ML20062F634
| ML20062F634 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/13/1990 |
| From: | Schenker C LONG ISLAND POWER AUTHORITY, O'MELVENY & MYERS |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20062F614 | List: |
| References | |
| CLI-90-08, CLI-90-8, NUDOCS 9011280084 | |
| Download: ML20062F634 (32) | |
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UNITED- STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4 E Before the Commission c.
t
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In the Matter of )
)
- l. LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 !
L )
l (Shoreham Nuclear Power Station, )
L: Unit 1) ) r E ) i a
.L RESPON8E OF THE.LONG ISLAND POWER AUTHORITY-TO f (1) JOINT PETITION FOR RECONSIDERATION OF CLI-90-08 i AND (2) OOMMENTS BY DOE-AND CEO b
i On October.17, ^1990, the Nuclear Regulatory ;
f p Commission ("NRC" or " Commission") ruled "that the NRC Staff i g
need'not file an EA or a, EIS reviewing and analyzing (
4
' resumed operationof Shoreham as a nuclear power plant as "i
[ .an alternative under NEPA." (Memorandum and Order,-CLI l-L 08'(" Order":or "CLI-90-08") at 11.). OnLOctoberf29, 1990,. j' L . .
. 'l' L
.the Shoreham-Wading River Central School District and'the p >
Scientists and. Engineers.for Secure Energy, Inc.
.y 13 (collectively,-" petitioners") petitioned the NRC-to ;
reconsider' CLI-90-0Bdf On November 9,.1990, comments- (
raising-similar points about CLI-90-08 were-filed.by the Department"of Energy (" DOE") and.by the' Council on i<
Environmental Quality ("CEQ"). Those submissions
)
i
- ' Sam. Joint Petition for. Reconsideration of the L
Commission's Decision CLI-90-08 by Shoreham-Wading River l
. Central School District and Scientists and Engineers for .
Secure' Energy,.Inc. <(dated Oct. 29, 1990) ("Jt. Pet.").
9011200004 901113 %
l:
PDR ADOCK 05000322 ',
. O pop g Dif .. ._. . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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specifically recommend that the Commission prepara an EIS considering the alternative of Shoreham's operation before acting.on the request of the Long Island Lighting company ;
t-("LI LCO") for issuance of a possession-only license
, ( " POL") . 21 l
L.
The Long Island Power Authority ("LIPA")
respectfully urges that the NRC deny reconsideration of_CLI-L 90-08 and reject 1the position urged by DOE and CEQ i concerning amendment of Shoreham's license to POL-status, p
Neither petitioners, DOE, nor CEQ has. proffered any credible
- basis to question.the correctness of the Commission's three L
basic' holdings in CLI-90-08i (1) the decision not to j
' operate Shoreham.is not a federal action subject to the Commission's jurisdiction under the Nati'nal o Environmental
. Policy Act1 ("NEPA") ; (2) under NEPA, the resumed operation !
oftShoreham11s not a cognizable alternative to any federal action but, rather, is at alternative to the non-federal ,
7
. decision of- LILCO and. New York State that' Shoreham not be operated as-a nuclear power plant;;and (3) even if resumed eoperation were in theory a cognizable alternative, the- <
E 'Shoreham Settlement'and actions taken in connection with that Settlement exclude resumed operation as a reasonable i alternative' for Shoreham. .Since these holdings stand at Edut Amicus Submission by the United States Department of' Energy l(dated Nov. 8, 1990) (" DOE Comments") ; Letter from Michael'R. Deland, Chairman,-CEQ_to Commissioners _(dated '
,, Nov.59, 1990) ("CEQ Comments").
2
i y
unscathed, there is no basis for-reconsidering CLI-90-08, I
nor for preparing an EIS considering operation of Shoreham prior - to amending LILCO's license to POL status.
i LIPA first addresses the request for reconsideration made in the Joint Petition. Much of what is.
said in ' LIPA's response thereto is equally applicable to 7 last Friday's submissions by DOE and CEQ. Additional matters raised by the DOE /CEQ submissions are discussed in ;
Part II below.2' PART It RESPONSE TO JOINT PETITION FOR RECONSIDERATION OF CLI-90-08
'Instead of contesting the NRC's basic holdings in L
CLI-90-08 head on, the Joint Petition; proffers a mishmash of arguments-concerning'CEQ regulations,:the NRC's and DOE's emergency authorities under the-Atomic Energy Act and the 1
Federal' Power Act, and other matters. None of these arguments'are persuasive and many should be summarily rejected because they'have not been raised'previously. Egg I
Central Elec. Power Cooo. (Summer Nuclear Station, Unit 1),
L .CLI-81-26, 14 NRC:787, 790 (1981) (reconsideration motions o '
l al' LIPA has addressed most of the NEPA issues-raised by-petitioners, DOE, and CEQ'previously in a May 16, 1990 Memorandum'which was attached to LIPA's Comments in Response .
l to the Commission's' October 3, 1990 Order (filed Oct. 12, 1990). LIPA respectfully refers the Commission to.that
- Memorandum.for a more-detailed discussion of NEPA issues. ,
3 i
)
are n. t1 occasions for presenting new legal theories).
Notertheless, LIPA responds below to each of petitioners' major arguments.
A. Petitioners' Points 1, 4 & 8: Resumed Operation of
- Shoreham as Alternative to Decommissioning (Jt.
E Pot, at 3-11, 16-20, 25-27).
Petitioners' chief argument is that resumed operation of Shoreham constitutes an " alternative" to decommissioning'that must be analyzedLby.the NRC under NEPA.
9 There are-multiple reasons why petitioners are wrong.
m i- 1. . The principal holding in CLI-90-08 is that
-there was rui federal action in the decision not tu operate
. Shoreham and hence that alternatives'to that non-federal decision-"are beyond Commission consideration." (Order.at 8
-(footnote omitted).)- This holding is. clearly correct.
An EIS, including a. study.of alternativos tcta
]~
proposed action, is required under NEPA only as co
" proposals.for . . . . major Federal actions" significantly-g, ,
affecting_the' environment.- 42 U.S.C. I 4332(2)(C) . Under-1 NEPA, there is no occasion for. study of alttrnatives.to, or-impacts =of,-non-federal action. 333, L.L., W ural F- . Resources Defense' Council. Inc. ("NRDC") v. EPA, 822;F.2d 104, 129 & n.25, 131 n 27 (D.C. Cir. 1987).
i_ 4
Petitioners themselves identify the loss of Shoreham's generating capacity as the decision to which
" resumed operation of_Shoreham is an alternative . . . . "
(Jt. Pet. at 8 n.2.) Accordingly, the supposed alternative of Shoreham operation is relevant under NEPA only if there was " Federal action ()" involved in the decision not to operate Shoreham. However, as set forth in CLI-90-08, the decision not to operate Shoreham involved no federal action; rather, that decision was made solely by LILCo and New York State officialc. Thtrefore, since there was no federal m action,.NEPA is not applicable.M
- 2. In an apparent attempt to create " Federal action [}" where there"is none, petitioners argue that the g decision'not to operate Shoreham is somehow dependent upon NRC' approval of license transfer from LILCo to LIPA or on approval of a decommissioning plan. Thus, petitioners suggest that if the Asset Transfer Agreement were to
. terminate due to NRC denial of the license transfer, that M I4 :s true, as the NRC.noted in CLI-90-08, that the NRC
,has-juta; diction over certain activities that LILCO or LIPA will pursue in the. aftermath of the non-federal decision not to operate Shoreham. That NRC jurisdiction satisfies the
- federal-action requirement'as to those activities. But the courts have held squarely that NEPA does not apply to a non-federal decision which sets in motion a process in which federal approvals will be required for subsequent steps.
Egg NRDC v. EPA, 822 F.2d at 129 &.n.25, 131 n.27; Edwards
- v. First Bank of Dundee, 534 F.2d 1242, 1245-46 (7th Cir.
1976).-
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1 could pave'the way for renewed operation of Shoreham, i Therefore, according to petitioners, the decision not to operate Shoreham is dependent on federal approval. (Jt.
Pet. at 8 n.2-&-26-27.)
Petitioners are, wrong. Even if the NRC were to I
deny licence transfer end the Asset Transfer Agreement were ;
to terminate, LILCO vould still be barred from operating Shoreham. This is set forth clearly in Article IX of the Asset Transfer Agreement.A Thcr61 ore, the decision not to operate Shoreham is not contingunt on any federal approval.
0 3. Petitioners,apparently contend that the supposed existence of federal authority to require Shoreham's operation in certain emergency situations1' ,
somehow implicates the federal government in the decision not to operate Shoreham and-hence requires consideration under NEPA of the alternativa of operating the-facility.
(Jt. Pet. at 15-20.) -Petitioners' argument is clearly inccrrect.
l' Article IX specifies that even if the Asset Transfer Agreement terminates such as due to failure to consummate <
the license transfer, LILCO will never operate Shoreham so Llong as the settlement Effective Date has occurred. The' Settlement Effective Date occurred on June 28, 1989, when LILCO's shareholders approved the Settlement. ,
l' Petitioners cite Sections 108, 186,.and 188 of the ~
. Atomic Energy Act, 42 U.S.C. SS 2138, 2236, 2238, and Section 202(c) of the Federal Power Act, 16 U.S.C.
5 824a(c). (Jt. Pet. at 15-20.) !
i 6 l
In the first place, LIPA respectfully submits that the cited statutes vould not authorize an order by either the NRC or DOE to compel operation of Shoreham.
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Among other reasons why such an order could not be sustained, any federal authority to compel operation of a nuclear power plant in'an emergency logically presumes the existence of an operational plant at that time.I' However, even assuming for the sake of argument that the cited statutes might one day. authorize an order compelling operation of a plant such as Shoreham, there still is no " Federal action ()" within the meaning of NEPA in the decision not to operate Shoreham.
That decision, made in 1989 and since adhered to by LILCo and the State of New York, was -completely separate from the federal statutory authorities cited by pet'itioners and thus is completely separate from any federal action, l'
Notably, petitioners cite no precedent for an order by either the NRC or DOE compelling a-licensee to expend substantial time and money to prepare a previously closed plant for temporary operation, particularly a plant that the affected State has determined should not be operated.
Indeed, there is an Alice-in-Wonderland-quality to petitioners'-argument (Jt.-Pet. at'18) that LILCO's license could be revoked under Section 186 of the Atomic Energy Act for.non-o.peration, with the NRC then operating Shoreham under Section 188 in contravention of the wishes of New York State. The argument also proceeds from a. false factual
-premise. When the Shoreham license was issued in April 1989, the NRC knew that LILCO had signed the Settlement Agreement in' February 1989 and, thus, that the license would likely never be used. Ac ordingly, petitioners have no basis to urge that LILCo's non-use of.the license somehow provides grounds for license revocation.
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The assumed power of the NRC or DOE to compel operation of '
Shoreham in certain limited circumstances does not i constitute a requiremert that either federal agency approve i
LILCO's non-operation of Shoreham. Rather, if the assumed power exists at all, it simply authorizes the NRC or DOE to ;
compel operation of a nuclear power plant as a federal initiative in certain limited circumstances. If ever ,
exercised as to Shoreham (and upheld by the courts), the !
assumed power obviously would contravene the non-federal decision not to operate Shoreham. But federal power to contravene a non-federal decision does not make the non- !
federal decision a " Federal action ()" within the meaning of NEPA. Tdut Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980).8' In the absence of federal action, there ,
remains no occasion for consideration of resumed operation 1
A' In Defenders of Wildlife, the State of Alaska undertook a wolf-kill program on federal lands. No approval was ,
required from the Secretary of the Interior,-but he could l have prevented the non-federal action had he so chosen.
Animal-welfare grou.s sought to compel preparation of an EIS concerning Alaska's wolf-kill program, claiming that the
-. federal-action ~ requirement was satisfied by the Secretary's unexercised authority to intervene. The D.C. Circuit denied j relief, holding that "there is (no).' federal action' where 1
- an agency:has.done nothing more than fail.to prevent the other party's action from occurring." 627 F.2d'at 1244; gas i District of Columbia v. Schrgma, 631 F.2d 854 (D.C. Cir.
1980). Here, similarly, the assumed power of: the NRC or DOE to contravene the non-federal decision not1to operate Shoreham does not constitute federal action invoking NEPA.
Moreover, contrary to petitioners' arguments (Jt.. Pet. at 16), _an EIS is'not required 1merely because a' federal agency miaht make a proposal. Egg, gigt, Defenders of Wildlife v.
Andrus, 627 F.2d at 1243 ("only when an agency . . . is ready to propose a course of action need it be ready to produce an impact statement").
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k as an alternative to the non-federal decision made by LILCO and the State of New York. ->
I
- 4. The emergency statutes not only fail'to I
satisfy.the federal-action requirement, but they also are irrelevant to petitioners' argument that operation of Shoreham must be considered under the " rule of reason" recognized in NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972).
. (Eng Jt. Pet. at 10.) It is true that an agency.must consider alternatives to proposed federal actions, including ;
alternatives which are beyond the agency's authority.
. However, the courts have made clear that an alternative must-be "' reasonably related' to the scope and goals of the proposed action." (order at 6, quoting Process Gas Consumers Grouc v. U.S. Denartment of Acriculture, 694 F.2d 728,.769 (2d'Cir. 1981).)- The proposed federal action at issue for Shoreham, taken at its broadest, is Shoreham's decommissioning. As noted in'CLI-90-08, resumed" operation.
1:s not " reasonably related" to the scope and goals of
= Shoreham's decommissioning. (Order at'9-10.)2/
I 1
2' . . Resume'd operation of Shoreham is the precise opposite I of what LILCO and LIPA have undertaken ---the. permanent l
- closure of.Shoreham. Such an alternative is not cognizable under NEPA. Rather, it is a basic NEPA principle that an EIS "need not develop an alternative which is essentially.an entirely.different project." Miller v. United States, 492 F. Supp. 956, 9631(E.D. Ark. 1980),.aff'd, 654 F.2d 513.-(8th-Cir. 1981);. Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974) (" range of alternatives . . . need not l extend beyond those reasonably related'to the purpose of the l project").
9
- 5. Petitioners state several times that NEPA requires consideration of the "no action" alternative. (Jt.
L Pet. at 4, 6-7.) This point is not relevant to petitioners' insistence on consideration of resumed operation of i
Shoreham, because petitioners acknowledge that the no-action alternative would simply' involve denial of LILCO or LIPA applications to the NRC. (Id. at 14.) Such denials, however, would continue Shoreham in its defueled and non- l operating -- but still contaminated -- cor.dition. The NRC has already prepared an EIS rejecting such treatment of closed nuclear power plants.M' i
- 6. Finally, petitioners half-heartedly dispute the basis for the Commission's alternativeLholding "that even if ' resumed operation' were an alternative to decommissioning,-we would not be required to consider it
- M' The NRC has rejected the no-action alternative and has identified.DECON, SAFSTOR, and ENTOMB as the only
-decommissioning. alternatives. Egg NUREG-0586,-Final Generic ;
- Environmental Impact Statement on Decommissioning of Nuclear ,
Facilities i 2.4.11(August 1988) . Petitioners also assert that!the-NRC."certainly has the authority to prohibit the dismantling" of shoreham' (Jt. Pet. at 17 n.6), thus-implying
'that'the.NRC could-require-LILCO to-maintain the plant indefinitelygin'a condition whereby operation could in theory be resumed. Petitioners cite,no authority for this assertion. 'In any-event, this argument plainly.is nothing-but a variation of petitioners' basic argument that the NRC must consider Lresumed operation. There is no conceivabis J basis or reason to' prohibit dismantlir.g other than se an -
intermediate step in an effort to override the non-federal-decision not to' operate Shoreham.- Thus, the supposed. ,
alternative of prohibiting dismantlement is not cognizable
_under NEPA. for all the same reasons applicable to the alternative of operating Shoreham.
10
- 'under the NEPA ' rule of reason.'" (Order at 10; 313 Jt.
Pet. at 7-8, 25-26.) But petitioners raise no doubt on that
-score. First, as pointed out previously, LILCO is legally-bound never to operate Shoreham. Second, petitioners fail:
+'
to! refute the Commission's extended recitation of undisputed facts in support of the NRC's conclusion'that operation of Shoreham is.not a reasonable alternative. As noted in CLI-
, 90-08, these facts include:
-- LILCO's repeated declarations that it will not operate Shoreham and its actions consistent therewith, such as defueling the plant, reducing staff, seeking amendment of its license to POL status, and seeking a purchaser for the nuclear l
' fuel; I
'1 The declaration of New York. State that it will not. l 1
operate Shoreham after the license transfer and the LIPA Act prohibitions against LIPA's operating 1 l
the facility.as a nuclear-plant; j
Approval of the Settlement Agreement and Asset-1 Transfer Agreement by-the Nek York Public Service Commission, together with both rate relief for LILCO and a tax deduction by LILCO for abandonment loss, all' underscoring the irrevocable nature of the decision not to operate Shoreham; and p
11
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-- The unanimous New York State Appellate Division l
decision upholding the settlement Agreement and l
the Asset' Transfer Agreement.ut ,
The foregoing facts demonstrate that Shoreham's operation would not constitute a reasonable alternative even if kne
, NRC had. jurisdiction to consider it.
i B. Petitioners' Point 2: Alleged Violation of NEPA Scoping Regulations (Jt. Pet.
at 11-13). ,
1
. Petitioners urge,that CLI-90-08 violates the NRC's
.NEPA scoping regulations. According to petitioners, CLI-90-08 constitutes a decision determining the scope of the EIS alleged to be rescired for Shoreham's, decommissioning m
but the scope of an EIS can-only be determined via the 1 process described in 10 C.F.R. 55.50.28-51.29. (Jt. Pet. at 11-13.) There are multiplaireasons why petitioners' argument should be rejected.
First, petitioners themselves raised in their i intervention petitions the issue of the need for an EIS to consider the alternative of reaumed operation of Shoreham.
E' They cannot now complain that the issue was addressed upon M' Citizens for an Orderly Enerav Policy v. Cuomo, 159- ,
A.D.2d 141, 559 N.Y.S.2d 381 (3d' Dept. 1990).
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)
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consideration of the intervention petitions. It is standard j
-NRC practicei for an NRC licensing. board, or the Commission if it chooses to exercise jurisdiction,u' to address such issues ~ raised in intervention petitions -in order to 5
-determine whether the petitioner has standing.ui It is no violation of the NRC's scoping regulations for the Commission, in the context of dealing with an intervention petition, also to have provided guidance on issues related to some future EIS which might be required.M#
Second, without conceding that petitioners have correctly described scoping or its general applicability, the fact is that scoping, as defined in the regulations, comes into-play only when the NRC hasfdetermined that a full ,
ul The NRC has authority at any time to provide guidance on tha course of a proceeding. Public Service Co. of New l Hamnshire (Seabrook Station, Units 1 and-2), CLI 17-8, 5 NRC 1 503, 515-17 (1977).
ut The Commission' determined in CLI-90-0C that 1 petitioners' request to require analysis of resumed L -operation'of Shoreham did not. fall within the NRC's L ' authority under NEPA.- It clearly was-appropriate for the ;
NRC to issue such a; ruling at the outset of.a proceeding.
E.g., Public Service Co. of Indiana (Marble Hill Nuclear Generating ~ Station, Units 1 and 2), CLI-80-10, 11 NRC 438,
-439 (1980); Portland Gen. Elec. (Pebble Springs Nuclear j Plant, Units 1 and 2) , J CLI-76-27, 4 NRC 610, 613-14 (1976). !
M' Petitioners assert that the NRC regulations " establish
-that the scoping process is the sole means of determining
'the scope of the statement.'" (Jt. Pet. .at.12, quoting 10 C.F.R. 5 51. 29 (a) (2)-. ) The NRC regulations do not state that the scoping process is the "sola means" of determining the scope of an EIS. Rather, the regulations describe the scoping process but do-not'in any way limit the Commission's
' inherent authority to provide appropriate guidance.
t 13
EIS is required. Egg 10 C.F.R. $$ 51.27, 51.29.u' Here,-
there has been no decision whether an EIS will be' required, although given the NRC's generic EIS on decommissioning (NUREG-0586) and-the NRC's discussion in.the preamble to the final decommissioning rule (133 53 Fed. Reg. 24039 (1988)),
there is every reason to believe~that Shoreham's decommissioning will never require preparation of an-EIS.- ,
Thus, the issue of scoping has no present relevance and may never arise at all for Shoreham. If scoping were to occur, issues would be identified in a manner consistent with CLI-90-08. I Third, even if on,e were to assume that the NRC's t scoping rules do apply to the present situation, petitioners have no basis >for complaint. The scoping rules are designed to ensure that interested persons have an opportunity.to present their views on the scope of'a required EIS. Egg 10 ,
C.F.R. 5 51.28. ! Petitioners clearly have had such an opportunity,1having filed extensive papers in April and May i
1990, further papers in September 1990, and the instant.
LJoint Petition on October 29, 1990. Petitioners point to no i
. prejudice from.the procedure followed by the NRC.
l ,
lC n' If the only need-is for supplementation of a prior EIS, l- -no scoping is required. Egg 10 C.F.R. 55 51.92(c), '
51.95(b).
14 ,
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i-f.
. C. Petitioners' Point 3: Deference to the CEQ (Jt. Pet. 3 at 13-16).
Petitioners urge that the NRC-committed error in i not relying on the October 9, 1990, letter from CEQ's Chairman Deland, which " implicitly called for the consideration of the alternative of resumed operation."
(Jt. Pet. at 14.) Petitioners are wrong in asserting that the NRC was required to defer to CEQ's recommendation.
First, while it is generally correct that federal agencies should show deference to CEQ's regulations pertaining'to NEPA, no deference is required to CEQ
-interpretations of another agency's governing statute. When 1
the NRC declined to follow the recommendation in Chairman
-Deland's letter-(Order at 9 n.4), the NRC acted based upon its interpretation of'whether, under the Atomic Energy Act, 3 there was any federal action involved in the decision not to i y
ll operate Shoreham. Petitioners do not even suggest that any l L H L CEQ. regulation was violated by-the.NRC's ruling that there was no federal action. Therefore, no matter requiring deference was presented. .
Second, petitioners overstate the deference to be j shown to CEQ. The NRC has stated that, as an independent l
regulatory agency, it l
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b .
[ d l L F can be bound by CEQ's NEPA regulations only insofar as H those' regulations are procedural or ministerial in i L nature. NRC is not bound by those portions of CEQ's [
1 NEPA regulations which have a' substantive impact on the L way in which the Commission. performs its regulatory i functions.
t 49 Fed. Reg. 9352, col. 2 (1984). Since the NRC rested its decision in CLI-90-08 principally on the question whether non-operation of Shoreham involves any federal action under the Atomic Energy Act, the NRC would not have been bound i even if there were contrary CEQ regulations.
Third, petitioners confuse deference to CEQ's ;
l e procedural regulations and deference to CEQ. Chairman l
Deland's letter. There is nothing in NEPA-case law-(or in-l the-NRC's regulations) which requires the NRC to accept or j
'show deference to a letter submitted-on an ad hoc basis by-CEQ, especially one so notably devoid of reasoned application of NEPA.to the question before the agency. 1 Indeed,;the NRC, after indicating that it would generally-
'1 follow the CEQ regulations published in 40 C.F.R., also made 1 l
clear that it'was n2t committed.to accept CEQ's future
. interpretations of NEPA requirements. Rather, the NRC stated that it will "(e]xamine any future interpretatlon (of]1 . . the rnuncil's NEPA regulations . . . 10 C.F.R. .S 51.10(b) (1) ; gag 49 Fed. Reg. 9359, col. 2 (1984).
Here, the NRC did adequately examine the CEQ interpretation contained'in Chairman Deland's letter and determined that it 16 l
l l
should not.be followed. The NRC's action complies fully
'with its regulatory and statutory responsibilities.
D. Petitioners' Points 5_i_i: Allegations of Abdication of Atomic Energy Act and '
NEPA Responsibilities (Jt. Pet. at 20-22). '
Petitioners allege that the NRC has abdicated its responsibilities-under the Atomic Energy Act by failing to discuss how approval of Shoreham's decommissioning would satisfy.the requirement that its actions not be inimical to the common defense and security.of the United States. (Jt. ,
Pet. at 20-21.) Petitioners also argue that resumed i operation of Shoreham would; contribute to protection of the environment and'that the NRC has violated NEPA by failing to take action to protect the environment. (Id. at 21-22.)
Except'for: making these conclusory allegations, petitioners offerino disc ussion of the basis ' for the allegations or how
- f. they relate co CLI-90-08 and the NRC's holdings therein..
Such unsu 7orted (and unsupportable) allegations deserve i L
l:
summary rejection. ;
E. Petitioners' Point 7: Alleged Violation of 10 C.F.R. 5 2.714 (Jt. Pet. at 22-24). i L 1 1
i Petitioners allege that the order violates their procedural rights-in that it defines the scope of the 17 i
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... - ~. ._.
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proceeding in alleged violation of 10 C.F.R. I 2.714.
Petitioners are wrong..
The Commission has-authority at any time to-V ,
provide guidance regarding issues in any proceeding.- Public l Service Co. of New Hamnshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 515-17 (1977). Further, the ,
Commission's ruling in CLI-90-08 was in direct response to intervention pleadings filed by petitioners with the ;
commission. -There is no basis for petitioners to complain that the commission has proceeded to rule on one issue raised in their petitions. The NRC has now remanded the -
intervention petitions to the Licensing Board before which all of-petitioners' Section'2.714 rights are preserved.
(Order at 11.)
PART III i RESPONSE TO SUBMISSIONS BY DOE AND CEO v .
The Commission has before it LILCO's application to amend the Shoreham license to POL status. In that connection, on October 3, 1990,-the Commission sought the views of LILCO and. the NRC Staf f as to whether 10 C.F.R. . l 5 50.82" requires submission and approval of a
. decommissioning plan prior.to the submission of an application for a POL. (Order dated October 3, 1990, at 2.')
Subsequently the Commission invited comments by DOE and CEQ 18
)
.e on issues related to the proposed POL. (E3A Order dated.
October 16, 1990, at 2.)
DOE and CEQ filed their comments on Friday, November 9. Neither agency expresses any view whatever on i
the question concerning 10 C.F.R. I 50.82 posed in the i commission's October 3 Order. Instead, both submissions are confined entirely to NEPA arguments. Both submissions contend that, before a.aending the Shoreham license to POL status, the NRC must prepare a " comprehensive" EIS embracing the POL amendment,-license transfer, and decommissioning'and ,
-- contrary to CLI-90-08 -- addressing the supposed q alternative of operating Shoreham. .(DOE Comments at it.CEQ Comments at 7.) As vill be shown,.however, nothing in the ;
DOE /CEQ submissions calls into question the correctness of 4 CLI-90-08, nor justifies-preparation of an omnibus ,
environmental analysis of any kind prior to amendment of the Shoreham. license:to POL status.
LA. OPERATION OF-SHOREHAM IS NOT AN ALTERNATIVE COGNIZABLE UNDER NEPA.
The DOE /CEQ arguments for an omnibus EIS depend entirely on the notion that NEPA requires.the NRC to consider the supposed " alternative" of operating Shoreham.
-(DOE Comments at 13-21; CEQ Comments at 4-8.) As already shown, however, the principal holding of CLI-90-08 was that 19
1 .
, .- l the decision not to operate Shoreham is not a federal action
- and hence that alternatives to that decision are not cognizable under NEPA. Neither the DOE Comments nor the CEQ Comments address the NRC's federal-action holding in any 1
way, much less demonstrate error in it. Thus, DOE and CEQ l
completely fail to provide any basis upon which the Commission should depart from the decision in CLI-90-08 that the NRC cannot consider the alternative of operating Shoreham. i
- c Bypassing the federal-action issue, DOE and CEQ focus on the subsidiary issue of what alternatives must be considered when federal action exists. For the most part, i the DOE /CEQ. arguments on that issue proceed along the same lines as the arguments in the Joint Petition, and thus are L fully' rebutted by LIPA's analysis in Part II.A above. It is l necessary to address separately only four points.
- 1. DOE seeks thrcugh semantics to circumvent the p
holding in CLI-90-08~that operation of Shoreham is not an lt L alternative reasonably related to the upcoming proposal for decommissioning. (Egg Order at 8-10.) According to DOE, operation of Shoreham is the " appropriate characterization ,
of-the no-action alternative" to approving a decommissioning I
plan. (DOE Comments at 15.) Hence,-reasons DOE, operation i
must be' considered under the NRC's obligation to consider 20 1
2
-1 i the "no action" alternative to proposed federal action. .
(Id.'at 15-17.) !
DOE's stratagem fails on several scores. First, it is well established that the no-action alternative is i n
that which continues the status quo. Kilrov v. Ruckelshaus, 4 738'F.2d.1448, 1453-(9th Cir. 3984).. Far from continuing :[
h the status quo, the alternative of operating Shoreham clearly would mark a conspicuous departure from the status quo and would involve myriad affirmative actions moving the 1
plant away from its present inoperative status. Thus, there J is no colorable claim that operating Shoreham constitutes; j q
- the no-action alternative to decommissioning of a non-7 operating plant.ut . Notably, the Joint Petition concedes _
+ that the no-action: alternative would be simple denial of the decommissioning plan. (Ema Jt. Pet. at 14.) And DOE provides no support whatever for'the-contention that operating Shoreham is the no-action alternative to approving p a plan for radiological decontamination'of Shoreher..- l I
L L ,
L H V .l !
l:
M The commission stated: "(T]he purpose of ,
o decommissioning,.would be to return-the facility to a l
!' condition-which ' permits release'of the-property for l~ unrestricted use . . . .. '" (Order at 9, auctina 10 C.F.R.
n 5 50.2.) Failure to approve' decommissioning -- 123., taking 1
- no. action -- would simply leave the' plant in a contaminated u state. Operation could occur only if some new and distinct i action were pursued in complete contradiction to the non-federal decision to close Shoreham.
21 l
Further, even if operation of Shoreham were considered the no-action alternative to some proposed federal action, there still would be no occasion for considering operation of Shoreham. Whether characterized as action or the no-action alternative', operation of Shoreham l l
would be excluded from NEPA consideration under the " rule of 4 reason." DOE contends otherwise, claiming that " analysis of the 'no-action' alternative is always appropriate, aven if l 1
an agency'is under a judicial or legislative command to act." (DOE Comments ~at 15-16.) But-this is incorrect.
Like other alternatives, the no-action alternative need not be discussed in an EIS when it lies outside the range of-alternatives established by.the rule of reason. Kilrov v.
i
.Ruckelshaus,' -738 F.2d at 1453, 1
- 2. 'In another new argument, DOE contends that in
' applying the rulelof reason,La federal' agency may only consider hurdles to an alternative. rooted in federal law., q Thus, according to DOE, the NRC must pay no-attention to the i state-law obstacles'noted in CLI-90-08. -(DOE Comments at 18-19.) For this proposition,. DOE' cites NRDC v. Morton,-458 .
F.2d 827-(D.C. Cir. 1972). DOE is flatly: wrong.
NRDC v. Morton did not hold that only federal policies or statutes could. rule out an alternative under the rule of reason. To the contrary, NRDC v. Morton reversed t'9 trial court for requiring the agency to study 22
. i alternatives that conflicted with state-law policies. Egg 822 F.2d.at 031-32, 837-38.H' Moreover, to disregard state-law' obstacles in identifying the alternatives cognizable under NEPA could only embroil federal agencies in preparing i the very type of pointless, unbounded boilerplate EIS's that I
the rule'of reason seeks to avoid. Id. at 837-38.
i
- 3. Like the Joint Petition, the DOE Comments assert that the Secretary of Energy could require operation l L of Shoreham under Section 202(c) of the Federal Power Act, !
16 U.S.C. $_824a(c). (DOE Comments at 19-20.) LIPA vigorously disputes the assertion that this narrowly- 1 L ~p hrased,Hexpressly temporary emergency authority would empower DOE-to order LILCO to prepara a non-functioning
. nuclear plant for operation, at great cost and over l considerable time and-in contravention of binding agreements found tolbe lawful by the New York _ State Appellate Division j i
.in litigation to which DOE was a party. (Egg n.11 supra for ;
citation.)- ;
1 But even if Section 202(c)-would authorize DOE to compel l operation of Shoreham as a federal initiative,-LIPA ,
has already shown that the statute provides_no occasion for-NEPA' consideration of-that possibility in connection with t
'H' The district court had required consideration of the- !
alternative of-"' administrative action freeing current.
onshore and~ state-controlled offshore production from state market demand prorationing.'" 822 F.2d at 831-32.
23
'0: I the post-op6 ration activities that have been or will be proposed by LILCO or LIPA. (Egg pp. 6-9 supra.) DOE's i submission succeeds only in underscoring-why the rule of ,
= reason would exclude consideration of enforced operation as an alternative. As DOE itself concedes, the statute confers m emergency authority applicable only in limited circumstances. Those circumstances are not contended to exist at present and, if they came into existence, would be !
transitory in nature. (Eng DOE Comments at 20.) Studying the alternative of temporary enforced operation on the
~
a.
consibility that circumstances relevant under the statute might briefly come'into existence and that the Secretary then miaht. seek to compel temocrary operation of Shoreham, in the face of certain dispute and litigation, piles I
conjecture on speculation. Such an alternative falls l outside1the ambit of the rule of reason. I l
l l
c4. Finally, DOE apparently contends that the l supposed alternative of' resumed operation must be considered because the'NRC's decommissioning rules and generic EIS did.
not contemplate premature plant closures. (DOE Comments at l l'
6-13.) This is irrelevant if, as here, such closure is L predicated.upon non-federal action. Moreover, in. j promulgating its decommissioning regulations, the-Commission stated: "These amendments apply to nuclear ~ facilities that-
! operate through their normal lifetime, as well as to those 24 l
o i
, l l
- . ; l that may be shut down erematurelv." 53 Fed. Reg. 24,019, col. 1-2 (1988) (emphasis added).
l*
B. .THE IMPACTS OF REPLACEMENT FACILITIES ARE NOT COGNIZABLE UNDER NEPA. ,
DOE also discusses at length possible 1 l
environmental ~ impacts of the non-federal decision not to l
operate Shoreham, focusing on replacement generating l
facilities.- (DOE Comments at 2-13.) DOE apparently views these environmental. impacts as some sort of substitute for- !
l the federal-action requirement. (1d. at 13.) LIPA does not dispute.that closure of Shoreham may eventually require the construction of new generating facilities. But the impacts ,
of the non-federal decision to.close Shoreham plainly trigger no NEPA 'jurisdic tion.H' Like the subject of alternatives, impacts of are action are to be studied under NEPA'only when the-. action proposed is " major Federal action ()" and.will be the cause of those impacts. 42 U.S.C. S 4332(2)(C) . Just as 3 alternatives to'non-federal action are not cognizable.under !
i.
31 LIPA's May 16, 1990. Memorandum, pp. .18-20, also .
D demonstrates that the indirect effects of closing ShorehamL :
l are too uncertain to require consideration at this time.
l Thus, if NEPA were'applicableEto the decision not to operate L Shoreham, there still-could be no consideration of.these- ;d I alleged impacts.at this time. The New York State-Appellate Division-reached the same conclusion under New York's State -i Environmental Quality Review Act. Egg Citizens for an Orderly Enerav Policy v. Cuomo, 559 N.Y.S.2d at 392.
! 25 l
1
NEPA, there is no NEPA jurisdiction to study the impacts of non-federal action. This was held squarely by the D.C.
t Circuit-in ERDC v. EPA. There, the court stated that "the environmental effects of (a.non-federal) construction. siting
-decision cannot be deemed to be either direct or indirect I l
effects of subsequent federal action granting a discharge j permit" to the facility in question. 822 F.2d at 131'n.27.
EPA therefore lacked jurisdiction to consider the impacts of the non-federal action'under NEPA. Id. at 129 & n.25. ,
j Here, similarly, the effects to which DOE refers are all effects of the non-federal decision to close
'Shoreham. None of the cited effects would be caused by-a ;
POL-amendment, by approval of a license transfer from LILCO [
to LIPA, or_by approval of a decommissioning plan. As
only to alternatives to, and. impacts of, the specific
., ' federal actions proposed to the NRC. (Order at 9-10.) .l i
1
.C. THERE IS NO REQUIREMENT FOR AN OMNIBUS NEPA EVALUATION l OF POST-OPERATION ACTIVITIES. >
- l i
-1 Citing NEPA precedents regarding impermissible
" segmentation" of NEPA analyses, DOE and CEQ both contend )
that, prior to amending LILCO's license'to POL status, the NRC must conduct'a consolidated NEPA analysis of that action, license transfer, and decommissioning. (DOE L
26 l
't Comments at 1; CEQ Comments at 7.) But this contention is premised on, and hence collapses with, the DOE /CEQ arguments that the NRC may consider the alternatives to, and impacts of, the non-federal-decision not to operate Shoreham.D' i l
As DOE and CEQ recognize rather explicitly, consolidated environmental review is not required for the POL license, license transfer,-and decommissioning when NEPA analysis excludes (as it must) consideration of alternatives l to, and impacts of, the non-federal decision not to operate Shoreham. (Eng DOE Comments at 6-13; CEQ Comments at 4 n.2.) The " rule against segmentation for EIS purposes is-not an imperative to be applied in every case." Sierra i
Club'v. Callaway, 499 F.2d 982, 987 (5th Cir. 1974). .Ittis entirely; proper for an agency to proceed with one step in a series'of related steps if the first step is segregable, has ;
independent' utility, and does not foreclose the opportunity
.to. consider alternatives relevant to the steps to follow.
Egg Piedmont Heichts Civic Club. Inc. v.'Moreland, 637 F.2d ;
430,1439 (5th Cir. 1981).
l The NRC already'has appliedLthese principles in I CLI-90-08. There the Commission. recognized that its environmental review of a decommissioning plan need.not l
M' For example,. DOE contends thLt issuance of a POL would 1
imperil the option of operating Shoreham as an alternative to decommissioning. (Eng DOE Comments at 23.).
27 l
l
__ _ _ _._. . . __ _. __ _ _ ~.
F
-4 precede resolution of the Confirmatory order, security plan amendments, and-matters related to off-site emergency planning. -The commission stated: (
t I
(T]he broadest NRC action related to Shoreham l decommissioning will be approval of the decision '
of how that deoesmissioning will be accomplished. -
Thus, it'fol' lows that NRC need be concerned at present under NEPA only with whether the three l actions which are the subject of the hearing request will prejudice that action. Clearly they do not, because they have no prejudicial effect on hsg decommissioning will be accomplished. l (Order.at 9 (emphasis in original).).
l The same conclusion 1s appropriate here. There is 1
indisputable independent utility to amendment of LILCO's. ]
1 license to- POL status and to license transfer (respectively, l
to reduce expenses by reducing requirements and to effect a 1
-l transfer of control). Issuance of a POL amendment or grant of a> license transfer-application will leave the NRC' 1
unfettered in later evaluating the appropriateness of a 1
decommissioning plan, and-neither the POL nor the license f transfer.will limit the alternative methods of carrying out the decommihs'ioning.. Neither-DOE nor CEQ even attempts to
'make any showing to the contrary. Thus, the POL amendment, license transfer, and decommissioning matters can all be
-assessed separately and. sequentially consistent with NEPA.
1 l
u l
\
2e L !
1 I
r
-+
OONCLUSION _
The positions of petitioners, DOE, and CEQ should be firmly rejected by the Commission. Characterizing the Supreme-Court's guidance, the United States Court of Appeals a
has stated: ,
1 i
Vermont Yankee makes it clear that the NEPA requirement of studying alternatives may not be j turned into a game to be played by. persons who --
for whatever reasons and with whatever depth of conviction -- are chiefly interested in scuttling L a particular project. There would be no end to
?L the alternatives that might be-proposed'if opponents had no obligation.to do more than mske a
_ facially plausible suggestion that a particular i
alternative might'be of interest, and could then, after awaiting the results,. find reasons why the agency's survey'was inadequate, i
l t
Seacoast Anti-Pollution Leacue v. NRC, 598 F.2d 1221, 1230- .l 31 (1st'Cir 1979)..- The decision not to operate Shoreham.
l e was made by LILCO and the State of New York to bring to1an l
l end: years of. controversy over Shoreham as a nuclear ,
facility. The NRC should reject the ongoing attempts to embroil the NRC in reviewing alternatives to-that non-federal action, especially alternatives that fly in the-face of-the considered policy of the State of New York.
1 For the foregoing reasons, LIPA respectfully urges (1) that the Joint. Petition for Reconsideration be denied j forthwith and (2) that the Commission determine that LILCO's 29
' - - - '*-"v
'o' -i
)
1 1
license may be amended to POL status without prior l
.i. - preparation of an EIS considering the alternative of
- operating >Shoreham.
Res actf ly submitted, A$/ $ !$L. '
Stanley.B. Klimberg R'illiam T. Coleman,fdr. :
Executive Director and Carl R. Schenker, Jr.
General Counsel _O'Malveny & Myers '
Long Island Power Authority 555 13th Street, N.W.
200 Garden City Plaza ' Washington, D.C. 20004 Garden City, New York: 11530 (202) 383-5360 l (516) 742-2200 '
Nicholas S. Reynolds David A. Repka Winston:& Strawn 1400~L Street, N.W.
3'. '
Washington, D.C. 20005 L >
T Counsel for the Long Island Power Authority .;
November 13, 1990 q l
)
.'t t -
1 30 i
n
i 00LKLILD U5HRC CERTIFICATE OF SERVICE 90 gN 13 P4 :26 Pursuant to the service requireme ,F.R.-
$,2.712 (1990), I'herebycertifythatonNo'vekerM13, 1990 I served-the accompanying Motion of the Long Island Power Authority for Leave to File Response to_'(1) Joint Petition for Reconsideration of CLI-90-08 and (2) Comments by DOE and CEQ, and the accompanying Response of the Long Island Power 3 Authority to-(1) Joint Petition for Reconsideration of CLI-90-08 and'(2) Comments by DOE and CEQ, via Courier upon the following, except where otherwise indicated:
Commissioner'Kenneth M. Carr The Honorable Samuel J. Chilk-Chairman The Secretary of the Commission i Nuclear Regulatory Commission-Nuclear Regulatory Commission ,
.One White-Flint North Du i ld ing one White Flint North Building !
Rockville Pike? 11555 Rockville Pike !
Rockville, Maryland'20852 Rockville, Maryland 20852 4
Commissioner Kenneth C.' Rogers Administrative Judge-
- Nuclear: Regulatory Commission Morton B. Margulies,_ Chairman ,
One-. White Flint North Building Administrative-Judge {
U.S. Nuclear Ragulatory Commission
~
11555-Rockville Pike Rockville, Maryland 20852- Washington, D.C. 20555 (First Class Mail)- ,
, Commissioner-James R. Curtiss Administrative Judge-
- Nuclear! Regulatory Commission ' Jerry'R._Kline
'One White Flint North Building: At,omic Safety and Licensing Board i 11555 Rockville Pike U.S. Nuclear Regulatory Commission N Rockville, Maryland 20852 Washington,,D.C. 20555 (First Class Mail)
-Commissioner Forrest'J. Remick Administrative Judge Nuclear Regulatory Commission ' George-A. Ferguson One' White Flint North Building 5307 Al' Jones Drive '
11555 Rockville-Pike Columbia Beach, Maryland 20764 Rockville,-Maryland 20852 (First Class Mail)~
L l
j 1 !
l
o; 1
i
- o. ;
Michael R. Deland, Chairman Donald P. Irwin, Esq.
Council on Environmental Counsel, Long Island Lighting Quality Company
-Executive Offiot of the Hunton & Williams President 707 East Main Street 722 Jackson Place, N.W. Richmond, Virginia 23212 Washington D.C. 20503 (Via Federal Express)
Honorable James D. Watkins Stephen A. Wakefield, Esq. {
Secretary of Energy General Counsel i Forrestal Building U.S. Department of Energy l 1000 Independence Avenue, S.W. 1000 Independence Avenue, S.W.
Washington, D.C. 20585 Washington,-D.C. 20585 ,
Mitzi A. Young, Esq. Charles M. Pratt, Esq.
Office of the General Counsel Senior Vice President and i U.S. Nuclear Regulatory General Counsel Commission 22nd Floor .
One White Flint North Power-Auttirity of State of New York h 11555 Rockville Pike 1633 Broadway Washington, D.C. 20852 New York, New York 10019
~
(Via Federal Express) ;
James P. McGranery, Jr.
Dow, Lohnes & Albertson 1255 23rd Street,_N.W. -
j Suite 500 j Washington, D.C. 20037 i
/
Carl R.' Schenker, Jr[_,/ }
O'Melveny & Myers !
555 13th Street, N.W. !
Washington, D.C. 20004 DATED:' November 13, 1990 2
i J