ML20062C026
| ML20062C026 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/20/1990 |
| From: | Mcgranery J, Todorovich M DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20062C019 | List: |
| References | |
| 2.206, OLA, NUDOCS 9010290156 | |
| Download: ML20062C026 (44) | |
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L XP.L iED USNRC BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION
,90 APR 23 P4 :06
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U'FilCE OF SECRE1AAY 0CKEllNG A SlHVICl.
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In the Matter of
)) USNRC Docket g$NCH Long Island Lighting Co.,
) 50-322 l
Docket No. 50-322, Shoreham Nuclear
) License No. NPF-82
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Power Station, Unit 1,
)
l Suffolk County, New York
)
(Amendment to Physical Security Plan) )
(55 Fed. Reg. 10528, 10540,
)
March 21, 1990)
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SCIENTISTS AND ENGINEERS FOR SECURE ENERGY, INC.'S PETITION FOR TRAVE TO INTERVENE AND REQUEST FOR HEARING On March 21, 1990, in its Bi-Weekly Notice Applications and Amendments to Operating Licenses Including No Significant Hazards considerations, the Nuclear Regulatory i
Commission ("NRC") announced that the Long Island Lighting Company ("LILCO"), licensee of the Shoreham Nuclear Power Station ("Shoreham"), had applied for an amendment allowing changes in the Physical Security Plan for the plant.
55 Fed.
Reg. 10528, 10540 (March 21, 1990).
The proposed amendment
'would allow " reclassification of certain r'*tions of the plant currently designated as ' Vital Area or ' Vital Equipment'."
14 As a result of the reclassification other H
" safeguard commitments" would also be eliminated or modified.
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Id.
Among these modifications is a reduction in the security force.
Id.
In the Notice, the NRC stated that "any person i
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wishes to participate as a party in the proceeding must file a wri'. ten petition to intervene."
Id.
m Scientists and Engineers for Secure Energy, Inc.
("&E " or " Petitioner") and some of its members are adversely 2
U affected by this proposed amendment and, therefore, pursuant
~to Section 2.714 of the commission's Rules,' request that it be granted leave to. intervene as a party and that a hearing be-held to consider the merits of the proposed amendment.
SE views this Amendment as one part of the larger 2
proposal to decommission Shoreham.
Each step in the decommissioning ~ proposal that noves'Shorehan closer to a fully decommissioned state and further away from full-power operational status is in violation of the dictates of the Atomic Energy Act of 1954 as amended ("AEA") and the National Environmental Policy Act of 1969 as amended ("NEPA").
- Thus, while the issues presented herein directly relate to the proposed Amendment allowing.significant changes to the Physical Security Plan, they necessarily include other unlawfully segmented actions taken and/or proposed by LILCO
.and the NRC Staff in furtherance of the decommissioning scheme.
SE submitted an enforcement request under Section 2
'l 2.206 of the Commission's Rules in July 1989, and has submitted several supplements to the request since that time KL
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consolidated with the Shoreham-Wading River Central' School a
District (" School District") request.
In their Section 2.206 request, the School District and SE have argued that LILCO-is taking the initial steps in a course of action aimed at-decommissioning the Shoreham facility in violation of the terms'of the operating license, the commission's regulations, the AEA and NEPA.
Technically, the request is still pending before the NRC, but the commission's lack of meaningful response has effectively denied their request because continuing and significant steps toward-At facto implementation of LILCo's decommissioning proposal proceed unhampered with the full knowledge and support of the NRC Staff.
All of the arguments advanced in Petitioner's Section 2.206 Request, and the supplements thereto, are pertinent to the issues at hand and, therefore,-are incorporated herein by reference-as additional support for the specific aspects of the issues and contentions as to which Petitioner seeks leave to intervene and requests a hearing.
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INTEREST OF PETITIONER KMD THE RIGHT TO INTERVENE As the:NRC Staff has stated the applicable law:
To 1
determine whether a' petitioner has. sufficient interest to intervene in a proceeding, the Commission has held that a l
L licensing board may apply judicial concepts of standing.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
A petitioner must show that the action sought in the proceeding will cause an injury in fact,' and that injury is within the zone of
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interest protected-by the Atomic Energy Act of 1954, as amended,-and/or the National Environmental Policy Act of 1969.
Id. at 613-614; Niaaara' Mohawk Power Coro., 31 31 i
.(Nine Mile Point > Nuclear Station, Unit 2) LBP-83-45, 18 NRC 213, 215 (1983).
In addition, the petitioner must establish:-
t (1) that it personally has suffered or will suffer a distinct 1
and. palpable harm that constitutes an injury in fact; (2) that the-injury.can be traced to the challenged action; and (3) that the injury is likely to be remedied by a favorable
< decision granting the relief sought.
Dellume v. NRC, 863 a
F.2d 968, 971 (D.C. Cir. 1988); gag gigg Nuclear Enaineerina Co..
Inc.,
(Sheffield Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).
To establish injury in fact for standing, a petitioner must have a "real stake," that is, a genuine or direct interest in the F
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f outcome, and the law allows standing even if that interest is s
- thought by.others not to be a substantial one.
Houston Llahtina and Power Co., 11: 31. (South Texas Project, Units 1 i
_ and 2), LBP-79-10, 9 NRC 4 39, 447-48 (1979).
SE, meets all of the criteria for standing in this
' matter.
SE and its members are threatened with distinct i
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injuries in fact as'a direct consequence of the proposed p
amendment.
These injuries are within the zone of interests a
protected by both the AEA and NEPA and can be remedied by a L
Y favorable decision.
The AEA guarantees any interested person a hearing in g
any reactor licensing action which may affect the health and l'
safety of the petitioner, 42 U.S.C. I 2239.
In this l
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instance, the proposed reduction in physical security of vital: plant systems compounded by a reduction in on-site
. sscurity personnel would unacceptably increase the risk of l
radiological' sabotage and hence adversely affect the radiological health and safety of Petitioner, its students, 1-l its employees, and their property.
Petitioner's and its members interests, as detailed below, will be protected, and the requirements and purposes of the AEA met, if-leave for it to intervene in a hearing held in this matter is granted and L
the remedies sought by Petitioner are granted as a result of H
that proceeding.
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~j LILCo's efforts toward da IAgig decommissioning without an approved decommissioning plan are a gar sa violation.of-the AEA and a direct health and safety L
violation.
LILCo's efforts to save money by shutting down-all operations, slashing staff, and-permanently defueling the reactor ignore AEA procedure and endanger the health and safety of Petitioner's members during this unapproved decommissioning.
Petitioner seeks to have the NRC require LILCO to abide by the Shoreham operating License until an approved decommissioning plan and an operating License amendment are properly considered and approved under the AEA.
'Even if an approved decommissioning plan were in existence, LILCO has failed to maintain the reactor at a full operational level from the moment LILCo decided to decommission Shoreham, and this continuous refusal to abide by the terms of its operating License has severely increased the Petitioner's members' radiological health and. safety risks.
No concern with. full-power operational safety has been expressed by LILCo, or the NRC Staff, since the licensee and the NRC Staff improperly and illegally appear to have concludsd that the_ reactor would never again operate.
This premature conclusion that the reactor will never again be brought to, full power operation must certainly affect the type'of care, maintenance and attention to details at the
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NEPA mandates preparation of an Environmental Impact j
Statement ("EIS") prior to agency decisionmaking on major q
federal actions significantly affecting the quality of the human environment.
The EIS must consider, inter alia,~the environmental impacts of, and the reasonable alternatives to,
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the-proposal.
Thus, NEPA ensures that agency decisionmaking not only includes environmental consideration, but also is structured in such a way that environmental consideration is meaningful.
SE has determined that its responsibilities 2
demand that it seek intervention in this instance in order to-L protect the interests of its members.
SE is-an organization dedicated to correcting the 2
alarming degree of misunderstanding on fundamental, scientific and technological issues permeating the national energy debate, especially with respect to the balancing of-environmental concerns.
In pursuing these objectives, SE is 2
committed to offering its views, based on the considerable knowledge and, expertise of its members, to the public and to i
the various governmental agencies with responsibility for the resolution of energy issues.
Many of SE 'is members live 2
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and/or work on Long Island in the vicinity of the shoreham Nuclear Power Plant and rely on electricity from its licensee, LILCo.
Therefore, the organization and its members have a special interest in the radiologically safe.and environmentally benign operation of Shoreham to provide them i
with reliable electricity and to avoid the substitution of fossil fuel plants relying on imported _ oil and gas, which
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-t would contribute not only to acid rain, the. greenhouse effect, and other effects adverse to the physical
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environment, but also to our national trade deficit and-the endangerment of national energy security and other effects I
adverse to our society.-
Members of SE who have authorized the organization l
2 to-represent their interests include:
Eena-Mai Franz 25 Josephine Boulevard.
P.O. Box 623 Shoreham, New York 11786 Andrew P.-Hull 2 Marvest Road Shoreham, New York 11786.
l Stephen V. Musolino 6' Middle Cross Shoreham, New York 11786 Joseph B. Scrandis 10 Walnut Street Westbury, New York 11590 L:
John R. Stehn 8 Harbor Hills Drive Port Jefferson, New York 11777 r,
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!t These SE members variously live and/or work within 2
50 miles of Shoreham and own, lease and/or use real property within a 50 mile radius of Shoreham and have an interest in-whether the proposed amendment provides reasonable assurance of their radiological health and safety, which is within the zone of interests to be protected under the AEA, and whether the decision on this proposed amendment and the larger proposal of which it is a part is made in accordance with NEPA.
1 The SE members depend on LILCO to meet their 2
electric energy needs at home and at work.
Thus, SE has a 2
vital interest in ensuring that an adequate and reliable supply of electricity will be available to meet their needs and that the electricity provided is available at reasonable rates.,As a completed and fully licensed plant, Shoreham is l
presently capable of-seating the growing, electric energy needs of-the Long Island area.
Actions to dismantle the
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facility and build substitute oil or gas burning plants, on the other e.and, delay any increase in the region's electric energy production capacity and also generate significant expenses which will inevitably be passed on to Long Island's ratepayers.
SE also has an interest in protecting its 2
members from the adverse health consequences of the air l
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pollution produced.by the oil burning plants which would be necessary substitutes for Shoreham.
Aside from its authorization to represent the
. interests of its members located within fifty miles of the.
Shoreham facility, SE has standing in'this case based-on its 2
organizational interests.
Egg Philadelnhia Electric Co.,
'(Limerick Generating Station, Unites 1 and 2), LBP-82-43A, 15 j
NRC 1423, 1437 (1982), citina, Warth v. soldin, 422 U.S. 490, 1
511 (1975).
SE strongly supports the use of nuclear plants 2
to provide the safe and domestically secure electricity i
needed in this country.
This mission necessarily includes
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intervening in the present matter where the destruction of a i
new state-of-the-art nuclear reactor is sought.
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As set forth in Comnetitive Enterorise Inst.. et al.
y2.Nat'l Hiahway Traffic Safety Admin., No. 89-1278, slip op.
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at 27 (D.C. Cir. Jan. 19, 1990), organizational standing is y
established whenever-the agency's action interferes with the j
i-L organization's informational purposes to an extent that it L
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-interferes with the organization's activities.
This is precisely the situation in the instant case:
the NRC Staff refuses to conduct a NEPA study which directly deprives LE2 of~its ability to (1) comment directly on an environr. ental report prepared by LILCo and the Draft EIS prepared by the NRC Staff, (2) advise its members of the environmental risks l
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involved with each alternative explored by the. environmental o
studies, and (3) report the findings and recommendations based upon the environmental evaluations to the public and political leadership as set forth in SE 's Charter.
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PETITIONER'S-INTERESTS WILL BE GREATLY AFFECTED BY THE AMENDMENT AND THE PROCEEDING j
i The proposed NRC Staff decision to grant LILCO's request for the proposed amendment violates the requirements q
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of the AEA at the expense.of-the Petitioner's members' radiological health and safety and circumvents NEPA and the
-NEPA-mandated consideration 1of the decommissioning proposal, l
including its reasonable alternatives.
Petitioner's and'its j
members' AEA and NEPA' interests will be directly affected as described herein, and Petitioner wishes to participate in L
each and every aspect of the hearing which touches and l
concerns those interests as well as the specific aspects
' identified below'and in any amendment of this petition hereafter filed.
SE, on behalf of itself and its members, seeks leave i
2 to ' intervene and requests a hearing to determine whether the 1
amendment should be granted, denied, or a different amendment made under the AEA.
The specific aspects of the. proposed amendment-as to which SE wishes to intervene under the AEA 2
i are:
(1) whether a grant of the proposed amendment requested would be arbitrary, capricious and/or an abuse of discretion pursuant to the Atomic Energy Act and the Commission's regulations and' subsidiary' guidance thereunder; (2) whether, if a decision is made to go to full power operation at-1 l
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e e-1 l Shoreham, the proposed smendment would provide reasonable assurance _ that such full power operation would cur could be conducted with reasonable assurance of the public health and safety and national defense and security, particularly the i
reasonable assurance of their' protection (including their-real and personal property) from the radiological hazards of operating the facility; and (3) whether, if a decision is made to decommission Shoreham, the proposed amendment would provide reasonable assurance that such decommissioning will be conducted in accordance with the public health and safety and the-national _ defense and security. to protect SE 's2 members and.their real and personal property from the radiological hazards during the decommissioning of the facility.
Both their personal radiological and other health and safety interests-(including the safety of their property) would be adversely affected if the proposed amendment is not in accord with.the AEA and/or the regulations and subsidiary guidance issued thereunder and/or if it does not otherwise provide reasonable assurance of the-public health and safety
'and the national defense and security.
This proposed amendment, in particular,-would reclassify equipment and areas deemed avital" for Shoreham (as'they are no deemed for other similar licensees) as D21 w
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4 s " vital" for Shoreham.- Such reclassification would deprive
-that equipment and those areas of the degree of physical:
security deemed essential for protection against radiological
' sabotage in the granting of Shorehan's NRC licenses, including the. existing full-power operating license.
Such increased vulnerability to radiological sabotage, by definition, significantly increases the risk of such sabotage and, hence, unavoidably and significantly increases the direct and/or indirect endangerment-of the Petitioner's members' radiological health and safety.
SE also wishes to have full and fair NEPA 2
consideration given the decommissioning proposal (of which theLinstant application'is an interdependent part), including.
Lthe need for-power, the cost-benefit analysis of decommissioning and the operation and near-term operation
- alternatives for Shoreham.
Any actions in furtherance.of the.
L da. facto decommissioning proposal, including this proposed-amendment, prejudice consideration of such mandatory NEPA analysis by, among other things, making the alternatives
>further.away in time, more costly and less likely in fact.
NEPA, as implemented in regulations issued thereunder a
by the CEQ and,the NRC, mandates that no major Federal action significantly affecting the quality of the human environment will be implemented without first receiving a full l
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environmental review.
As more fully detailed below, L
Petitioner's interests under NEPA will be protected, and the l'
purposes and requirements of NEPA served, to the extent that such a review is conducted under the~NRC Rules (including a L
hearing) and the remedies sought by Petition 6; are granted in the proceeding.
Petitioner's interests will be adversely 4
affected should this petition or the relief sought herein be denied.
1 The remedies sought by Petitioner specifically include the correction of this presumptuous " decision" that the reactor will never return to full power operation, as well as a return to the mandates of the NRC's regulations under the AEA and NEPA which require maintenance of the full power license obligations until an informed decision is mede-l with all appropriate environmental and economic l
Econsiderations.
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-If a full NEPA environmental review is conducted, it may be that the factors which first led to the construction of-this $5.5 billion dollar reactor would lead the H
l decisionmaker to favor the continued utilization of this i
brand new facility and reject the decommissioning proposal.
But the failure to properly maintain and ptatect the facility in accordance with the operating License during this interim.
period.could fLrther erode the alternative of full power
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.- operation by, among other things, increasing the costs, in time and money, of returning to full power operation.
During the interim period, before the necessary environmental evaluations are completed, the reactor must not languish in an inadequately-protected mode, inconsistent with NRC regulations and the Operating License.
Nor should the licensee be permitted by'the commission to behave as though the reactor will never again operate or that plant security can be reduced.- Significant health and safety risks, including.those subject to NEPA review, will result from LILCO's failure to abide by the full requirements of the Operating License which requires constant efforts to maintain operational site security capability.
The increased risks of sabotage and the resulting unavoidable risks to the security of the shoreham equipment and to Petitioner's members as discussed above-constitute adverse' environmental impacts and would also increase the risk-that the choice of reasonable alternatives would be limited.
As a result, approval of.the proposed amendment ils barred by 10 C.F.R. 5 51.101(a) (1989) until a record of.
decision is issued following completion of the required NEPA review of the decommissioning proposal.
ERR R112, 10 C.F.R. 5 - 51.100 (a) (1) (1989).
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1 1 Intervention and a hearing on this proposed
-amendment, addressing the aspects identified in this-
.i Petition, is the galy avenue available to Petitioner for protecting the vital interests of itself and its members as
-a to this NRC license issue at this time.
The consolidated Requests filed pursuant to 10 C.F.R. 5 2.206 in July 1989 sought redress of many similar issues, but the NRC-Staff has essentially ignored that Section 2.206 request, which is
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still pending.
The Petitioner must now address each 1
incremental segmented step taken by the licensee and the NRC-j Staff-which will not only endanger plant security, but also-further advance the da facto decommissioning by the licensee in violation of its Operating License, the AEA and NEPA by increasing the risk of damage to Shoreham and resulting radiological harm to.SE members.
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Petitioner must address the de facto decommissioning t
at this time because the licensee obviously seeks to abrogate its obligations under its operating license before formally applying for a decommissioning license amendment thereby l.
endangering the health and safety of Petitioner's members, l:
h jeopardizing the future viability of the reactor and avoiding
'a meaningful environmental analysis pursuant to NEPA.
Without Petitioner's active involvement, the NRC Staff and g
the licensee would simply continue to circumvent the law and 1
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of whom are interested in the development of a complete environmental-record, the opportunity to have such full NEPA
.f consideration before significant alternatives are, for all practical purposes, foreclosed.
l Obviously, neither the NRC Staff nor the licensee appear to be in the least bit interested in representing the Petitioner's valid interests by complying with the requirements of the AEA and/or NEPA.
Petitioner will bring to light the significant regulatory, health, safety and environmental issues which form the bases for its challenge of the proposed amendment and for all of the licensee's actions toward da facto decommissioning.. These essential
. i issues are required by law to be addressed, and by addressing them now in this action the Petitioner will hasten their examination'and appropriate resolution by the Commission.
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III.- SPECIFIC ASPECTS AS TO WHICH PETITIONER SEEKS To yo INTERVENE o
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Specific Aspects of the subject Matter As
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Under the AEA To Which Petitioner Seeks to Intervene qit c.!;;.:
[i Pursuant to the Commission's obligations under the h3 AEA to provide reasonable assurance that the health and' l
safety of the public are protected against the radiological hazard of licensed activities and its obligation to protect E
l the national' defense and security, it has issued extensive regulations prescribing requirements for the establishment
-and maintenance of a physical protection systems for utilization facilities, such as Shoreham, which systems will-have capabilities for the protection of special nuclear materials at the: site, among other things.
10 C.F.R. Part 73 (1989).
Those requirements have been further implemented by i
other Commission guidance'and requirements.- 333, s.g.,
Regulatory Guide Series Division 5.
These physical protection systems consist of physical barriers and other devices, procedures (including a safeguards contingency plan) and security personnel requirements, as well as a records and reporting system.
The purpose of these requirements is to protect against-radiological sabotage, which is defined to include any deliberate act directed against the licensed plant, or
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- lagainst any component of that plant, which "could directly or f
indirectly endanger the-public health and safety by exposure -
1 to. radiation."
Egg 10 C.F.R. I 73.2 (1989).
A central concept in the development of an adequate physical security plan is the ascertainment of which equipment, systems, devices, or materials at the plant constitute " vital equipment".
Vital equipment "means any
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equipment, system,-device, or material the failure, L
destruction, or release of which.could directly or indirectly L
endanger the public health and safety by exposure to L
radiation (as well as) (e]quipment or systems which would be required to function to protect public health and safety l-10 L
following such failure, destruction, or release.
C.F.R. I 73.2 (1989).
Any area in which vital equipment is
- i J ocated is designated a " vital area".
Id.
In obtaining its full-power operating license, LILCO submitted, litigated (resulting in a settlement with an intervanor on certain: issues), and subsequently obtained Commission approval of Physical Security, Guard Training and Qualification, and Safeguards Contingency Plans which were
' f made'a part of its operating License.
NRC License No. NPF-y 82 1.2.E. (NRC Docket No. 50-322, April 21,.1989).
That operating License clearly and directly required LILCO to 4
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" fully _ implement and maintain in effect all provisions-of the i
Commission-approved" plans.
Id.
It follows that the equipment'and. areas designated as vital and the guard force requirements in those plans were
-considered by the Commission as necessary to avoididirect and/or indirect endangerment of the public health and safety by1 exposure to radiation possibly resulting from radiological satobage attempts at the plant.
Now LILCO'comes to the Commission requesting that it be allowed to-reclassify some " vital equipment" and " vital areas" as D21. vital, as well as relaxing and reducing guard force requirements.
And the NRC Staff has published a conclusory determination that these reductions would not involve a significant hazards consideration.
'The Petitioner asserts that the' reclassification of
-equipment currently. classified as " vital equipment"-and areas
' currently classified as." vital areas" to be non-vital iequipment and areas, and the. relaxation and reduction in l
guard force proposed by-the amendment would increase the probability of radiological sabotage which would result in an L
' increased, and therefore impermissible, risk to them from the-radiological hazard that could directly and/or indirectly result'from such sabotage.
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The particular' aspects of the proposed amendment as to which-Petitioner wishes to intervene under the AEA are, inter alla, as follows:
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Given that-the proposed amendment'is premised on shorehan's "defueled state", does the settlement Agreement in I
fact prohibit further operation of the Shoreham facility?
j 2.
Is the licensee's proposed reclassification of
" vital. equipment" and " vital areas" and/or_its proposed reduction ~of security staff in accordance with the AEA, the regulations and guidance thereunder, the conditions specified in the license, and/or the licensee commitments-pursuant to that license-given the existence of that full-power Operating License?
3.
Is the plant's defueled-condition relevant to g
the adequacy of its Physical Security Plan under the AEA-L)
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- while Shoreham-poasesses a fu11' power Operating-License?
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If the licensee's on-site-security staff is below that necessary for plant operations, does the licensee have an obligation pursuant'to.its license, commitments 1
L related thereto, the AEA, and/or regulations and requirements
~and guidance thereunder to re-assign and/or hire, and-train l
and/or re-train, additional security staff?
l 5.
If the licensee does have an obligation to re-4 assign.and/or hire, and train and/or retrain, additional 1
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? - security staff under-its existing license, does the NRC Staff:
have an~ obligation to enforce the liconsee's staffing
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- obligation through fines;and related orders and/or confirmatory letters?-
6.
Is there a sufficient number of adequately trained security personnel if the licensee were to place nuclear fuel into the-reactor vessel?
7.
If the licensee has an obligation to maintain l
(including reassigning ~and/er hiring, and training and/or i
L retraining) security. staff adequate for full power operation l
and to maintain and protect vital plant equipment and areas in a status ready :for full power operation, how should those obligations be detailed?
-8.
If the licensee.has an obligation to maintain (including reassigning and/or hiring, and training, and/or.
retraining) security staff adequate for full power operation and to maintain plant equipment in a status ready for full l-power' operation but fails, or has failed, to observe either 1
i or both of these commitments, does the NRC Staff have an u
obligation pursuant to the AEA and the Commission's regulations (including, in particular,.Subpart B and Appendix C of Part 2 and Part 50) to issue orders to-compel the 4
licensee to observe those obligations, including appropriate l
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- fines to remove any economic incentive for violation of such l,[
orders?
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Should the NRC Staff issue a confirmatory action k
letter outlining the actions to be taken by LILco to augment p4
-the-Shoreham Physical Security, Guard Training and/or y"
' Safeguards Contingency. Plans to provide adequate protection for public health and safety in light.of both the License Event' Report ~ dated October 16, 1989 dealing with " attempted
',, '3 sabotage / tampering," and U.S. Nuclear Regulatory Commission Region I Inspection Report No. 50-322/89-09, dated March 19, 1990, which' states that'"(t]vo whiskey bottles.were found i
inside the protected area," both of which independently indicate a breakdown in the implementation-of, and/or the
' inadequacy of the present Plans?
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o Specific Aspects.of the subject Matter As B.
R to Which Petitioner Seeks To Intervene Under NEPA.
LILCO's proposed amendment to the Physical Security
-Plan:would reduce the utility's commitments to security-by p
eliminating.the physical security safeguards of certain i
L equipment and areas vital to the radiologically safe operation of Shoreham, including the proposed reduction-of the security force at the plant.
55 Fed. Reg. 10528, 10540 (March 21, 1990).
This proposed amendment is one segmented
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part in implementation of a proposed major Federal-action
- which, if approved, will significantly affect the quality of p:
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the human environment.
Because preparation of an EIS and a final decision-is required before any part of the decommissioning proposal may be implemented, the proposed amendment is in direct violation of Section 102(2)(C) of'NEPA and Petitioner's right to such NEPA review.
Therefore,-it cannot be approved prior to NEPA review of the whole decommissioning proposal.
l Section 102 (2) (C) of NEPA provides that prior to making a decision-to implement'a " proposal".for a " major federal action significantly affecting.the quality of the human environment," administrative agencies shall prepara an.
Environmental Impact Statement ("EIS") which evaluates, among
. other things, the " environmental impacts of" and the
" alternatives to" the proposed action.
142 U.S.C. 5 4332 (1982).
1 I.
L.
The Council on Environmental Quality ("CEQ")
regulations, which are " binding on all federal agencies,"
further clarify the NEPA responsibilities of federal
. agencies.
40 C.F.R. I 1500.3 (1988).
Among other things, L
'those regulations (a) mandate application of NEPA "at the i
R L
earliest possible time to insure that planning and decisions 1
reflect environmental values," (b) require that actions which L
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> are " interdependent parts of a larger action" be discussed in a single, impact statement, and (c) prohibit actions which
" limit the choice of reasonable alternatives" until the NEPA process is complete.
'40-c.F.R. Il 1501.2, 1508.25, & 1506.1.
i The NRC's own NEPA regulations, which closely parallel those ofLthe CEQ, also prohibit any " decision on a proposed action" or actions, especially one tending to " limit the choice of reasonable alternatives," pending completion of the-NEPA process.
10 C.F.R. 55 51.100 and 51.101 (1989).
While the decommissioning proposal has been advanced i
by LILco, a non-federal entity, the NRC's on-going supervision of that licensee's. activities and the need for NRC approval of the various aspects of'the decommissioning
. process make'what otherwise might be a private: action in another industry into a " major federal action."
The NRC controls whether the decommissioning proposal may proceed
~
and, therefore, has a non-discretionary duty under NEPA to.
ensure that neither the Shoreham facility, itself, as the relevant part of the environment under the supervision of the L
NRC, nor the alternatives to its decommissioning, are.
l-adversely affected by premature implementation of the 1 decommissioning proposal.
Saa 40 C.F.R. I 1506.1(b) (1988).
To date, the NRC Staff has failed to recognize this duty and, instead, has given LILCO tacit and explicit permissions to i
. ~ _ _ _.
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- j f implement an ever increasing number of steps in the decommissioning proposal which have no utility independent of
.that proposal.
LILCO and the NRC claim that no steps have been taken p
at Shoreham which are irreversible or constitute irretrievable commitments of resources.
This claim is l
L subject to significant doubt in view of the judicial
' interpretation of these concepts in the context of NEPA and' l
the facts of.this case.
Esa Sierra club v. Marsh, 872 F.2d 497 (1st Cir. 1989).
For example, if these concepts are stretched to their theoretical definitional limits, the same claim could be made even if the plant had been razed but "could-be" rebuilt.
The. issue is not whether the plant, its-equipment and its staff could someday be put back together again, but rather.over what duration and at what cost could the feat be achieved.
That is:
would approval of the proposed amendment increase the risk that the currently available alternative.of operation might not be reasonably available.when'the federal decisionmaker finally addresses-the question of whether to authorize decommissioning of i
Shoreham?
The farther away in time and expense LILCO and the the reestablishment of operational capability, the 4
lkely it becomes that the alternative of operating
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l 1 '
-Shoreham will be pursued. EIn the Spring and early Summer months'of'1989,.when LILOO made its intention to cooperate i
1 with New York State in a plan to decommission Shoreham plainly known to the NRC, the Shoreham plant sat ready for immediate full-power operation.
As a fully licensed plant with=a= complete staff and fully functional equipment and
.l systems, Shoreham constituted a valuable resource for the bongIslandareainthat'itwascapableofimmediately generating electric energy.
The proposed amendment is another in a series of actions instigated'by LILCO, to be approved by the NRC Staff, I
in furtherance of the decommissioning proposal.
As such, the amendment would make the intended benefit and purpose of Shoreham (the supply. of 805 MWe in full power operation) more l -:
H remote in time and less likely in fact.
It would, therefore, l.
violate NEPA and-the_ Commission Rules (in particular, 10 C.F.R.
I 51.101(a) (1) (1989)) if approved at this time.
The Petitioner first urged maintenance of the status gun (that is, full operational readiness at the Shoreham
~
plant), pending preparation of an EIS and a final decision on f'
the proposal to decommission the facility, in its section 2.206 request filed in July 1989.
Petitioner has reiterated the need for the Commission to take such~ action in supplements to the initial request and at meetings between o
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.m th's NRC Staff and LILCO management.-
The NRC Staff's response has continually.been that although an EIS will have to be prepared befora decommissioning can take place, no y
proposal for decommissioning has yet been presented to the
(
commission.F. Petitioner. disagrees with this proposition advanced by the NRC, and supported by LILCO, that the 1
Commission's NEPA responsibilities are not triggered until the Commission receives a formal written application for a license amendment-to-allow decommissioning.
At the heart of this disagreement is the definition of the term " decommission."
The more limited the set of i
actions that constitute " decommissioning," the more actions LILCO can take which do not satisfy.the definition and, j.
therefore,: do not trigger NEPA review.
LILCO and the NRC ultimately premise their delay in initiating the NEPA process' on the position that the licensee's current activities are l
" consistent with" its full-power license and that the term 1/
The NRC has stated that while:
decommissioning of a facility requires a license amendment necessitating the preparation of an.EIS, such an amendment has not yet been applied for in this' case.
If the Commission issues a license amendment authorizing the decommissioning of the Shoreham facility, an environmental review will be performed.
Interim Reply to the initial Section 2.206 Request (dated July 20, 1989) (emphasis added).
L'i M i.:
$' " decommission" only encompasses some narrow, but undefined, set of actions which will not be undertaken until appropriate authorisation is given pursuant to a " formal" application to decommission some time in the future.
This po ition ignores both the reality of the present situation, and the definition of " decommission" found in Part 50 of the commission's own Rules.
The CEQ definition of " proposal" includes the statement: "A proposal may exist in fact as well as by agency declaration that one exists." 40 C.F.R. I 1508.23 (1988)
(explicitly adopted by the Commission at 10 C-.F.R.
I 51.14(b)
(1989)).
A hard look at the reality of the of the present situation makes it abundantly clear that a decommissioning proposal exists "in fact" in this instance.
LILCO has entered into a Settlement Agreement with various entitles of the State of New York that represents a decommissioning proposal.
The Agreement provides that LILCO will not operate the plant but will take steps to remove the plant from service in an effort to both reduce costs and facilitate the transfer of the plant to an entity of New York State which will, in turn, take the final steps in the decommissioning process.
On several occasions, LILCO has made the terms of the settlement Agreement known to the NRC.
Furthermore, since i
1
.) shoreham was removed from service, LILCO has sought NRC permissions in various forms including license amendment applications, (some of which have been granted).
Petitioner contends that those permissions implement stages of the decommissioning proposal outlined in the Settlement l
Agreement.
LILco began by transferring the fuel from the reactor to the spent fuel pool.
The NRC Staff found that this was not inconsistent with the terms of the operating license despite the fact that LILCO had no plans to replace the fuel and thus was defuelina, an activity that is not anticipated in the operating License, am opposed to refuelina which la an activity addressed by the Technical specifications.
LILCO has also presented a plan to discontinue upgrading, maintenance, and operator training programs, and to drastically reduce the staff at the Shoreham plant, among other things.
Despite the fact that Petitioner views these actions as clearly inconsistent with the purpose and terms of the Operating License, the NRC Staff has made findings of consistency and allowed LILco to go forward with these actions.
Following implementation of the destaffing plan, LILc0 presented a plan for "mothballing"
(" system.layup") of equipment and systems that make up the plant.
Although LILCO holds a full-power Operating License and is, therefore,
j tr committed to maintaining the plant in safe and operational l
condition, the NRC gave LI140 explicit permission to pursue l
the layup plans.
)
In addition to these activities, LIIco has submitted several applications for relief from various requirements
[
contained in the license, in the Technical specifications, i
and in the NRC Regulations.
All of these proposals are inconsistent with the terms of LILCo's full-power operating License.and various parts (including Parts 50, 51 and 73) of the NRC's regulations.
The Settlement Agreement and LILCO's t
actions in pursuit of that Agreement have clearly put the NRC on notice that a decommissioning proposal exists "in fact" in this case.
Thus, the NRC position (that it will not consider a proposal to decommission to exist until the licensee submits a formal application for a license amendment to allow decommissioning) is not tenable.
Aside from the reality of the situation which makes it abundantly clear that a proposal for decommissioning presently exists and is being prematurely implemented at the shoreham plant, the Commission's own definition of the term
" decommission" supports Petitioner's contention that LILCO's actions to date constitute decommissioning.
The Commission defines " decommission" as meaning "to remove (as a facility) safely from service and reduce residual radioactivity to a
i 9
i level that permits the release of the property for unrestricted use."
10 C.F.R. I 50.2 (1989)(emphasis added),
t Thus, under the Commission's definition, decommissioning is a i
continuing process beginning with actions to remove a facility safely from service and continuina through to actions to reduce the level of residual radioactivity at the site until it is released for unrestricted use.
The NRc staff's argument that it has not yet received a decommissioning proposal is inconsistent with its own definition in that, although the licensee has not yet j
submitted an application for a license amendment explicitly denominated as an " Application to Decommission", LILCO has submitted several applications which are intended to further confirm the removal of the facility from service and which have no utility independent of decommissioning.
Thus, an unauthorized decommissioning has, in fact, begun.
In the typical situation, when a plant is at the end t
of its useful life, by age or accident, there is no question whether the plant shall be operated further,'and thus no decision whether to safely remove the plant from service.
1 That occurrence is nothing more than a ministerial recognition of a fact which then initiates all licensee duties as to the " actual" decommissioning.
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h.
The Shoreham situation is anything but typical shoreham is at the beginning of its useful life and the initial step in decommissioning (safely removing the plant from service) cannot be ignored as inconsequential or I
unrelated to the process of decommissioning.
Moreover, the settlement Agreement between LILCO and New York State exactly parallels the Commission's definition i
of " decommissioning" in that it outlines a plan for L
f decommissioning that begins with LILCO's actions to remove the plant from service and anticipates that an entity of New York State shall take the final actions necessary to complete decommissioning of the plant, while LILCO will remain financially liable for those actions.
The NRC Staff's present position, that the NEPA process is not triggered 1
until a licensee submits an application explicitly denominated as an " Application to Decommission", ignores the fact that LILCO is presently taking actions further confirming the renoval of Shorehan from service and, therefore, has not-only begun decommissioning, but is aggressively implementing that proposal.
The proposed amendment violates Petitioner's and Petitioner's members' rights under NEPA, and the NEPA regulations promulgated by the CEQ and the NRC, both (a) to have decisions on interdependent parts of a proposal for a l
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major federal action informed by a Final EIS evaluating the proposal as a whole and also (b) to have alternatives to a
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l proposed action preserved pending the preparation of an FEIS and the issuance of a final decision on the proposal as a whole.
The proposed amendment is another step in the i
decommissioning process in that a reduction in the security force and a reclassification of certain vital plant equipment not only implies that LILco and the NRC view Shorehan's decommissioning as inevitable, but also places the facility in jeopardy of sustaining damage that would foreclose the alternative of operation.
The Physical Security Plan is an integral part of the Shorehan facility license.
To the extent that physical security is relaxed at Shoreham, the plant will be vulnerable to damage and sabotage.
This risk of damage constitutes a negative impact on an existing resource and may also tend to limit the reasonable alternatives.
Decisions which place a resource at risk of adverse impacts and tend to limit reasonable alternatives cannot be made until the NEPA process is complete and, thus, the proposed amendment should be denied in accordance with NEPA's mandates.
Before this further step in the decommissioning plan is taken, an environmental evaluation of the decommissioning
36 -
plan as a whole must be undertaken.
The D.C. Circuit has stated that *NEPA creates a right to information on the environmental effects of government actions; any infringement of that right constitutes a constitutionally cognisable injury.
Comnetitive Entererine inst.. et. al. v. Nat'l Mlahway Traffic safety admin., No. 89-1278, slip op. at 28 (D.C. Cir. Jan. 19, 1990).
Until an EIS has been prepared on the total decommissioning proposal, no part of that plan, including this proposed amendment to the physical Security Plan, may be taken.
Petitioner has thus shown an injury in fact that will result from the proposed amendment that is within the zone of interests protected by NEPA and that can be redressed by a decision not to grant the amendment and by granting the other remedies sought.
The particular aspects of the proposed amendment as to which Petitioner wishes to intervene under NEPA are, inter alia, as follows:
i 1.
Does a proposal to decommission the Shorehan Plant exist "in fact"?
2.
Would issuance of the proposed amendment violate the Commission's NEPA regulations, including without limitation, 10 C.F.R. 55 51.100 & 51.101 (1989)?
< l *. '
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3.
Do NEPA, and the CEQ and NRC regulations l
promalgated thereunder, require that the licensee maintain f
the physical protection of the plant and nuclear materials
~
located there including the security force in full accord with readiness for operation at full power in accordance with its full-power operating License, the Technical specifications and licensee commitments thereunder, as well as the Atomic Energy Act, the regulations and other normal NRC Staff requirements of a full power licensee, until such time as full NEPA review of the decommissioning proposal is completed and published and a decision on that proposal is subsequently made?
4.
If NEPA requires a level of physical protection of the plant and nuclear materials located there consistent with full power operation pending full NEPA review of the decommissioning proposal, what are the particular requiratents for Shoreham, and on the basis of those requirements, what are the remedial measures that should be ordered at this time (including retrospective and prospective fines)?
P 9
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b
.c 4 IV.
REMEDIES The Petitioner seeks the following remedies:
1.
An order permitting the Petitioner's intervention as to the subject of the captioned notice.
2.
An order directing a hearing on the issues presented by the captioned notice as detailed in this petition as it may be amended.
3.
An order requiring the NRC Staff not to issue the proposed amendment pendente lita to allow for an independent assessment by this Atomic Safety and Licensing Board of whether the amendment involves a significant hazards consideration and/or whether approval of the amendment before a record of decision has been issued on the entire decommissioning proposal subsequent to full NEPA review of L
that proposal would violate NEPA and/or the CEQ and NRC l
regulations thereunder.
4.
An order granting Petitioner and Petitioner's 4
experts access to all national security information restricted data, safeguards information, correspondence, memoranda and reports to, from, and/or by the NRC and/or LILCO which contain information or records concerning i
Shorehan's Physical Security, Guard Training and/or 1
Safeguards contingency Plans without the deletion of names or f
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other details and further ordering the NRC Staff to furnish l
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o?
' I copies of the foregoing documents to Petitioner's attorneys for the purpose of formulating detailed contentions and testimony for the purposes of the hearing to be held on the subject proposed amendment.
5.
An order consolidating this petition with the petition of Shoreham-Wading River Central School District insofar as the two petitioners have common interests.
6.
An order consolidating this matter with related matters pending before the Commission for which notices of an opportunity for hearing have been and/or will be issued.
7.
An order finding that there exists a proposal for the decommissioning of Shoreham, which is a major federal action significantly affecting the quality of the human environment and, therefore, ordering the licensee to prepare an Environmental Report-on the scope of that proposal (including, inter alla, the alternatives relating to full-l l
power. operation); and, further ordering, that all Shoreham l
proceedings not related to enhancing full-power operation be held in abeyance pending the submission of that Environmental Report and the subsequent preparation and publication of a Draft Environmental Impact Statement by the NRC Staff.
8.
An order requiring the licensee to expeditiously reassign and/or hire, and train and/or retrain, security staff to meet the physical security and safeguards
4 e
e-*
L requirements for full power operation of Shoreham in accordance with its license, related consitaants thereunder, and all NRC requirements for full power licensees; and, further ordering such staff to be maintained until such time as a decision is made on the decommissioning proposal.
9.
An order requiring the licensee to work with the NRC Staff to maintain its Safeguards Plan at Shorehan appropriate to a full power operating status in accordance with readiness for immediate fuel loading, subsequent power ascension and full-power operation in accordance with the licensee's full power operating License, commitments related thereto, and all NRC Staff requirements of full power operating licensees until such time as a decision is made on the decommissioning proposal.
10.
An order requiring the licensee, and the NRC Staff independently, to furnish this Atomic Safety and Licensing Board with reports, on Monday of each week, describing the then current progress and status of affairs pursuant to orders 7, 8, and 9 above.
11.
An order putting the licensee on notice or, in the alternative, an order requiring the NRC Staff to issue an order putting the licensee on notice, that fines of $100,000 per day shall be imposed for any violation (s) of orders 7, 8
a4 e
4} or 9, independently, so that such fines may accumulate to
$300,000 per day.
12.
An order requiring the NRC Staff-and the
)
licensee to furnish the petitioner's attorney with all future a
communications and/or governmental filings originated by those parties or either of them, by telecopy, express mail, or overnight courier, which communications relate to shoreham and/or issues affecting Shoreham.
13.
An order requiring the NRC Staff to issue a confirmatory action letter outlining the actions to be taken j
by LILCo to augment the Shoreham Physical Security, Guard Training and/or Safeguards contingency Plans to provide adequate protection for public health and safety in light of I
both the License Event Report dated October 16, 1989 dealing with=" attempted sabotage / tampering," and U.S. Nuclear Regulatory Commission R6gion I Inspection Report No. 50-322/89-09, dated March 19, 1990, which states that "[t)wo e
whiskey bottles were found inside the protected area," both of which independently indicate a breakdown in the l
i implementation of, and/or the inadequacy of the present t
Plans.
14.
An order requiring the NRC Staff to issue a l
Notice of Civil Penalties to the licensee relating to the Shoreham operational security program for any violations of I
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) (a) the AEA and/or NEPA, and/or regulations thereunder, and/or (b) its full power operating license, including
)
commitments thereunder, and/or (c) NRC requirements of full-i power reactor licensees, which violations occurred on or after April 21, 1989, or in the alternative, to show catise to this Atomic Safety and Licensing Board how a failure to issue such a Proposal of Civil Penalties can be justified under 10 C.F.R. Part 2, Subpart B and Appendix C.
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.4
- o2 conc 12JSIDM WEERSFORE, for the above-stated reasons, the Petition for h ave to Intervene should be granted, a hearing should be held, and the other remedies herein sought should be granted.
Respectfully submitted, f(r 0'
April 19, _1990 Professor Miro M. Todorovich Executive Director Scientists and Engineers for Secure Energy, Inc.
Suite 1007 570 Seventh Avenue New York, New York 10018
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April 20, 1990 By'
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Dow, Lohnes & Albertsbn [ Esquire James P. McGranary, J f
1255 23rd Street, N.W.
Suite 500 Washington, D.C.
20037 (202) 8b7-2929 Attorney for Petitioner Scientists and Engineers for Secure Energy, Inc.
In accordance with 10 C.F.R.
Il 2.708(e) and 2.712(b),
service may be made upon the above-designated Attorneys for l
Petitioner.
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0 ea CERTIFICATE OF SERVICE ton [iED UbHkC j
Pursuant to the notice requirements set forth in the Federal Register (55 Fed. Reg. 10528, 10540, March 21K1E)23a8d :4 06 the service requirements of 10 C.F.R.
I 2.712 (1989) 'b.F flCh*I*D8fi AM OCK[llNG & $(INICI.
I certify that on April 20, 1990 the foregoing Petition forBLAMe to Intervene and Request for Hearing and Notice of Appearance were served, via first class U.S. mail, postage prepaid, upon the following:
The Honorable Samuel J.
Chilk The Secretary of the Commission office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 ATTN:
Docketing and Service Branch office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 W. Taylor Reveley, III, Esquire Hunton & Williams P.O.
Box 1535 Richmond, Virginia 23212
/
(W ne
>r A.
N Jagss P. McGranary,
/', Esquire CotInsel for Petitio r
Scientists and En ineers for Secure Energy, Inc.
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