ML20062C041
| ML20062C041 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/20/1990 |
| From: | Mcgranery J, Prodell A DOW, LOHNES & ALBERTSON, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20062C038 | List: |
| References | |
| 2.206, OLA, NUDOCS 9010290167 | |
| Download: ML20062C041 (42) | |
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U$NHC l BEFORE THE UNITED STATES f NUCLEAR REcutAToRY CoMNISSIoM !
i 10 APR 24 P2:06
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In the Matter of ) ,rr er OF SECRE1MY '
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) USNRC Doc [W E& stuviti j
Long Island Lighting Co., ) 50-322 BRANCH Docket No. 50-322, Shoreham Nuclear ) License No. NPF-82 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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SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT'S PETITION FOR f MVE TO INTERVENE AND REOUEST FOR HEARING ]
i On March 21, 1990, in its Bi-Weekly Notice )
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Applications and Amendments to operating Licenses Including No Significant Hazards Considerations, the Nuclear Regulatory l
j Commission ("NRC") announced that the Long Ibland Lighting )
[ Company ("LILCo"), licensee of the Shorehan Nuclear Power i Station ("Shoreham"), had applied for an amendment allowing s 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 portions of the plant currently designated as ' Vital Areas' or ' Vital Equipment'." M. As a result of the reclassification other
" safeguard commitments" would also be eliminated or modified.
M. Among these modifications is a reduction in the security M. In the Notice, the NRC stated that "any person I
force.
whose interest may be affected by this proceeding and who 9010290167 900420 1 PDR ADOCK OS000322~
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t, a
i wishes to participate as a party in the proceeding must file :
a written petition to intervene." Id. ,
Shoreham-Wading River Central School District
(" School District" or " Petitioner") and its students and employees are adversely affected by this proposed amendment ,
and, therefore, pursuant to Section 2.714 of the Commission's Rules, the School District requests that it be granted leave to intervene as a party and that a hearing be held to consider the scrits of the proposed amendment.
The School District views this Amendment as one part of the larger proposal to decommission Shoreham. Each step in the decommissioning proposal that moves 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 i
scheme.
The School District submitted an enforcement request under Section 2.206 of the Commission's Rules in July 1989, ,
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and has submitted several supplements to the request since ;
that time consolidated with the Request of Scientists and l
Engineers for Secure Energy, Inc. ("SE ") g . In their Section l 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 i
response has effectively denied their request because continuing and significant steps toward da facto implementation of LILco's decommissioning proposal proceed unhampered with the full knowledge and support of the NRC l Statt.
All of the arguments advanced in Petitioner's Section i 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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l I. INTEPFAT OF PETITIONER AND THE RIGHT TO INTERVENE As the NRC Staff has stated the applicable law To ]
determine whether a petitioner has sufficient interest to intervene in a proceeding, the commission has held that a licensing board may apply judicial concepts of standing.
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 interest protected by the Atomic Energy Act of 1954, as amended, and/or the National Environmental Policy Act of .!
1969. Id. at 613-614; Ninaara Mohawk Power corn., 31 31 I i
(Nine Mile Point Nuclear Station, Unit 2) LBP-83-45, 18 NRC 213, 215 (1983). In addition, a petitioner must establish (1) that it personally has suffered or will suffer a distinct J 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. Da11n== v. NRC, 863 ,
F.2d 968, 971 (D.C. Cir. 1988); ESA A1A2 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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Llahtina and Poyer Co., 31 31. (South Texas Project, Units 1 and 2) , LBP-79-10, 9 NRC 439, 447-48 (1979).
The School District meets all of the criteria for ,
standing in this-matter. The School District is threatened with distinct injuries in fact as a direct consequence of the .
proposed amendment. These injuries are within the zone of l interests protected by both the AEA and NEPA and can be remedied by a favorable decision.
The AEA guarantees any interested person a hearing in any reactor licensing action which may affect the health and safety of the petitioner. 42 U.S.C. 5 2239. In this instance, the proposed reduction in physical security of vital plant systems compounded by a reduction in on-site security personnel would unacceptably increase the risk of radiological sabotage and hence adversely affect the radiological health and safety of Petitioner, its students, its employees, and their property. Petitioner's interests, as detailed below, will be protected, and the requirements and purposes of the AEA met, if Petitioner is allowed to intervene in a hearing held on this matter and the remedies sought by Petitioner are granted as a result of that proceeding.
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LILco's efforts toward da lasta decommissioning ;
without an approved decommissioning plan tre a par as violation of the AEA and a direct health and safety violation. LILco's efforts to save montsy by shutting down f all operations, slashing staff, and portmanently defueling the j reactor ignore AEA procedures 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 1 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 reacto* 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 radiological health and safety risks. No ;
concern with full-power operational safety he.s been expressed by LILCo, or for that matter the NRC, since the licensee and the FAC Staff, improperly and illegally appear to have concluded that the reactor would never again operate. This premature conclusion that the reactor will never again be trought 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 Statement ("EIS") prior to agency decisionmaking on major federal actions significantly affecting the quality of the l,
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human environment. The EIS must consider, inter alla, the environmental impacts of, and the reasonable alternatives to, 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. ,
The School District has determined that its responsibilities demand that ic seek intervention in this instance in order to protect the interests of the School District, its students and employtes.
The area of the School District is about twelve square miles. The Shoreham facility is located within the boundaries of the School District and thus, the School District is within the fifty mile limitation used by the Commission to determine whether an intervenor expressing <
contentions under the health and safety provisions of the
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- 8-Atomic Energy Act has an interest sufficient to allow intervention.
The School District has an interest in protecting, and an' obligation to protect, the health and environment of almost 2000 students and 500 employees, who live and/or work in close proximity to the shorehan facility, from both the possible radiological impacts of the proposed amendment and the adverse health and other environmental consequences of ;
non-operation of shoreham cognizable under NEPA, for example, the air pollution produced by the oil and/or gas burning plants which would be necessary substitutes for Shoreham.
Among those expressly wishing their interests to be represented by the School District is Dr. Richard R. Doreaus, Superintendent of Schools of the Shoreham Wading-River School I District, who resides at 71 Van Buren Street, Centerport, New York 11721.
Furthermore, the School District depends on LILCO to meet the electric energy needs of the District's physical plant which includes five schools. The District has a vital interest in ensuring that an adequate and reliable supply of electricity will be available to meet its needs and that the electricity provided is available at reasonable rates. As a completed and fully licensed plant, Shoreham is presently capable of meeting the growing electric energy needs of the :
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Long Island area. Actions to dismantle the facility and build substitute oil burning plants, on the other hand, 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. ,
Aside from electric rates, the District has an additional economic interest in this matter which stems from the fact that the District derives significant tax revenues based on the value of Shoreham as an operating plant. The property taxes paid by LILCO for the Shorehan facility constitute approximately ninety percent of the School 4 District's tax base.
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II. PETITIONER'S INTERESTS WILL BE GREATLY AFFECTED BY THE AMENDMENT AND THE PROCEEDING The proposed NRC Staff decision to grant LILCO's request for the proposed amendment violates the requirements of the AEA at the expense of the Petitioner's, its students',
and its employees' radiological health and safety and circumvents NEPA and the NEPA-mandated consideration of the decommissioning proposal, including its reasonable alternatives. Petitioner's, its students', and its J I
employees' NEPA interests will be directly affected as !
described herein, and Petitioner wishes to participate in each and every aspect of the hearing which touches and concerns those interests as well as the specific aspects identified below and in any amendment of this petition hereafter filed.
The School District, on behalf of itself, its students, and its employees, seeks leave to intervene and requests a hearing to determine whether the amendment should be granted, denied, or a different amendment made under the AEA. The specific aspects of the proposed amendment as to which the School District wishes to intervene are (1) whether a grant of the vroposed amendment requested would be arbitrary, capricious and/or an abuse of discretion pursuant to the Atomic Energy Act and the Commission's regulations,
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i and subsidiary guidance thereunder; (2) whether, if a decision is made to go to full power operation at Shoreham, the proposed amendment would provide reasonable assurance '
that such full power operation would or could be conducted with reasonable assurance of the public health and safety and national defense and security, particularly the reasonable' ,
assurance of their protection (including their real and 4
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 +
l the national defense and security to protect the District, and its students and employees and their real and personal property from the radiological hazards during the decommissioning of the facility.
The personal radiological and other health and safety interests (including the safety of property) of the District (
and its students and employees would be adversely affected if l 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 l of the public health and safety and the national defense and I
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This proposed amendment, in particular, would '
reclassify equipment and areas deemed " vital" for Shoreham i (as they are so deemed for other similar licensees) as D21
" 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 a definition, significantly increases the risk of such sabotage and, hence, unavoidably and significantly increases the !
direct and/or indirect endangerment of the radiological :
health and. safety of the School District,- its students, and employees.
The School District also wishes to have full and fair NEPA consideration given the decommissioning proposal (of which the instant application is an interdependent part),
including the 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 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.
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'NEPA, as implemented in regulations issued thereunder by the CEQ and the NRC,-mandates that no major Federal action significantly affecting the quality of the human environment
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will be implemented without first receiving a full environmental review. As more fully detailed below, Petitioner's interests under NEPA will be protected, and the purposes and requirements of NEPA served, to the extent that such a review is conducted under the NRC Rules (including a hearing) and the remedies sought by Petitioner are granted in the proceeding. Petitioner's interests will be adversely affected should this petition or the relief sought herein be denied.
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 made with all appropriate environmental and economic considerations.
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
-decisionmaker to favor the continued utilization of this uw ,
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brand new facility and reject the decommissioning proposal. !
But-the failure to-properly maintain and protect the facility L
L in accordance with the operating License during this interin j u
period could further erode the alterative of full-power L operation by, among other things, increasing the costs, in _ l 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 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 i
unavoidable risks to the security of the Shoreham. equipment and to Petitioner's,.its students and employees 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 is barred by 10 C.F.R. I 51.101(a) (1989) until a
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record of decision is issued following completion of the required NEPA review of the decommissioning proposal. Egg glas, 10 C.F.R. l' 51.100 (a) (1) (1989).
Intervention and a hearing on this proposed amendment, addressing the aspects identified in this Petition, is the anly avenue available to Petitioner.for protecting not only its own vital interests but also those of its students and employees as 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 commission has essentially ignored those ,
consolidated Section'2.206 requests, which are still pending.
- The Petitioner must now address each incremental, segmented step taken by the licensee and the NRC 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 the .
School District and those whose interests it is obligated to protect, the students and employees.
Petitioner must address the da facto decommissioning 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 ev e -e n - . - , , ~ , , - - - - , . . _ - . - - - -
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i endangering the health and safety of Petitioner, its. students-and employees, jeopardizing the- future viability of the reactor,/end avoiding a meaningful environmental analysis pursuant to NEPA. Without Petitioner's active involvement, the NRC Staff and the licensee would simply continue to circumvent the law.and regulations and thereby deny Petitioner, which is interested in the development of a complete environmental record, the opportunity to have such full NEPA consideration before significant alternatives are, for'all practical purposes, foreclosed.
Obviously, neither the NRC Staff nor the licensee i
appear to be'in1the.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 g
environmental issues which form the bases for its challenge i of the proposed amendment and for all of the licensee's l actions toward da facto decommissioning. These essential issues are required by law to be addressed, and by addressing
-them now in this action the Petitioner will hasten their ,
L examination and appropriate resolution by the Commission, l
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sc e III. SPECIFIC ASPECTS AS TO WHICH PETITIONER SEEKS 70- '
INTERVENE A. Specific Aspects of the Subject Matter As -
To Which Petitioner Seeks to Intervene Under the AEA ,
Pursuant to the Commission's obligations under the AEA to provide reasonable assurance that the health and safety of the public are protected against the radiological hazard'of licensed activities and its obligation to protect the national defense and security, it has issued extensive regulations prescribing requirements for the establishment U 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 otherocommission guidance and requirements, 333,_g.g., .,
Regulatory Guide Series Division-5. These physical l 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 m
reporting system.
The purpose of these requirements is to protect j against radiological sabotage, which is defined to include any deliberate act directed against the licensed plant, or 4
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s against any component of that plant, which "could directly or indirectly endanger the public health end safety by exposure to radiation." Let 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 !
I equipment, systems, devices, or natorials at the plant ;
constitute " vital equipment". Vital equipment "means any equipment, system, device, or material the failure, destruction, or release of which could directly or indirectly endanger the public health and safety by exposure to U radiation (as well as) (e)quipment or systems which would be required to function to protect public health and safety a
" 10 following such failure, destruction, or release-. . . .
C.F.R. 5 73.2 (1989). An area in which vital equipment is located is designated ~a " vital area". Id.
In obtaining its full-power operating license, LILCO submitted, litigated (resulting in a settlement with an
'intervenor on certain issues), and subsequently obtained Commission approval of Physical Security, Guard Training and Qualification, and Safeguards contingency Plans which were made a part of its operating License. NRC License No. NPF-82-1 2.E. (NRC Docket No. 50-322, April 21, 1989). That ,
Operating License clearly and directly required LILCO to e
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" fully. implement and maintain in effect all provisions of the. ]
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 avoid direct and/or indirect endangerment of the public health and safety by. exposure to radiation possibly resulting from radiological satobage attempts at the plant.
p Now LILco comes to the Commission requesting that it l be allowed to reclassify some " vital' equipment" and " vital areas" as D2t vital, as well as relaxing and reducing guard force requirements. And the NRC Staff has published a l 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 ,
equipment and areas, and the relaxation and reduction in
-guard force proposed by the amendment, would increase the probability of radiological sabotage which would result in an j increased, and therefore impermissible, risk to them from the L
b radiological hazard that could directly and/or indirectly L result from such sabotage.
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The particular aspects of the proposed amendment as .
L to which Petitioner wishes to intervene under the AEA are,_ ;
p inter glig,.as follows:
- 1. Given that the proposed amendment is premised on Shorehan's "defueled state", does the Settlement Agreement in i fact prohibit further operation of the.Shorehan facility?
- 2. Is the licensee's proposed reclassification of a vital equipment" and " vital areas" and/or its proposed j
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 a License?
- 3. Is the plant's defueled condition relevant to .i the adequacy of its Physical Security Plan under the AEA~
while Shoreham possesses a full power operating License?
- 4. LIf the licensee's.on-site security staff is 4
s below-that necessary for plant operations, does the licensee
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have-an obligation pursuant to its license, commitments related thereto, the AEA, and/or regulations and requirements I
.and guidance-thereunder to re-assign and/or hire, and train j and/or re-train, additional security staff?
- 5. If the licensee does have an obligation to re-assign'and/or hire, and train and/or retrain, additional l
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1 security staff-under its existing license, does the NRC Staff' have an-obligation to enforce the licensee's staffing. J obligation through fines and related orders and/or ,
confirmatory letters?
i6. 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 (including reassigning and/or hiring, and training and/or retraining) security staff adequate for full power operation 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 n (including reassigning and/or hiring, and training, and/or retraining) security staff ~adequateLfor full power operation-and to maintain-plant equipment in a status ready for full power operation but fails, or has failed, to observe either or both of these commitments, does the NRC Staff have an obligation pursuant to the AEA and the Commission's l-
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regulations (including, in particular, Subpart.B and Appendix C of.Part 2 and Part 50) to issue orders to compel the h
" licensee to observe those obligations, including appropriate I
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fines to remove any economic incentive'for violation of such orders?~
h 9. Should the NRC Staff issue a confirmatory action g
letter outlining the actions to be taken by LILc0 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 both the License Event Report dated October 16, 1989 dealing with " attempted 1 sabotage / tampering," and U.S. Nuclear Regulatory commission i
Region I Inspection Report No.- 50-322/89-09, dated March 19, 1990, which states that "(t)wo whiskey bottles were found inside the protected area," both of which independently indicate a breakdown in the implementation-of, and/or the inadequacy-of the present Plans?
B. Specific Aspects of the Subject Matter As 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 eliminating the physical security safeguards of certain i
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 4
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part in implementation of a proposed major Federal action I
which,Lif approved, will significantly affect the quality-of i 1
the human environment. Because preparation of an EIS and a j 1
Lfinal decision is required before any part of the l 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.
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 prepare an Environmental Impact Statement ("EIS") which evaluates, among other things, the " environmental impacts of" and-the >
" alternatives-to" the proposed action. 42 U.S.C. I 4332 L
.(1982).-
The Council on Environmental Quality ("CEQ")
regulations,-which are " binding on all federal agencies,"
ifurther clarify the NEPA responsibilities of federal agencies. 40 C.F.R. I 1500.3 (1988). Among other things,
.those regulations (a) aandate application of NEPA "at the earliest possible time to insure that planning and decisions '
reflect environmental values," (b) require that actions which f
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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.. >
The NRC's own NEPA regulations, which closely parallel those of the 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 by - LILCo, a non-federal entity, - the NRC's on-going supervision of that licensee's activities and the need for L RNRC. approval of the various aspects of the decommissioning.
process make what otherwise might be a private action in j'
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-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 t
relevant.part of the environment under the supervision of the NRC, nor the alternatives to its decommissioning, are fadversely affected by premature implementation of the k decommissioning proposal. Egg 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 l
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4, h 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 at Shoreham which are irreversible or constitute I
irretrievable commitments of resources. This claim is l subject to significant doubt in view of the judicial interpretation of these concepts in the context of NEPA and the facts of this case. Ean sierra-club v. Marsh, 872 F.2d R
497 (1st Cir. 1989). For example,-if these concepts are 1 stretched to their theoretical definitional limits, the same .
l clain 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 j k
again,-but rather over what duration'and at what cost could !
the feat be achieved. That is: would approval of the l l
proposed amendment increase the risk that the currently available alternative of operation might not be reasonably _
'1 avaiable when the federal decisionmaker finally addresses the g,
question of whether to. authorize decommissioning of Shoreham?
The farther away in time and expense LILCO and the NRC move the reestablishment of operational capability, the (
R: less likely11t becomes that the alternative of operating n l Shoreham will be pursued. In the Spring and early summer
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-months of 1989, when-LILco made its intention to cooperate j with New York State in a plan to decommission Shoreham )
1 plainly known to the NRC, the shoreham plant sat ready for i
immediate full-power operation. As a fully licensed plant with a complete staff and fully functional equipment and systems, Shoreham constituted a valuable resource for the >
Long Island area in that it was capable of immediately generating electric energy.
The proposed amendment is another in a series of q actions instigated by LILCO, to be approved by the NRC Staff, in furtherance of the decommissioning proposal. As such, the proposed amendment'would make the intended benefit and *
-purpose of-shoreham (the supply of 805 NWe in full power I operation) more ' remote. in time and less likely in fact. It J would, therefore,-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 the proposal to decommission the facility, in its Section
- 2.206 request filed in July 1989. Petitioner has reiterated 1
the need for the Commission to take such action in supplements to the initial request and at meetings between
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the NRC Staff and LILCO management. The NRC Staff's-response has continually been that although an EIS will have to be prepared before decommissioning can take place, no proposal'for decommissioning has yet been presented to the .
Commission.M Petitioner disagrees with this proposition advanced by the NRC, and supported-by LILCO, that the Commission's NEPA responsibilities are not triggered until ,
h the Commission receives a formal written application fot* 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 h ;
' actions that constitute " decommissioning," the more actions-LILCO can take which do not satisfy the definition and, 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
" 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, much 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 L
will be performed . . . .
l L Interim Reply to the initial Section 2.206 Request (dated July l
20, 1989) (emphasis added).
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" decommission" only. encompasses some narrow, but undefined,
- set of actions which will not be undertaken'until appropriate authorization is given pursuant to a " formal" application to
' decommission some time in the future. This position 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 ts by agency declaration that one exists." 40 C.F.R. 5 1508.23 (1988)
(explicitly adopted by the Commission at 10 C.F.R. 5 51.14(b) 1
- (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 entities of the State of New York that represents a l:
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 l State which will, in turn, take the final steps in the y
decommissioning process.
On several occasions, LILCO has made the terms of the
' Settlement Agreement known to the NRC. Furthermore, since ll l
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l Shorehan was removed from service, LILc0 has sought NRC h- permissions in various forms including license amendment 1 applications (some of which have been granted). Petitioner l O 1 contends that those permissions implement stages of the -]
-decommissioning proposal outlined in the Settlement Agreement.
LILeo 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 defueling, an activity that is not anticipated in the Operating License, as opposed to refueling 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 Shorehan plant, among other things. Despite the fact that Petitioner views these actions are 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, '
LILCO 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, t - - - - - g -w e-+e ic-e __e -. _ _ _ _ _ _ - - - - - _ _ _ _
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committed to maintaining the-plant in safe and operational condition, the NRC gave-LILCO explicit permission to pursue
~the layup plans.
In addition to these activities,.LIIro has submitted several applications for relief from various requirements l contained in'the license, in the Technical specifications, ;
and in'the NRC Regulations. All of these proposals are inconsistent with the terms of LILCo.'s full-power Operating l License and various parts (including Parts 50, 51 and 73) of the NRC's regulations. The Settlement Agreement and LILCO's actions in pursuit of that Agreement have clearly put-the NRC on notice that a decommissioning proposal exists "in fact"'in i
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
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-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 f
4 defines " decommission" as-meaning "to remove (as a facility) safely from service and reduce residual radioactivity to a u.
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. level that permits the release of the' property for unrestricted use." 10 C.F.R. 5 50.2 (1989) (emphasis added) .
Thus, under the commission's definition, decommissioning is a continuina process beainnina 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 l
a decommissioning proposal is inconsistent with its own definition in th'at, although the licensee has not yet submitted an application for a license amendment explicitly
. denominated' as a " Application to Decommission", LILCo has i
L 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 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 fron service.
That-occurrence is nothing more than a ministerial recognition of a fact which then initiates all licensee p ,
L duties as to-the " actual" decommissioning.
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'I The Shoreham situation is anything but typical.
Shoreham is-at the haginning of-its useful life and the initial step in decommissioning (safely removing the plant from service) cannot be ignored as inconsequential or unrelated to the process of decommissioning.
Moreover, the Settlement Agreement between LILCO and New York State exactly parallels the Commission's definition of " decommissioning" in that it outlines a plan for 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 l until a licensee submits an application ~ explicitly i denominated as an " Application to Decommission", ignores the 1 fact that LILCo is presently taking actions further
, confirming the removal of Shoreham from service and, therefore, has not only begun decommissioning, but is aggressively implementing that proposal. 1 l
The proposed amendment violates Petitioner's 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 major federal action informed by a l
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. Final EIS evaluating the proposal as a whole and also (b) to have alternatives to a proposed action preserved pending the preparation of an FEIS and the-issuance of a final decision L on the proposal as a whole.
The proposed amendment is another step in the
, decommissioning process in that a reduction in the security L
~ force and a reclassification of certain vital plant equipment ,
b 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 .
Shoreham 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:nay 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 plan as a whole must be undertaken. The D.C. Circuit has
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- stated that'"NEPA creates a right to information~on the environmental effects of government actions; any infringement of that right constitutes a constitutionally cognizable injury . . .
" Competitive Enterprise Inst., et. al. v. Nat'l Hiahway 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 4 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 AllA, as follows:
- 1. Does a proposal to decommission the Shoreham l
Plant exist ~"in fact"?
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- 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)?
- 3. Does NEPA, and the CEQ and NRC regulations l
promulgated thereunder, require that the licensee maintain i
. yn-so -
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 4 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
.withLfull power operation pending full NEPA review of the decommissioning proposal, what are the particular requirements 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)? I d
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IV. REMEDIES P L
The Petitioner seeks the lo11owing remedies: [
- 1. An order permitting the Petitioner's 1
intervention as to- the subject of the captioned notice.
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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 l amendment nendente liig'to allow for an j 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 that proposal would violate NEPALand/or the CEQ and NRC regulations thereunder.
- 4. An order granting Petitioner'and Petitioner's experts access to all national secuEity.information1 restricted data, safeguards information, correspondence,
' memoranda and reports to, from, and/or by the NRC and/or LILCO which contain information or records concerning Shorehan's Physical Security, Guard Training and/or Safeguards contingency Plans without the deletion of names or .;
Lother details and further ordering the NRC Staff to furnish I
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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 Scientists and Engineers fer Secure Energy, Inc.
insofar as the two petitioners have common interests.
An order consolidating-this matter with related-6.
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-the1 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 alia, the. alternatives relating to i'ull-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 L
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I requirements for full power operation of Shoreham in accordance with its license, related commitments thereunder, !
l and'all NRC requirements for full power. licensees; and,
.. ether 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 Shoreham R 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. >
111. 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
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2 or 9, independently, so that such fines may accumulate to i
$300,000 per day.
- 12. An order requiring the NRC Staff and the licensee to furnish the petitioner's attorney with all future 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. 1m order requiring the NRC Staff to ' issue a confirmatory action letter outlining the actions to be taken 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 both the License Event Report dated October 16, 1989 dealing with " attempted sabotage / tampering," and U.S. Nuclear Regulatory Commission Region I Inspection Report No. ,
322/89-09, dated March 19, 1990, which states that "[t)wo q whiskey bottles were found inside the protected area," both of which independently indicate a breakdown in-the l implementation of, and/or the~ inadequacy of the present !
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Plans.
- 14. An order _ requiring the NRC Staff to issue a Notice of Civil Penalties to the licensee relating to the Shoreham operational security program for any violations of l
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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 (-:) NRC requirements of ful1+-
power reactor licensees, which violations occurred on or after April 21, 1989, or in the alternative, to show cause 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 8 and Appendix C.
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533R270R3, for the above-stated reasons, the Petition ;
for Leave to Intervene should be granted, a hearing should be held, and the other remedies herein sought should be granted. ;
Respectfully submitted, ,
f i
April it, 1990 , Ak $ <tdk Albert G. Prode11 President of the Board of i Education shoreham-Wading R4ver central School District District office Shoreham, New York 11786
'h ;
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. , 1 April 20, 1990 By: k- - s du - - 2 1e i Wehes P. McGranary, Jn',[/ Esquire Dow, Lohnes & Alberts6n
- j. 1255 23rd street, N.W. .
suite 500 Washington, D.C. 20037 ;
(202) 857-2929 ,
{ Attorney for Petitioner shoreham-Wading River Central school District ,
In accordance with 10 c.P.R. Il 2.704(e) and 2.712(b),
service may be made upon the above-designated Attorneys for l Petitioner.
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i2 MILD '
i CERTIFICATE OF SERVICE UbHRC Pursuant to the notice requirements set g t 4g t
Federal Register (55 Fed. Reg. 10528, 10540, March 21, 1990) and ;
the service requirements of 10 C.F.R. I 2.712 (198h.hgkthf thi BRANC61 certify that on April 20, 1990 the foregoing Petition for Leave 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 :
P W. Taylor Reveley, III, Esquire Hunton & Williams '
- - P.O. Box 1535 Richmond, Virginia 23212 m ,
/ f
/Ames P. McGranary, L
Wounsel for Petition [/dt, er . Esquire ;
Shoreham-Wading River Central L School District l-L L
i e
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