ML20059E985
| ML20059E985 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/26/1993 |
| From: | Borden T NEW JERSEY, STATE OF |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| CON-#493-14416 MISC-93-01, MISC-93-1, NUDOCS 9311040070 | |
| Download: ML20059E985 (6) | |
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sasaTrwo DEPARTMENT OF LAW AND PUBLIC SAFETY xgn==v g px acteumw DIVISION OF LAW AseteTMTTORNEY GENER ARifMRXMMON6x RtCHARD J. HUGHE8 JUSTICE COMPLEX OtRECTOR CN 003 TRENTON 05926 (609) 633-8109 October 26, 1993 Sancuel J.
Chilk Secretary of the Commission Re:
New Jersey's Requests, Docket No. Misc.
93-01
Dear Secretary:
t I
Please accept the-following on behalf of the New Jersey Department of Environmental Protection and Energy ("NJDEPE"){in reply to the briefs submitted by. PECo, LIPA, and NRC staff (hereinafter
" responders").
This submission supplements NJDEPE's October 8th and October 20th submissions which are incorporated herein. by reference.
As required by 10 C.F.RJ $
2.714(d),
NJDEPE has sufficiently established its strdng interests in the PECo and LIPA licenses.
In addition to its status as an intekosted State, New Jersey's interests in protecting, its cqastal zone are not challenged by the-responders.
Accordingly, NJDEPE's standing would have been undisputed had the petition been filed earlier.
However,:ss set forth in the petition and confirmed in LIPA's responseion page 8,
NJDEPE was not given notice of _ the shipments thro 4gh New Jersey's coastal zone until August 9, 1993.
Moreover, NRC approval of this new shipping plan did not occur. antil August 19, 1993.
In such a situation, NJDEPE's standing and strong interests under 10 C. F. R. 9 2.714(d) must be weighed against-the various factors in 10 C. F. R.
~6_ 2.714(a)(1) for untimely intervention.
Puget Sound Power and Light Co.,
16 NRC 981, 984 (1982).
With respect to the first factor in 10 C.F.R. 9
- 2. 714 ( a ) ( 1 ), NJDEPE has established that it-had good cause for failing to file earlier.
The notice of opportunity for a-s hearing establishe'd April 30, 1993 as the deadline for requesting intervention.
NJDEPE clearly had no reason ' to submit a petition to intervene on either PECo -or LIPA's
- NJDEPE's status as a State agency weighs in favor of granting the petition to intervene.
Mississippi Power and L_icht, 16 NRC 1376,,1384 (1982).
78P ME8 :22 PDR za ssiti rest 9z et n tn 30 H0!SIO10 WOH a
October 26, 1993 Page 2 licenses at that, time since, as published in rail.",ederal the F
- Register, the shipments were planned to be "by The receipt of new information clearly constitutes good cause, as 1.ong as the information is "new information, not information already in the public domain" and the petitioner acted reasonably after becoming aware of the information.
Texas Ut111 ties Electric _ co.,
36 NRC 62, 70 (1992).
Here the
_information is clearly new since the old information, which kas clearly in the public domain, was that the shipments would!be by rail.
NJDEPE maintains that this new information was only made available on August 9th when NJDEPE was given notice that LIPA had decided to' barge the fuel rather than ship it by rail.
Responders attempt to claim that NJDEPE chould have filed a petition to intervene with NRC as soon as it was informed that LIPA was even reconsidering the rail option.
Had a petition been submitted it clearly would have : been premature and a waste of NRQ resources since, as set forth in LIPA's response at page 8,
LIPA was simply "considering barge transportation" and meetings were held in June to discuss this option.
Discussion regarding NJDEPE's objections to LIPA's barge option continued through July and LIPA advised NJDEPE that it would consider its objections.
(Petition, p.12).
It was only an August 9, 1993, when LIPA submitted an application for a certificate of Handling, that NJDEPE was.given the "new information" that LIPA had decided to ship the fuel by barpe.
NJDEPE also maintains that it acted reasonably ofter August:9, 1993.
To begin with, NRC itself had yet to approve this new means of transport until August 19, 1993 when the certificate of compliance was, issued for the cask.
Ih addition, as
- reported, LIPA only officially dropped the rail option on i
September 14, 1993.
(9/15/93 Article in Appendix B of Petition).
NJDEPE's delay in filing was also attributable, to the confusion created by the federal agencies involved in this 1
matter since it was abundantly unclear which agency, if any, was responsible for opproving this new plan and assuring compliance with NEPA or CZMA.
On September 3rd, NJDEPE received from LIPA a copy of the Coast Guard's July 27th approval of LIPA's proposed transportation plan.
Accordingly, on September 8th NJDEPE provided notice to the Coast Guard that it was requiring consistency in accordance with CZMA.
Asito l
NRC's actions, NJDEPE examined the documents regarding PECo's liconee and discovered that the Safety Evaluation issued on June 23rd specifically excluded an analysis of the movement of
- Good cause certainly exists where erroneous information is supplied thus causing inaction.
Puget Sound power and Licht Co.
10 NRC 1, 9 (1979).
C
'd 9G111 066t'9?'01 me1 30 H0151AIO WOdd
october 26, 1993 Page 3 l
fuel from LIPA to PECo.
Moreover, NRC approval of the cask on August 19th did not address any of the NEPA requirements.
Based upon NJOEPE's concern that neither agency hed examined the potential impact of the 33 shipments on N$w Jersey's coastal
- zone, NJDEPE attempted resolution of its concerns with counsel for LIPA.
When an amicable resolution was clearly not forthcoming, NJDEPE filed its: complaint Cn September 21st in Federal Distriot Court.
Clearly, NJDEPE hea not been sleeping on its rights as the responders maintain.
NJDEPE has been actlyely pursuing its rights in federal court.
Contrary to PECo's response, NJDEPE is not maintaining that NJDEPE did not file its petition on September 21st, because it relying on obtaining relief in federal court.
NJDEPE did was not file a petition With NRC at that time in part because N8C had yet to take any action that addressed NEPA and CZMA considerations involving the new shipment method.
This fragmented and tacit approval of LIPA's shipments by NRC and the Coast Guard wed, and still is, the beeio, for NJDEPEfe claims that the federal agencies violated NEPA and CZMA.
Based on the above, NJDEPEimaintains that it soted reasonably when it learned of LIPA's pl$ns on August 9th and NRC's approval of the new shipment option which was issued on August 19th.
NRC h$s
. here the previously allowed intervention in similar cases w
petitioner has not filed a timely petition. See Puget Sound Power and Lioht Co.,
16 NRC 981, 985 (1982)
(petition "was filed only two monti)s late"); Duke _ Power Company, 9 NRC 146, 150 (1979) (oix weeks after deadline, petition was granted even though not justified, the " tardiness was far from extreme").
1 This present matter is similar to Cincinnati Gas and Electric CA, 11 NRC 570 (1980) where regulatory developments constituted good cause for a petition that was four years past the deadline.
Here NRC's regulatory approval of PECo's license in the Spring of 1993 involved a NEPA analysis based upon a scenario whereby the-fuel was to be transported by rail outside of New Jersey.
NJD8PE olearly would not have had standing to intervene at such time.
No NRC action was taken after LIPA and PECo altered the transport method to berge until August 19th.
These new regulatory developments certainly constitute good Cause.
NJDEPE has also demonstrated pursuant to 10 C.F.R.
- 2. 714 ( a ) ( 1 )( ii ) that there are no other means available to protect its interests.
NRC staff concedes this point; however PECO and LIPA maintain that 10 C.F.R. 9 2.206 and the Federal litigation ero adequate.
These positions are untenable.
Requests under 10 C.F.R.
S 2.206 have been held to be an inadequate means under this factor.
Washington'Public Power, 18 NRC
- 1167, 1176 (1983).
Similarly, the "oEnsF ~means" i
e
- d 9Glli 1661*9?*01 MM7 30 N0151010 WOdd
October 26, 1993 Page 4 standard in this factor does not include litigation. Detroit Edison Co.,
16 NRC 1408, 1433 (1982).
The respondente maintain that NJDEPE has not shown that its participation will assist in developing a
sound record pursuant to 10 C.F.R. 9
- 2. 714 ( a )( 1 ) ( iii ).
NJDEPE has clearly met its burden.
The
- petition, at pages 15 through 43, provides great detall regardinn the issues NJDEPE seeks to litigate. There NJDEPE set forth +'
evidence that NEPA, CZMA, and AEA have been violated.
The pet ition includes Acting Commissioner Jeanne Fox's detailed letter regarding the coastal zone policies that NJDEPE h6g adopted and that both CZMA and NEPA are designed to protects As to 10 C.F.R. 6 2.714(a)(1)(iv), PECo claims that NRC staff will represent NJDEPE's interest; however, NRC staff conced4s that no other party con represent NJDEPE's interests because no hearing has been held yet.
Similarly, the factor in 10 C.F.R.
S 2. 714 ( a )( 1 )( v ) regarding the potential to broaden or delay the proceeding has been met because there has yet to be ' a The respondents argue that NJDEPE has not identified who will testify, summarized the testimony, or raised admissible contentions.
Although NJDEPE has already provided Acting Commiacioner Jeanne Fox's detailed letter in Appendix H, NJDEPE will gladly comply. with 10 C.F.R. 9 2.714(b) and provide specific contentions-in a supplement to the petition if NRC deems it necessary.
S e e_
Puget
- Sound, 16 NRC
- 981, 965
( 1982 )( supplement to a petition is provided in NRC rules);
cincinnati Gas, 11 N$C 570, 571 (1980).
As to its NEPA claims, NJDEPE has also alleged "with particularity that an applicant is not complying with a specific regulation." Public Servi'ce Company of New Hampshire, 16 NRC 1649, 1656 -(1982).
The respondents are simply attempting a premature attack on the merits of NJDEPE's contentions by claiming that CZMA has been complied with and that NJDEPE is seeking to attack rules and has not requested a. waiver. Duke Power, 9 NRC 151.
Regarding NJDEPE's CZMA claims, PECo ignores the fact that New Jersey's CZM Plan specifically includes NRC licenses and amendments thereto.
LIPA argues without any support whatsoever that the general license they ere required to have to transport the fuel le not " required" under r?.MA.
As to a challenge to NRC rules, NJDEPE does not disagree that a waiver request under 10 C.F.R. 5 2.758 would be appropriate; however, the rule is limited to parties in an adjudicatory hearing and thus NJDBPE has requested intervention as a party.
Similarly, PECo's claims that NJDEPE has not met the standards to reopen a proceeding under 10 C. F. R. S 2.734 are meritless.
NJDEPE is requesting intervention to be a party, only parties can reopen a hearing rocord, and in this case there has yet to be a hearing.
Texas Utilities Electric Co.,
37 NRC 1, 4 (1993).
- a nitt test n et n tn 3 0 wotsinto woma
October 26, 1993 Pago 5 proceeding.
Philadelphia Electric Co.,
23 NRC 13, 23 (1986)(NRC's rulo involves "whether the proccoding not will bo delayed").
licenso issuanco or plant operation NJDEPE readily admits that should NRC allow intervention 'a hearing would address issues that have yet to be addressed such as compliance with NHPA and CZMA.
Lastly, PECo attempts to argue that NRC lacks jurisdiction to entertain NJDEPE's petition since on August 22, 1993 the period for judicial review oxpired.
To begin with, this argument presents important duo process considerations on the facts alono since NRC did not even take action on LIPA and PECo's new shipment plan until August 19, 1993.
Thus, PECo is claiming that there was only a four day window for either NRC to reconsider or NJDEPE to request intervention.
- Moreover, NJDEPE filed its petition within 60 days of receipt of notico on August 9th.
The Supreme Court decision underlying the NRC decision PECO relies:upon doos not support PECo's position.
As discussed in American Farm Lines v.
Black D_all Froight Service, 90 S.Ct.
1288, 1293 (1970), Congress has limited some specific agency's discretion. to reconsider final agency action bbt
"[u]nless Congress provides otherwiso" an agency may consider a motion for a rehearing after a
final agency: action.
In
- addition, the Second Circuit in Dun & Dradstroot v.
U.S.
Poastal Service, 946 F_. 2d 189,
- 19) 12nd Cir. 1991) held that
"[i]t is widely adcapted that nn agency may, on its own initiative, reconsidor its interim or even final decisions, rogardless of whether the applicablo statute and agency regule.tions expressly provide for such review" ao long as it is done within a reasonable timo period and notice is given.
Nothing in the AEA limits NRC's authority to allow intervention.
NRC regulations specifically provide for lato intervention and do. not establish any deadlino.
- Moreover, NRC's regulations also allow for a hearing if it is in the "public 1nterest." 10 C.F.R. 6 2.104(n).
Based on the abovo, NJDEPE roquests that its petition to intervene be granted so that the remaining shipments will properly be subject to the scrutiny that NEPA and CZMA require to protect resourcos such as New Jersey's coastal zone.
Respectfully submitted, FRED DeVESA ATTORNEY GENERAL OF NEW JERSEY By:
Tyomas'A.'Torden Deputy Attorney General for NJDEPE 9
'd 8G 11 2661'9t'01 301 40 NOIS!AIG WOdd
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'93 r126 P::17
' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION e
In the Matter of
)
)
STATE OF NEW JERSEY;
)
Docket No Misc. 93-01
)
4 Department of Law and Public
)
Safety's Requestsj
)
CERTIFICATION OF SERVICE I,
Thomas'A. Borden, hereby certify that on this 26th day of Octobor, 1993, I served by facsimile on the following copies of New Jersey Department Environmental Protection end Energy's Response dated October 26, 1993.
Lawrence C.
Lanpherj Esq.
Kirkpatrick & Lockh$rt 1800 M Street, NW South Lobby, 9th F1 hor Washington, D.c. 20036-5891 Fax: (202) 778-9100 Edward J.
Reis i
Deputy Assistant General Counsel for Reactor Licen ing U.S. Nuclear Regula ory Commission Office of General C unsel Washington, D.C.
20 55 Fax: (301) 504-3725 Ann Hodgdon Esq.
U.S.
Nuclear Regulatory Commission Offico of General Cdunsel Washington, D.C.
20$55 Fax: (301) 504-3725 Robert Rador, Esq.
Winston & Strewn 1400 L Street, NW Washington, DC 20005-3502 Fax: (202) 371-5950 Office of the Secret,ary ATTENTION:
Docketin'g and Service Mail Stop:
16 GIS O,WFN U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Fax: (301) 504-1672 I
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T$omas X.JYordon Deputy Attorney General 2
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