ML20062N037

Submits Response to from RM Bernero Denying State of Nj Dept of Environ Protection & Energy Request for Action,Per 10CFR2.206.Requests That Commission Review & Reverse Directors Decision.W/Certificate of Svc

ML20062N037
Person / Time
Site:	Limerick, Shoreham  File:Long Island Lighting Company icon.png
Issue date:	01/05/1994
From:	Borden T NEW JERSEY, STATE OF
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
CON-#194-14570 2.206, NUDOCS 9401120074
Download: ML20062N037 (10)

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CCUEILO wc Ado !N ?'Uls ani.

State of Nem 3rrarg pl^f8 "g ]^y "

xxgxxxxxxx DEPpMTMENT. OF LAW AND PUBLlC SAFETY "

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RICHAAD J. HUGHee JusflCE COMPLEX assistant ATTOHNEY OENEML CN 003 OtRECTOR TRENTON 00489 '

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(609) 633-8109 i

l January '5, 1994 l

Samuel J.

Chilk Secretary of the Commission U.S. Nuclear Regula<:ory Commission Washington, D.C.

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Attention: Docketin$ and Service Branch q

RE:

DENIAL GF NEW JERSEY DEPARTMENT OF ENVIRONM1:NTAL PROTECTION AND ENERGY'S REQUEST FOR ACTION I

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Dear Mr. Secretary:

i Please accept _ the following in response to the. letter' dated December 23, 1993 from Director Robert M. Bernero denying 1

NJDEPE's request for action pursuant to 10 C.F.R. 6 2.206.

It is hereby requested, for the reasons set-forth below, that the Commission review :end reverse the Director's Decision in.

accordance with its' general supervioory authority over staff i

decisions and specific authority' pursuant 'to 10 C.F.R.

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2.206(o).*

9402120074 940105

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PDR ADOCM 05000322 0

PDR NJDEPE und ratands that Section 2.206( c )( 2 ) provides j

that no petition to review a Director's Decision will. be entertained by. the, Commission..

}lowever, after reading.the Director's. Decision and some of the grossly erroneous-F conclusions

therein, NJDEPE-felt-compelled to provide the Commission with NJDEPE's primary concerns in order. to aid the i

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Page 2 First and

foremost, we respectfully submit that the i

Director's Decisi'on provided an inadequate and incorrect rationale for not taking any action on NJDEPE's CZMA claims.

The Decision concludes that since "the NRC does not regulate I

route selection, nd NRC action fell within the CZMA." (p. 25).

This reasoning ignpres the licenses and certificates actually issued by the ~ NRC : which specifically authorized - the ongoing shipments.

Furthe;rmore, the reasoning cannot be reconciled i

with the clear requ'irements of the CZMA that any applicant for a required federal l approval, license, or permit "to conduct an

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activity, in or outhide of the coastal zone, affecting any land i

or water use or natural resource of the coastal zone of that i

state" include in the federal application a certification that the proposed activ1 y complies with the enforceable policies of the State's approvehCZMprogram.

16 U.S.C.

I 9 1456( c)( 3 )( A ).

NRC clearly issued dpprovals to LIPA, PECo, and Pacific Nuclear i

to conduct activities which affect the water uses and. natural resourcesofNewJeksey'scoastalzone.

The Director d,oes not dispute that these approvals are

" listed" approvals for which consistency certifications should have been submitted,to NJDEPE.

Nor does the Director dispute I

that the approvals i are required in order to conduct the Commission's deterbi' nation of whether or not to review the Director's Decision.

This letter should not be Construed as a waiver of any of NJDEPE's concerns as set forth in its October 8th submittal.

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January 5, 1994 Page 3 activities.

Nor does the Director dispute that the approved activities are in or outside of New Jersey's coastal zone and affect the water uses and natural resources of the zone.

The i

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Decision attempts to simply avoid the requirements of CZMA by i

concluding that "N C did not issue any license or permit for i

LIPA's selection of a coastal route."

This argument is completely fallaci us for without PECo's license amendments, LIPA's general licepse, or the Certification of Compliance, the ongoing shipmentshould not be authorized to proceed through l

New Jersey's coasto% zone.

It is irrelevant under CZMA whether t

or not NRC regulateh the route selection itself because the Act simplyrequiresconfistencyforrequiredfederallicenseswhere i

the authorized act4vity affects the state's coastal uses and I

j resources.

As dis) cussed below, the NRC approvals issued in i

j thiscasetriggeredfCZMA.

I The NRC issued'PECo's license amendments in order to'ollow t

i PECo to receive LIfA's fuel.

The receipt of LIPA'o fuel is i

clearly a licensed! activity which although outside of New zo,' e clearly affects the coastal water uses Jersey's coastal n

because PECo is rec 61ving the fuel by barge shipments.

It was clear to NRC, as established in tha. Tune 23,

1993, Safety Evaluation, thac~ PEQo's receipt of the fuel would affect New i

Jersey's coastal water uses since the fuel was to be barged to a PECo site "along the Delaware River."

Thue, CZMA requires a showing of consistency even in this case where the. activity of 1

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4' January 5, 1994 Page 4 actually receiving the fuel is outside of New Jersey's coastal zone.

I Similarly, LIpA's general license to transport the fusi I

was conditionally; conferred "provided the licensee obtains approval of the package." (Director's Decision p.

19).

NJDEPE acknowledges that when NRC originally adopted this general i

license it would not necessarily have known that transporting licensed material would affect New Jersey's coastal water uses, Nonetheless, general licenses are not per se exempted frora CZMA consistency requirehents even though knowledge of how a, general license will be uqed to affect a state's coastal zone, and therefore the oblightion to perform a consistency analysis, may

.i not arise until a 1.ater date.

In this case that obligation to comply with C2MA ripened when NRC issued the Certificate of Compliance No.

900;L,

Revision No.

28, on August 19,

1993, i

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authorizing an activity in New Jersey's coastal zone which affects the zone's-water uses and natural resources.

The Certificate was spedifically issued for the transport of LIPA's fuel by barge in desponse to on application dated July 29, I

1993.

Thus, NRC's iissuance of the Certificate violated CZMA sinCO it conferred r reconferred upon LIPA a general license to transport the fu el without a showing of consistency under C2MA.

Plainly LIPA e decision to use its general license in this manner and for NRC to sanction that use triggered an-obligation to scrutinize the use of the general 11cer.se for i

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coastal zona consistency.

Similarly, NRC'.s issuance of the-i violet' d CZMA since it authorized Pacific Nuclear Certificate e

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to transport the fuel without a showing of consistency under t'

CZMA.

As with LIPA's general license, this activity clearly 1s in New Jersey's cobstal zone and affects the zone's waterfuses t

and natural resour es.

By improperly! issuing federal approvals to receive and l

transport LIPA's duel in violation of CZMA, specifically. 15 '

t C.P.R. 0 930.53(e), NRC has fsiled to ensure thet the approved 1

activities will not. violate New Jersey's coastal zone polioles.

t As set forth in NJDEPE's October 8th request, NRC should' stay:

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PECo's license ameQdments, Pacific Nuclear's Certificate, and LIPA's general-ificense pending compliance with CZMA'e consistency process. (NJDEPE's Request,

p. 5).

As to NJDEPE's NEPA claims, the Director. similarly attempts' to disto 2t NJDEFE's ~ position by using a strawman argument that NJDEP$ wants NRC to make the initAal decision of whether LIPA shoulditransfer the fuel by rail or by berge. (p.

12).

This clearly is not NJDEPE's position.

NJDEPE rA.e izes i

that the routing de61sion le a private decisions however, when i

the NRC is decidinf whether or not to issue licensos which allow private entities to conduct an activity, NEPA does not allow the Nnc to simply ignore the impacts and alternatives to 1

the proposed activity.

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January'5, 199-g Page (

y The flaw in the Director's Decision is best explained by l

the alternatives analysis that NRC itself performed in PECo's EA,

There, the NRC concluded that the alternatives to the proposed activity disposal at a Federal. high-level wasto:

repository or redrocessing overseas, would have either no l

impact or greater environmental impact.

The alternatives that NRC examined.in th t EA 'Tte clearly private decisions.

It was LIPA's decision, n' t NRC's, to ship its fuel to PECo rather o

i than to a Federal o'r overseas facility, However, when LIPA and PECo sought various NRC approvals to implement this decision, the NRC was bound y - NEPA to examine the alternatives to the j

proposed activity, i NJDEPE's claim is simply that when LIPA decided to ship i

the fuel by barge and PEco decided to receive it by barge, the NRC was similarly bound by NEPA.to examine the alternative

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means of getting : the fuel.to PEco and determine which i

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alternative would gl ave a lesser environmental-impact.

Thus, theDirector'sDecidion, that since the barge decision was made by a private party EPA is not triggered, is witihout merit and entirely inconsistent with the broad scope of NEPA intended by Congress.

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The other reasdn cited in the Decision for not i

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alternatives is that)

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Because this sh,tpment. falls within the "en.velope" of i

environmental consequences that have already been

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analyzed generically or in the original-impact i

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-January 5, 1994 Page 7 statements for the specific plants at issue here, NEPA does not require any further evaluation of

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alternatives,

Thus, no NRC analysis of other potential routes or means for transporting the Shoreham fuel'to Limerick is required.

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This position is clearly violative of both NEPA and past NRC i

i decisions.

In Virdinia Electrio and Power Company, 22 NE 481, 1

490 (1985), the Ligensing Board held that the FRC cannot simply ignore the alternatiives requirements in NEPA once it concludes i

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that a full EIS isl not required.

In that case, the Concerned 1

i Citizens of Louisa: County argued that while an EIS was not required, theEAshouldbe " redone to include a discussion of least acknowledge the dry cask storage alternative. "

or at

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at 491.

O Similarly here. NRC failed to comply with NEPA b0cause the i

EA completely fails to acknowledge or analyze the alternatives i

to shipment by barhe down the entire length of New Jersey's i

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coastal zone, including the rail shipment alternative which was 1

apparently considerbd and rejected without the public input required by NEPA.

NJDEPE has consistently maintained that en alternatives analyhis is altogether meaningless if it is performed without any discussion of the alternatives that were

_actually considered.

In accordance $1th 10 C.F.R. 9 2.206(c),

the Commission-

may, within 25 dayd, review a Director's decision under 10 C.F.R. S 2.206 While NJDEPE respects the time and effort that i

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i January 5, 1994 Pago 8 NRC staff has exp, ended with respect to this matter, NJDEPE strongly maintal a that the Director's Dooision sets a

dangerous precedent by limiting the rights of affected states, such as New Jersey, to protect their coastal resources.

Unfortunately,. the. Director's Decision essentially holds that since route selecl tion is a private decision the affected t

coastal states are not entitled to ajr}y review of planned shipments.

This abrogates the entire CZMA scheme which was i

designed to require the

" active participation of coastal states."

16 U.S.C.A. 9 1451(m).

The NRC should not dismiss a congressional directive so lightly.

Accordingly, for the reasons set forth above and the reasons set forth 1{i NJDEPE's October 8, 1993 petition, NJDEPE respectfully requeshs that the Commission review and reverse l

the Director's Decision and take the action requested by

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NJDEPE.

Thank you for your immediate attention to this matter.

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Respectfully submitted, FRED DeVESA ATTORNEY GENERAL OF NEW JERSEY Attorney for NJDEPS Dyr E

Thomps A. Borden

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Deputy Attorney General r

c: attached service iist I

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.j wild iNhc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS.IpNJ/W -5 PS :22 t

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~1 In the Matter of

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STATE OF NEW JERSEY

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1 Department of Law dnd Publia

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l Safety's Requestd

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I CERTIFICATION OF SERVICE

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I, Thomas A. Borden, hereby certify that on this 5th day of January 199,4, I' served by facsimile on the following copies of New Jersey Department of Environmental Protection and Energy's Letter datpd January 5, 1994.

i Lawrence C.

Lanpher.', : Esq.

Kirkpatrick & Lockhart J

1800 M Street, NW South Lobby, 9th Fl$or

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Washington, D.C. 20 36-5891 Fax: (202).778-9100 l

Edward J. Reis Deputy Assistant Gederal Counsel i

for Reactor Licensing U.S. ' Nuclear Regulat ory Commission Office of General Cc unsel t

Washington, D.C. 205 55 Fax: (301) 504-3725 l

Ann Hodgdon Esq.

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U.S. Nuclear Regulat Office of General Co, pry Commission unsel Washington, D.C.

205.55 Fax: (301) 504-3725 l

i Robert Rader, Esq.

l Winston & Strawn l

1400 L Street, NW i

Washington,DC20005f3502 Fax: (202) 371-5950 Office of.the Secrethry ATTENTION:

Docketing and Service Mail Stop:

16 GJ 5 OWFN U.S. Nuclear Regulatdry Commission Washington, D.C. 205'65 Fax: (301) 504-1672 Robert M. Bernero, D4 rector Office of Nuclear Material Sefety and Safeguards U.S. Nuclear Regulato,ry Commission

. Washington, D.C. 20555 Fax: (301) 504-1672 7

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i-Katherine W. Hazard-q' Attorney, Appellato Section Department of Justi.ce

.6 P.O. Box 233795 (Lt-, Enfant Station Washington, D.C.

20026 Fax: (202)L514-4240 4

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'i Dep! sty Attorney General t

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