ML20062C083

NRC Staff Response to Petitions to Intervene & Requests for Hearing on Confirmatory Order,Filed by Scientists & Engineers,Inc & by Shoreham-Wading River Central School District.* Petitions Should Be Denied.W/Certificate of Svc

ML20062C083
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/08/1990
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#490-10933 OLA, NUDOCS 9010290234
Download: ML20062C083 (17)

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NRC STAFF'S RESPONSE TO PETITIONS T0 INTERVENE AND REQUESTS FOR HEARING ON CONFIRMATORY ORDER, FILED BY f' SCIENTISTS AND ENGINEERS FOR SECURE ENERGY, INC. AND p

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BEFORE THE COMMISSION ,

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In the Matter of LONG ISLAND LIGHTING COMPANY Docket No. 50-322.

(ShorehamNuclearPower-Station, .

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NRC STAFF'S RESPONSE TO PETITIONS TO INTERVENE AND  !

REQUESTS FOR HEARING ON CONFIRMATORY ORDER,. FILED BY' SCIENTISTS AND ENGINEERS FOR SECURE ENERGY, INC. AND BY SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT-r t

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Sherwin E. Turk Senior Supervisory Trial Attorney May 8, 1990

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UNITED STATES OF AMERICA NUCLEAR REGULATORY ComISSION l

BEFORE THE COMMISSION  :

1 In the Matter of ,

10NG ISLAND LIGHTING COMPANY Docket No. 50-322 ,

(ShorehamNuclearPowerStation, l, ' Unit 1)  ;

l NRC STAFF'S RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING ON CONFIRMATORY ORDER, FILED BY SCIENTISTS AND ENGINEERS FOR SECURE ENERGY,'INC. ,

AND BY SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT  ;

On March 29, 1990, the Commission issued an immediately effective

" Confirmatory Order" modifying the operating license for the Shoreham Nuclear Power Station held by Long Island Lighting Company ("LILC0" or the

" Licensee"),prohibitingLILCO"fromplacinganynuclearfuelintothe - '

Shoreham reactor vessel without prior approval from the NRC." On April 5, ,

1990, notice of the Confirmatory Order was published in the Federal Register (55 Fed. Reg. 12758); the notice afforded any persons adversely  ;

l affected by the Confirmatory Order an opportunity to request a hearing .

thereon within 20 days of its issuance, and required any such person to i

• set forth with particularity the manner in which his interest is adversely affected by-this Order and [to] address the criteria set forth i'

in10C.F.R.2.714(a)." Id. at 12759.

In response to the aforesaid notice, on April 18..1990, petitions for-leave to intervene and requests for hearing on.the Confirmatory Order were filed by Scientists and Engineers for Secure Energy Inc. ("SE 2") and the 5

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Shoreham-Wading River Central School District (" District").1/ Therein, f the Petitioners argued that their interests would be adversely affected by i

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I the Confinnatory Order, based on their view that-it constitutes "one part of the larger proposal to decommission Shoreham" (District Petition at 2;  !

SE 2 Petition at 2). A single response in opposition to the Petitions (and ,

r to similar petitions and requests for hearings filed by these Petitioners in connection with a proposed amendment to the Shoreham physical security ,

plan)wasfiledbyLILC0onMay3,1990.II ,

i The NRC Staff (" Staff") hereby responds to SE 2 and the District's Petitions. The Staff submits that the Petitions fail to demonstrate that  ;

the Petitioners' interests' will be adversely affected by the Confimatory i Order, or that the Petitioners are entitled to a hearing thereon. For these reasons, as more fully set forth below, the Staff opposes the Petitions and recomends that they be denied.

l i

~1/ 'Shoreham-Wading River Central School District's Petition for Leave -

to Intervene and Request for Hearing", filed April 18, 1990

("Distri:t Petition"); and " Scientists and Engineers for Secure Energy. Inc.'s Petition for Leave to Intervene and Request for .

Hearing", filed April 18,1990 ("SE 2 Petition"). The two Petitions appear to be largely identical, except insofar as they describe the-identity of each Petitioner and the impacts each would allegedly experience as a result of the Confinnatory Order.

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2/ "Long Island Lighting Company's Opposition to Intervention Petitions i on Confimatory Order and on Amendment to andRequestsforHearing'datedMay3,1990("LILCO'sOpposition").

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4 DISCUSSION i

A. Lack of adverse Impact Upon Petitioners' Interests. j i

1. Petitoners' Stated Interests. l The P'etitioners assert, as they must. under Comission regulations (Lee e discussion-infra, at 6), that the Confimatory Order will have an l adverse impact upon their interests. These interests are said to consist of such factors as: .

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1. Petitioners' asserted " genuine or direct interest in the [

outcome" (presumably, the outcome of Shoreham's decomissioning) ,

(SE 2 Petition at 4; District Petition at 4); *

2. Thethreatof(unspecified)"distinctinjuriesasadirect consequence of the Confimatory Order" (SE 2 Petition at 5; District '

Petitionat5);

3. The alleged " endanger [ ment of] the health and safety of  ;

Petitioners' members during this unapproved decomissioning "

resulting from "LILCO's efforts to save money by shutting down all i' operations, slashing staff and permanently defueling the. reactor" (SE 2 Petition at 5-6; District Petition at 5-6);

4 "[5]everely increased . . . radiological health and safety risks" to the Petitioners and their members, allegedly caused by LILCO's " continuous refusal to abide by the tems of its Operating i License" (SE 2 Petition at 6; District Petition at 6); .

l 5. SE 2 and its members' " interest in the radiologically safe I and environmentally benign operation of Shoreham.to provide them with I reliable electricity and to avoid the substitution of fossil fuel plants," which would pose adverse effects on the environment, the trade deficit and the nation's energy security (SE 2 Petition at 7-8); ,

6. The District's purported interest in "the health and i environment of almost-2000 students and 500 employees, who live

, and/or work in close proximity to the Shoreham facility, from both l the possible radiological impacts of the Confimatory Order and the i

adverse health and other environmental consequences of non-operation of Shoreham" such as would be caused by fossil fuel replacement plants (DistrictPetitionat7-8);

7. Petitioners' reliance upon LILCO to meet their energy needs, and their " interest in ensuring that an adequate and reliable ,

supply of electricity will be available to meet their needs and that ~ >

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the electricity provided is available st reasonable rates" -- which ,

interest would be adversely affected by "[a]ctions to dismantle the i facility and build substitute oil or. 'jas burning plants" (SE 2  !

Petition at 9; District Petition at li); .  !

8. The District's economic' interest'in preserving Shoreham's  !

value as an operating plant, in that it allegedly provides ,

"approximately ninety percent of the School District's tax base" -;

(District Petition at 8-9); and l

9. SE 2's interest in opposing agency actions which interfere with that organization's " informational purposes", due to the Staff's purported refusal to conduct an environmental impact statement (EIS),  ;

which allegedly deprives SE 2 of its ability to connent on such an ,

i EIS, to advise its members of the environmental . risks of alternative i l

l actions,(and 1eaders SE 2toPetition report the findings at 10). , to its members and to political In sum, SE 2 and the District's interests are asserted to include  :

I (a) protecting the radiological health and safety of their members, i

students,and/oremployees;(b)protectingtheenvironmentfromthe effects of Shoreham's operation; (c) protecting the environment from the effects of fossil fuel replacement plants; (d) ensuring the availability of an adequate, reliable and inexpensive energy supply; (e) preserving Shoreham's tax value as an operating plant; and (f) protecting SE 2's  !

infomational capabilities.

L i 2. Lack of Adverse Impact.,

The Petitioners do not directly identify any impacts that the Order, by itself, may be expected to have upon their interests. In addition to-t listing the interests described above, they contend that a hearing is- '

required to detemine "whether, if a decision is made to go to full power 3 operation at Shoreham, the Confirmatory Order gives reasonable assurance 4

...[ofprotecting)thepublichealthandsafetyandthenational l defense and security"; and "whether, if a decision is made to decommission h Shoreham, the Confimatory Order gives reasonable assurance that.such  !

1

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- 5-l ' decommissioning will be conducted in accordance with the public health and .!

safety and the national defense end. security" (SE 2 Petition at 11-12; j l

District Petition at 10-11). Further, Petitioners contend that the  !

i Confirwatory Order constitutes part of Shoreham's "de facto decommis- l f

sioning"; and they request a " full and fair NEPA consideration of the decommissioning proposal" (SE 2 Petition at 12; district Petition at 11). , l On their face, some of Petitioners' stated interests (in particular, those involving radiological health and safety or the environmental l impacts of Shoreham's operation) might be found to be sufficient to afford one or both of these Petitioners standing to participate in certain kinds j of licensing actions for Shoreham -- assuming that they had properly i

. f demonstrated their authority to act in a representational capacity on.  !

behalf of their members, employees or students. M No such action,  !

however, can reasonably be fou'd to be present here and, under the t

standards governing intervention in Commission adjudicatory proceedings,  !

the Petitions should be denied. ,

Section189(a)(1)oftheAtomicEnergyActprovides,inpertinent part, as follows:

3/

In light of Petitioners' failure to demonstrate any interests that may be adversely affected by the Confirmatory' Order, as discussed infra, we do not address here the Petitioners further failure to demonstrate, by affidavit or otherwise, their capacity to represent the interests of their members, students, or employees. See i generally, Houston Lighting & Power Co. (Allens Creek NucTear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-97 (1979);

Vennont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 5tation),LBP-87-7,25NRC116,118(1987); Combustion Engineering Inc. (Hematite Fuel. Fabrication Facility), LBP-89-23, 30 NRC 140, 149 Station, Unit 2)(,LBP-84-6,19NRC393,411(1984).1989); Duquesne Light C >

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i In any proceeding under this chapter, for the granting, k suspending, revoking, or amending of any license or construction permit, or application to transfer control, *

. . the Comission shall grant a hearing upon the.

request of any person whose interest may be .

affected by the proceeding, and shall admit any such person as a party to the proceeding. ]

Id.,42U.S.C.I2239(a)(1)(emphasisadded). Under 10 C.F.R.

I 2.714(a)(1), "any person whose interest may be affected by a proceeding [

and who desires to participate as a party shall file a written petition for leave to intervene." Any such petition must satisfy the following requirements: . ->

. The petition shall set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the

)roceeding, including the reasons why petitioner should

>e permitted to intervene, with particular reference to the factors in paragraph (d)(1) of this section, and the i specific aspect or aspects.cf the subject matter of the proceeding as to which petitioner wishes to intervene.

10C.F.R.I2.714(a)(2)(emphasisadded).4/

The Commission has long held that judicial concepts of standing will -

be applied in determining whether a petitioner has sufficient interest in '

, a proceeding to be entitled to intervene as a matter of right under i

4/

- 10 C.F.R. I 2.714(d)(1) provides that, in considuing petitions for leave to intervene, the Comission or presiding officer shall consider, among other matters, the following factors:

(1) The nature of the petitioner's right-under the Act to be made a party to the proceeding, i

(ii) The nature and extent of the petitioner's '

l property, financial, or other interest in the proceeding.

(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.

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Section 189 of the Act. See. g Metropolitan Edison Co. (Three Mile i Island Nuclear Station Unit 1), CLI-83-25, 18 NRC 327, 332 (1983), citing -!

Portland General Electric Co. (Pebble Springs Nuclear Plant. Onits 1 and2),CLI-76-27.4NRC610(1976). The Comission has further held that  !

these judicial concepts require a showing (a) that the action will cause'

" injury in fact," and (b) that the injury is " arguably within the zone of interest" protected by the statutes governing the proceeding. E , 18 NRC at 332; Pebble Springs, 4 NRC at 613. Further, in order to establish 3 standing,ithasbeenheldthatthepetitionermustshow(1)thathehas i

personally suffered a distinct and palpable ham that constitutes j injury .in-fact; (2) that the injury fairly can be traced to the challenged action; and (3) that the injury is likely to be redressed by a favorable ,

decision in the proceeding. Dellums v. E , 863 F.2d 968, 971 (D.C. Cir.

1988). Cf. Nuclear Engineering Co. (Sheffield Ill. Low Level Radioactive WasteDisposalSite).ALAB-473,7NRC737,743(1978)(theremustbea concrete demonstration that harm could flow from the result of a proceeding).

An application of these principles to the instant Petitions 1

demonstrates that the Petitions should be denied. The Confirmatory Order issued on March 29, 1990, did no more than confirm LILCO's voluntary comitment, as expressed in LILCO's letter of January 12, 1990, not to l place fuel in the reactor core without prior Comission approval. That comitment was found to be appropriate by the Acting Director of the Office of Nuclear Reactor Regulation (" Director"), in light of certain actions which LILCO had already taken following its agreement with the State of New York to transfer the plant to on entity of the State for 1

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decommissioning. Specifically, LILCO had completely defueled the reactor vessel and reduced its operation and support staff below the level which would be required if the plant were to return to an operating ~or standby mode. See 55 Fed. Reg at 12758. The Director stated (jjd.):

The NRC has determined that the public health and safety require that the licensee not return fuel to the reactor vessel for the following reasons: (1)The reduction in the licensee's onsite support staff below that necessary for plant operations, and (2) the absence of NRC-approved procedures for returning to an opera-tional status systems and equipment that the licensee i has decided to deactivate and protect rather than ,

maintain until ultimate disposition of the plant is determined. Such systems and equipment include all emergency core cooling systems, most of the plant's )

safety-related systems, and most of the plant's-auxilliary support systems. If LILCO were to place nuclear fuel into the. reactor vessel, this could result in a core configuration that could become critical and produce power without a sufficient number of adequately trained personnel to control operation. In addition. it  !

is questionable whether necessary safety equipment would be available.

In light of these considerations, the Director found LILCO's commitment to not place nuclear fuel in the reactor core without prior NRC approval to be " acceptable and necessary"; concluded that "with this commitment, the plant's safety is reasonably assured"; and determined that the public health and safety require confirmation of LILCO's commitment in an innediately effective Confinnatory Order. Id. Finally, the Director made it clear that "[t]his Confirmatory Order in no way relieves the licensee of the tems and conditions of its operating license or of its commitments covering the continued maintenance of structures, systems, and components outlined in its letter of September 19, 1989." Id. at 12759. ,

The Confirmatory Order cannot reasonably be found to adversely affect any. interest identified by the Petitioners. It nowhere authorizes LILCO

.g.

to take any action which would affect the public health and safety (such as authorizing fuel loading or operation of the reactor), nor does it in any way alter the present status of the plant. Indeed, it does no more than recognize that certain actions already taken by LILC0 could have an adverse impact upon the public health and safety if LILCO should later decide'to place nuclear fuel in the reactor.'unless the NRC imposes the Order. By the same token, the Confirmatory Order does not preclude LILCO

.. from placing nuclear fuel in the reactor vessel at some future date, should it decide to do so, but only requires prior NRC approval for such u an action; that effect can hardly be said to constitute "de facto decomissioning" of the plant. Most significantly, the Order does not effectuate or authorize a decommissioning of the plant, nor does it even constitute a necessary step in any decomissioning plan; it only provides that the plant may not be refueled absent the adoption of approved steps to assure the protection of the public health and safety.

In sum, Petitioners have failed to show that the Confirmatory Order may reasonably be found to have some adverse impact, i.e., some " injury in fact" upon any interest they have identified; and they have failed to show 1 that such injury fairly can be traced to the challenged action or that such injury could be redressed by a favorable decision in this proceeding

(_1.e., by rescission of the Confirmatory Order).

B. Petit'oners' Concerns Are Beyond the Scope of the Proceeding.

The Petitioners argue that they are entitled to a hearing in order "to determine whether the order should be sustained, vacated or modified under the AEA" (SE 2 Petition at 11; District Petition at 10). In this

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regard, they identify four principal aspects of the proceeding as to which' -

they seek to intervene: l (1) "whether .the Confirmatory Order is arbitrary, caparicious and/or f

abuse of discretion and/or not supported by substantial evidence";

(2) "whether if a decision is made to go to full power operation a't l Shoreham, the Confirmatory Order gives reasonable assurance . . . [of-protecting) the public health and safety and the national defense'and q

security"; }

(3) "whether, if a decision is made to decomission Shoreham.;the  !

Confirmatory Order gives reasonable assurance.that such decomissioning-  !

will be conducted in accordance with the public health and safety and the national defense and security"; and A

(4) they request a " full and fair NEPA consideration' of the decomissioning proposal"'(SE 2 Petition at- 11-12; District- Petition at 10-11). I In addition, the Petitioners identify a long list of issues they-would seek to explore in hearings, premised on their belief that the I Confirmatory Order constitutes one step in the de facto decomissioning of the plant-(SE 2 Petition at 22-26 and 38-40; District' Petition at 21-25 L and37-38). These include issues such as whether LILCO's reductions in a staff and level of plant maintenance are in accordance.with NRC regulations; whether there are' adequate procedures and. personnel to operate the plant if LILCD decides to place fuel back in the reactor vessel; whether LILCO's comitments in its September 19,1989 . letter are ,

in accordance with its responsibilities under its license; whether LILCO's reduced level of staffing and maintenance is in compliance with NEPA; and

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whether the Confirmatory Order, insofar as it' recognizes LILCO's reduced; level of staffing and maintenance, is in compliance with NEPA.

Notwithstanding Petitioners' lengthy enumeration of purp6rted aspects of the proceeding,in which they would seek to participate, it is-apparent

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that those concerns are beyond the' scope of any proceedingJon the l Confirmatory Order. As stated'above, the: Confirmatory Order neither ' j permits plant operation nor forbids:it; nor does it constitute part of a

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de facto decommissioning of the plant. In the event that LILC0 or a r 1

subsequent licensee proceeds with a plan to decommission 1the plant, many,

l l of the issues raised by Petitioners might arguably be raised in any '

L .

related license amendment proceeding. Similarly, if LILCO or:a subsequent

+

licensee should decide to operate the' plant, many of Petitioners' other .;

concerns could be raised in-a petition filed under 10 C.F.R. f 2.206 The -

Confirmatory Order, however, does not give' rise to.a proceeding broad ' ,

enough to consider the issues raised by Petitioners here, and those; issues remain outside the scope of any proceeding on the Confirmatory Order.-  ;

The Commission has clearly indicated that it mayglimit.and define the scope of an action which it initiates. Boston Edison' Cor(Pilgrim' Nuclear 1 Power Station), CLI-82-16.- 16 NRC 44,- 46 '(1982), aff'd, Bellotti v.-NRC, 725 F.2d 1380 (D.C. Cir. 1983). See also, Public Service Co. of Indiana I (Marble Hill Nuclear Generating Station. Units 1 &L2), CLI-80-10,;11 NRC' f 438,441-42(1980). In these cases, the Consnission denied third party -

petitions for hearings and intervention on enforcement orders modifying *

[

the licenses for the facilities, on the ground that the petitions presented concerns outside the scope of the proceedings. In approving the Commission's authority to define the scope of its proceedings, that is, 9

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their agenda and substance, the Court in Bellotti stated, "[w]e have no

- doubt that as.a general matter. such authority must reside in the -

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Commission". Bellotti, supra. 725 F.2d at 1381.

Here, the Confirmatory Order clearly-limits the scope of any hearing i i

that may be held in connection with that Order. ~ Section V of the Order states, "If a hearing is held, the issue:to.be. considered at such hearing l

I ,

shall be whether this Confirmatory Order should be. sustained". 55 Fed.:

l

Reg. at 12759. In order to succeed in their request for a herring, the ,

g Petitioners must demonstrate that their interests'may~ be affected by the

- scope of the proceeding as defined by th'e Consnission; and Petitioners' right to a hearing must be evaluated only in the context of:the-specific action effectuated by the Confirmatory Order.

As set forth above, any hearing on the Confirmatory Order would be-limited to considering whether the Order should be sustained, that.is, whether the facts regarding the facility stated in the Order are true, and +

L whether the remedy selected by the Director is~ supported by the facts.

Accepting, arguendo, that the Petitioners' interests are:affected by the issues they propose for hearing, those issues'are nonetheless outside the scope of this proceeding as defined by the Confimatory Order. Indeed, '

l the correctness of this conclusion is demonstrated by'the " remedies" sought by Petitioners, all of-which exceed the scope of the proceeding on.

the Confirmatory Order which was noticed in the Federal Register Qee e SE 2- .

I Petition at 40-43; District Petition at 39-42).

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CONCLUSION-For the reasons more fully set forth above, the-Petitions should be +

s denied for failure to demonstrate how the Petitioners' intere'ts s may be i affected by the Confirinatory Order or that the Petitioners are entitled to -

q a hearing thereon.

Respectfully submitted, c

l Sherwin E. Turk

. Senior-Supervisory Trial Attorney Dated atlRockville, Maryland

this 8th day of May, 1990.

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L 00CMETED'

-USNHC:

UNITED STATES OF AMERICA NUCLEAR REGULATORY-COMMISSION

. SD MY 91 P4 :09 BEFORE THE COMMISSION ~ .gFiE SEC TA BRANC6i-In the Matter of )-

LONG ISLAND LIGHTING COMPANY Docket'No. 50-322

• (ShorehamNuclear'PowerStation. )

Unit 1)'

NOTICE OF APPEARANCE ,

i Notice is given'that I hereby enter.my appearance'in the above -;

captioned proceeding. Pursuant to 10 C.F.R. I'2.713(b). the following-q information is provided: '

Name: Sherwin E. Turk-H Address:' Office 'of the General Counsel  !

U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone: (301)492-1575: .

Admissions: United States Supreme Court '

United States Court of Appeals for the District of Columbia '

District of-Columbia State of New Jersey 1

i Name of Party: NRC Staff 1

1 Respectfullysubmitted, '

, a l Y ,

Sherwin E. Turk ,

Senior Supervisory Trial Attorney  ;-

e a Dated at Rockville, Maryland . 1 this 8th day of May, 1990

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-00 CME 1ED USNRC UNITED' STATES OF AMERICA NUCLEAR REGVLATORY COMMISSION cgy.9 pjg7 BEFORE THE COPNISSION

[0CK[llNG A SEifViffiCE -- I BRANCH ~i In the Matter of )  !

LONG ISLAND LIGHTING COMPANY . Docket No. 50-322  ;

^

(Shoreham Nuclear Power Station, Unit 1) . .

CERTIFICATE OF! SERVICE- i I hereby certify that copies of "NRC STAFF'S RESPONSE TO PETITIONSL '

TO INTERVENE AND-REQUESTS FOR. HEARING 10N CONFIRMATORY ORDER, FILED BY.

SCIENTISTS AND ENGINEERS FOR SECURE ENERGY INC..AND BY SHOREHAM-WADING 1 RIVER CENTRAL SCHOOL DISTRICT" and " NOTICE OF APPEARANCE" for.Sherwin E.

Turk in the above captioned proceeding'have been served on the following

by deposit in the United States mai.1, first class or.'as indicated by)an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail-

- system, this 8th day of May,1990:

James P. McGranery, Jr., Esq. W. Taylor-Reveley, III, E'sq. f Dow. Lohnes & Albertson Donald.P. Irwin, Esq; i 1255 23rd Street, N.W. Hunton & Williams: .i Suite 500 707 East Main Street.

Washington, D.C. 20037 P.O... Box 1535 Richmond, Virginia 23212-

. i.

Office of the Secretary (16) '

Attn: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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.Sherwin E. Turk Senior' Supervisory 4 Trial Attorney m

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