ML20062F494
| ML20062F494 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/09/1990 |
| From: | Wakefield S ENERGY, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20062F490 | List: |
| References | |
| CLI-90-08, CLI-90-8, NUDOCS 9011270287 | |
| Download: ML20062F494 (29) | |
Text
9.
- , W '
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
e
- 22 (Shoreham Nuclear Power Station, i
)
AMICUS SUBMISSION BY T!!E UNITED STATES DEPARTMENT OF ENERGY In response to an-invitation contained in an Order dated October 16, 1990, the Department of Energy (DOE) is pleased to 1
provide comments as aminua curias for the above-captioned proceeding now before the Nuclear Regulatory Commission ("NRC" or
" Commission").
The' comments expand on the po'sition taken by Secretary'Watkins in a letter to the Commission dated September 18, 1990,-that an environmental impact statement (EIS) for the
'decommiraioning of the Shoreham Nuclear Power Station
("Shoreham") is required to assess-the direct and indirect-impacts of decommissioning and the impacts of reasonable l alternatives to decommissioning, including near term operation of-the plant, prior to taking any action on the issuance of a
" possession-only" license.
i Memorandum.and Order CLI-90-08, issued on Octstar-17, 1090, ruled.on petitions by two intervenors in the proceeding related
{
to various actions by'the Commission staff (" Staff") and the.Long Island Lighting Company ("LILCO") concerning Shoreham.
Among the 9011270287 901109 PDR G
ADOCK 05000322 PDR
. remedies sought, the interver. ors requested that the Commission direct the staff to prepare an EIS for the decommissioning of Shoreham, and specifically consider resumed operation as an alternative to decommissioning.
Memorandum and Order CLI-90-08 ruledsthat this remedy should not be granted, and concluded that the National Environmental Policy Act (NEPA) did not require the Commission to consider " resumed opetation" as an alternative to decommissioning.
W. hile not directly involved in the events leading to issuance by the Commission of Memorandum and Order CLI-90-08, DOE is compelled to aodress the legal conclusions contained therein'regarding the scope of the Commission's c
environmental review for the decommissioning of Shoreham, because
.those conclusions relate directly to Secretary Watkins' September
.18 letter.
For the reasons stated below, the Commission has defined too narrowly the. extent of its responsibilities under NEPA to assess the impacts of decommissioning Shoreham.
Because of the unique
~
. circumstances involving the Shoreham plant, these impacts will be
!significant,. and therefore the preparation of an EIS is necessary
'before a. decision leading to decommissioning can be made, i
s I.
Th9JleS9Bm.1AAJpoAing_pi_.ShorehamJR A Uniaue - Situgilon Whish P19AeDis ImRo.ItAnt Environm_g_ntAJ ' Considerattf onsl9_qu_irAAq SR901 Al_ hit 3AtAOD_Mhen Complyi.ng_Wl_th NEPA.
A decision whether-to permit decommissioning of Shoreham.
'which is a new nuclear power-plant, raises significant questions concerning energy supply and environmental impact which are not
I i
, present when a decision is made to authorize decommissioning of a plant'at the end of its useful life.
Construction and operation j
of raplacement electrical capacity will cause significant i
environmental impacts which would not occur if the Shoreham plant
. were put into operation, rather than decommissioned.
The issues
. raised by these special circumstances are not adequately addressed by the Commission.'s usual approach to NEPA compliance in decommissioning cases.
A.
The_Indi_r_e_ct Eny__itoDf!Lental Impacts Wh1_gh Will Ocq_ut_Lf i
sher.eham_Does Not__Op? tate Mus1_BeldAte_sse.J;l.
1 The Supreme Court has identified as one of the aims of NEPA q
to place-"upon an agency the obligation to consider every 7
significant aspect of.the environmental impact of a proposed i
action."
(Egymont Yankee _ Nuclear Power Corp. v. Natural Be89.MLg_es Defenp_e_C_o3D.qD. Inq., 435 U.S.
519, 553.(1978)).
The breadth of_this examination must be sufficient to encompass
.significant issues of broader concern.when-the-results-of the-proposed action ~ bear upon those issues, even though the:immediate question:may be-more narrow.
"The purpose af NEPA is to focus-tnational policymaking on the interdependence between human beings and-the environment."
puun v. United States. 842 F.2d 1420, 1426-4 (3rd Cir.- 1988).
o The Council on Environmental Quality (CEQ) Regulations
~
i implementing NEPA have codified this principle of expansive, rather than restrictive, assessment of impacts by requiring that i
. the " indirect effects" of an action must be assessed in an EIS (40 CFR $1502.16(b)).
The CEQ regulations define indirect effects as
[thosel which are caused by the action and are later in time or farther removed in distance. but still are reasonably foreseeable.
Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
(40 CFR 61508.8(b))
The Supreme Court has held that "CEQ's interpretation of NEPA is entitled to substantial deference."
( Andtua v. Sierra QlMk. 442 U.S. 347, 358 (1979)).I Other decisions have supported the requirement that all reasonably foreseeable impacts must be assessed. including those that are only indirectly attributable to the proposed action.
(QRR1Lt19D 191_ Canyon PreservatlRD v.
SPXeJ.s. 632 F. 2d 77 4 ( 9 th Ci r. 1980): City of Dayla v. C9.lfmRD.
521 F.2d 661 (9th Cir. 1975)).
It is also clear that reasonably foreseeable significant indirect impacts alone are sufficient to i
require the preparation of an EIS.
(Janeph_ v. Adama. 467 F.Supp. 141 (E.D. Mich. 1978)).
NEPA does not require assessment of impacts which are remote or speculative (EnyJr_gnmental_p3.fana_e d ncL J ng.. v. lio_ffmAD. 566 F.2d 1060 (8th Cir. 1977)).
However. in the case of Shoreham it I
OEQ has-formally stated that the Commission is required to prepare sn EIS before taking actions which would lead to the decommis-sioning of Shoreham (letter dated October 9, 1990, from Michael R. Deland. Chairman of CEQ. to Kenneth M.
Carr, Chairman of NRC).
. i is clear that the indirect environmental impacts stemming from actions necessary to replace the electric generation capacity of Shoreham are very real and predictable.
Furthermore, to a large degree the parties involved have recognized that these impacts will occur.
An agreement between the Long Island Lighting Company (LILCO) and New York State anticipates that demand, and LILCO and the New York Power Authority (NYPA) have entered into a Memorandum of Understanding (MOU), whereby NYPA has agreed
"... to use its best efforts to license, finance, construct and put into commercial operation" various types of power generation and transmission facilities.2 These projects include 480 MW of new gas turbine capacity, up to 900 MW of new thermal capacity and the 1.otential for new transmission facilities to link LILCO's service ares to either NYPA's system, Consolidated Edison's system, or ooth.
While those major undertakings are contingent on state legislative authority, it is clear that the parties to the MOU view them as substitutes for Shoreham.
They further anticipate that construction and operation of these facilities will have significant environmental impacts.3 Alternatively, if 2
Memorandum of Understanding Concerning Proposed Agreements on Power Supply For Long Island, p.
1.
This MOU was incorporated by reference into the LILCO-New York State agree-ment, entitled " SETTLEMENT AGREEMENT - LILCO ISSUES," dated February 20 1989, at Article 11, p. 8.
3 The MOU states that the gas turbines and thermal units will require state air quality permits and could require federal and/or state permits and approvals concerning fuel use, water quality, water discharge, activities in navigable waters, land use and wetlands.
Local ordinances also may apply.
(MOU at pp.
6 and 9-10),
The MOU also specifies that, at least for the gas turbines, " State Environmental Quality Review Act review
. these facilities are not constructed and operated, different significant indirect ef fect:
in the form of additional air emissions (sulfur dioxide, carbon dioxide. oxides of nitrogen) and solid waste (from coal-fired plants), will result from operating the fossil fuel-fired plants which will be required to provide the electric generation capacity to replace Shoreham.
Regardless of the source of replacement capacity for Shoreham, there will be significant environmental ramifications.
B.
Thelemmi ui9D
- s_H9 tma LApptoAch_Lo_ REP 2_C9mpli ang e_ID D,1onala p.lanin g _C a pap _Lp I n a d equ a in_T9Ed te s s_Th e i ndiL9At_1 ap_a_cis_A p s_pri ale d_W i_t h_S.hoteh a m,
i The Commission's regulations acknowledge that authorizing the decommissioning of a power plant is subject to NEPA.
Those regulations specify that for such an action, the Commission staff normally "... will prepare a supplemental environmental impact statement for the pnat apatali.onal atAg.c or an environmental assessment, as appropriate, which will update the prior environmental review."
(10 CFR $51.95(b)) (emphasis supplied).
The regulations themselves make clear that the approach prescribed is appropriate only for plants which are at the end of their useful life: it is inadequate to address the special circumstances surrounding Shoreham.
Neither an environmental assessment nor a supplemental EIS of the type contemplated by the requirements would apply within the context of the approval process."
(ld, at p. 6).
The State Environmental Quality Review Act (N.Y. Environmental Conservation Law $8-0101 et acq.
l (McKinney 1984)) is New York's counterpart to the federal NEPA.
. Commission's regulations will satisfy the requirements of NEPA with respect to the decommissioning of Shoreham.
Instead, the Commission must prepare either a new EIS or a significantly different type of supplemental EIS before approving the decommissioning of the Shorehar plant.
1.
Th,_Q_9mm.i s p loa
- p_N E RA _S.t r_a_t esy_Qn._The_DMAqmm i s s.i o ning Or,_Mnclearlastli_ tits :
The_BRLe_0LThe_Q3ner.ic_EIS Until recently, the Commission's NEPA regulations required that an EIS be prepared before the Commission could authorize the decommissioning of a nuclear power reactor (10 CFR $51.20(b)(5))
(1988).
However, on June 27, 1988 (53 F.R.
24018), the Commission amended its regulations to eliminate that requirement and instead added decommissioning to the category of post-operating-license-stage actions which require either a supplemental EIS or an environmental assessment (EA).4 It was the clear intent of those amendments to reduce the NEPA requirement for decommissioning from an EIS to an EA in virtually all foreseeable cases, notwithstanding the provision in the amended 10 C.F.R. $51.95(b) for either a supplemental EIS or an EA,."as appropriate."
Contemporaneous with, and supporting those amendmente, the Commission prepared a Generic EIS (GEIS) on Decommissioning of Nuclear ~ Facilities (NUREG-0586).
The draft and final GEISs were issued in January, 1981, and August, 1988, 4
The amendments were originally proposed on February 11, 1985 (50 FR 5600).
l l
. respectively.
The GEIS assessed as alternatives the three basic decommissioning methods available (immediate decontamination.
deferred decontamination, and entombment), and analyzed the application of each basic method to a complete range of facility types.
The final GEIS ntated "[tlhis EIS represents a compendium of what would otherwise have been many separate EIS's on the nuclear facilities considered in this report."
The preamble to the Febrt. *y ll, 1985 proposed rule stated that:
"... on the basis of information in the draft GEIS and its supporting technical data base indicating that the environmental impacts associated with decommissioning are unlikely to be significant, the Commission is of the opinion that there is no need, absent special circumstances, to prepare an environmental impact statement in connection with the issuance of a license amendment or order authorizing the decommissioning of a facility other than a waste disposal facility.
In most cases, preparation of an environmental assessment which supplements the previously prepared environ-mental impact statement should be sufficient.
The Commission notes, however, that there may be situations in which the special nature of the decommissioning action necessitates the prepara-tion of an environmental impact statement (50 FR 5600, 5610).
Further, the Commission left no doubt as to what "special circumstances" or " situations" might warrant preparation of an EIS:
If unigus mathods are proposed by a licensee which are significantly different from those studied by the Commission, the Commission retains discretion to require an environmental impact statement.
Ld.
(emphasis added).
9-Thus, the Commission contemplated preparing only an EA for decommissionings which proposed to use one of the basic methods assessed in the GEIS.
The Commission's NEPA strategy for addressing decommissionings does not anticipate a situation like Shoreham.
The strategy is based on the implicit assumption that the only special circumstances which would warrant an EIS for decommissioning involve proposals to use unusual methods of decommissioning.
Furthermore, as discussed below, the strategy is explicitly limited to cases, unlike Shoreham, in which the facility is at the end of its useful life.
2.
An_EA.jLupplsRanting_The__QUJ_Js Not Ad_qsate_ In=Tha CM.9_Qi_.Shattham.
Under the CEQ regulations, the principal-purpose for preparing an EA is to determine whether an EIS for a proposed action is required (40 CFR $1508.9(a)(1)).5-The Commission's regulations do not offer criteria for determining in general when an EA is appropriate, but rather state that an EA will be prepared for all licensing actions not specifically identified elsewhere as either requiring an EIS or covered by a categorical exclusion (i.e., actions presumed to be clearly insignificant (10 CFR $51.21)).
However, as discussed AMDIA. the Commission has concluded that in usual reactor decommissioning cases the 5
Agencies also are authorized to prepare an EA "... on any action at any time to assist agency planning and decisionmaking."
(40 CFR $1501.3(b)).
i
l environmental impacts are not significant, and that an EA will be adequate.
The Shoreham plant differs fundamentally from the typical, routine decommissioning candidate.
The Shoreham plant is a new facility barely at the beginning of its useful life.
In contrast, the GEIS "... addresseld) only the issues involved in the activities carried out aA J hn_end of a nuclear _latilAly*_a uppful life which permit the facility to be removed safely from service and the property to be released for unrestricted use."
(NUREG-0586, p. viii) (emphasis supplied).
Any environmental impacts associated with decommissioning Shoreham that differ from those involved with decommissioning a facility at the end of its useful life would be beyond the scope of the type of EA contemplated by the NRC regulations, since that kind of EA is intended only to " supplement" the GEIS by confirming that the proposed method of decommissioning was analyzed in the.GEIS.
More importantly, if any new icsues offer the potential for significantly affecting the human environment, an EIS would be required and an EA, no matter how broad in scope, would be inadequate.
3.
A_S_ap_arale_ELSdalher Then A SMRpitmAntBl_ELSd1 hpatepria&g.
Although the regulations applicable to post-operation activities offer only a choice between a supplemental EIS and an EA.(10 CFR $51.95(b)), in the preamble to the 1588 amendments to L
- - ~ " ' '
\\
11 -
its NEPA regulations the Commission expressed a willingness to T
prepare an EIS for decommissioning in "special circumstances" (see discussion supIA).
Because of the special circumstances surrounding Shoreham the Commission, consistent with the general provisions of its NEPA regulations,' should prepare a separate EIS for decommissioning Shoreham.
j Preparation of a supplemental EIS for Shoreham decommissioning, rather that a separate EIS, would be l
inappropriate in two respects.
First, the EISs prepared for the construction permit ane'. the operating license lack sufficient
~
information to form en adequate basis for a supplemental EIS.
Under the NRC regulations, the purpose of a supplemental EIS is to "... update the prior environmental review. " (10 CFR 651.95(b)).
This p.*esupposes the existence of an analysis in the underlying documents that can be updated.
Neither of the previous Shoreham EISs included any substantial analysis of the potential for significant adverse environmental effects occurring from the construction and/or operation of other facilities if Shoreham were not built and operated.7 Simply stated, there is 6
(
An EIS is required for "[alny other action which the Commission determines is a major Commission action significantly l
affecting the quality of the human environment." (10 CFR 651.20(b)(13)).
7 The 1972 construction permit EIS included a brief discussion (4 pages) of alternatives for new capacity generation, focusing on other types of facilities which could be built at the Shoreham site (Section 10.2).
Coal, natural gas, distillate fuel oil (in gas turbines) and hydroelectric generation were dismissed F
as being either uneconomic or unreliable.
Thermal generation was I
not mentioned.
Residual fuel oil was the only alternative for which any analysis was presented (one page of text and one
. virtually nothing for a supplemental EIS to " update" with regard to these impacts, which are required to be analyzed under NEFA.8 It would be misleading to characterize a supplemental analysis of decommissioning alternatives alone as an adequate NEPA review, given the obsolete and inadequate nature of the documents upon which the supplemantal analysis would necessarily rely.
A fresh start is called for.
Second, a separate EIS is appropriate to ensure an adequate opportunity for interested parties and the public to participate in the process of framing the issues and identifying potential impacts, which are unique to shoreham's decommissioning.
This process is commonly called " scoping."
Although the Commission's regulations provide ample opportunity for participation in the scoping process by all interested parties when an EIS is being prepared in the first instance (10 CFR 551.28 and $51.29),
preparation of a supplement to a final environmental impact statement need not involve a scoping process (10 CFR 651.92(c)).
table).
This analysis included only " source terms" (1.11, emission parameters), and did not provide any impact analysis of the effect of those source terms on the environment (e.o., air quality modeling).
The 1977 operating license EIS contained no
. discussion of these issues.
The State is currently proposing to build both gas turbines and thermal units to replace Shoreham (Art note 2, tupIA.).
8 Preparation of a supplement to the GEIS rather than supplementing the earlier Shoreham EISs. would also be i nappropri ate, because issues raised by decommissioning a new plant are specific to the circumstances of each individual plant, and the impacts are deoendent on the variables surrounding the vehicle by which the power would be r9placed.
Such issues cannot be meaningfully addressed generically.
(See Limerick Ecoloav liclinnx lne, v. NRQ, 869 F. 2d 719, 738-9 (3rd Cir. 1989)).
-4
. This exception, although discretionary, implieo that it is less iniportant to encourage full public participation in the prepara-tion of a supplement, presumably because the issues are already defined and simply need to be addressed in light of updated data.
Exactly the opposite is true in this case.
The document to be prepared should benefit from the attention and visibility which a separate, fully-scoped EIS would attract, and should undergo the public scrutiny and participation implicit in that process.
At a minimum, should the Commission decide instead to prepare a supplemental EIS, full scoping procedures should be followed, in order to define issues not raised or addressed in the original EISs.
II.
TheJndtrAc3_Carir.9nminial_EH193D_QL N_ot opitsLtjng_Sho.tthem PIM81_.BD_ASAARDid_AD M ompAr.ed_Eith_Ihnse of otetation mEran Tho#sh_Ihe_RssmiAAloit_1s_.Xo13;mnevnted_Io otd.or_ThaA ORetA1L9n.
Memorandum and Order CLI-90-08 makes it clear that the Commission believes that, notwithstanding the significant environmental questions described aupra, its NEPA responsibilities extend no further than the narrow question of how the mechanics of a' decommissioning are carried out (Memorandum and Order at p. 9).
This-rest;1ctive view is at odds i
not only with the case law, but also with the underlying principle of full examination and disclosure of impacts upon which NEPA is based.
i
r 14 -
A.
N E PA_B e gu i r.e s_Th e _EM a mip aMy n_O LA_EyM_Ba n g pE A lt e rna tiv e n_ln c.l ud i ng Th o s e_ReyDnd_Th e_ Ag e n cy 's_
dutindiclion.
A citation to the limitations of the Commission's authority in decommissioning proceedings is an insufficient basis for dismissing an otherwise reasonable alternative from consideration.
Early decisions interpreting NEPA held that such a narrow interpretation was not consistent with the statute's principles of full disclosure and informed decision making.
"The mere fact that an alternative requires legislative implementation does not automatically establish it as beyond the domain of what is required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decision makers in the legislative an.well as the executive branch."
UBDC
- v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972).
The position espoused in Memorandum and Order CLI-90-08 was recently considered in Lin911gl d cd ocy Aq. tion. Inc. v. NRC. 869 F.2d 719 (3rd Cir. 1989).
There, the court held that the Commission's obligation to consider reasonable alternatives under NEPA goes beyond its authority under the Atomic Energy Act (AEA),
and that " contrary to the NRC's contention, simply meeting the requirements of the AEA does not exempt the Commission from complying with NEPA's procedural requirements. " Id. at 741.
The CEQ regulations (40 CFR $1502.14(c)) are clear and unequivocal on this point.
Additionally, CEQ has elaborated that "[ r l easonable alternatives include those that are practig_al or inApiMg from a
the technical and economic standpoint and using common sense,
. rather than dealtable f rom the standpoint of the applicant" (emphasis in original); and that "lallternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA's goals and policies."
(Forty Most Asked Questions Concerning CEQ's NEPA Regulations, Questions 2a and 2b, 46 FR 18026, 18027, March 23, 1981).
Clearly, the Commission must look beyond its authority in order to determine the range of reasonable alternatives under NEPA.
B.
9 para 119D_J.ple_.Appr_opr_1a19_Charats19ttan119n_Qf_ Thm Ee h91L9n_.A119.IDA11Y_9._.Mh#1LA4 DSA p_111g_Tht._lnd1IAEt E ny.itenm e n. TALE tic _q1p_Q Laej;qmmi.m119ning_Jih er.s h a m.
As discussed nup_ra, the Commission has narrowly characterized its action in this case as determining how, rather than whether, Shoreham should be decommissioned (Memorandum and Order CLI-90-08, p.
9).
This position implies that the Commission believes that its inaction as an alternative is not reasonable when considering a request to decommission a nuclear power plant.
The requirement to analyze the "no action" alternative was established in the landmark case of Calvert_qliffs CoorAinating Q_QEmitt9.9.t _lnC_i. V.
ht_Qmi_C_Eneray_ Commission.
449 F.2d 1109 (D.C.
Q Cir. 1971).
(Alternatives must include " total abandonment" of the project.)
The CEQ regulations have codified this requirement at 40 CFR S1502.14(d).
CEQ has made it clear that analysis of
. appropriate, even if an agency is under a judicial or legislative command to act.
If the "no action" alternative would result in predictable action by others, those consequences also should be discussed (Forty Most Asked Questions Concerning CEQ's NEPA Regulations, Question 3, 46 FR 18026, 18027, March 23, 1981).
This requirement has consistently been upheld.
(Eta,
.q.g.,
R9nntI v. Eurford, 848 F.2d 1441, 1451 (9th Cir. 1988), holding i
that "lT)he ' heart' of the EIS -- the consideration of reasonable alternatives to the proposed action -- requires federal agencies to consider seriously the 'no action" alternative before approving a project with significant environmental effects." Id.
at 1451).
The GEIS makes it clear that, at least in the case of a f acility at the end of its. useful life, the Commission believes that the "no action" alternative can be summarily dismissed as unreasonable.
The objective of decommissioning is to restore a radioactive facility to a condition such that there is no unreasonable risk from the decommissioned facility to the public health and safety.
In order to ensure that at the end of its life the risk from a facility is within acceptable bounds, some action is required, even if it is as minimal as making a terminal radiation survey to verify the radioactivity levels and notifying the NRC of the results of the survey.
- Thus, independent of the type of facility and its level of contamination, No Action, implying that a licensee would simply abandon or leave a facility after ceasing operations, is not a viable decommissioning alternative.
Therefore, because no action is not considered viable for any facility discussed in this EIS, this alternative is not considered further in this report.
i
?
! GEIS at p.
2-6.
In contrast, in the case of Shoreham, the concept of "no action" has meaning other than unregulated abandonment.
Indeed, it is only when the no action alternative is characterized as that action which allows Shoreham to operate that a meaningful comparison of the impacts is achieved.
While such a result may be beyond the authority of the Commission to mandate,' it is a foreseeable outcome of a decision not to decommission, an outcome which would significantly reduce the indirect impacts that will occur if Shoreham is decommissioned.
C.
The_OppIalign.AherAally,_la_.RiihiLThe " Rule._QL BanAen".
Memorandum and Order CLI-90-08 states that "even if ' resumed operation' were an alternative to decommissioning, we would not be required to consider it under the NEPA ' rule of reason. '"
(1d. at p.
10).
This conclusion is based on narrow readings of various cases, including HEDC v. Mgr_ ton, auprg, which support the principle that alternatives which require the " overhaul of basic legislation" (1d. at p. 837), or "significant changes in governmental policy or legislation" (NRDC v. Calloway, 524 F.2d 79, 92 (2nd Cir. 1975)) are outside the scope of reasonable alternatives which must be addressed under NEPA.
However, the Commission's reliance on these cases is misplaced, and results in an artificially restrictive view of its 9
But man Joint Petition for Reconsideration by Shoreham-Wading River Central School District and Scientists and Engineers for. Secure Energy. Inc., Intervenors, pp. 16-21, and pp. 19-20, i.nftA.
. NEPA responsibilities in the situation of Shoreham.
As discussed above HEPC v. Marien stands for the principle that agencies must look beyond their immediate jurisdiction and assess outcomes which could reasonably be predicted to occur.
The extreme situations posited in URDC v. Morton in which the rule of reason would limit inquiry are those in which the underlying Federal legislation precludes the alternative in question, and would require major changes to allow it to occur.
The operation of Shoreham requires no " overhaul of basic legislations" to the contrary, a full power operating license has been issued for that facility and no other Federal action would be necessary.
Likewise, no "significant change in governmental policy" would be required at the Federal level to allow Shoreham to operate.
Promotion of a strong nuclear power industry in the mix of energy sources has been an element of U.S.
energy policy since passage of the 1954 amendments to the AEA.
The Commission bases its position that operation is beyond the rule of reason largely on the opposition to Shoreham by non-Federal entities (New York State and LILCO) (Memorandum and Order CLI-90-08, p.
10).
However, such opposition should not place operation outside the range of reasonable alternatives for three reasons.
First, NF!h applies only to the actions of Federal agencies and the resulting outcomes.
The fact that non-Federal
'l parties (including a State) would need to change their positions in order for Shoreham to operate does not constitute a limitation on the Commission's ability to act, and clearly cannot eliminate
. from consideration what would otherwise be a reasonable alternative, imax, one that is practical and feasible from a technical and economic standpoint (see discussion stpIn).
Second, the positions of the State and LILCO are not irrevocable, and it must be presumed that they ere subject to being influenced by an enlightened discussion of all the issues.IO The ongoing events in the Middle East have stimulated the national dialogue about energy security.
As the dialogue continues, it is reasonably foreseeable that recognition of the important role which Shoreham could play in reducing reliance on i
j imported oil will modify present opinions.
An integral element of this dialogue is consideration of the environmental impacts of operating versus not operating Shoreham.
Indeed, it is unlikely that these important considerations will be adequately aired for I
public discussion unless an EIS is prepared in conjunction with the decision to decommission.
Third, notwithstanding the State's and LILCO's current j
intention not to operate the plant, there are currently in place Federal emergency authorities, other than NRC's decommissioning jurisdiction under the AEA, which could come into play and 4
10 In fact, there are seven operating nuclear power plants (including Shoreham) in New York State, two of which are operated by a State authority.
In addition, both LILCO and the State supported the construction and operation of Shoreham for many years.
Accordingly, modification of the settlement agreement j
(e.o., to permit operation by LILCO, to transfer the plant to another entity for operation, or to " mothball" the plant for possible future operation) must be characterized-as both reasonable and foreseeable, i
- L OMO
- ?!'4 10-10 1;-;1. 10.-11 003
- influence a decision to operate Shoreham.
For example, through the DOE Organization Act, the Secretary of Energy acquired the authority originally vested in the Federal Power Commission to order the operation of an electrical generating facility whenever the Secretary determines that there is an energy emergency by reason of, among other things, a shortage of electrical energy or facilities for the generation or transmission of such energy, or of fuel for such generating facilities, or other causes (16 USC 824a(c)).
The reguistions implementing this statutory authority define the term " emergency" to include sudden increases in consumer demand, inability to obtain adequate amounts of fuel, extended periods of insufficient supply resulting from inadequate
. planning or failure to construct necessary facilities, or regulatory action prohibiting the use of certain electrical power facilities (10 CFR 205.371).
Obviously, the use of this authority is one of the options available to the Secretary
. depending on the course of events both in the Middle East and in this country as those events affect the local, regional or national energy supply and security.
Indeed, the Commission itself has authority to compel plant operation should Congress determine that an emergency exists, by reason of the Middle East sit'istion or otherwise (42 USC 2138, 2238).
This is is precisely the type of alternative which the court in NEDc v. Morten had in mind as being beyond the immediate authority of the agency, but "within the purview of both Congress and the President, to whom the impact statement goes," (458 F.2d at 834-
~
e L 35), and thus within the range of reasonable alternatives under NEPA.
Thus, contrary to the Commission's conclusion, not only is overhaul of Federal legislation unnecessary to allow Shoreham to operate, but there are indeed Federal authorities in place which, under appropriate circumstances, could mandate its operation.
I I I. An_EJ13u ni_Eq,_Rtspar, ; leg t_Th t_Ea rli s pACSmmiari on_Retc1 #.19n Whish C_9.9L4_AfL9et Rorppinis_a_Loning.
NEPA compliance must occur at "... the time [the agency) makes a recommendation or report on a ntap_qngl for federal action."
( Abitdnn_&._Rp.cAfipRQp2 v. S_CR6E, 422 U.S.
289, 320 (1975) (emphasis in original).
The precise point when a proposal exists can depend on the nature of the action to be taken.
Clearly, approving an amendment to Shoreham's operating license 1
to allow decommissioning of the plant would constitute such a proposal.
However, approving the request by LILCO for a
" possession-only" license amendment must also be considered an action requiring NEPA review.
Furthermore, that review must consider the entire process leading to eventual decommissioning.
It is clear that approval of a " possession-only" license in likely to result in actions being taken at the plant which could render moot a later meaningful consideration of alternatives to decommissioning.Il Therefore the two actions must be considered 11 Memorandum and order CLI-90-08 acknowledges that the LILCO requests for action now before it are " preparatory to some future NRC decision approving" decommissioning of Shoreham (1d.
at p. 8).
In the preamble to its final rule entitled " General
. as one and analyzed at the time when the first action is proposed.
The CEQ regulations state this principle as follows:
Proposals or parts of proposals which relate to each other closely enough to be, in effect, a single course of action shall be evaluated in a sir-le impact statement.
(40 CFR 61502.4(a)).
The regulations further define such " connected actions" which are " closely related" as ones which "[alutomatically trigger other actions which may require environmental impact statements."
(40 CFR $1508.25(a)(1)(1)).
The test has evolved that "lijf proceeding with one project will, because of functional or economic dependence, foreclose options or t.
irretrievably commit resources to future pro; ects, the consequences of the projects should be evaluated together."
(EII.tlofaen v. binander, 772 F.2d 1225,1241(n.10) (5th Cir.
1985).
(Ee_n A1AQ, C9nntI v. Eurford, 848 F.2d 1441, 1451 (9th Cir. 1988).
"lThe no action} analysis would serve no purpose if at the time the EIS is finally prepared, the option is no longer available.")
Requirements for Decommissioning Nuclear Facilities" (53 FR 24018, June 27, 1988)
The-Commission acknowledged that
"[dlecommissioning activities are initiated when a licensee decides to terminate licensed activities."
(52 FR 24019).
- Thus, NRC should be proceeding under the principle that any action it has been requested to take subsequent to the February 20, 1989, Settlement Agreement must be evaluated in a manner that considers the issues surrounding ultimate decommissioning.
t
. Once the license is downgraded, LILCO would be free to take actions which would effectively result in the destruction of the Shoreham facility as a potential nuclear generating station.
Indeed, the Commission's staff has already conceded as much, in a September 10, 1990 letter from James G.
Partlow, Associate Director for Projects, Office of Nuclear Reactor Regulation, to Thomas E. Tipton, Director of the operations Management and Support Services Division. Nuclear Management and Resources Council (copy attached).
In that letter, Mr. Partlow explicitly stated that:
When the non-operating status of the plant is confirmed by the issuance of a " possession-only" license amendment, then maior permanent cha.ngtE_19
.tht_fACLlity cAn be cartLtd_91Lt_Mpder 10 CFR EQth2, provided they do not involve a change in the technical specifications or an unreviewed safety question.
If there are activities that require NRC approval of the decommissioning plan or adversely affect the choice of any of the decommissioning options, those activities should not be carried out under 10 CFR 50.59.
(Emphasis supplied)
Given this staff position, and the fact that there is relatively minor contamination of the Shoreham facility, there are very few plant systems that could not be effectively destroyed by LILCO under.10 CFR 50.59 without prior notice to and approval by the Commission, and before a decommissioning plan is ever filed and approved by the Commission.
By granting LILCO a " possession-only" license for Shoreham, NRC would be allowing LILCO to alter significantly the plant's ability to. operate.
Such action would be tantamount to
, foreclosing the "no action" alternative before a decision to allow decommissioning were ever considered.
In these circumstances, NEPA requires that NRC prepare an EIS for the combined actions of proposing to authorize a " possession-only" license und to approve decommissioning.
IV.
qqnqbs19n.
The Commission must prepare an EIS which considers the direct and indirect impacts of not operating Shoreham before taking any action which could load to the plant's decommissioning, thereby preclud.'ng consideration of reasonable alternatives.
Under the CEQ regulations and applicable case law, one sv-h reasonable alternative is *lui operation of Shoreham for the pt
- tion of electricity.
Respectfully submitted.
S pe efi ld General Counsel
e CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Amicus Submission by the United States Department of Energy, dated November 8, 1990, have been served upon the following persons by U.S. mail first class, except as otherwise noted and in accordance with the requirements of 10 CFR Section 2.71,2_._
/.R
- m. c Lawrence J. Chandler, Esq.
xsKrrEC Y'
Office of the General Counsel U.S. Nuclear Regulatory Commission
0V - i '390
??I Washington, D.C.
20555 5
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4 gpgo s
- 7 jugegeRANCh S,
James P. McGranery, Jr. Esq.
Trx*RO Dow, Lohnes-and Albertson
~~ 7I*.. y s?
1255 23rd Street.
N.W.
Suite 500 Washington, D.C.
20037 Donald P.
Irwin, Esq.
Hunton and Williams 707 East Main Street P.O.
Box 1535 Richmond, VA 23212 Carl R. Schneker, Jr. Esq.
O'Melveny and Myers Counsel for Long Island Power Authority 555 13th Street, N.W.
Washington, D.C.
20004 Michael R. Deland, Chair Council on Environmental Quality Executive Office'of the President Washington, D.C.
20500 at Washington, D.C.
this 8th day of November 1990 Gluh rence A. Gollomp \\s)
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ATTACHMENT t
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wassmatow, p. c, resu September 10, 1990 Mr. Thomas E. Tipton, Director Operations, Management and Support Services Division Nuclear Management and Resources Council 1776 Eye Street, N.W., Suite 300 i
Washington, D.C.
20006-2469
Dear Mr. Tipton:
SUBJECT:
NUCLEAR PLANT CLOSURE ACTIVITIES AND DECOMMISSIONING I have received your letter of April 3,1990, which provided a draft white paper
- Nuclear Plant Closure Activities That May Be Pursued In Advance of An Approved Decosmissioning Plan.' The white paper has been reviewed by the NRC staff.
I feel that clarification of the way in which the 10 CFR 50.59 evaluation process is to be used is warranted.
Proceeding from an operating cossnercial nuclear powr plant to a decosnissioning facility can be viewed as a three phase process. The three phases are'as follows:
1.
Plant closure prior to the request and issuance of a license amendment to remove the authority to operate at power (' Possession OnlyLicense"),
2.
Plant closure and preparation for docessissioning after issuance of a ' Possession Only License,' but print to approval of a proposed deconmissioning plan per 10 CFR 50.82., and 3.
Decosmissioning after approval of the decommissioning plan per 10 CFR 50.82.
Licensees may make changes in the facility and in the procedures as described in the safety analysis report without prior NRC approval ornvided the proposed change does not involve a change in the Technical specifications or. is sto_t.an i
unreviewed safety ouestion.
In fhTs connection, untiT NRC authorises a change in the status of the plant license, licensed to operate at the authorized power 10 CFR 50.59 analyses are to assess the affect of the change on a plant
-level. This does not preclude 10 CFR 50.59 cunges applicable to the shutdown or defueled state, in a manner similar to the procedures applicable to changes that may be made under 10 CFR 50.5g for a pTKht that is shut down for an extended period for ma,jor inspection or repair work. When the non-operating
- status of the plant is confirmed by the issuance of a " possession-only' license amendment, then maior permanent changes to the facility can be carried.
out under 10 CFR 50.59, provided they do not involve a change of technical specifications or en unreviewed safety question.
If there are activities that require NRC approval of the decoenissioning plan or adversely affect the
Mr. Thomas E. Tipton September 10. 1990 choice of any of the decomissioning options, those activities should not be carried out under 10 CFR 50.59.
It is, of course, essential that licensees maintain their facilities in a safe condition and that plant closure and decomissioning activities be carried out in compliance with NRC regulations.
If you have any questions, please contact se at (301) 492-1284.
Sincerely, ws J6mes G. Partlow Ansociate Director for Projects Office of Nuclear Reactor Ragulation l
I Mr. Thomas E. Tipton 2
September 10, 1990 choice of any of the decomissioning options, those activities should not be carried out under 10 CFR 50.59.
It is, of course, essential that licensees maintain their facilities in a safe condition and that plant closure and decomissioning activities be carried out in compliance with NRC regulations.
If you have any questions, please contact me at (301) 492 1284 Sincerely, Odgkalslped W james 4. Peruos James G. Partlow Associate Director for Projects Office of Nuclear Reactor Regulation DISTRIBlf710N Central file PD5 Reading DCrutchfield GHolahan DFoster
$Reynolds GKalman ACRS (10)
OGC JPartlow RBangard(NMSS) JMartin (RY)
RMartin (RIV) ADavis(Rl!!) SEbneter(RII)
TMartin (RI)
JCalvo WTravers SYarga FMiraglia TNurley
- DRSP/LA/PDS
- DRSP/PM/PDS
- ADR4/5
- 0TSB
'0GC DFoster SReynolds:1b GHolahan JCalvo 6/14/90 6/14/90 6/14/90 6/18/90 7/30/90 NRR/Ak U'i 0
- PDhP:D
- NRR/ADSP
- D:DRSP SWeiss WTravers DCrutchfield JPart'ow 1l3 7/30/90 7/30/90 7/30/90 g /g /t'0 See previous concurrence
[DEC0mlSSIONING]
..