ML20076D207
| ML20076D207 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/15/1991 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#391-11992 LBP-91-26, OLA-2, NUDOCS 9107260124 | |
| Download: ML20076D207 (27) | |
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Ul4ITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION EE22re the_Commissign
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In the Matter of
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t LONG ISLAliD LIGHTING COMPANY Docket No. 50-322-OLA - 2
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(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
)
LILCO'S OPPOSITION TO BHORERAM-WADING RIVER QXHIBAk_EQ1 TOOL DIGIRICT'S APPEAL FROM J DP-91-26 W. Taylor Revoley, III Donald P.
Irwin David S.
Hsrlow Counsel for Long Island Lis ting Company Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 July 15, 1991 4
9107260124 910715 lA')h d PDR ADOCK 05000322
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i TABLE OF CONTENTS 11 TABLE OF AUTi!0RITIE8 I.
Introduction........................................... 1 t
II.
Dackground............................................. 2 A.
Procedural liintory...............................
2 i
B.
The Board's Decision in LDP-91-26 4
(1)- NEPA Issues.................................. 4 6
l (2)
Atomic Energy Act Issues C.
SWRCSD's Position on Appeal 6
i III. Discussion............................................
9 A.
Legal Standard on Appeal.........................
9 B.
SWRCSD's Dismissal Was Not " Premature" 10 C.
Thu Board's Nuling on SWRCSD's Standing WaJ Correct 13 l
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(1)
SWRCSD lias Not Demonstrated an Injury.to its Informational Interosto l>
under NEPA................................... 13 (2)
Its Interest as a-" Ratepayer" and
" Tax Recipient" Does Not Provid6 SWRCSD Standing to Intervene................. 16 D.
SWRCSD Had No Right tb Discovery.................. 17 E.
Conclusion.......................................
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. TA14LE OF AUTilORITIP4 QASES Amatican Lecal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987) 14 BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974)
............... 18 Community Nutrition v. Block, 698 F.2d 1239 (D.C. Cir. 1983) 15 gomoetitive Ent.ororise Inst. vtjulTSA, 901 F.2d 107 (D.C. Cir. 1990) 14 Dellums v. NRC, 863 F.2d 96 (D.C. Cir. 1988) 8 Luian v. Nat'l Wildlife Fed'n, 110 S.Ct. 3177 (1990) 9 STATUTES Atomic Energy Act of 1954, 42 U.S.C. SS 2011 et sea.
passim National Environmental Policy Act of 1969, 42 U.S.C.
passim SS 4321 et sea.
REGULAILQHE 10 C.F.R. S 2.714(a)(2) 3, 6
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10 C.F.R. S 2.714 (a) (3) 6, 10, 11 10 C.F.R. S 2.714 (b) (1) 6, 10, 11, 12 10 C.F.R. S 2.714a(a) 2 2.........................
EEQFRAL REGISTER 2,
19 55 Fed. Reg. 34,099 (Aug. 21, 1990) 3 56 Fed. Reg. 4310 (Feb.
4, 1991)
1 s
-lii-DLCISIONS OF 11VCLEAR REGULATO_RY CMilSSIO!1 Commonwgalth Edison Co.. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732 (1985) 10 D_ ult Power h, (Catawba 11uclear Station, Units 1 and 2), ALAB-687, 16 NRC 460 (1982), vacated iD 18, 19 aqtt_2n oth9r arounda, CLI-83-19, 17 11RC 1041 (1983)
DilmlRQng__ Licht Co.x (Beaver Valley Power Station, Unit 9,
15 lio. 1), ALAB-109, 6 AEC 243 (1973).......................
Lona Island Lichtina Co. (Shoreham 11uclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990), aff'd oD rcCoDaidarat1Qn, CLI-91-02, 3 3 11RC C1 (1991)..............
16 Lgno Island Lichtina Co. (Shoreham Nuclear Power Station, 3
Unit 1), CLI-91-01, 33 NRC 1 (1991)
Lona Island Llahtina Co. (Shoreham 11uclear Power Station, Unit 1), CLI-91-04, 33 NRC __ (April 3, 1991)...........
12 Lono Island _Lightina,_ h (Shoreham Nuclear Power Station, 17 Unit 1,, CLI-91-08, 34 NRC __ (June 11, 1991)
Lona Island Licllting_ h (shoreham Nuclear Power Station, 3,
12, 15 Unit 1), LDP-91-7, 33 NRC __ (March 6, 1991)
L2pa Island Lichtina co (shoreham Nuclear Power Station, n
Unit 1), LBP-91-26, 3 4 11RC __ (June 13, 1991)............ passim Unrthern States Power Co. (Tyrone Energy Park, 17 Unit 1), CLI-80-36, 12 NRC 523 (1980)
Northern Etates Power Co (Prairic Island Nuclear x
Generating, Units 1 and 2), ALAB-107, 6 AEC 188 (1973),
reconsideratien denied, ALAB-110, 6 AEC 247, affid, CLI-73-12, 6 AEC 241 (1973).............................
9, 10, 12, 15, 18 Sacramento Muni_ginal Utility Diatrict Olancho Seco Nuclear Generating Station), LBP-91-30, 34 NRC __
10, 11 (July 1, 1991)...........................................
Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, 18 Units 1 and 2), CLI-74-45, 8 AEC 928 (1974)
-iv-i j
111SCELLANE0]Jfg Lotter from William.E. Steigor, Jr., LILCO-Assistant l
Vice President-Nr. clear Operations, to NRC (Jan.
5, 1990) 1 (SNRC-1664) 2 3
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l LILCO, July 15, 1991 UllITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore the Commission
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In the Matter of
)
)
LONG ISLAND LIGilTING COMPANY
)
Docket No. 50-322-OLA
)
(Shoreham liuclear Power Station,
)
Unit 1)
)
)
)
LILCO'S OPPOSITION TO SHOREHAM-WADING RIVER gfdttBAL SCJ100L DISTRICT' Q_AEE!:hL FROM LDP-91-26
- 1. Introduction On June 28, 1991, Petitioner Shoreham-Wading River Central School District (SWRCS D) noticed an appeal from its dismissal from the proceeding on the " possession only" license (POL) amendment for Shoreham.
In Lona Island Lightina Co. (Shoreham Nuclear Power otation, Unit 1), LBP-91-26, 34 NRC __ (June 13, 1991), the Licensing Board found that SWRCSD hka no standing to intervene in the p1 :eoding on issues arising under either the National Environmental Policy Act, 42 U.S.C. 55 4321 et sea.
(NEPA), or the Atomic Energy Act, 42 U.S.C.
SS 2011 g.t_pagt SWRCSD's notice of appeal was accoupanied by a supporting brief (June 28 Appeal).
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2 Pursuant to 10 C.P.R.
b 2.714a(a), Long Island Lighting Company (LILCO) opposes SWRCSD's appeal.
The Board's ruling in LDP-91-26 is clearly correct and there is no reason for the commission to reverse it.
II. Bac.Agranns A.
Procedural Hist,9Iy On January 5, 1990, LILCO submitted an application to amend Shoreham'n operating license to transform it into a POL.F The NRC Staff noticed LILCO's amendment request in the Eederal Encister on August 21, 1990, and solicited public comments on the Staff's proposed determination that the amendment presented "no significant hazards consideration." 55 Fed. Reg. 34,099-100 (Aug.
21, 1990).
The NRC also provided an opportunity for "any person whose interest may be af fected" to file a petition to instervono and request for hearing on the proposed amendment.
Idx at 34,100.
On September 20, 1990, SWRCSD, along with follow Petitioner Scientists and Engineers for Secure Energy, Inc. (SE ), each 2
submitted a petition to intervene in the POL proceeding.
Both LILCO and the NRC Statf responded in opposition to the petitions on October 12 and October 24, 1991, respectively.
F See Letter from William E.
Steiger, Jr., LILCO Assistant Vice President-Nuclear Operations, to NRC (Jan.
5, 1990) (SNRC-1664).
[
3 In Lang Island Lichtina Cgt (Shoreham Nuclear Power Station, Unit 1), CLI-91-01, 33 NRC 1 (1991), the Commission reforrod Petitioners' requests, and LILCO's and the Staff's responses, to the Licensing Doard panel.
On January 28, 1991, a throu-me.ubor Licensing Board chaired by Judge Margullos was established to rule on the icint petition.
56 Fod. Reg. 4310 (Feb.
4, 1991).
07 March 6, 1991, the Licensing Board issued LQn C olalid Lighh ng_, h (Shoreham Huclear Power Station, Unit 1), LDP-91-7, 33 NRC __ (March 6, 1991).
The Board, identifying numerous deficiencios in the petitions to intervono, found that with respect to issues arising under NEPA and the Atomic Enorgy Act, both SWRCSD and SE had " failed to establish standing, as required by 10 C.F.R. 5
- 2. 714 ( a ) ( 2 ). "
LDP-91-7, slip op. at 30.
Nevertheless, the Board ruled that, since Petitioners had not had the " benefit of the Commission's two procedential policy decisions (CLI-90-08 and CLI-91-02) at the time they filed their petitions to intervono," Petitioners would be given an opportunity to amend their petitions to take into account those two decisions and otherwise to correct the various flaws found by the Board.
LDP-91-7, slip op. at 31.
Thus aid (d by the Board -- which precisely identified the defects in Petitioners' initial petitions and gave them another chance to try to demonstrato standing -- Petitioners filed amended petitions on April 8, 1991.
LILCO and the NRC Staff again responded in opposition, on April 23 and April 29, 1991, respectively.
4 On June 13, 1991, the Board issued the decision that in the subject of SWRCSD's instant appeal, LDP-91-26.
Thu Board found that SE had, in its amended petition, demonstrated standing to 2
intervene with respect to issues arising under NEPA, but not as to issues arising under the Atomic Energy Act.3' SWRCSD, the Board determined, had not demonstrated standing under either NEPA or the Atomic Energy Act.
D.
The Doald's_DeclaiEl_1R.J,pP-91-26 (1)
NEPA Issues With respect to SWRCSD's attempt to demonstrate standing under NEPA, the Board in LDP-91-26 noted that the injury (SWRCSD) asserts is that without an environmental review Petitioner's right to comment and the Commission's duty to have available considered detailed information concerning significant environmental impacts before decisions are made would be violated.
LBP-91-26, slip op, at 17.
The Board continued that "(ajlthough the purpose of NEPA is to ensure well-informed government deci-sions and stimulating public comment on agency actions," an agency's f ailure to prepare an environmental inipact statement (EIS) does not "1p39 facto result in a cognizable injury that affords standing under NEPA." Idz A petitioner, the Board found, l'
The NRC Staff has asked the Board to reconsider its ruling with respect to SE 's standing to intervene on NEPA-based issues.
2 See "NRC Staff Motion for Reconsideration of LDP-91-26, and Memortndum in Support Thereof" (June 25, 1991).
On July 10, 1991, LILCO filed a response in support of the NRC Staff's motion.
The notion is pending.
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also "must show that it has suffered, or will suffer a distinct
- and palpable harm that constitutes an injury in fact.': Id.
Contrasting SWRCSD's effort to-demonstrate organizational standing with that of SE, the Board pointed out that SE had 2
2 "made its case for standing on the claim that the failure to prepare an EIS" would cause its " programmatic informational activities and organizational nurpose significant harm." Li.? 91-26, slip op, at 17.
SWRCSD, on the other hand, had "made 1-such showing of a distinct and palpable harm" and, therefore, "its claim for organizational standing (on) that issue must be denied." Idx As to representational standing (which SWRCSD had sought to demonstrate in its amended petition through an affide it from Albert prodell, the President of the SWRCSD Board of Education),
che Board found that-Dr. Prodell had made the "same argument as SE 's members did on injury. "
LBP-91-26, slip op, at 17.
Dr.
2 Prodell claimed that 'this-rights for meaningful comment on environmental considerations of decommissioning will be pre-judiced or completely denied if there is no cavironmental review."
But, said ths Board, like the assertion advanced by SE 's members, such a claim "is too vague to identif" a palpable 2
injury." Idz at 17-13.
l The Board went on to find that LWRCSD's interest " continues to be that of a ratepayer and tax recipient," and that such
" economic concerns fall outside the Commission's jurisdiction."
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LBP-91-26, slip op. at 18.
Such concerns, the Board ruled, "do not provide a assis for standing." Id2 (2)
M c FagIcv_Act 7ssueg As for standing under the Atomic Energy Act, the Board ruled thct SWRCSD had not particularize (d) a distinct and pal-pable harm that constitutes an injury, in fact, to itself or those it seeks to repre-sent, nor did it trace any such injury back to the_ challenged action.
LBP-91-26, slip op, at 18.
All that SWRCSD had proffered, the Board found, were "conclusory generalizations which do not meet the regulatory requirements for standing as provided in 10 C.F.R. 5 2. 714 (a) ( 2). "
Idt.
C.
SWRCSD's Position on ADDeal SWRCSD says that the Board has committed three errors.
First, SWRCSD argues that the Board's dismissal of its amended petition was "prematrre."
SWRCSD contends that it had a "richt to be able to amend its. petition for leave to intervene 'without prior approval of the presiding officer at any time up to fif teen (15) days prior to the holding of the first prehearing conference.'"
June 28 Appeal at 2 (emphasis in original), citina 10 C.F.R. 5 2. 714 (a) (3).
SWRCSD also alleges that it had an
" absolute right to be able to ' supplement' its petition to intervene at any time prior to fifteen (15) days before the.
first prehearing conference." Id citina 10 C.F.R.
t,
7 5 2.714 (b) (1).
Since the prohoaring conforcers on the POL amendment proceeding was scheduled for July 30, 1991, SWRCSD concludos, it had a "unfettorod" right to amend and rupplomont its petition up until July 15. Id2 at 2-3.F As its second allegation of error, SWRCSD " suggests" that the Board mado a mistake by implying that School District's claims for standing are limited to " organizational interestn
. of a ratopayor and tax reci-piont '
and that those interests are limited to " economic" interesta.
find-ing that such " economic interests do not qualify it for standing under HEPA or the
[ Atomic Energy Act).
June 28 Appeal at 3.
SWRCSD's challengo to the Doard's ruling on this'pcint'in two-fold.
First, SWRCSD staten that Dr. Prodoll had cited, in support of standing, his responsibility for decisions "in accor-dance with the School District's position on matters affecting both general interests and specific health,' safety and environmental interests of the studen+.s and employoos for whom it-[is) responsible during work and school hours."
Idz at 3, gupt(ng Prodoll Af fidavit at 1 5.
SWRCSD suggests that the Board has overlooked this representation by Dr. Prodoll.
F SWRCSD also " proffers" that it had planned to amend and supplomont its-peti-tion including an affidavit further specify-ing the interusts that would be harmed by issuance of-the possession only licenso prior to the Commission's fulfillment of its obil-gations under NEPA and the AEA, as well as by specification of contentions.
June 28 Appeal at 2.
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Further, SWRCSD calls the Board's decision " totally insensitive" to NEPA's EIS requirement, and argues that the " denial of the availability of the information in the EIS to the School District in a ' distinct and palpable harm' to the School District within the zone of interest protected by NEPA." Id. at 5.i' Second, SWitCSD asserts that, contrary to the Board's ruling, its interest as a " tax recipient" and " ratepayer" does satisfy the " injury in fact" requirement.
June 28 Appeal at 6.
SWRCSD claims that if.the " proposal to decommission.
Shoreham and its segmented parts is approved 'ay the.
NRC the School District will eventually lose over $25 million in annual income."
Id2 (emphasis in original).
SWRCSD citee Del 3ums v.
NBC, 863 F.2d 968, 973 (D.C. Cir. 1908), for the proposition that
" inability to find work (by a sincle individualj constitutes injury in fact," and argues that "(c]ertainly, the much larger threatened economic injury to the School District should qualify." June 28 Appeal at 6-7 (emphasis in original).
SWRCSD
~
continues that there is direct causation and sure redressability of the economic injury _as well as other environ-mental injuries flowing from the indirect (e.o., air pollution) effects of the plan to j
replace Shoreham with fossil fueled generat-ina units.
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At the end of its June 28 Appeal, SWRCSD tacks on the related claim that the Board has "misperceive(d) various of the harms alleged" by SWRCSD and, thus, has improperly " styled them as 'conclusory generalizations,'" June 28 Appeal at 10.
SWRCSD l
chargas that the Board has provided "no bases for its own bare conclusion," and argues that LBP-91-26 "should be reversed and l
remanded for lack of a rational basis on this ground (alone) l under both NEPA and the (Atomic Energy Act)." Idx
d 9
Iqt - at G.
If t3e " proposal" to decommitsion Shoreham "were withdrawn," SWRCSD argues, this threatened harm "would be elimi-nated automatically." Id2 As its third claim of error, SWRCSD says that its petition should not have been dismisced before it had been provided
" adequate time for discovery."
June 28 Appeal at 9-10, gitinq Luian v. Na(11_ Wildlife Fed'n, 110 S.Ct. 3177, 3187 (1990).
SWRCSD complains that it was not in "any position to submit to
[its) experts the proposed possession only license requirements until those became available by virtue of SECY-91-129 in the second half of May, 1991." June 28 Appeal at 10 (emphasis added).
SWRCSD says that~it "should be allowed a reasonable time to examine the-(POL amendment) before being summarily dismissed from the proceeding." Id2 III. Discup_ pion A.
Lecal Standard on Appeal The determination whether a petitioner has demonstrated standing to intervene is "a matter within the discretion of the Licensing Board."
- Egg, e.c., Northern States Power C21 (Prairic Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC
. 188, 193 (1973), reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973).
As such, the Board's finding will not be disturbed "unless it appears that that conclusion is irrational." Idx at 193.
See also Duauesne Licht Co. (Beaver
10 Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 244 (1973).
Similarly, the " acceptance of tendered amendments to a petition for leave to i!#er/ene" is a " natter within the discro-tion of the Licensing Board," Northern States Powgr Co., 6 AEC at 193.
In the " absence of a showing of a gross abuse of discro-tion," the Board's decision should nou be overturned.
Idi; aqq ale 2 Cpmmonwealth Esiison coa (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732, 1738 (1905) (taking note of 10 C.F.R. 5 2.714 (a) (3) 's " express recognition.
. of the Board's discretion to permit the amendment of a petiticn to intervene") (emphasis added) ; Sacramento Municipal Utility Dis-trict (Rancho Seco Nuclear Generating Station), LDP-91-30, 34 NRC
__ (Juh 1,
1991).
Each of SWPCSD's allegations of error is addressed in turn below.
When thoso allegations are assessed against the ctandards set forth above, it is clear that none has any merit.
D.
SWRCSD's Dismissal Was Not "Prematute" SWRCSD has misconstrued the NRC's regulations.
As the plain language ot' 10 C.P.R.
5 5 2.714 (a) (3) and 2.714(b)(1) reveals, those regulations do D21 provide a petitioner an absolute "right" to amend a petition to intervene.
For instance, 5
- 2. 714 (a) ( 3 )
states, as relevant here:
Any person who has filed a petition for leave to intervene.
may amend his petition for leave to intervene.
A putition may be amended without prior approval of the pro-
4 11 siding officer at any time up to.
fif-teen (15) days prior to the holding of the first prehearing conference.
After this time a petition may be amended only with approval of the presiding officer, based on a bal-ancing of the factors specified in paragraph (a) (1) (concerning late-filed petitions).
Plainly, this regulation does not preclude the Licensing Board from ruling on and dismissing an intervention petition more than 15 days before the first prehearing conference. Egg Eagramento Municipal Utility District (Rancho Seco Puclear Generatin7 Sta-tion), ; LBP-91-3 0, 34 NRC __, slip op. at 8 (July 1, 1991) (rej ect-ing the argument by petitioner Environmental Conservation Organi-
~ zation (ECO) that, under 10 C.F.R.
$ 2.714(a)(3), the Licensing Board may only expand, and not contract, the 15-day deadline for amending a petition to intervene).F Rather, the gist of the
_ provision is that a petition, otherwise pending, may be amended without' leave of the Board until shortly before the prehearing
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conference.
Beyond that, to avoid the introduction of new issues on tha eve of the prehearing conference, the petition may be amended only with the permission of the Board.
It does not act to limit the Board's ability to rule at any time on papers before it.
Similarly, there is no basis for SWRCSD's claim that S 2.714 (b) (1) gives it an " absolute" right to " supplement" its i
petition.
This. provision states, as relevant here:
F Before the NRC, petitioners ECO (in the Rancho Seco case) and SWRCSD (in the Shoreham case) are represented by the aame counsel.
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fifteen (15) days prior to the holding _of the first prehearing con-forence, the petitioner shall file a supple-ment to his or her petition to intervene that must include a list of the contentions which petitioner seeks to have litigated in the hearing.
SWRCSD stands this regulation on its head.
SWRCSD argues that 5 2.714 (b) (1) provides a petitioner with the "right" to supple-ment its petition, when actually the provision *mposes a time-bound obligation on the petitioner to file acceptable contentions in order to obtain a hearing.
Obviously, if the Board determines on the basis of the intervention petition that the petitioner has failed _to aemonstrate standing, it may dismiss the petition without waiting for the submission of contentions.F SWRCSD having failed to show that it had a "right" to amend, the only question left is whether the Board's dismissal of
_ SWRCSD's petition was a " gross abuse of discretion." Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193 (1973).
Clearly, it was not.
Indeed, the Board had already given SWRCSD one opportunity to n.ub.ait an amended petition, after-identifying precisely.what was wrong with the initial defective pleading.
Lona Island-Liahtina C2x (Shoreham Nuclear Power, Station, Unit 1), LBP-91-7, 33 NRC slip op. at 31 (March 6, 1991) (the Board all'A's ?eti'tiorot a '
d The Commission recognized this two-step approach in LODE Island Liahtina Co. (Shoreham Nuclear Power' Station, Unit 1).
CLI-91-04, 33 NRC __ _(April 3, 1991), stating that "if peti-tieners satisfy the NRC's standing requirements in their amended petitions, the Licensing Board is free to consider a properly plev contention.
." CLI-91-04, slip op, at 5 (emphasis added).
13-to-puhmit-amended petitions on account of the " Commission being-rather-11boral in permitting petitioners the opportunity to curo defectivo petitions to intervone").
Certainly, it was reasonable 4
for the Board not to allow SWRCSD a chance to "take another whack at it, for the third time.F C.
The Bqard'_s Rulino qn SWRCSD's Standinc Wag Correct SWRCSD cocond-allegation of error has two parts.
First, it contends that the Board was wrong in finding that SWRCSD's only intorest in the POL amendment procooding was that of a " rata-payor" and " tax rocipient."
Second, it argues that, even if its colo interont is that-of a "ratopayor" and " tax recipient," such intercats are sufficient to establish standing in this caco.
SWRCSD is' wrong'on both counts.
(1)- SWRCSD Has Not Demonstrated an Injury to its Informational Interests uni $el ]gEA iAs noted above, the Board found that "the failure of an agency to prepara an EIS does not ips fJ1g_t;I result in a cogni-
' zablo injury.that affords standing-.under NEPA," pointing out that F
SWRCSD's claim that it'"had planned to amend and supplement its petition" by submitting an affidavit "further specifying the interests that'would be harmed by issuance" of the POL'd.mic not avail-it here.
SWRCSD does not identify this now affiant.or explain why-it could not.have.provided this further-specification when it=submittedEits amended petition on April 8, 1991.
It 'is curious, too, that while SWRCSD- (jointly with SE ) has asked the 2
D.C. Circuit for a stay of the POL amendment's offectiveness,
- when.it submitted its stay. request on July 5, 1991, SWRCSD included no affidavit to attempt to demonstrate that it would suffer' harm.(muchLloss, irreparable injury") from the POL amendment's becoming effective.
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14 a " petitioner must show it has suffered, or will suffer a dis-tinct and palpable harm that constitutes an injury in fact."
LEP-91-26, slip op at it.
With respect to both organizational and reprocentational standing, the Board ruled, SWRCSD had mado no such showing.
On appeal, SWRCSD does not directly confront the Board's correct finding that SWRCSD had provided only " vague" allagations of harm.
Rather, SWRCSD takes issue with the Board's basic view of the law of informational standing under NEPA, asserting flatly that the " denial of the availability of the information" in an EIS on Shoreham's decommissioning in a "' distinct and palpable ha rm ' to the School District within the zone of interest pro-tected by NEPA."
June 28 Appeal at 5 / emphasis added).
Signifi-cantly, SWRCSD cites no cases that discuss informational stand-ing, but merely wails that the Board is being " totally insensi-tive" to NEPA.
The Board is clearly correct.
To establish standing under NEPA, SWRCSD was obliged to identify specific " programmatic concerns (that] are being directly and adversely affected" by the challenged agency action.
See C9moetitive Enterprise Inst. v.
UHTSA, 901 F.2d 1G/, 122 (D.C. Cir. 1990); American Leoal Founda-ticn v. FCC, 808 F.2d 84, 92 (D.C. Cir. 1987).
Further, even assuming that SWRCSD had identified a relevant federal action and asserted a cognizable interest under NEPA, the test for standing, as expressed in Cannetitive Enterprise Inst 2, requires more:
To establish standing (on the basis of infor-mational injury), petitioners must assert a 1
(
1
15 plausible link between the agency's action, the information injury, and the organi-zation's activities.
idt at 122 (emphasis added)T E9A A1EQ Community Nutrition v.
Block, 698 F.2d 1239, 1254 (D.C. Cir. 1903) (potitioner's asser-tion of standing was rejected becauue petitioner " failed to establish any connection between the alleged injury and the
[ agency action)").
Thus, while the objectives of HEDA may
" lower () the threshold for establishing injury to informational interests," 901 F.2d at 123, they do not eliminate the threshold requirement of establishing a plausible connection between the challenged agency action and the alleged injury.
It was this "plausiblo link," the Board found, between the alleged harm and the NRC's issuancn of the POL amendment that SWRCSD failed to establish.
As a review of SWRCSD's petition to intervene reveals, the Board is correct.
Nowhere does SWRCSD make any tangible, specific connection between the issuance of the POL-and its allegations of harm.
The Doard acted well within its " discretion" in finding that SWRCSD had not demonstrated standing.
Egg Northern States Power Co._ (Prairie Island Nuclear Generating _ Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193 (1973).
Par from being " irrational," the Board's finding was the natural consequence of.SWRCSD's having submitted, for a second time, and despite guidance from the Board in LBP-91-7, an insufficient petition.
Egg Duaues_De Licht Co. (Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 244 (1973).
Indeed, the fact that, on appeal, SWRCSD continues to make no
=
16 offort to refuto the Board's finding is a compelling indication that SWRCSD cannot hopo to demonstrate any injury to a cognizable interest under NEPA.I' (2)
Its Interest as a " Ratepayer" and " Tax Recipient" Does N9t Provide SWRC8D with_Rigtndina to II)1grye.ne_
SWRCSD's argument that its interest as a "ratopcyer" and
~
" tax re;ipient" is sufficient for standing purposes should also be rejected.
Even if it Marg correct that " economic injury" is usually sufficient to provido standing in NRC proceedings, it would not further SWRCSD's cause.
The " economic injury" (i.e.,
the loss of tax income) about which SWRCSD complains stems neither from the POL amendmant nor even from Shoreham's decommis-sioning.
Rather, the " economic injury" SWRCSD purportedly will suffer is a direct consequence of LILCO's private decision to close the plant.
As the Commission has repeatedly made clear, that decision in not at issue.
Lona Island Lichtina Co. (Shore-ham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990),
aff'd on reconsideratigD, CLI-91-02, 33 NRC 61 (1991).I' l'
Accordingly, SWRCSD is wrong when it asserts that the Board has provided "no bases for its own bare conclusion." June 28 Appeal at 10.
That the Board was able to make relatively short shrift of SWRCSD's defective petition simply reflects the weak-noss of SWRCSD's claim of standing.
I' As for SWRCSD's additional claim of environmental injury from the " indirect (e.o., air pollution)' effects of the plan to replace Shorcham with fossil fueled generating units," hero, too, SWRCSD seeks to raise issues that are outside the scope of any proceeding on Shoreham, as the Commission has ruled.
Egg CLI 08, 32 NRC at 207 (the " alternative of ' resumed operation' -- or other methods of generating electricity -- are alternatives to (continued...)
{
e I
17 Expressed another way, contrary to SWRCSD's representation,
.therelis nothing that the NRC can do to afford "redressability" of the economic injury SWRCSD alleges it will suffer.
A decision by the NRC to rescind LILCO's POL amendment would not lead to Shoreham's operation.
Even a refusal by the NRC to allow Shora-ham's transfer to the Long Island Po*?er Authority would not prompt LILCO to operate the plant.
The Commission has oxpressly recognized the irrevocable _ nature of LILCO's decision.u/
As a consequence,- SWRCSD has not demonstrated an " injury in fact" that can be " redressed" by any action by the NRC.
Eft Northern Stateg Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 526-27 :(1980) (no standing found where the alleged " injury _ derives not from the_ proposed revocation of the license but from the termination of the project," and the Commission "cannot fashion relief which would in any way redress the harm" to petitioners.from the project's cancellation).
D.
SWRCSD Had_No'Richt to Disoovery Finally, SWRCSD is wrong when it claims that it was "impro-per" for the Board ~to dismiss it before.it had " adequate time for L
'Y
(... continued) the decision _not to operate Shoreham and thus are beyond Commis-sion coraideration").
W ERS LEDa Island Lichtina Co. (Shoreham Nuclear Power 34 NRC slip op, at 6, 11 (June
-Station, Unit 1), CLI-91-08, 12, 1991) (the Commission "has no basis,to look behind LILCO's statement"-that it is " committed n21 to operate Shoreham under ABY circumstances," and does accordingly " accept LILCO's declara-tion at face' value") (emphasis in original).
w-,
w
4 18 discovery."
Juno 28 Appeal at 9-10.
SWRCSD's allegation flies in the face of long-settled Commission procodont that there is no right to discovery before a petitioner must file his petition.
ggs, e. q,., Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928 (1974); Uprthern Staten Power _Co.
(Prairio Island Nuclear Generating Plant, Unita dnd 2), ALAB-107, 6 AEC 188 (1973).
Indood, a petitioner has no right to discovery beforo filing contentions.
As tho. Appeal Board has noted, "(n]oither Section-189a of the Atomic Energy Act nor 6 2.714 of the Rulos of Practico permits the filing of a vague, unpart icularized contention, followed by an ondeavor to flesh it out through discovery against the applicant or Staff."
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in nart on other arounds, CLI-83-19, 17 NRC 1041 (1983).
The Commission's position on this issue has boon uphold by the federal courts.
- Egg, e.g.,
BPI v.
AEC, 502 F.2d 424, 428 (D.C. Cir. 1974) (rojecting the argument that the Atomic Energy Act should be so construed "that the interested person need not articulate the issues until after having been admitted as a party to.the proceeding, with conse-i l
. quent access to discovery").
l Apart from being wrong as a matter of 2.aw, SWRCSD does not indicate what information it would have sought to obtain through l
discovery, had discovery boon available.
SWRCSD protests only that it was not in "any position t6 submit to (its) experts tho l
l proposed possession only license requirements" until SECY-91-129 l
I
=
-= -
19 became available in May 1991.
This complaint is not well taken.
SWRCSD ignores that on August 21, 1990, when LILCO's POL amendment application was first noticed in the Federal Recister, the NRC Staff stated that "[f]or further details with respect to this action," an interested person could "see tbn application for anendment.
which is available for public inspection at.
the Shoreham-Wading River Public Library.
" SS Fed. Reg.
34,101 (Aug. 21, 1990).
The POL amendment application, readily available in SWRCSD's own backyard,M/ contained LILCO's proposed changes to Shoreham's technical specifications.
If SWRCSD and its " experts" had truly wanted to review the POL amendment, examination of the application would have provided them with useful information.H' The burden was on SWRCSD to make use of such material.
Ese Duke Power Co. (Catawba Nuclear IV The Staff's notice also stated that LILCO's POL amendment application was available for inspection at the NRC's Public Documents Room in Washington, D.C.
55 Fed. Reg. 34,101.
SWRCSD's counsel's office is in Washington, D.C.
IU Earlier in this proceeding, SW7CSD complained that it had not been given an opportunity to evaluate the-NRC Staff's analy-sis of the final version of LILCO's proposed defueled technical specifications for Shoreham.
See "Shoreham-Wading River Central School District Supplement to Comments on Propt2ed No Significant i
l Hazards Determination, Petition to Intervene, and Request for L
Hearing" at 3-4 (Oct. 10, 1990).
As LILCO pointed out in l
response, on August 2, 1990, LILCO and the NRC Staff met in a publicly noticed neeting at NRC headquarters in Rockville, Maryland to discuss the Staff's comments on LILCO's defueled technical specifications.
SWRCSD declined to send a representative to the meeting, even though its counsel had been copied on the June 27, 1990 letter by which the Staff transmitted l
to LILCO-the Staff's initial proposed revisions to the technical specifications, and in which the Staff requested a meeting to i
resolve any differences.
In short, SWRCSD has not taken i
I advantage of the opportunities it has had to review LILCO's POL amendment request.
_. -~
. - - -... ~.
20 Station, Unita 1 and 2), ALAB-607, 16 NRC at 460 (a petitioner has an " ironclad obligation to examino *.ho publicly availablo documentary material portaining to the facility in yuontion with sufficient chro to enable the putition t.
uncover any information that could sorvo as the foundation of a opacific content!.on").
Given itu own lack of conscientiousnoso, SWROSO in in no position now to complain that it Jacked information on which to baso its intervention petition.
IV. Ognglitpipjl For the reasons above, SWRCSD's appeal from LBP-91-26 should be denied.
Respectfully submitted s n W.~. Taylor Revoiey, III Donald P.
Irwin David S. liarlos Counsel for Lo69 la:htf Lighting Cor any ilunton & Williams
_ Riverfront Plaza, East Tower 951 Eest Byrd Stroet Richmond, Virginia 23219 DATED: -July.15, 1991 i
1.
a
O LILCO, July;1h 1991
>Mt UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M
Lkfore the Commission
']
f' y
- n >
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OLA
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of LILCO'S OPPOSITION TO SIIOREllAM-WADING RIVER CENTRAL SCIIOOL DISTRICT'S APPEAL FROM LDP-91-26 were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mail, postage prepaid.
Commissioner Kenneth M. Carr, Chairman
- The Honorable Samuel J. Chilk Nuclear Regulatory Commission The Secretary of the Commission One White Flint North Building Office of the Secretary 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 Washington, D.C. 20555 Commissioner Kenneth C. Rogers
- Administrative Judge
- Nuclear Regulatory Commission Morton B. Margulies, Chairman One White Flint North Building Atomic Safety and Licensing Board 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 East-West Towers, Fourth Floor l
4350 East-West Highway Commissioner James R. Curtiss*
Bethesda, MD 20814 l-Nuclear Regulatory Commi,sion l
One White Flint North Building Administrative Judge
- 11555 Rockville Pike Jerry R. Kline l
Rockville, Maryland 20852 Atomic Safety and Licensing Board U.S. Nuc! car Regulatory Commission i
l-Commissioner Forrest J. Remick*
East-West Towers, Fourth Floor Nuclear Regulatory Commission 4350 East West Highway One White Flint Morth Building -
Bethesda, MD 20814 11555 Rockville Pike Rockville, Maryland 20852 i
i.
Administrative Judge
- Charles M. Pratt, Esq.
George A. Ferguson Senior Vice President and General Counsel Atomic Safety and Licensing Board 22nd Floor 5307 Al Jones Drive Power Authority of State of New York Columbia Beach, Maryland 20764 1633 Broadway New York, New York 10019 James P. McGranery, Jr., Esq.*
Dow, Lohnes & Albertson Carl R. Schenker, Jr., Esq
- 1255 23rd Street, N.W., Suite 500 Counsel, Long Island Power Authority Washington, D.C. 20037 O'Melveny & Myers 55513th Street, N.W.
Mitzi A. Young, Esq
- Washington, D.C. 200M Office of the General Counsel U.S. Nuclear Regulatory Commission Gerald C. Goldstein, Esq.
One White Flint North Office of General Counsel 11555 Rockville Pike New York Power Authority Rockville, Maryland 20852 1633 Broadway New York, New York 10019 Nicholas S. Reynolds, Esq.
David A. Repka, Esq.
Samuel A. Cherniak, Esq.
Winston & Strawn New York State Department of Law 1400 L Street, N.W.
Bureau of Consumer Frauds and Protection Washington, D.C. 20005 120 Broadway New York, New York 10271 Stanley B. Klimberg, Esq.
Executive Director and General Counsel Long Island Power Authority 200 Garden City Plaza, Suite 201 Garden City, New York 11530 h$.
david S. Hiirlow Hunton & Williams Riverfront Plaza, East Tot er 951 East Byrd Street Richmond, Virginia 23219-4074 DATED: July 15,1991 i
l l