ML20062F616
| ML20062F616 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/13/1990 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#490-11041 NUDOCS 9011280077 | |
| Download: ML20062F616 (24) | |
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e W,n L D LILCO, November 13, 1$$$T UNITED STATES OF AMDtICA 0 NUCLEAR REGULATORY COMMISSION
,rtm , : rJc: w v b)cd; i ci ., ' M Before the Commission
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322
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(Shoreham Nuclear Power Station, )
Unit 1) )
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LILOO'S OPPOSITION TO JOINT PETITION FOR RECONSIDERATION OF CLI-90-08 AND RESPONSB To COMMENTS ON SHORERAN'S DECOMMISSIONING BY DEPARTMENT OF ENERGY AND COUNCIL ON ENVIRONMENTAL QUALITY I. Introduction On October 29, 1990, Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
(collectively, " Petitioners") submitted what they styled a " joint petition," filed ostensibly "(pjurresnt to Section 2.771(a) of the Commission's rules and regulations," requesting that the Commission " reconsider and vacate CLI-90-08 . . . insofar as that order precludes the consideration of the alternative of renewed operation" of the Shoreham Nuclear Power Station. Joint Petition at'1.
lLong Island Lighting. Company (LILCO) opposes Petitioners' motion.- Petitioners provide no good reason for the Commission to reconsider CLI-90-08. To the contrary, the Commission's decision 9011280077 901113 M PDR ADOCK 0500032a' 0 PDR 0 12 !
ph
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1 regarding the scope and effect of the National Environmental Policy Act, 42 U.S.C. $$ 4321 et sec., (NEPA) on Shoreham's decommissioning is clearly correct.
LILCO also submits herein its response to comments on the applicability of NEPA to Shoreham, filed on November 9, 1990 by the U.S. Department of Energy (DOE) and the Chairman of the Council on Environmental Quality (CEQ).
II. Backaround On October 17, 1990, in response to six pending petitions for intervention and requests for hearing filed by Petitioners, the commission issued a Memorandum and Order in which it found that neither NEPA nor the Atomic Energy Act, 42 U.S.C. SS 2011 at Angt, " require the NRC to consider ' resumed operation' (of Shoreham) as an alternative" to the plant's decommissioning.
Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC , slip op. at 1 (Oct. 17, 1990). The commission accordingly rejected Petitioners' argument that the NRC Staff must prepare an environmental impact statement (EIS) on Shoreham's decommissioning that considers resumed operation of the plant as an " alternative" to decommissioning.
In making this determination, the Commission recognized that the " federal action" involved in the Shoreham situation was D21 the decision by LILCO, a private entity, to abandon the Shoreham facility. Rather, the commission noted that the " precise Federal actions at issue here" consisted of (1) an " order requiring NRC
.. . - ~ .- . __. .-- ..
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approval prior to ret urn of fuel to the reactor vessel," (2) an
" amendment approving thanges to the licensee's physical security plan," and (3) an " amendment relating to emergency preparedness." l CLI-90-08, slip op. at 7. While remarking that "these actions 1
would likely not have been proposed but for LILCO's decision not l to operate the facility," the Commission noted that "the NRC was not a parcy to that decision." 1d2 The Commission continued that while the NRC "must approve of a licensee's decommissioning plan . . ., including consideration of alternative ways whereby decommissioning may be accomplished,"
nowhere in its regul:tions was "it contemplated that the NRC would need to approve of a licensee's decision that a plant should not be operated." CLI-90-08, slip op. at 7-8 (emphasis in original). The Commission then confirmed that "LILCO is legally entitled under the Atomic Energy Act an; our regulations to make, without any NRC approval, an irrevocable decision not to operate e Shoreham," and held that the " alternative of ' resumed operation'
-- or other methods of generating electricity -- are alternatives to the decision not to operate shoreham and . . . are beyond Commission consideration." Idx, slip op. at 8.1' Having made this finding on the scope and effect of NEPA in the Shoreham case, the Commission forwarded to tr.a Licensing l'
In the alternative, the Commission ruled that "even if
' resumed operation' were an alternative to decommissioning," the NRC would not be required to consider it under the NEPA " rule of reason. " CLI-9 0-08, slip. op. at 10, citina NRDC v. Callaway, 524 F'2d 79, 92 (2d Cir. 1975).
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Board the six pending hearing requests "for further proceedings not inconsistent" with the Commission's Order. CLI-90-08, slip op. at 11. On October 18, 1990, the Chief Administrative Judge established a three-judge Licensing Board panel to consider Petitioners' hearing requests 55 Fed. Reg. 43,057 (Oct. 25, 1990). The Licensing Board aas not yet acted on these requests.
On October 29, Petitioners filed their " Joint Petition."I' In their pleading, Petitioners advance numerous reasons why the Commission "should reconsider and vacate its Order of October 17, 1990." Joint Petition at 1. As shown in part III below, none of l these claims justifies Commission reconsideration.
A' While Petitioners assert that their " Joint Petition" has '
! been filed "(p)ursuant to Section 2.771(a)," this provision is t
inapposite. It provides, in relevant part:
A petition for reconsideration of a final decision may be filed by a party within ten (10) days after the date of the decision.
10 C.F.R. 5 2.771(a)(emphasis added). Even if it is assumed that CLI-90-08 is a " final decision" as described-by 10 C.F.R. 5 2.770 (and the language of 5 2.770 indicates that a-" final decision" is,-in fact, one issued at the conclusion of a full adjudicatory proceeding), it is indisputably the case that neither Petitioner is a " party" to the Shoreham proceeding. Indeed, whether they will be admitted as parties is the precise question now before ,
the Licensing Board. Thus, by the plain terms of 5 2.771(a),
Petitioners cannot seek reconsideration of CLI-90-08. Sam, e.a.,
Texas Utilities Electric Co. (Comanche Peak Steam Electric Sta-tion, Units 1 and 2), CLI-89-6, 29 NRC 348, 354 (1989)("we find i that Mr.-Macktal does not have standing to seek . . . recon-sideration of the Commission's decision . . . because he was not
, a narty to the proceeding when the decision was issued") (em-phasis in original). Rather than moving to strike the Joint Petition as misfiled,.however, LILCO assesses Petitioners' plead-ing against the standards that govern motiens for reconsideration of Licensing Board and Appeal Board decisions, having filed its opposition within the time permitted by the NRC's regulations governing motion practice generally. Egg 10 C.F.R. 55 2.730(c),
2.710.
l l
l s 5
Finally, on November 9, DOE and CEQ each filed comments on the applicability of NEPA to Shoreham's decommissioning.F While neither paper expressly requests the Commission to reconsider and vacate CLI-90-08, each argues that a full-blown EIS, in which the alternative of resumed plant operation is assessed, is required before the NRC may take any action which could lead to Shoreham's decommissioning. As explained in part IV below, both DOE and CEQ misapprehend the scope and effect of NEPA in the present case.
III. -None of the Reasons Petitioners Give for Reconsideration of CLI-90-08 Is Persuasive Since the Joint Petition largely repeats many of the same themes regarding the scope and effect of NEPA that Petitioners
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have already sounded in their six pending intervention requests, the Commission need not consider them again. Sam, gigt, Missis-sioni Power & Licht Co. (Grand Gulf Nuclear Station, Unit 1),
LBP-84-23, 19 NRC 1412, 1414 (1984) (reconsideration not warranted in the absence of new arguments, new issues, or new information);
rag A1Ag Nuclear Enaineerina Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5-6 (1980);
Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, F In an Order issued October 16, 1990 (" October 16 Order"),
the Commisnion, taking note that it had already " received letters commenting on issues related to (LILCO's January 5, 1990, "pos-session only" license) amendment from the Chairman of the Council on Environmental Quality, dated October 9, 1990, and the Secre-tary'of Energy, dated September 19, 1990," invited those offi-cials to " file on the record any comments they wish the Commis-sion to consider." October 16 Order at 2. LILLO refers to the two November 9 submissions as " DOE Comments" and "CEQ Comments,"
respectively, l
s J
Units 1 and 2), ALAB-844, 24 NRC 216, 217 (1986). To the extent
, Petitioners assert claims based on legal theories not previously offered (such as their arguments regarding the NRC's and DOE's emergency authorities), such arguments are improper. Egg, azgt, Tennessee Vallev Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B) , ALAB-418, 6 NRC 1, 2 (1977); Central Electric Power Coco. (Virgil C. Summer Nuclear Station, Unit 1), CLI 26, 14 NRC 787, 790 (1981) ("(m)otions to reconsider should be associaiod with requests for re-evaluation of an order in light of an elaboration upon, or refinement of, arguments previously advanced," and are "not the occasion for an ' entirely new 4 i
thesis'").
The melange of arguments that Petitioners proffer in favor of reconsideration of CLI-90-08 fall into two general categories:
(1) those hinging on Petitioners' erroneous conception of NEPA, and (2).those based on an assortment of grounds other than NEPA.
Each is discussed below.
A. Petitioners' NEPA Arguments Are Based on a Flawed Understandina of the Statute
- 1. Petitioners' Erroneous Focus on NEPA " Alternatives" Ionores CLT-90-08's Findino Recardina " Federal ActionH The linchpin of the Joint Petition is its lengthy discussion of the " alternatives" that, under NEPA, the NRC supposedly must address in its environmental review of Shoreham's decommission-ing. See Joint Petition at 3-11. Invoking both the NEPA-im-plementing regulations issued by CEQ and what Petitioners view as relevant federal case law, Petitioners raise two basic objections i
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to CLI-90-08. First, they suggest that the Commission erred by failing to take into account alternatives outside the NRC's legal jurisdiction or ability to implement. Second, they argue that !
the Commission failed to give proper consideration to the "no action" alternative; 1234, denial of a license amendment authori-zing Shoreham's decommissioning.
Petitioners' arguments are beside the point. Even if their general discussion of the alternatives that need to be addressed 1
in a NEPA-directed environmental review were essentially correct (which it is not), Petitioners still have failed to confront the crucial, central holding of CLI-90-08: LILCO's decision to remove Shoreham from service is Dat " federal action" and, hence,
-does not trigger NEPA review.i' In fact, nowhere in the Joint i
A' As LILCO said in its opposition to Intervention and Requests
- for Hearing.on confirmatory order and on Amendment to Physical Security. Plan (May 3, 1990) ("May 3 Opposition") , the decision to abandon Shoreham was made by a private entity -- LILCo. As such, this decision is Det subject to federal l environmental review under 5 102 of NEPA, j- which governs only " major federal actions."
. . . . It is true that, as a general proposition, a private action may be
" federalized" for purposes of NEPA if federal agency approval -- such as permits, leases, and other forms of permission -- must be obtained in order for the private party to take the action... . . The private action
, .that has been " federalized" here is the I
physical act of decommissioning itself.
LILCO's decision to not operate Shoreham is Det " federalized," however, because no NRC (or other-federal) approval is required for LILCO to decide to close the facility.
i May 3 opposition at 31-31-& n.25 (emphasis in original).
b
_ _ __ ___ _ _ _ _ - - - - _ ~ - - . - . . ...,r.- , . - . . , .,. ---. .- ,-
l a ,
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8 Petition is the term " federal action" discussed, even though the I Commission's decision in CLI-90-08 expressly turned on its ,
analysis of this key issue.
Petitioners' position collapses on this fundamental point.
As the Commission has properly found, the " federal action" actually at issue in Shoreham's decommissioning is the NRC's consideration and approval of the specific plans for the plant's decommissioning par ga. The decision to abandon Shoreham, on the other hand, has been made by a private entity. That decision required no federal approval and, thus, cannot be said to have been " federalized" for purposes of NEPA. It is axiomatic that where there is no " federal action," NEPA in not triggered. Egg, t
- e.g.., Edwards v. First Bank of Dundee, 534 F.2d 1242, 1245-46 (7th Cir.1976) ; Winnebaco Tribe of Nebraska v. Rav, 621 F.2d 269,-272-73 (8th Cir. 1980), part. denied, 449 U.S. 836 (1980).
Thus, any discussion of what " alternatives" to closing the plant must be considered under NEPA is pointless.F While " resumed F A'recent decision by the U.S. Court of Appeals for the t District of Columbia Circuit emphasizes this point. In Macht v.
l Skinner, No. 90-5017 (D.C. Cir. Oct. 12, 1990), the court i affirmed a lower court ruling that neither (1) federal funding for preliminary design of proposed extensions to a light rail transit' system nor (2)-the need to obtain a wetlands permit from the Army Corps of Engineers for a portion of the transit system was sufficient to transform the otherwise private project into l " major, federal action" subject to NEPA review. In so ruling, the L court stated that, given its threshold determination that-the i transit project did not involve " federal action," it was not necessary to decide "whether the district court correctly held that . . . segmentation of the Project was proper." Machn, 1990 U.S. App. LEXIS 17848, 6. As the court noted, "unless a project I involves major federal action, NEPA does not aDolv." Ids l
(emphasis added). It is significant that, in this case, it was-(continued...)
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9 operation" might be thought of as an " alternative" to the deci-sion to close the plant, such a consideration is irrelevant, !
I since the decision to close the plant does not itself invoke I
NEPA. i Moreover, even given that NEPA applies to the NRC's ultimate approval of a license amendment authorizing the decommissioning of Shoreham (aga 10 C.F.R. 55 51.53(b), 51.95(b)), it toes not follow, as Petitioners claim, that environmental review of that action by the NRC must include consideration of the " alternative" l of resumed plant operation. As noted, while resumed operation l
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may be an alternative to Shoreham's abandonment, it is D21 an i alternative to the activity actually requiring the NRC's ap-proval; 1.e., the planning and physical methods by which the l i
_ plant will be decommissioned. It is not necessary under NEPA to l
.i assess " alternatives" that are not related to or which would not achieve the goal of the proposed enterprise itself. Esp. gig 2, Process Gas Consumers GrouD v. DeDartment of Aariculture, 694 j F.2d 728, 769 (D.C. Cir. 1981), modified on hearina en banc, 694 l 1
F.2d 788 (1982), cert. denied, 461 U.S. 905 (1983); Miller v.
United States, 492 F. Supp. 956, 963 (E.D. Ark. 1980), aff'd, 654 P.2d 513-(8th Cir. 1981) (environmental review under NEPA need !
i not assess an " alternative which is essentially an entirely L 1 F (... continued) _
undisputed that the entire light rail project had been designed as a unitary one, with federal funding from start to finish. <
Upon learning that this would " federalize" the project from the ;
outset, however, the state revised the project so that the first l phase would be entirely state-funded. ,
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~ different project"). -LILCO's goal is to see that Shoreham is
' decommicsioned, now that the plant has been permanently close.
Resumed-plant operation does not allow fu. the achievement of that goal and, thus, is not a true " alternative" that must be ,
considered under NEPA.
Relatedly, Petitioners are wrong in asserting that the j alternative of "no action" is an appropriate consideration here.
' Joint Petition at 6. In the present situation, "no action" on the part of the NRC would be to deny an amendment allowing the
- decommissioning.of the Shoreham facility. Even assuming that the i NRC is -authorized to' refuse to issue such an amendment if the
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amendment-request otherwise satisfied all of the NRC's pertinent "I health'and safety requirements,F such a refusal'still would not lead to Shoreham's operation, since.neither LILCO (which would 3
. remain bound by the Settlement Agreement not to operate the I plant) nor the Long Island ?ower-Authority (which is prohibited F' 'This'is by no means clear. The- NRC's decommissioning regulation S-50.82, . states, in relevant part, that
'[i)f the decommissioning plan -den.onstrat s :
'that the decommissioning will be performed in ,
accordance with' the ~ regulations in this-- l chapter.and will not be inimical to.the common defense and security or to the health
- M and cafety'of'the public .. . . , the '
-Commission will approve the plan. subject to such conditions and limitations as itudeems appropriate and necessary and issue an order !
authorizing.the deceEntssioning. .l i
- 10;C.F.R. S ' 50.82 (e) (emphasis added) . The use of the mandatory j
-languago "will approve" suggests that the NRC is not authorized >
. tx> refuso to issue es ~ decommissioning order should the licensee demonstra'.e . that' decsmmissioning will be conducted in a manner that'wili-protect the'public health and safety.
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'- 4 _ _ , _ . . . . _ _ _ , _ _ _ _ _ - m _ _ ' _ _ _ _ _ ______._.e. - _ _
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by law from operating.a' nuclear facility) could resurrect the plate J
l Thus, the true effect of a decision by the NRC not to issue .j l
an amendment. authorizing decommissioning would nqt be to force !
Shoreham's operation, but to place the irradiated facility in a l state'of limbo, neither operating nor decontaminated. This would not vindicate NEPA. To the contrary, adoption by the NRC of the "no action" alternative at Shoreham would be an abdication on the i agency's part ofLits paramount responsibility under the Atomic l
l Energy Act to protect the public from radiological health and 3
- safety threats.F It would give rise to the incongruous result of l constrainingithe NRC-to pursue tha very course of action that it i fcrbids a licensee to undertake; i.e., to allow a closed plant to languish indefinitely, without' plans fcr ultimate disposition, I i
- decontamination, and-license terminction. Cfz 53 Fed. Reg.
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72,,019 (June 27, 1988) (btating that " Li]nadequate or ' untimely !
N} t
- 1 consideration vf decommissioning . . . could. result-in sig- } <
g nificant-adverse haalth, safety and' environmental impacts")-. "
h L
i L I l -1 l .[
!! i g
CLu FinalLEnvironmental Impact Statement on' Decommissioning- ,
,., 'of NuclearLFacilities,'NUREG-0586-(May 1988) at 2-5 (" independent E
'of.the type of facility and '?.s' level of contamination, No '
Action, implying tnat a licensee would' simply abandon or-leave a 'l l 4 facility after ceasing operations, is not a viable decommissioning alternative.")
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- 2. Given that Petitioners' View of NEPA Is Flawed, their other NEPA-based Arcuments Are not Valid Given the fundamental flaws in Petitioners' view of the I scope and effect of NEPA, it is clear that their subsidiary NEPA-based arguments have no merit as well.
First, Petitioners assert the' the Con, mission has violated {
its own so-called NEPA " scoping" regulations. Joint Petition at
- 13. Such a claim makes no sense if NEPA does not apply to I .LILCO's private ~ decision to abandon Shoreham. Moreover, Peti- i tioners provide no authority for their claim that the scoping process is the " sole means" for determining the scopo of a NEPA-required environmental review. Id2 To the contrary, it is i entirely appropriate for the Commission to provide dispositive
~
y i guidance at this time on the crucial threshold issue of NEPA's applicability to Shoreham's decommissioning. Egg United States a- Enerav Research and DeveloDment Administration (Clinch River ;
h ' Breeder Reactor' Plant)', CLI-76-13, NRCI-7 6/ 8 67, . 75-76 (1976) ("in .
h .
?
the' interest'of orderly resolution of~ disputes, there is'every
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l reason why the Commission should be empowered to step into a !
l proceeding and provide guidance on important issues of law or policy").< a Second, Petitioners contend that, as a consequence of- j
.certain authority' granted the Commission and DOE under various provisions of theJAtomic Energy Act:and the' Federal Power Act to -
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order the operation of a nuclear facility in extraordinary d circumstances, the Commission "may not conclude that LILCO is
legally-entitled . . . to make . . . an irrevocable decision not l
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i to operate Shoreham" or find that " alternatives to the decision l not to operate the plant are beyond the scope" of the NRC's NEPA review. Joint Petition at 17. But the commission's (or any other federal agency's) averred authority to mandate plant operation in prescribed emergency circumstances -- assuming that such authority in fact existsF -- does not work to transform !
F Petitioners incorrectly cite two statutes -- the Atomic Energy Act and the Federal Power Act -- for the proposition that the federal government might take over and operate Shoreham despite LILCO's closure of it, and thus for the idea that evaluation of long-term operation is a rcasonable alternative j under NEPA or required by the Administrative Procedure Act (APA). 1 Neither the Atomic Energy Act nor the Federal Power Act avails.
The Atomic Energy Act provides two paths to operation of a nuclear power plant at the instance of the federal government: '
~ 5 5 108 and 186 (c) /188 - (42 U.S. C. 55 2138, 2236(c)/2238_
respectively). Both paths are narrow and unavailable'here. The first, 5 108, requires a prior declaration of " war or national emergency".by the Congress. The second, SS 186(c)/188, is prcdicated on prior revocation of a license by the Commission for !
cause and on-a finding,'after consultation with the " appropriate l L regulatory agency, state or federal, having jurisdiction," that "
the public-convenience and necessity require operation of the facility. -.Both constructs also require payment of just '
compensation.
- Obviously, the factual' preconditions to exercise of these l
provisions have not been satisfied. -It-is looking up the wrong -
end.of-the telescope to insist, as do Petitioners (Motion at 16-L 18),_that it violates the'APA for the Commission to recognize in its. actions that congress has not declared war, that the.New York Public Service Commission has not opined that_ operation of Shoreham is'in the public interest, and that no one has proposed ,
any measure of compensation, much less.the'just compensation I required, for a federal taking of the plant to operate it. ,
In any event, operation of the plant-under-ADY of these '
theories could never be dedicated to the commercial purposes proposed by Petitioners, given the flat prohibition of-5 44 of-the Atomic Energy Act:
Nothing in (the Atomic Energy Act) shall be construed to authorize the Commission to i
engage in the sale or' distribution of energy for' commercial use except such energy as may be incident to the operation of research and (continued...)
i
14 LILCO's otherwise private decision not to operate Shoreham into federal action" subject to NEPA review. CIA Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1244 (D.C. Cir. 1980) ("there t
F
(... continued) development facilities of the Commission, or production facilities of the Commission.
42 U.S.C. 5 2064.
Petitioners also cite Federal Power Act 5 202(c), 16 U.S.C.
6 824a(c), as empowering the Secretary of Energy to order .,
operation of Shoreham in a war or other emergency. The short.
answers to this argument are that the clear focus and historic !
application of'this section are directed toward. interconnection l and provision of readily available-generation, and that the section:itself contemplates only temporary orders for the o duration of' the: emergency. See Rif %;9nd' Power & Licht of City of l Richmond. Ind. v. FERC, 574 F.2d 6io, 614 (D.C. Cir. 1978), in l
which the Court of Appeals upheld the Fed 1ral Energy Regulatory Commission's_(FERC's) refusal to order certain emergency remed'al L measures'under 5 202(c) in the wake of the continuing oil u shortage following.the 1973 oil embargo: -
(Petitioner's] second contention, that !
dependence on imported oil leaves'this country with a continuing emergency,. compels a 1* no different result..We'are fully mindful, of ;
course,-that current national policy is to discourage reliance on foreign oil,:but'we cannot fault (FERC) for. reading 5 202(c)_as .
devoid.of a solution. That section speaks of
" temporary" emergencies, epitomized by l l wartime disturbances, and is aimed at i situations;in which1 demand for electricity -
E exceeds supply and not.at those in which 4 supply is adequate-but a means.of fueling its !
production is in disfavor. (footnotes t l
omitted]
' Section 202 was not. intended, and is not suited, as a vehicle for-
, Petitioners' goal: the'long-term reactivation and operation:of a=
closed plant, especially for reasons of fuel diversity rather than, imminent: capacity shortage.
i
a, 45 15 is (no) ' federal action' where an agency has done nothing more 7 = than fail to prevent the other party's action from occurring").
L-t B. Petitioners' Mon-NEPA Based Arguments Are Incorrect In' addition to their NEPA-based arguments, Petitioners advance a number of other claims predicated on various different theories.- None of these additional arguments is correct.
1.' The NRC Will Make the " Common Defense and Security" Findina before Shoreham's Decommissionina Is Authorized Y First, Petitioners' assert that CLI-90-08 should be vacated g because there-is-an " absence of any discussion, much less determ-inations on the record," that Shoreham's decommissioning.would, not t be " inimical to (the]' common defense and security of the
' United States." Joint Petition at 20, 21. Petitioners are
- premature.- A license amendment authorizing Shoreham's decommis-g ' sioning (or even' converting LILCO's operating license-into a
~" possession-only" license) has not yet been issued. When such 4 ' amendments are considered and. acted upon, the NRC will make-the
- required findings about the common defense and security. ou C.F.R. $$:50.57(a), 50.92.
More' fundamentally, in suggesting that the " proposed decom -
-missioning of Shoreham at the'beginning of11ts useful life" might
'be found to be " inimical" to the " common defense and security,"-
' Petitioners proceed under a false premise'that creaks with faulty
' logic.- While,-indisputably, a determination that the " common l defense and security" will not be threatened is a precondition S
-t'-
16 for plant operation under the Atomic Energy Act, it certainly does not follow that considerations regarding the " common defense
_ and security" can themselves comoel operation of a plant.
- 2. CLI-90-08 Does Not Deny Petitioners
, their Procedural Richts under 6 2.714 h Petitioners also assert that CLT-90-08 denies them their
" procedural rights" under 10 C.F.R. 5 2.714. Joint Petition at
{ 24. According to Petitioners, only after the Commission has afforded them.an opportunity to amend their pending petitions F
_ pursuant to 5 2.73 4 (a) (3). and to submit contentions pursuant to
- 6 2.714 (b) (1) may the Commission or Licensing Board rule on any -
aspect of Petitjoners' requests for hearing. Joint Petition at 23-24.
Petitioners misstate NRC procedure. It is simply not true that, under.S 2.-714, the Commission or Licensing Board must wait L
until a petitioner has submitted contentions before ruling on whether.the petitionerchas standing to intervene.2r
?
ia 1/ .
The requirement.that a petitioner present at least one suitable contention before being admitted'as party is an Ad-ditional hurdle the- petitioner must clear: after demonstrating'his standing'to intervene. Should a petitioner fail to show on the face of his petition the requisite " interest" necessary to
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~ establish standing, the petition can be denied immediately and thel commission;or the Licensing Board ne ed not' await the filing of contentions. . Egg, 222A, . Louisiana Power & Licht Co. (Water-
- ford Steam Electric Station, Unit 3) , ALAB-125, 6 AEC-371, 372 l
-(19.73) ; ~. Vermont zwee Nuclear Power Core. (Vermont Yankee Nuclear Power S+.ation), LBP-87-7, 25 NRC 116, 119 (19C7).
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- 3. The Commission Need Not Defer to CEO's Interoretation Next, the Joint Petition asserts that the Commission "must ,
defer" to the interpretation of NEPA offered by the Chairman of the.CEQ in an october 9, 1990 letter to the Chairman of the NRC, in which (according to Petitioners) the CEQ Chairman implicitly called for the consideration of the alternative of resumed operation or at least of the "no action" alternative of deny- ;
ing the application for decommissioning.
I' Joint Petition at 14.
Neither the CEQ Chairman's October 9 letter nor the sup- ;
\
plemental_ comments filed on November 9 (see.part IV.B-below) !
l provides any reason for the Commission to reconsider CLI-90-08.
L In the first place, the NRC is not required to " defer" to CEQ's view ofLthe situation at Shoreham. When it promulgated its final D
NEPA-implementing. regulations, the commission specifically noted that, "as a matter ofilaw, the'NRC as an independent regulatory q u agency" can be !
L b bound.by.CEQ's NEPA regulations only insofar l! as those' regulations are procedural'or min-isterial in' nature. NRC is not bound by tho9e-portions of CEQ's NEPA regulations wh. h have a substantive impact.on the.way in i which the Commission performs its regulatory 1 functions. !
49 Fed. Reg.i9352 (March 12,~1984). Furthermore, CEQ is not' . ;
.l.~
entitled to: deference in this situation because its call for an EIS'considering the alternative of " resumed operation" of Shore-ham is predicated in large part on its apparent misunderstanding j of- the NRC's authority un' der the Atomic Energy Act to mandate j
-facility operation. Egg, e.c., CLI-90-08, slip op. at 8, 9&
t le n.4. CEQ has no particular expertise -- and is thus due no deference -- in matters arising under the Atomic Energy Act.
- 4. CLI-90-08 Is Premised on a Correct Interpretation of NEPA, Not on any-" Erroneous" Factual Findinas Finally, Petitioners protest what they view as the Commis- j i
.sion's improper reliance on " erroneous" findings of fact in issuing CLI-90-08. Joint Petition at 25. This argument fails on L at~least two grounda.
l First,-Petitionecs have misread CLI-90-08 in suggesting that !
h" the Commission:has predicated its primary holding regarding the L
l
- nature of tha " federal detion" at Shoreham on any particular l
factual fin, ,s. ... 'LI-90-08, the Commission addressed and g resolved purely legal issues regarding the scope-and effect of
^
-3 0 . NEPA on :LILCO's determination to , abandon the plant. At.best, the l =I K observations made by.the Commission regarding theLfactual situa- 'l p1 2 L tion-~at.Shoreham:are important only.for its' secondary ruling i L
-.(made--in:the alternative) that, if;" resumed operation"~were.an- q L Lalternative to-decommissioning,;such'an option need not be as-1 sensed under the NEPA'" rule'of< reason."
Second, Petitioners cite no authority-to suggest that the commission 11s precluded'from taking consideration of such matters l ll as New York State'1aw, binding contractual ^ agreements between
.LILCO and New York State, and representations made by LILCO-regarding-its irrevocable decision never to operate Shoreham.
Nor'do Petitioners refute the validity of thosel factual findings. ,
! t i
i 1
e
':., - , . _ _ _ _ _ . __-___-.__.__2_--_____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
.=
es 19
%V. The DOE and CBQ " Comments" Do Not Demonstrate that the commission Has Erred in its Internretation of NEPA While neither DOE nor CEQ in their November 9 " Comments" l
expressly request the Commission to reconsider and vacate CLI-90-08, each suggest that the Commission has erred in its inter-pretation of NEPA. In general, each argue that a full EIS must i
be prepared before the NRC may approve any action that may be directed towards Shoreham's decommissioning, and that such an environmental review must include the alternative of resumed
' operation.
In. general, neither set of " Comments" adds much to the NEPA-btsed arguments advanced in the Joint Petition, and the analyses offered-by DOE and CEQ are similarly unpersuasive. To the extent tho arguments proffered in the " Comments" overlap with those already advanced by Petitioners, LILCO's position on those points
, is'not repeatedLat length here. As1 appropriate, LILCO' responds
- below to certain specific points raised by DOE and CEQ.
A. DOE Comments
'While DOE provides a lengthy analysis of what it views as relevant NEPA case-' law,'. DOE, like Tetitioners, has1nonetheless failed-to confront the crucial issue on which the Commission based;its primary holding in-CLI-90-08:- that LILCO's decision to abandon Shoreham is not " federal action," and, ttus, any environ-mental' review of the-reasonable alternatives to the actual fed-eral action -- plant decommissioning -- does not excend to its oppositel 1A22, operating.the plant. Indeed, the agency's No-
. - - - _ - . . - ~ , - - - . .
e<
i
+;,-
20 vember 9 paper suggests that DOE has misunderstood t.e funda-i mental rationale underlying the Commission's holding, with DOE contending that the " Commission believes that . . its NEPA responsibilities extend no further than the narrow question of how the mechanics of a decommissioning are carried out." DOE !
Commente at 13, citina CLI-90-08, slip op. at 9.
This distorts the Commission's' holding in CLI-90-08. As (
that decision makes clear, the Commission is cognizant of the i l- full scope of its responsibilities under NEPA. But the Commis-L sion correctly. recognizes, as DOE does not, that the " alternative-of ' resumed operation' -- or other methods of generating electri-city - are alternatives to the decision not to operate Shoreham p and thus.are beyond Commission consideration." CLI-90-08, slip op. at 8. The Commission has properly determined that the "me-chanics of decommissioning" is the~only matter subject to its L -NEPA review, because the NRC's approval of those " mechanics" is !
l:
.the only;" federal action" actually present here.
i !
L Elsewhere, DOE suggests, as have-Petitioners, that " resumed operation" i;s an appropriate and necessary alternative to be considered under NEPA because "there are. currently in place L
Federaliemergency authorities . . . which could come into play and influence a decision to' operate Shoreham." DOE Comments at I i
19-20. Among.those " authorities," DOE contends, is the pcNar of
- the Secretary.of Energy under the-Federal Power Act to order the operation of an electrical generating facility whenever the'
' ' ~
Secretary determines that there is an energy emergency. Ist at 1___________u._______-____._______._._..__ . . - _ 4---
.Jl 21
- 20. As has been explained, even assuming that DOE's view of the scope of its power under the Federal Power Act were correct (and, as explained in note 8, above, that assumption is open to serious question as applied to Shoreham), the existence of such emergency authority does not transform LILCo's decision to close the facil-ity from a private one into " federal action," triggering NEPA, B. CEO Comments Like DCE, CEQ fails to deal with the key point that LILCO's ..
determination-to abandon Shoreham is not " federal action" and thus not subject to NEPA. Further, while the CEQ Comments ad-dress the question of what " alternatives" must be considered in a NEPA-mandated environmental review, they ignore completely the <
- precedents establishing that a federal agen undertaking'such a review need not address options that are not related to the goal- ;
of the proposed project itself. At one point, CEQ does appear to
- recognize _that the " proposed action" here is the " decommissioning' of the Shoreham: facility"-itself. CEQ Com;aents at 5. But CEQ ;
.. i then proceeds to argue, incorrectly, that the " environmental-consequences" of thatLaction include " increased reliance on other, perhaps less environmentally' desirable, sources of en- I argy." 142 at 5-6. The fact is, the primary." environmental consequence" of decommissioning the closed Shoreham plant will be the. decontamination of the facility and, ultimately, the' release of the plant site for unrestricted use. SAR, Atgt, 10 C.F.R. 5 50.82(f).
l l
1 l
22 Any increased use of alternative power sources, however, is plainly not a consequence of Shoreham's-decommissionina, but of the underlying decision by LILCO -- a private entity -- to aban-don the plant. . That decision is not " federal action," and thus, as noted, is not subject to NEPA review at all.
V. conclusion For the reasons given above, the Joint Petition should be denied.> In addition, the suggestior, by DOE and CEQ that the NRC should. prepare an EIS on Shn eham's decommissioning, to include consideration of the " alternative" of resumed plant operation should be rejected.
Respectfully subm tted, f
1 W. Taylor Reveley, III DonaldEP. Irwin' !
David S. Harlow~ l Counsel for Long Island Lighting company l-
=Hunton & Williams
~.~07' East Main Street (
L P.O. Box 1535 L ~ Richmond, Virginia. 23212 j : DATED:- November 13, 1990 L
l
J LILCO, November 13, 1990 j
.. I
- tut ;w UNITED STATES OF AMERICA U.3Ni<c NUCLEAR R3GULAiORY COMMISSION 1
'90 NOV 14 P4 :17 Before the Commission arr a ci SEciiorsy
()DCKi ilNG a M t'VlCf, In the Matter of MNM ;
)
) i LONO ISLAND LIGHTING COMPANY ) Docket No. 50-322
)
(Shoreham Nuclear Power Station, )
Unit 1) ) :
CERTIFICATE OF SERVICE '
l I hereby certify.that copies of LILCO'S OPPOSITION TO JOINT PETITION FOR ..
RECONSIDERATION OF CLI 90-08 AND RESPONSETO COMMENTS ON SHOREHAM'S I
' DECOMMISSIONING BY- DEPARTMENT OF ENERGY - AND COUNCIL ON-
, ENVIRONMENTAL QUALITY were served this date upon the following by Federal Exp'ress, -
L 'as indicated by an asterisk, or by first-class raail, postage prepaid. ,
' Comrnissioner Kenneth M. Carr, Chairman
- The Honorable Samuel J. Chilk j
, . Nuclear Regulatory Commission The Secretary of the Commission 1 1x ,
One White Flint North Building Office of the Secretary 11555 v.ockville Pike : U.S. Nuclear Regulatory Commission i Ro::kville,- Maryland 20852 Washington, D.C. 20555_
1 L Commissioner Kenneth C. Rogers
- Administrative Judge - .
P- . Nuclear Regulatory Commission Morton B. Margulies, Chairman -
L One White Flint North' Building ' Atomic Safety and Licensing Board b
11555 Rockville Pike U.S. Nuclear Regulatory Commission '!
Rockville, Maryland 20852 Washington, D.C. 20555 Commissioner James R. Curtiss*
~
- Administrative Judge Nuclear Regulatory Commission- Jerry R. Kline >
One White Flint North Building Atomic Safety and Licensing Bord 1
- 11555 Rockville Pike U.S. Nuclear Regulatory Cor'. mission .
Rockville, Maryland 20852. Washington, D.C. 20555
[
Commissioner Forrest J. Retnick* ' Administrative Judge.
' Nuclear Regulatory Commission Atomic Safety and Licensing Board . .i 9 One White Flint North Building - George. A. Ferguson
' 11555 Rockville Pike 5307 A'. Jones Drive
. Rockville, Maryland ' 20852; Columbia Beach, Maryland 20764 i
-i
.(
,.2-.,
o 2
Michael R. Deland, Chairman
- Carl R. Schenkt Jr. , Esq.*
Council on Environmental Quality Counsel, Loac .4 Power Authority Executive Office of the President O'Melveny & ;4yers 722 Jackson Place, N.W. 55513th Street, N.W.
Washington, D.C. 20503 Washington, D.C. 20004 Mitzi A. Young, Esq.* Stephen A. Wakefield, Esq.* ,
Office of the General Counsel General Counsel -
U.S. Nuclear Regulatory Commission U.S. Department of Energy One White Flint North 1000 Independence Avenue, S.W.
I1555 Rockville Pike Washington, D.C. 20585 Washington, D.C. 20852 Charles M. Pratt, Esq.
James P. McGranery, Jr., Esq,* Senior Vice President and General Counsel 1 Dow, lehnes & Albertson 22nd Floor 1255 23rd Street, N.W., Suite 300 Power Authority of State of New York ;
Washington, D.C. 20037 1633 Broadway :
New York, New York 10019 L' hT /M-
" David SN10w L
Hunton & Williams L - 707 East Main Street ,
1 P,0; Box 1535 Richmond, Virginia 23212 '
I
- DATED: November 13,1990 k
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