert the facility license to a possession-only. license and to' eliminate certain equipment requirements,.and the. subsequent and separate lic'ase amendment dealing with-decommissioning.

Obvi-ously, possession-only licensing:is not an action significantly 2/

Section 108 of the Atomic Energy Act, 42 U.S.C. 5 2138, per-mits the NRC to order the operation of a nuclear plant when Congress has declared a state of war or national emergency and the NRC finds such operation necessary to the common defense and security.

In addition, under: sections 186 and 188 of the Act, 42 U.S.C.-55 2236,.2238, where.the NRC:has~

revoked a license because of regulatory; violations but con-tinued operation is of extreme importance to the' national defense and security or public health and safety or: required by the public convenience and necessity, the NRg may take.

possession and operate a facility, paying-just compensation. i a

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affecting the' environment because, in the words of the NRC, it l

merely " confirm (s) the nonoperating status of the plant and.

reduce (s) some requirements which are important only for operation...."

53 Fed. Reg. at 24,024.

With respect to proposed decommissioning, the NRC has 1

already evaluated the environmental impacts associated with per-j missible methods in a Generic Environmental Impact Statement pre-pared in connection with the decommissioning rulemaking a.td has q

found those impacts to be insignificant.

NUREG-0586, " Final Generic Environmental Impact Statement on Decommissioning of J

Nuclear Facilities," 5 15.1.5 (Aug. 1988) ("GE!S").

The NRC has j

l therefore determined that it will make findings of no significant j

impact and no additional 215 will be prepared in connection with the decommissioning of a particular site unless the impacts for a particular plant are significantly different from those studied generically because of site-specific considerations..

53 Fed.

Reg, at 24,039.

There is no basis to suppose that Rancho Seco falls outside the scope of the GEIS.I!

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The fact that Rancho Seco operated for 15 rather than 30 to j

40 years does not affect the environmental impacts of the i

decommissioning activities or place Rancho Seco outside the scope of the GEIS.

If anything, the environmental impacts from a plant that has operated for only 15 years-would be less than those estimated in the GEIS.

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sco.m.a Despite these facts, the November 27, 1989 letter suggests l

that licensing actions such as issuance of a possession-only license and relief from equipment maintenance and surveillance I

requirements are barred because of the remote possibility that an Els would be required and such actions would-improperly " segment" the environmental review.

This suggestion is incorrect.

Neither NEPA, the case law on segmentation, nor the NRC's regulations preclude such preliminary licensing actions.

" Segmentation" refers to an agency's consideration of a project in a piecemeal fashion that avoids recognizing the envi-ronmental significance of the project as a whole.

4 "Piecemealing" or " Segmentation" allows an agency to avoid the NEPA requirement that an EIS be prepared for all major federal actions with significant environmene.a1 impacts by dividing an overall plon into component parts, each involving a: tion with less hig-nificant environmental effects.

West Chi-caco.-Ill. v. U.S. Nuclear Reculatory Comm'n, 701 F.2d at 650.

The rule against segmenta-I tion was developed to insure that interre-l lated projects, the overall'effect of which is environmentally significant, not be frac-tionalized into smaller, less significant

actions, 133 aenerally, Piedmont Heichts Cavic Club. Inc. v. Moreland, 637 F.2d 430

- i (Sth Cir. 1981); Swa nn v.

Brineaar, 542 F.2d 364 (7th Cir. 1976) Lin hang),

t Ig4gavers Watchdoo. Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir.

1987).

It is obvious that neither the issuance of a possession-11 -

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only license nor the granting of relief from equipnsnt mainte-nance and surveillance requirements would circumvent NEPA requirements by reducing the significance of the overall impacts of decommissioning to the point where no EIS is required.

Not only are there no, impacts associated with possession-only licens-ing, but the NRC has already determined generically that the total impacts from all decommissioning activities are insignificant.

Further, the courts have recognized that it is not improper for an agency to proceed with a segment of a project if it is discrete, has independent utility, and does not foreclose the opportunity to consider _ alternatives.

Egg Piedmont Heichts ( _12 GlyS. Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir. 1981), and c2ses ciced therein.

Both the Guidelines of the Council on Envi-ronmental Quality and the NRC's regulations codify the "indepen-dent utility" cases.

They provide that no action on a proposal may be taken before an agency.s:'tes a NEPA record of decision if the action (1) has an adverse environmental impact, or (2) limits the choice of reasonable alternatives.

10 C.F.R. S 51.101(a); 40 i

C.F.R. S 1506.1.1/

By clear implication, these regulations 1/

Even if the action has a significant environmental impact, it may be taken if it is justified independently,- is evalu-ated in an EIS, and does not prejudice the ultimate deci-s ion. - 10 C.F.R. S 51.101(b); 40 C.F.R. 5 1506.1(c).

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permit an action if it does not have an adverse environmental impact and does not limit the reasonable choice of alternatives.

1 West Chicaco v. NRC, 701 F.2d 632 (7th Cir. 1983) illus-trates these principles.

In that case, the NRC was reviewing plans to decommission a facility and was preparing an EIS.

The NRC, however, pernitted the licensee to proceed with the demoli-I tion of several buildings.

The Court held that this was permis-sible because there vere ne significant impacts and the demoli-tion would not prejudice any disposal alternatives which might 1

later be selected.

14. at 648-49, 651-52.

Again, neither the granting of a possession-only license nor-the relief from equipment maintenance or surveillance require-ments for equipment no longer needed once a reactor is defueled has an environmental impact.

No release of radioactivity or other degradaticn of the environment is associated with these actions.

Further, such actions do not limit the choice of reasonable alternatives.

In this respect, the " reasonable alternatives" that must be considered are the methods of decommissioning, directly analogous to the " disposal alternatives" in the M111 Chicaao case.

Neither possession-only licensing nor relief from maintenu ce and surveillance and programmatic requirements l

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i pertaining to power operations limits the choice among the three permissible methods of decommissioning -- SAFSTOR, DECON, and ENTOMB.

Similarly, neither possession-only licensing nor relief from equipment maintenance and surveillance and other program-matic requirements limits the' choice of the no-action alternative l

-- the al*ernative of not applying SAFSTOR, DECON, or ENTOMB to s

the already shutdown plant.

Only if the NRC improperly interprets NEPA as requiring the NRC to decide whether Rancho Seco.should return to operation could possession-only licensing and relief from equipment.preser-l vation requirements even arguably have an effect on the consider-ation of alternatissa to decommissioning.

But resumed operation is not a cognizable alternative.

It is not the "no-action alter-native," which court; have uniformly recognized as the "do noth-ing" or " status quo" alternative.

Rancho Seco has already perma-nently ceased operation, and "no action" would simply constitute a continuation of its present, permanently shut-down but not yet decommissioned state.EI And except for the no-action alterna-tive, an agency's consideration of alternatives is limited to t

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The NRC recognized in its GEIS on decommissioning that the l

no-action alternative is the alternative of not decommis-l sioning a facility.after operations have ceased.

The GEIS concluded that th:,s alternative was not viable.

GEIS S 2.4.1.,

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those which further the objectives of the proposal.k/

Process Gas Consumers Grouc v. U.S. Dee't of Acriculture, 694 F.2d 723, 769 (D.C. Cir. 1981), ggIlx denied gyk nom. Louisiana v. rtRC, 461 U.S. 905 (1983) ("The range of alternatives need not extend beyond th(olse reasonably related to the purposes of the project."); Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974); 111 1112 City of Ancoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986), ggI12 denied, 484 U.S. 870 (1987) ("When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.");

City of New York v. U.S. Deo't of Transo., 715 F.2d 732, 742-43 (2nd Cir. 1983), cert. denied 465 U.S. 1055 (1984).

In our case,.

the only project before the NRC is SMUD's proposal to decommis-sion Rancho Seco safely, and the NRC may only consider alterna-tives that serve this objective.

Resumed operation does not.

Viewed another way, the courts have held that an agency is j

not required to develop an alternative that is essentially an entirely different project.

Miller v. United States, 654.F.2d 513, 514 (8th Cir. 1981).

Thus, for example, in Sierra Club v.

kyan, 502'F.2d 43, 62 (5th Cir. 1974), cert, denied 1Mk B2m2 1/

The NRC's GEIS on decommissioning correctly recognized that the alternatives to be considered are alternative methods of accomplishing decommissioning.

Egg GEIS 5 1.3. 1

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Sierra Club v. Mills, 421 U.S. 994 (1975), the Court held that where an agency was considering approving the funding of the development of a new community, there was no need to consider alternative uses of the land, such as acquiring it for a park.

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Again, in our case, resumed operation is undeniably a project entirely different from the decommissioning.

Resumed operation of Rancho Seco is not a project being proposed by SMUD and should not be considered by the NRC.

l This same conclusion is also compelled by the rule of reason which governs the consideration of alternatives under NEPA.

In Vermont Yankee, suore, the Supreme Court held that an agency's decision should be judged by the information then available to it.

435 U.S. at 553.

The Court admonished that NEPA was not j

meant to require consideration of alternatives that are " deemed I

only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies --

i making them available, if at all, only after protracted debate l

and litigation not meaningfully compatible with the time frame and needs to which the underlying proposal is addressed."

142 at 551, auctina Natural Resources Defense Council v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972).

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The teaching of Vermont Yankee is clear.

Federal agencies performing evaluations under NEPA should generally accept the policies and determinations of other branches or units of govern-ment and evaluate proposals in this perspective.

Agencies should deal with circumstances "as they exist or are likely to exist."

Carolina Environmental Study Group v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975); Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 295 (D.C. Cir. 1988).

While legis-lative action does not automatically justify ex'cluding an alter-nativw, such an alternative must be reasonably within reach.

City of Ancoon v. Hodel,.803 F.2d 1016, 1021-22 (7th Cir.'1986).

E11 1112 Natural Resources Defense Council v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972) (Congress did not intend agency to devote itself to discussion of the environmental impact of alter-natives as remote from reality as to depend on, say, the repeal of antitrust laws);

Kilrov v. Ruckelshaus, 738 F.2d 1448, 1454 (9th Cir. 1984) (EIS need not consider an alternative that Con-gress recently prohibited).

Thus, NEPA does not require consid-eration of alternatives which could only be implemented after significant changes in governmental policy or legislation. 'Natu-IAJ Resources Defense Council v. Callavav, 524 F.2d 79, 93 (2nd

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Cir. 1975); Farmland Preservation Ass'n v. Goldschmidt, 611 F.2d 233, 239 (8th Cir. 1979) (no need to consider an alternative not __

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meeting regulatory requirements); city of New York v. Deo't of Transo., 715 F.2d 732, 743 (2nd Cir. 1983), cert, denied, 465 l

U.S. 1055 (1984).

Here, a referendum has been passed calling for the closure of Rancho Seco, and SMUD, an agency of the State, has taken the action effectuating the referendum.

The decision to permanently shut down Rancho Seco has therefore been made by Sacramento vot-ers and a California agency, and the NRC has no authority to interfere with this decision and no obligation under NEPA to sec-ond guess it.

In summary, while an agency may consider alternatives beyond its jurisdiction, it should do so 9njy when such alternatives n

further the purposes of the proposed federal action and are rea-sonably within reach.2/

Resumed operation does not further the objective of decommissioning the plant and will not occur.

An agency is simply not required to consider alternatives when such consideration would serve no purpose.

Natural Resources Defense Council. Inc. v. SEC, 606 F.2d 1031, 1054 (D.C. Cir. 1979).

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For example, when a utility applies for a construction per-mit, the NRC may properly considar alternative sources of generation and conservat:,on, since they further the pur of the proposal (to satisfy the demand for electricity) pose 18 -

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If an alternative does not implement the pur-poses of the project, it certainly is not reasonable and no purpose would be served by requiring a detailed discussion of environ-mental effects since the alternative will never be adopted.

M Crosby v. Younc, 512 F. Supp. 1363, 1373 (E.D. Mich. S.D.) ("I cannot perceive of a more useless requirement than one that would require an agency to con-

-sider alternatives in detail that are not workable.").

Residents in Protest -- I-35E v.' Dole, 583 F. Supp. 653, 659 (D.

Mn. 1984), citino Trout Unlimited and Vermont Yankee, supra.

This judicial sentiment is apposite to Rancho Seco.

Rancho Seco is permanently shut down, and the NRC must recognize'this reality.

Any evaluation by the NRC of the wisdom or economics of 1

this decision would be an exercise in futility, because SMUD will i

not operate the plant again.

For this same reason, any.dihincli-nation or refusal by the NRC to amend the Rancho Seco-license to possession-only status and grant relief from useless equipment maintenance, surveilla.ce and programmatic requirements in order to preserve the option of plant operation would be arbitrary and capricious, and would interfere with the authority and sover-eignty of the state.

It would alse'do great disservice =to the public, since it would require the needless expenditure of mil-lions of dollars and divert resources that could otherwise be devoted to the safe and expeditious maintenance and decommission-ing of the facility.

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