ML20062C085

NRC Staff Response to Petitions to Intervene & Requests for Hearing on Proposed Amend to Licensee Physical Security Plan Filed by Scientists & Engineers for Secure Energy,Inc & by Shoreham-Wading River Central....* W/Certificate of Svc

ML20062C085
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/10/1990
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#490-10934 OLA, NUDOCS 9010290240
Download: ML20062C085 (20)

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T.4 NRC STAFF'S RESPONSE TO PETITIONS TO INTERVENE'AND i .

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. l UNITED STATES OF' AMERICA NUCLEAR REGULATORY COP 9 FISSION  :

BEFORE THE C0PetISSION In the Matter of ,

LONG ISLAND LIGHTING' COMPANY - Docket No. 50-322 (ShorehamNuclearPowerStation. (Physical Security Plan-UnitI) Amendment) 4 NRC STAFF'S~ RESPONSE TO PETITIONSiTO INTERVENE AND REQUESTS FOR HEARING ON PROPOSED AMENDMENT T0 LICENSEE'S PHYSICAL SECURITY PLAN, FILED BY:

SCIENTISTS AND ENGINEERS FOR SECURE ENERGY, INC'. ,

AND BY SHOREHAM-WADING RIVER' CENTRAL SCHOOL DISTRICT' ,

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Sherwin E. Turk l Senior Supervisory Trial Attorney- j May 10, 1990' l

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UNITED STATES 0F AMERICA NUCLEAR REGULATORY COPetISSION BEFORE THE COMMISSION.

In the Matter of ) ,

LONG ISLAND LIGHTING COMPANY .

Docket No. 50-322 (ShorehamNuclearPowerStation, (PhysicalSecurityPlan .

Unit 1) Amendnent) i NRC STAFF'S RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING ~0N PROPOSED ~ AMENDMENT TO LICENSEE'S PHYSICAL SECURITY PLAN, FILED BY SCIENTISTS AND ENGINEERS FOR-SECURE ENERGY, INC.

AND BY SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT.

On January 5, 1990, the Long Island Lighting Company ("LILC0" or the-l " Licensee") filed an application to amend the physica security plan for its Shoreham Nuclear Power Station (" Application".).- Notice of' receipt of the Application was published in-the Federal Register on March 21.-1990 '

(55 Fed. Reg. 10528,10540). As set forth.in the Notice, LILCO seeks authorization to permit reclassification of:certain areas of.the plant >

currently classified as " Vital Areas" or " Vital. Equipment"; and to

" eliminate or modify certain other safeguards commitments that reflect this reclassification," including a reduction in the security force

" consistent with the objectives of the revised Security program." 55 Fed.-

Reg, at 10540. j In considering the Application, the NRC Staff made a proposed l detemination that the proposed amendment does not involve a'significant hazard consideration. Id. Accordingly, the Notice' afforded the Licensee an opportunity to request a hearing;.and provided that "any person whose 1

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interest may be affected by this proceeding and who wishes to p rticipate i as a. party in the proceeding" must file a written petition for leave to i intervene, within 30 days, .in accordance with the provisions of 10' C.F.R.

i 2.714.- Id. at 10528. Any.such petitions:were required to " set forth:

with particularity the interest of the petitioner in the proceeding, and' l how that interest may be affected by the results of the proceeding'."ld.

In response to the published Notice, on April 20, 1990, petitions for i

leave to intervene and requests'for hearing were filed by Scientists and ,

{

Engineers for Secure Energy, Inc. ("SE -2") and the Shoreham-Wading 1 River Central School District (" District"). AI Therein, the Petitioners argued

that their interests would be adversely- affected by the Application, based on their view that it constitutes merely one part of Shoreham's )

l decommissioning:

~[ Petitioner] views this Amendment as one'part of the larger proposal to decomission Shoreham. Each step in the decommissioning proposal that moves Shoreham closer to a fully decomissioned state <and further away from l full-power operational status is in' violation of the .

1 dictates of the Atomic Energy Act of 1954 as. amended- 3

("AEA") and the National Environmental- Policy Act of.

1969 as amended ("NFDA"). Thus, while the. issues presented herein directly relate to the proposed .

Amendment allowing significant changes to the Physical l Security Plan, they necessarily include other unlawfully: .

l' segmented actions taken and/or proposed by LILC0~and.the' -

NRC Staff in furtherance of the decomissioning scheme. '

1/ "Shoreham-Wading River Central School District's Petition for Leave to Intervene and Request for Hearing", filed April 20, 1990

(" District Petition"); and " Scientists and Engineers for Secure H Energy Inc.'s Petition for Leave to Intervene and Request for i Hearing",' filed April- 20, 1990 ("SE 2 Petition"). 'The two Petitions. 'l 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 Confirmatory. Order.

L, - 3'-

(District Petition at 2; SE P Detition at'2). . A' single response in

' opposition to the Petitions (and to similar.. petitions and requests for ,

hearings filed by these Petitioners in connection with a Confirmatory  !

Order issued in March 1990, prohibiting the loading of fuel in'.the~ reactor j vessel without prior NRC approval), was. filed lby LILCO on May;3, 1990. E 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; e the Petitioners' interests will be adversely affected by a proceeding o'n. i the Application, 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 recommends that they be denied.

DISCUSSION i

A. Lack of Adverse Impact Upon Petitioners' Interests.

An evaluation of the Petitions under the legal standards: governing.

petitions to intervene in Commission _ adjudicatory ' proceedings'shows that i

the Petitioners have failed to demonstrate they possess interests which may be adversely affected by a proceeding on the subject Application.

L 1. Legal Standards. t Section 189(a)(1) of the Atomic Energy Act provides, tin pertinent- 3 part, as follows:

In any proceeding'under this chapter, fo'r the granting, .

suspending, revoking. or amending of any license or ~;

construction pemit, or application to transfer' control',

. . . the Commission shall grant a hearing upon the j

1 request of any person whose interest may be affected l

l 2/ "Long Island Lighting Company's Opposition to Intervention Petitions and Requests for Hearing' on Confimatory Order and on. Amendment to l Physical Secutity Plan.. dated May 3, 1990 ("LILCO's Opposition")..

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, 1 by the proceeding, and shall admit any. such ' person as a f party to the proceeding, y l Id.,42U.S.C.I2239(a)(1)(emphasisadded).: Under.10 C.F.Rt a

i 2.714(a)(1),:"any person whose interest may be.affected by a proceeding L

.and who desires to participate as a party shall file a written petition l

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- n the-factors in paragraph (d)(1) of this section, and the specific aspect or aspects of the subject matter of thei '

proceeding as to which petitioner wishes to intervene; .

10 C.F.R. I 2.714(a)(2) (emphasis-added). U The Comission has long held that judicial concehts of!st'anding will be applied in determining whether a petitioner has sufficient : interest in '

a proceeding to be entitled to-intervene as a matter offright under '

Section 189 of the Act. ' See, m, Metropolitan Edison Co. (Three Mile q IslandNuclearStation, Unit 1),CLI-83-25,:18NRC327,J332'(1983), citing ;

l

~

3/ 10 C.F.R. 9 2.714(d)(1) provides that,,in considering petitions' for; leave to intervene, the Comission or presiding officer shall-consider, among other matters, the following factors:/

l (1) The nature of the petitioner's right .

under the Act to be made a party to the proceeding.- .

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

l ,

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i Portland General Electric Co. (Pebble Springs Nuclear Plant. Units 1 l

and2),CLI-76-27,-4'NRC.610(1976). The Comission has further held that' 'I thesejudicialconceptsrequireal showing _(a)'that-theactionwillcause "injuryinfact,"and(b)'thattheinjuryis."arg'uablywithinthezone-of interest" protected by the statutes governing the proceeding. E,18 NRC:

at 332; Pebble Springs 4 NRC at 613.: Further,-in order to establisht standing, the petitioner must show (1) that he has personally suffered a i

distinct and-palpable harm that constitutes . injury-in-fact; (2) that the  !

J injury fairly can be traced to the challenged action; and (3) that the q injury is likely to be redressed by a favorable decision in the proceeding. Dellums v. NRC, 863 F.2d 968, 971:(D.C. Cir. 1988). Cf.

Nuclear Engineering Co.E(Sheffield, Ill. Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978) (ther'e must be a concrete '

demonstration that harm could flow from the result-of a proceeding).- J An application of the above principles to the-instant Petitions demonstrates that the Petitions should be denied;

2. Petitoners' Stated Interests, j The Petitioners assert, without explanation'or support, that "the proposed reduction in physical security of vital plant systems compounded 4

by a reduction in on-site security personnel wouldl unacceptably: increase-the risk of radiological sabotage and hence adversely affect the radio-logical health and safety of Petitioner, its students, its employees, and y

1

s their property" (District Petition at 5; SE 2 Petition at 5). The

! Petitioners further ' contend that the Application will have an adverse i.

L impact upon the following asserted interests: -

i.- The threat of lunspecified) " distinct: injuries'in, fact as a f direct consequence of the proposed amendment"-(SE 2 Petition at 5; l District Petition at 5); '{

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2. The alleged " endanger [ ment of) the health 'a'nd safety of

"{

Petitioners' members during this unapproved decomissioning,"

resulting'from "LILCO's efforts to save meney by shuttingj down all-operations, slashing staff and pennanently defueling the reactor" q (SE2Petitionat6;DistrictPetitionat6);- ,

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

4. SE 2 and.its members' " interest in the radiologically safe  :

l and environmentally benign operation of Shoreham to provide them with' reliable electricity and to avoid the substitution of fossil fuel; >

l plants," which would pose adverse effects on the environment, the-trade deficit, the nation's' energy security, and the adverse health consequences of air pollution (SE 2 Petition at 8, 9);-

5. The District's purported interest in;"the heal'th and-environment of almost 2000 students and 500 employees, who live. j and/or work in close proximity to the Shoreham facility, from both 4 4 the possible radiological . impacts of the proposed amendmen.t and the L

adverse health and other environmental consequences lof.non-operation of Shoreham" such as would be caused by fossil fuel- replacement plants (District Petition'at 8);

6. 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 the electricity provided is available-at reasonable > rates" --.which interest would be adversely affected by "[a]ctions to dismantle the facility and build substitute oil or gas burning plants" (SE 2-Petition at 9; District Petition at 8-9);

4/ SE 2 appears to have directly copied this language from the

~

District's Petition. : Thus, SE 2 elsewhere claims it represents-itself and its members (SE 2 Petition at 8-10), and.nowhere asserts that it speaks on behalf of any " students" or " employees" in this proceeding.

. _ , . . .. a . , _ c,

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7. The District's economic interest in preserving Shoreham's value as an. operating plant, in that it allegedly provides-o "approximately ninety percent of the School District's tax base" (DistrictPetitionat9);and

8. SE 2's interest in opposing agency actions'which interfere!

, with that organization's ".infonnational purposes", due to the Staff's purported refusal to conduct an environmental impact statement (EIS).1 ,

which allegedly deprives SE 2 of its ability to comment on such an i EIS, to advise its members of the environmental risks of alternative actions,(andto~reportthefindinggIto leaders SE 2 Petition at 10-11). - its members and to political-i In sum SE 2 and the District's-interests are asserted to include!

3' (a) protecting the radiological health and safety of their members,-.

students, and/or employees -- both from the alleged increased' risk of 4 sabotage resulting-from the proposed amendment as well as generally;'

4 (b) protecting the environment from the 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 l ,

inexpensive energy supply; (e) preserving Shoreham's tax value as an operating plant; and (f) protecting SE 2's informational capabilities.-.

l l

l 5/ In addition, the Petitioners' contend that a hearing is. required to /

} determine (1) whether a grant of the Application "would be arbitrary, '

' capricious and/or an abuse of discretion"; (2) whether, if a-decision- q is made to operate'Shoreham'at full power, "the proposed amendment  !

' would provide reasonable assurance that such full power operation i would or could be conducted with reasonable assurance of : protecting)=

the public health-and safety and the national defense and security";- ,

1 i

and (3) whether, if a decision -is made to deconsnission Shoreham, the  !

proposed-amendment;"wouldi provide reasonable assurance that such ll deconsnissioning will be conducted in accordance with the ublic health and safety and the national defense and security" SE 2'

Petition at 12-13; District Petition at 10-11). Further, the

Petitioners" contend that the: Application constitutes part of Shoreham's "de facto deconsnissioning"; and they request a " full and

' I fair NEPA consideration [of1 the deconsnissioning proposal" (SE 2 i Petition at 14; District Detition at 12). I U

1 I

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l On their face, some of Petitioners' stated interests j(such as their various economic, ratepayer and tax interests in the plant's operation) t appear to outside the zone ofsinterests' protected by therAtomic Energy Act >

and the National Environmental Policy Act (NEPA). See, e A , Public Service Co. of New Hampshire:(Seabrook Station, Unit 2),- 19 NRC_975, 978 (1984). -Certain other interests alleged by the Petitioners, however (in particular, those involving the radiological impacts of-the proposed amendments) are within'the protected zone of interests.- See Metropolitan Edison Co. (Three Mile Island Nuclear Station,~ Unit No;il), CLI-83-25,-18 NRC327,332(1983). Petitioners' allegation of these:latter' interests:

might suffice to confer upon them standing to participate'in a-Shoreham license amendment proceeding, upon a demonstration of how those interests.

maybeadverselyaffectedby.theproposedlicenseamedment.lkI As set p/ Of course, a petitioner may only represent its own interests in ani NRC proceeding -- and not the interests of others, unless it.has been-expressly authorized to do so. In this regard, the District has- 4 failed to show that it is authorized to' represent its;" students"' or employees" in this proceeding. -Indeed, having failed to'show that it has any personal-interest within the " protected zone" that may be..

affected by the proceeding, its Petition appears to be valid, if at all, based upon its assertion that it has been authorized to.

represent Dr. Richard'Doremus, the District Superintendent-of. '

Schools, who apparently resides and works.within.the vicinity of the plant (District Petition at 8).  ;

Similarly, SE 2, as a membership organization, may represent' only its own interests or the interests of its members who have expressly:

authorized it to do so; Land those interests must.be germane to the '

organization's purpose. See Houston Lighting'& Power Co. (Allens l- Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, l

393-97(1979); Vermont Yankee: Nuclear Power Corp.s (Vermont-Yankee 1

Nuclear Power Station). LBP-87-7, 25 NRC 116, 118 (1987);

Combustion Engineering Inc. (Hematite Fuel Fabrication Facility), '

LBP-89-23 30 NRC 140, 149 (1989);;Duquesne Light Co.-(Beaver Valley (Footnote continued on next page)

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t forth below, however, the Petitioners have failed to make this required  :;

showing.7/

w L 3. Lack of Adverse Impact.

As set forth above.- pursuant to 10 C.F.R.,5 = 2.714(a)(2),'a: petition j must " set forth with- particularity the . interest of the petitioner . . ..

and how that interest may be affected by the results of.the proceeding ~." j The instant Petitions generally fail to satisfy this: requirement. in that J they fail to identify the impacts.that the- proposed amendment, by itself, may be expected to have upon their interests. Most of the-impacts which.

are alleged to affect. Petitioners' interests relate not to the proposed

~

amendment, but to the decommissioning of Shoreham ---an action which-is  !

T not the subject of the instant Application. Those alleged impacts cannot-properly be addressed or redressed in this proceeding, and they do not.. i confer standing upon the Petitioners to participate herein. l l .In addition, however, the Petitioners assert that "the proposed reduction in physical security of vital plant systems . compounded by a n

t (Footnote continued from previous page)

Power Station,- Unit 2), LBP-84-6,19 NRC 393, 411.(1984).

Houston Power & Licht Co. (South Texas Project, Units.1 and 2),

LBP-79-10, 9 NRC 429, 447,:aff'd, ALAB-649. 9 NRC 644-(1979)'. SE 2's

" informational" interest is not within the zone of interests 1 protected by statute, nor has SE 2 shown any other. protected personal l interest which may be affected by the outcome'of the proceeding..

Accordingly, SE 2's Petition would appear to be valid, if at all.  !

based on its assertion that five of its members have authorized:it to' represent them in this. proceeding (SE 2 Petition, at 8).-

L ~7/ The Connission has observed that "the burden is on the petitioner" to-satisfy the requirements of 10 C.F.R.-6 2.714(a). Three Mile Island.,

L supra, CLI-83-25, 18 NRC at 331.

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reduction in on-site' security personnel would unacceptably increase the i risk of radiological sabotage and hence adversely affect the radiological p

health and safety of Petitioner, its studer.ts,'its employees,- and their property" (Petitions ~ at 5). ' While this would appear to'be a cognizable _

adverse impact upon a protected interest,- the Petitioners have altogether; /

failed to set forth "with particularity" how the proposed amendment could.

have any adverse impacts upon their interests. Significantly, the Staff l has determir.'d that despite the proposed changes to the physical security plan,"theplanwill-continueto-[h?avealevelofprotectionthatis l- adequate to meet a test of ' Radiological Sabotage': as [ defined) in 10-C.F.R.i73.2(a)."S/ 55 Fed. Reg.at10540.El The Petitioners have failed to confront this determination, in terms of demonstrating, with particularity, that the proposed reductions in physic 1 security could adversely affect their interests. Petitioners' bare allegation of adverse 4

[

g/ " Radiological sabotage":is defined in 10 C.F.R. i 73.2, as:

[A]ny deliberate act directed against a plant.or  ;

transport in which an activity licensed pursuant to' the regulations in this chapter is conducted, or against a-component.of such plant or transport which could '

directly or indirectly endanger the public health and safety'by exposure to radiation.

9/

- The Staff further determined that the proposed _ changes do not: involve '

a significant increase in the probability or consequences of an-accident previously evaluated; do not create the possibility _of-'a new or different kind of- accident from any accident previously evaluated;;  !

and do not involve a significant reduction in a margin of safety. 55 Fed. Reg. at 10540 *

/:.f.

-- II '-

J impacts is' simply insufficient to afford them standing to' participate in a. i proceeding on the Application. El a Thus, in Florida Power & Light Co. ~(St. Lucie Nuclear Power Plant.

Units 1 and 2), CLIL89-21, 30 NRC 325 (1989),' the Comission denied a1 U petition to intervene filed by an individual living 40 miles from the

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site, who contended that a proposed exemption involving the.use of certain. .

respirators by onsite personnel would result in increased risk to' workersi and in waste disposal with offsite environmental consequences. The-Comission determined, inter alia, tiat the petitioner could not.; represent the interests of plant workers absent express authorization. and' that the petitioner's allegations of Offsite environmental consequences were-insufficient to confer standing upon him. The Commission stated:

It is true that in the past, we have' held t' hat living within a specific distance from the plant is enough to confer standing on an-individual or.. group in proceedings-t for construction permits, operating' licenses, or signi-h ficant amendments thereto such as the expansion of the'

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capacity of a spent. fuel pool. However, those cases involved the construction.or operation of theLreactor 3 itself, with clear implications for the offsite:

environment, or ma,jor alterations to the facility with:

i

-10/. The Commission has often stated, in the context of enforcement?

proceedings, that 10 C.F.R f 2.714 requires.a petitioner to ' .

" demonstrate".or "show" aniinterest affected by the proposed action. '

See, e. ., Boston Edison Co. (Pilgrim, Nuclear Powe'r Station), j ET , 16 NRC 44, 45-(1982); Florida Power & Light'Co.-(Turkeyr .

Point Plant, Units 3 & 4), CLI-81-31, 14 NRC 959. 950 (1981); i Consumers Power Co. (Big Rock Point Plant), CLI-81-32, 14 NRC 962 .

963 (1981); Public Service Co. of Indiana' (Marble Hill Nuclear Generating Station, Units I and 2), CLI-80-10, 11 NRC 438,1439 (1980); but see Amed Forces Radiobiology Research Institute ';

(Cobalt-60 Storage Facility), ALAB-582, 16 NRC 150,.153-54 (1982)'.

The Petitioners have not provided any reason to believe that the-plain words of the-regulation -- requiring a demonstration "with particularity" that the proposed action could adversely affect i petitioner's interests -- should not be' applied in~ this license -

amendment proceeding, as it is in enforcement proceedings. ,

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f a clear potential for offsite consecuences. Absent.

situations involving.such obvious potenETaT for.offsite.-

consequences, a petitioner must allege some specific ('

- " injury-in-fact"'that will result from'the action'taken:.

here, the granting of~the exemption. In this case, the Petitioner has not alleged any " injury-in-fact" that he will suffer because of the accumulation of used sorbent cannisters at the plant. :Thus, we find that he has noti satisfied the Commission's-" interest" requirements.

=

Id..- 30 NRC at '329-30 (citations omitted; emphasis added). In the' instant proceeding, as in St. Lucie.' Petitioners' failure to do more-than simply -

c provide bare allegationsL of radiological health and safety (and other,  ;

less cognizable) impacts warrants the denial of their Petitions.

=f In sum, Petitioners have failed to show that the proposed amendment may reasonably be found to have some: adverse impact, i.e.. some " injury in i fact", upon any interest they have identified; and they have~ failed to show 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 (i.e., by denial of the Application).

B. Many of Petitioners' Concerns Are Beyond the Scope of the Proceeding, u

The Petitioners argue that they are entitled to a hearing.in order "to determine whether the amendment should be granted, denied, or a-different amendment made under the AEA" (SE 2 Petition.at 12;: District Petitionat10). In this regard, they identify four principal aspects of

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the proceeding as to which they seek to 1ntervene:

(1)"whetheragrantof.theproposedamendmentwouldbearbitrary, l capricious and/or an abuse-of discretion";

(2) "whether if a decision is made to go to. full power operation at Shoreham, the proposed amendment would provide reasonable assurance . . .- l 1

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[of protecting] the public health and. safety-and the national defense and security";

(3) "whether, if-a decision is made to decomission Shoreham, the I proposed amendment would provide reasonable; assurance that such decommissioning will be conducted in accordance with the public health an'd [

safety and the national defense and security"; and L

(4) they request a " full and fair ~ NEPAL consideration of the decomissioning proposal." -

(SE2Petitionat12-14;DistrictPetit1onat10-12).

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In addition, the Petitioners identify a .long-list of issues i concerning the proposed changes to the physical: security plan, as well as. .

i other issues more related to decomissioning, wh'ich they. would seek-to explore in hearings on the Application (SE 2 Petition at 22-24_ and 36-37);

4' District Petition at 20-22 and'34-35). In addition to some issues related to the proposed amendment, these include such issues as whether the i

settlement agreement between LILCO and the' State of New York prohibits.

operation of the facility; whether a Licensee Event Report and a Staff

. Inspection Report, both issued in 1989, indicate a breakdown or. inadequacy in the current physical security plan; and whether the proposed amendment. -

insofar as it would authorize a reduced level of-security, is':in'-

a compliance with-NEPA.

j Notwithstanding Petitioners' lengthy enumeration of purported aspects "

of the proceeding in which they would seek to participate, it is apparent' )<

! that many of those concerns are beyond the scope of any proceeding.on the '

proposed amendment. The Federal Register Notice limited the issues- to be' addressed in this proceeding to " matters within the scope of the l

1

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amendnents under consideration." 55 Fed.: Reg. at 10529. Clearly, the.  ;

proposed amendment does not give rise to a proceeding broad en.pugh'to consider many of the issues raised by Petitioners here, such as the ,

environmental and safety impacts resulting from Shoreham's eventual. -

decommissioning. The proposed amendment does not preclude LILCO from operating the plant at some' future date, should it decide to do so, it although-some reexamination of the security plan' could arguably:be- t required at that time. That effect can hardly be said to: constitute "de = -

i facto decomissioning" of the plant. Nor does the proposed amendment authorize a decommissioning of the plant, or even constitute a necessary step in any decomissioning plan;'it only provides forlsome current reductions in physical security measures,-albeit not below the level required by Comission regulations for operating. plants.

The Commission has clearly indicated that it may. limit and define the U scope of an action which it initiates. Boston Edison Co.' (Pilgrim Nuclear.

PowerStation),'CLI-82-16,16NRC44,46(1982), aff'd, Bellotti v. NRC, M A

725 F.2d 1380 (D.C. Cir. 1983). See also, Public Service Co.-of Indiana j (Marble Hill Nuclear Generating Station, Units I & 2)L CLI-80-10, 11 NRC 438,441-42(1980). In these cases, the Comission denied third party

[

petitions for hearings and intervention on enforcement orders modifying 3 the licenses for the facilities,'on the ground that the petitions ,

i presented concerns outside the scope of the proceedings. :In approving the

j. Commission's authority to define the scope of its proceedings, that is, 4 theiragendaandsubstance,theCourtinBellottistated,"[w]ehaveno doubt that as a general matter, such authority must reside in the Comission". Bellotti, supra, 725 F.2d at 1381.  ;[

, q l

h '15 -

In order to succeed in their request for a hearing, the Petitioners

. must demonstrate that their interests may be affected by the scope of the l- .

? l proceeding as defined by the Commission; and' Petitioners' right to a l

l r hearing must be evaluated only in the context of the specific action. i effectuated by the Application. As set forth above, any hearing on the.

proposed amendment would be limited to considering Whether it should be -

granted or denied. Accepting, arguendo.: that the Petitioners' interests; .

are affected by the issues they propose for hearing, many of those issues are nonetheless outside the scope of this proceeding _as defined by the' >

Notice. Indeed,- the correctness of this conclusion is demonstrated by the l

" remedies" sought by Petitioners, most'of which exceed the scope-of the.  ;

proceeding noticed in the Federal Register (see SE 2 Petition at 38-42; .

District Petition at 36-40).

Accordingly, although the Staff believes'that the Petitions' fail'to satisfy the " interest" and " adverse' effects" requirements set forth in 10 C.F.R. I 2.714(a), should the Comission disagree with this detennin-ation and decide to grant Petitioners' request for hearing, any such hearing should be limited to those aspects:of the proceeding'. identified by l

i Petitioners which fall within the scope of the-proposed amendment, as noticed in the Federal Register. ~

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CONCLUSION L For the reasons more fully ~ set forth above, the Petitions should be-l denied for failure to demonstrate how the Petitioners' interests may.be.  :!

affected by the Application and for failing to demonstrate that the Petitioners are entitled to a hearing thereon.- ,

Respectfully submitted, H v .

Sherwin E. Turk- *

. Senior Supervisory'

Trial Attorney Dated at Rockville, Maryland this 10th day of May, 1990. -

7 I

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, j CocKETED

. USNRC.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION. . 5g my 14 A9 :39 q BEFORE THE COPHISSION

[Cb. DR ANC6!SE ' '

)

In the Matter of..

LONG ISLAND LIGHTING COMPANY Docket No. 50-322

-(ShorehamNuclearPowerStation, ') '(Physical Security Plan..

Unit-1) Amendment).

NOTICE OF APPEARANCE s

Notice is given that I. hereby enter my appearance in the'above captioned proceeding. Pursuantto'10C.F.R.6[2.713(b).thefollowing information is provided: . c-Name: Sherwin E. Turk ~ ,

Address: Office of the General' Counsel .

, U. S. Nuclear RegulatorysCommission l Washington, D.C. 20555- i Telephone: (301)-492-1575 . +

Admissions: United States. Supreme Court.

United States. Court of Appeals; '

i for the District of Columbia District of Columbia.

. State.of New Jersey- t Name of Party: NRC Staff' l l

Respectfully:submitte'd,.

.Sherwin E.. Turk-Senior Supervisory' ,

Trial Attorney '

t Dated at Rockville, Maryland 4 this 10th day of May, 1990- ,

R.

jt.

'C0CMETED> ' .

L= , USNRC '

UNITED STATES OF AMERICA.-

.NUCLEAD REGULATORY COMMISSION- 10 15Y 14TA9:39-BEFORE-THE COMMISSIONL OC fif EV ORANCO o.

In the Matter of LONG' ISLAND LIGHTING COMPANY ) Docket No.- 50-322-(Shoreham.NuclearPowerStation, (PhysicalSecurityl Plan

. Uni t .1)l Amendment)

^

CERTIFICATE OF SERVICE -

'I hereby certify that copies of "NRC.-STAFF'S RESPONSE TO PETITIONSL TO INTERVENE AND REQUESTS FOR HEARING ON PROPOSED AMENDMENT TO .

L LICENSEE'S PHYSICAL SECURITY PLAN, FILED BY SCIENTISTS AND ENGINEERS ~FOR l SECURE ENERGY, INC. AND BY SHOREHAM-WADING RIVEP CENTRAL. SCHOOL DISTRICT C '

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 mail,- first class-or, as-indicated by an' asterisk, by deposit in the Nuclear Regulatory Comission's internal mail .-system, this 10th day of=

May, 1990:

James P. McGranery, Jr. , Esq. W. Taylor Reveley, III, Esq. '

Dow, Lohnes & Albertson- Donald.P.'Irwin, Esq.

1255 23rd Street, N.W. Hunton & Williams Suite 500 :707 East Main Street Washington, D.C. 20037 P.O. Box 1535  ;

l. . Richmond,. Virginia 23212~

l Office of the Secretary (16)

L Attn: Docketing-and Service l U.S. Nuclear Regulatory Comission Washington, D.C. 20555.

I Sherwin E. Turk Senior Supervisory  :

Trial Attorney

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