ML20062F584

Accepts 901016 Invitation to File Comments on Record Re Plant for Consideration & Presents Comments.Svc List Encl

ML20062F584
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/09/1990
From:	Deland M PRESIDENT OF U.S. & EXECUTIVE OFFICES
To:	Carr K, Curtiss J, Rogers K NRC COMMISSION (OCM)
References
CON-#490-11034 CLI-90-08, CLI-90-8, NUDOCS 9011280056
Download: ML20062F584 (9)

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EXECUTIVE OFF9E OF THE PRESIDENT c n COUNCIL oN ENVIRONMENT AL QUALITY t WASHNGioN. D C. 20500

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Unohael R. Deland (702)306-6080 3

chairman November 9, 1990 \/hg' ,,L ) g go .gCED The Honorable Kenneth M. Carr, Chcirman ,j '

The Honorable Kenneth C. Rogers, Commissioner E p\f -9 639 3 l The Honorable James R. Curtiss, Commissioner -

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The Honorable Forrest J. Remick, Commissioner , $_ w;;2T,?. DWACd Nuclear Regulatory Commission s UEC W O Y Washington, D.C. 20555 <8//- f

Dear Sirs:

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Re: In the Matter of Long Island Lighting Company, Shoreham  ;

Nuclear Power Station. Unit 1. Docket No. 50-322 l l

l By letter dated October 9, 1990, I urged ths Nuclear l

-Regulatory Commission (NRC) to prepare a comprehensivo )

E environmental impact s( ment (EIS) for all of the actions the agency may be called t to take regarding the Shoreham Nuclear Power Station. On October 16, 1990, the Commission issued an order inviting me and the Secretary of Energy to " file on the record any comments they wish the Commission to consider." I am accepting that invitation, and my comments are presented below.

I. Preparation of a Comprehensive EIS is Mandated by the National Environmental Policy Act The National Environmental Policy Act (NEPA) requires I

federal agencies to prepare a " detailed statomont" for all " major Federal actions significantly affecting the quality of the human-environment...." 42 USC 6 4332(2) (C) . The Council on Environmental Quality (CEQ), which oversees federal agency 9011280036 901109 gDR ADOCK 050 2[ necycled Paper rp L

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compliance with NEPA, has promulgated regulations to implement the procedural provisions of the statute.'

Among other things, these regulations require federal agencies to consider connected actions together in the same NEPA document. Egg 4 0 CFR S 1508. 25 (a) (1) . A " connected" action is one which is an interdependent part of a larger action and depends on the larger action for its justification. Id.

This issue was addressed in Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985), where the court held that the cumulative impacts of several land development proposals from several applicants must be considered by the Army Corps of Engineers in order to determine whether the impacts of the proposals were "significant." The court specifically recognized that there were " circumstances under which proposals that are functionally or economically related must be ovaluated in the same environmental analysis." 1d1 at 1241 n. 10. As the court stated, "If proceeding with one project will, because of functional or economic dependence, foreclose options or irretrievably commit resources to future projects, the environmental consequences of the projects

< should be evaluated together." Id.

b In Andrus v. Sierra Club, 442 U.S. 347 (1979), the United L States-Supreme Court described the adoption of the CEQ regulations as a " detailed and comprehensive process, ordered by L the President, of transforming advisory guidelines into mandatory regulations applicable to all federal agencies." Id2 at 358.

L The Court also stated that "CEQ's interpretation of NEPA is i entitled to substantial deference." Id. Egg also Robertson v.

Methow Vallev Citizens Council, __U.S.__, 109 S.Ct. 1835, 1848  ;

(1989) ("CEQ regulations are entitled to substantial deference.")

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Similarly, the court in Thomas v. Peterson, 753 T.2d 754 (9th Cir. 1985), looked at whether the Forest Service properly considered the impacts of a logging road in one NEPA document and the impacts of timber sales which the logging road mado possible in another. The court questioned whether the road and the timber sales were "sufficiently related" to require the preparation of one EIS in which the impacts of both actions would be addreshed.

Given that "the timber sales cannot proceed without the road, and the road would not be built but for the contemplated timber sales," the court concluded that the two proposals were

" inextricably intertwined." Idx at 758-59.

Currently pending before NRC is the application of Long Island Lighting company (LILco) to amend its operating license for the Shoreham Nuclear Power Station to a " possession-only" license. The possession-only license is the first step in a clearly-stated plan to transfer the license to the Long Island Power Authority (LIPA) and to decommission the Shoreham facility.

These three elements of the plan (license amendment, licenso transfer, and decommissioning) will all require NRC approval and are " functionally or economically related" and "inoxtricably intertwined." Under the plan for Shorcham, decommissioning of

.the facility will not be sought unless the license amendment and transfer are approved, and a license amendment and transfer would not be sought unless decommissioning were the ultimato goal. In other words, the purpose of the licenso amendment which is

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currently pending before NRC is to facilitate a future request for decommissioning.

The possession-only license amendment is " connected" to LILCo's expected request for a license transfer to LIPA and to LIPA's anticipated request to decommission the Shoreham plant, as that term is defined by the CEQ regulations and the relevant caua law. The interrelationship of these proposals is clear and necessitates the preparation of a comprehensive EIS which addresses the environmental impacts of all three actions.8 II. The Comprehensive EIS Must Address the Environmental Consequences of the Proposed Actions and of All Reasonable Alternatives, Includina the No Action Alternative Section 102 (2) (C) of NEPA specifically requires agencies to assess "(i) (t]he environmental impact of the proposed action, ,

(ii) (ajny adverse environmental effects which cannot be avoided I should the proposal.be implemented, [and) (iii) (a)lternatives to I the proposed action...." 42 USC S 4332(2) (C) . Further, the CEQ regulations direct agencies to "(rjigorously explore and objectively evaluate all reasonable alternatives...." 40 CFR S l

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2 only by considering these related proposals together in- 1

-the same document can the cumulative impacts and available '

alternatives be fully addressed. While the impacts of a license amendment and license transfer might not be significant standing alone, the cumulative impacts of those actions, combined with decommissioning, are certainly significant. Moreover, delaying consideration of the impacts of decommissioning until an application for such action is actually before the Commission '

forecloses other' alternatives which might have been available at an earlier time, e.g. transfer of the license to a different entity for near term operation.

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1502.14(a). The term "all reasonable alternatives includes those which are not within the jurisdiction of the agency and the "no action" alternative. Id2 at 5 1502.14(c) and (d).

The CEQ regulations also require an agency to discuss "the environmental impacts of the alternatives including the proposed action...." 40 CFR $ 1502.16. The discussion of environmental impacts must include direct and indirect effects, energy requirements and conservation potential of the various alternatives, and natural or depletable resource requirements and 1

conservation potential of the various alternatives. Id. l Setting aside for the~ moment the question of which 1

alternatives NRC must address in its comprehensivo EIS, the

,$' agency must, at a minimum, address the environmental consequences

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of the proposed action the decommissioning of the Shoreham facility.' Regardless of whether those consequences are' ]

unavoidable, the impacts are obvious and include increased Ii 1

The generic or programmatic EIS which NRC has prepared i for' decommissioning of. nuclear power plants specifically l I

addressed the dismantling of plants at the end of their useful lives. The environmental impacts of decommissioning a 30- or 40-year old plant are decidedly different from the impacts of decommissioning a fully operable plant at the beginning of its i useful life. Similarly, the reasonable' alternatives to i decommissioning a plant at the end'of its useful life do not include operation of the facility, an alternative which would be available to Shoreham.

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,. s-reliance on other, perhaps less environmentally desirable, t sources of energy.'

With respec t to alternatives, NRC must address the environmental consequences of Dnt decommissioning the facility-- 1 the "no action" alternative. In addition, NRC must examine the environmental consequences of other reasonable alternatives to decommissioning, e.g. "mothballing" the plant for possible future operation. While, as the Commission pointed out in its October 17, 1990 Order (CLI-90-08), LILCO gives every appearance of abiding by the settlement agreement (id2, slip op. at 5), it is not unreasonable to project that LILCO and the State of New York .

might, in the future, mutually agree to disregard that settlement agreement.5 It is true that modification of the settlement agreement

-between LILCO and tho State of New York is not within the control of NRC and that it would require legislative reversal of an existing state statute. Alternatives outside the jurisdiction of the agency may still be " reasonable" under the CEQ regulations, however, and "[t]he mere fact that an alternative-requires The 1972 EIS prepared for the construction permit for Shoreham briefly addressed the environmental consequences of

> alternative energy sources. That information would.need to be supplemented, but can be referenced or used once NRC has satisfied itself that it is still accurate.- See 40 CFR SS 1502.9(c), 1502.20.

5 The State of New York and Suffolk County, in which  !

Shoreham is located, supported the construction and operation of Shoreham for many years. Events in the early 1980's caused a change of heart, and events of the early 1990's could have the same effect.

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I legislative implementation does not automatically establish it as beyond the domain of what is required for discussion...." l Natural Resources Defense Council v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972).'

The comprehensive EIS which must be prepared for a license amendment, license transfer, and decommissioning must consider the environmental impacts, including the cumulative environmental impacts, of those actions. Among.those impacts is the need to provide replacement generating capacity. NRC must also consider

-. - . . reasonable alternatives to these actions, including the no_ action _ _

alternative (i.e., not approving decommissioning) and j,' ' alternatives outside the jurisdiction of the agency (i.e.,

repudiation of the settlement agreement and operation of the Shoreham facility) .'

The court went on to say that "the need for an overhaul of basic legislation" bears on the determination of what is a reasonable alternative and that NEPA would not require an i extended discussion of legislative alternatives which were  !

, " remote from reality...." 458 F.2d at 837. Support for the operation of the Shoreham Nuclear Power Station, far from being

" remote from reality," was in fact reality in the 1970's.

The' Commission has suggested that it need not look at alternatives to decommissioning because the agency has no ~

authority to mandate operation of the facility. San CLI-90-08, slip op. at 9 n.4. This suggestion, however, ignores NRC's l obligation to address the environmental consequences of its i actions and to address the "no action alternative" and '

alternatives outside the jurisdiction of the agency.

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I appreciate the opportunity to present these views to you.

As I stated in my earlier letter, I strongly recommend that you give this matter serious attention and acknowledge the need to l meet both the letter and the spirit of the National Environmental Policy Act.

Si erely,

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Michael R. Deland I

cc: Service List (see attached) {

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I hereby certify that copies of the letter of Michael R. Deland, .

Chairman of the Council on Environmental Quality, to the NRC 1 Commissioners, dated November 9, 1990, regarding preparation of I an environmental impact statement for the Shoreham Nuclear Power Station, have been served upon the following persons b - .

mail, first class. 4 Lawrence J. Chandler, Esq.

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003g' D office of the General Counsel Nuclear Regulatory Commission (* go30 Tn Washington, D.C. 20555 E. \\QN ' qt g no $nce k i James P. McGranery, Jr. , Esq. 2 no .gc A?e ,

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Dow, Lohnes & Albertson ' C A, i 1255 23rd Street, N.W. \< 6 77Cs?)/

Suite 500 1. d.V Washington, D.C. 20037 Donald P. Irwin, Esq.

Hunton & Filliams 707 East Main Street P.O. Box 1535 Richmond, VA 23212

, Carl R. Schneker, Jr., Esq.

- l' O'Molveny & Myers 555 13th Street, N.W.

Washington, D.C. 20004 f The Honorable James D. Watkins L Secretary of Energy Washington, D.C. 20585 i

Dated at Washington, D.C. this 9th day of November, 1990.

3 - W Gloria Robinson x

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