ML20076N022

Nuclear Regulatory Commission Issuances for January 1991. Pages 1-60

ML20076N022
Person / Time
Issue date:	03/31/1991
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V33-N01, NUREG-750, NUREG-750-V33-N1, NUDOCS 9103270034
Download: ML20076N022 (67)

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d NUREG-0750 Vol, M, No.1 Pages 1-60 NUCLEAR REGULATORY COMMISSION ISSUANCES January 1991 This report includos the issuancos rocoived during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad-ministrativo Law Judges (ALJ), the Directors' Decisions (DD), and the Donials of Petitions for Rulemaking (DPRM).

The summarios and headnotes proceding the opinions reported heroin are not to be deemed a part of those opinions or have any indopondent legal significanco, i

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U.S. NUCLEAR REGULATO.RY COMMISSION i

l-Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/r2-8925) e-w

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r COMMISSIONERS Kenneth M. Carr, Chaimian Kenneth C. Rogers James R. Curtiss Forrest J. Remick Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panet B. Paul Cotter, Chief Administrauve Judge, Atomic Safety ard Licensing Board Panel

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t CONTENTS ilssuance of the Nuclear Regulatory Comn:'ssion

- LONO ISLAND LIOllTING COMPANY -

- (Shorcham Nuclear Ptwer Station Unit 1)

Docket 50-322_

MEMORANDUM ANDDRDER, CLI 911 January 24,1991..,....,,I l'suance of the Atomic Safety and Licensing Appeal licard s

-PUllLIC SERVICE COMPANY OF NEW liAMPStilRE, et al,

- (Scabrook Station, Units 1 and 2)

Dockets 50-443-OL,50 444 OL (Offsite Emergency Planning issuca)

MEMORANDUM AND ORDER, ALAB 943, January 7,1991...... 11 Issuances of the Atomic Safety and Licensing floards FLORIDA POWER AND LIGIIT COMPANY

' (1brkey Point Nuclear Ocnerating Plant, Units 3 and 4)

Dockets 50 250-OLA-6,50-251 OLA 6 (ASLBP No. 91625 02-OLA 6)

(Emergsncy Power System Enhancment)

MEMORANDUM AND ORDER. LDP-912, January 23,1991,,,,,,,, 42 -

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LONO ISLAND LIOllTING COMPANY

- (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322-OLA (ASLBP No. 9162101 OLA)(Confirmatory Order Modification, Security Plan Amendment, and Emergency Preparedness Amendment)

AEMORANDUM AND ORDER, LDP-91 1, January 8,1991........

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, PUBLIC SERVICE COMPANY OF NEW IIAMPSilIRE, et al.

(Scabrook Station, Units 1 and 2)

' Dockets 50 443-OLR 3& 5,50-444-OLR-3& 5.

(ASLBP Nos. 90-619-03-OLR 3,91630-01 OLR 5)

(Offsite Emergency Planning) __

MEMORANDUM AND ORDER, LUP 913, January 29,1991.......

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Issuance of the Director's Deciskm ALL NUCLEAR FACILITIES DIRECIOR'S DECISION UNDER 10 C.F.R. I2.206, DD-91 1, January 15,1991..................................

53 issuance of Dental of Rulemaking CilARIIS YOUNO Docket PRM 50-50 DENIAL OF PETITION IOR RULEMAKING, DPRM 91 1, January 11,1991............................... 55 iv -

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CU 911 UNITED STATFS OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick

. In the Matter of -

Docket No. 50-322 LONO ISt.AND UGNTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

January 24,1991

• The Commission addresses policy questions concerning the operadon of its decommissioning rules in reladon to a request by LILCO for a Shoreham operating license amendment. The Commission determines that the amendment,

-if granted, would transform the Shoreham operating lkense into a possession only" license; that such a " possession only" license may be issued without any preliminary or final decommissioning information; and that Pedtioners' requests '

for a hearing prior to grant of the license amendment should be forwwded to the Licensing Doard for consideradon under 10 C.P.R. 6 2.714.

OPERATING LICENSE:

'! POSSESSION ONLY" LICENSE A licensee's request for an amendment cf its facility's operating license whkh if granted, would allow the Ikensee to " possess, use, but not operate" the facility, converts that operating lkense into a " possession only" Ikense.

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" POSSESSION ONLY" LICENSE (DECOhlhllSSIONING Pl.AN REQUIREMENTS)

Neither regulations, NEPA, not policy considerations require a decommis-sioning plan to be subtnitted in conjunction with a " possession only" license application.

" POSSESSION ONLY" LICENSE (DECOMMISSIONING PLAN I!EQUIREMENTS)

Nothing in the decommissioning rule or in the Statement of Considera-tions accompanying that rule indicates that " possession only" license issuance would be tied to the preliminary decommissoning plan required by 10 C.P.R.

5 5035(f).

REGULATIONS: DECOMMISSIONING ne NRC's decommissioning regulaticra do not require a " possession only" license - the Statement of Considerations necompanying the decommissioning rule merely describes the " possession only" license as something the licensee may seek in order to be relieved of requirtments not necessary !or safety in a possession only" mode.

"POSSi'SSION ONLY" LICENSE (NEPA CONSIDERATIONS) he Commission believes that the decommissionmg rules do not conternplate that a "pmsession only" license would, in normal circumstances, need to be preceded by submission of ariy particular environmental information or accompanied by any NEPA review related to decommissioning.

" POSSESSION ONLY" LICENSE (NEPA CONSIDERATIONS) here may be special circumt.tances where some NEPA review for a "pos-session only" license may be wammted despite the categorical exclusion, for

- example. if the " possession only" license clearly could be shown actually to foreciose alternative ways to conduct decommissioning that would mitignte or alleviate some significant environmental impact.

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MEMORANDUM AND ORDER Ris matter is before the Commission on two virtually identical pleadings styled as " Comments on Proposed No Sign 10 cant lla7ards Consideration and Petillon for Leave to Intervene and Request for Prior licaring" and "Peution for Leave to Intervene and Request for Prior Hearing" filed by the Shorchtun-Wading River Central School District (" School District") and the Scientists and Enginars for Secure Energy ("SE2") (collectively " Petitioners"). De petitions concern a request by the long Island Lighting Company ("Lilf0")

for an amerdment to its liccuse to operate the Shoreham Nuclear Power Plant

("Shoreham"), loccted on Long Island in the state of New York. The amendment would change the license from one that authorizes Litf0 to " possess, use, and

-operate" Shoreham to one that authorizes LILCO to " possess, use but not operate the facility."

We have delayed referring these petitions to a licensing board for action in order to address at the threshold some significant policy questions atout the operation of our decommissioning regulations in the circumstances presented in this casc A major issue raised by the petitions is whether the requested amendment constitutes a " possession only" lleense (" POL") and if so, what if any requirements related to decommissioning does that fact impose on the parties and on the Commission, in this case, we have determined (1) that the requested amendment would indeed transform the Shoreham opcoting license into a POL; (2) that such a POL may be issued without any preliminary or final decommissioning information; and (3) that the pedtions should be forwarded to the Licensing Board for consideration under the Commission's normal Rules of Practice, e.g.,10 C.P.R.

I 2.714, consistent both with this order and our recent decision on other petitions filed by the same Petitioners. See CL1-90-8,32 NRC 201 (1990) (Motion for Reconsideration filed Oct 29,1990).

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BACKGROUND On March 3,1989, we ccncluded the Shoreham operating license proceeding and authonzed the issuance of the full-power operating license for the Shortham -

facility. See CLI 89 2,29 NRC 211 (1989). liowever,just gior to the issuance of CLI 89-2, on February 28, 1989, LILCO and the inutver,an in the NRC licensing proceeding - the State of New York, the County of Suffolk, and the Town of Southampton - reached an agreement raemorialized in a signed settlement agreement or contract between LILCO and dre State. Under the agreeinent, LILCO agreed, inter alia, to sell the Shomnam facility to the Long Island Power Authority ("LIPA"), an entity created by the New York legislature 3

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for the express purpose of acquiring and decommissioning Shoreham. See New York Public Authorities Law i 1020, et seq. (McKinney Supp.1990).'

'Ihe agreement became effective on or about June 28, 1989, upon its ratification by the LILCO Board of Directors. The agreement also provided that LILCO would not operate Shoreham as a nuclear power plant. Consistent with its commitment not to operate Shoreham, LILCO began defueling the Shoreham facility on Jene 30,1989, and completed that process on August 9,1989. LILCO has also initiated the process of reducing staff at the Shoreham facility and has at all times acted as if it intends to abide by the agreement.2 On January 5,1990, LILCO filed an application for an amendment to its operating license that would transform the operating license into a "defueled operating license." The NRC Staff (" Staff") published notice of the requested amendment and a proposed finding of"No Significant flazards Considerations."

See 55 Fed. Reg. 34,098 (Aug. 21,1990). On September 20,1990, Petitioners filed their comments on the proposed finding of "No Significant liszards Considerations," requested that the Commission hold prior hearings on the proposed amendrnent, and sought leave to intervene in the proceeding.

IL ARGUMENTS Briefly, the Petitioners argue that (1) the request for a "defueled operating license" constitutes a request for a " possession only" license (" POL"); (2) the Commission's decommissioning rule,10 C.F.R. 6 50.82, requires that the Li-censec submit and the NRC Staff approve a decommissioning plan prior to the issuance of a POL; (3) the decommissioning " report" prepared by LIPA and submhted by LILCO on some unspecified date in April 1990 hrs not been approved as a " decommissioning plan" in accordance with the Commission's rules; and (4) the Staff must issue an Environmental Impact Statement ("EIS")

considering " resumed operation" as an alternative to the decision to decommis-sion the facility prior to the issuance of the POL. See generally SE2 Petition at 311; School District Petition at 311.

In response, on October 3,1990, we issued an order directing the Staff and Lilf0 to respond to two questions: (1) Did the requested "defueled operating license" constitute a POL and (2) did the decommissioning rule require submission of a " decommissioning plan" prior to issuance of a POL 7 The October 3d Order also accepted comments filed by LIPA on October 12, 1990, and solicited comments from the Department of Energy (" DOE") and -

Ilhe NRC staffissued the shorthans fu& power!icane an AprU 21,1989.

2 Par saample, tJIfo has successAdy sought er is socking various ammeness he hs operatir4 cmse as well as h

esanctions frcm several applior*Je NRC regulations. The NRC has received pehions as irservene and sequests fa heariass regar&ng eswrsl or the requested Econes amendments. rw c11-90 8. Japre.

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-s i the Councl! on_ Bivironmental Quality ("CEQ") Both the CEQ and the DOB i accepal our invhation and filed comments, Moreover, on November 15, 1990,'

. e received comments by the State'of New York.*

w The Staff agreed _with the Petitioners that the requested amendment would-constitute a POL, but both the Staff and LILCO argued that the decommissioning rule did not require submission of a formal decommissioning plan prior to the fgranting of a POL. Briefly, the Staff LILCO, and LIPA argue that (1) the

' Commission's regulations are silent regarding the uming or requirements for L seeking a POL 1 and (2) the Staternent of ('ansiderations accompanying the 1

Decommissioning Rule speel6cally noter that the Cunmission will normally

- Issue a POL prior to issuing an order permitting decommissioning "to confirm e the nonoperating status of the plant and to reduce some requirenwnts which are l

Important only' for operation prior to finalization of decommissioning plans," ~

._ Moreover, Staff and LILCO argue that the Decommissioning Rule specifies -

tonly that in filing an application for a Decommissioning Order, "within two 1 years following the permanent cessation of operations," a licensee'must " apply to the Commission for authority to surrender [its) license voluntarily and to

- decommission the facility," They conclude ~that it is this application fur a Decommissioning Order that is to be preceded or accompanied by the Licensee's formal decommissioning plan, while the_ POL need only be accompanied or preceded by_a

• preliminary decommissioning plan" that includes information

' analogous to that required by 10 C.F.R. I 50.75(f) and demonstrates compliance 2with the requirements of 10 C.F.R. I 51.101.

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-. q Ill ANALYSIS A.V The Passession.Only License 1he Petitioners argue that the requested amendment constitutes a " possession only" license. The Staff agrees and LILCO does not object to treatment of its

- request as such. We agree that the requested amendment would, if granal,

_ convert the Shoreham license into a " possession only" license, i

3 )u osser of Newember is sessed a capasst from ein sists of New Yodt to sie eennemis ht appasiden to de -

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Pusehmers' 3eiss Mason for 8-% of C1J#s (Osseher 29,1990)(" Jess Peninismi lies esder also asned est es amammen sled by em CEQ and es doe em to meest befass as new 6mshaded enumsms duened

-. at the Mmeine for messanidameise and ayend te seasider thus canummes em that Ismas as seIL FanaDy,IJPA has.

- sind addnenal cenemanas in suspumme to the doe and CBQ oenemens and bt suspense to se Jams Pus %n. We Jr heeby asesyt ihme esammes in busk,

. We mens that des CF.Q and doe ennummes an feansed en ene Ismans assumend in C1J#s, myre, vanhar than the !

issues aseuseed in ena Mamereadma

- uml onder. To des esans they em applicable, we have sumsidmed aR esaussmas in the youperusion of eds Order.

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11. Decommissioning Requirements.

Petitioners next argue that because the requested amendment constitutes a " possession only" license, the Commission must deny the request because LILCO has not yet submined its " decommissioning plan" pursuant to 10 C.F.R.

I 50.82(a). We disagree. Neither regulations, NEPA, not policy considerations require a decommissioning plan to be submitted in conjunction with the POL application.

The regulation does require that the licensec submit its application "to sur.

render (its] license voluntarily and to decommission the facility.. within two years following permanent cessation of operations," and that "[c]ach application must be accompanied, or preceded, by a proposed decommissioning plan." 10 C.F.R. 0 50.82(a). But clearly, the requested amendment befon: us today does not constitute an " application to surrender a license voluntarily...." "Ihus, it need nc4 be accompanied or preceded by a full. scale decommissioning plan.

10 C.P.R. I 50.82(a), supra.

As the Staff points out, our regulations do contemplate that "[elach licensec shall at or about 5 years prior to the projected erd of operation submit a pre-liminary decommissioning plan...." 10 C.F.R. I50.75(f)(emphasis added).

And the Statement of Considerations accompanying the decommissioning rule stated tha the "overall approach to decommissioning must now be approved shortly after the end of operation rather than an amended possession only Part 50 license being issued without plans for ultimate dispmition." 53 Fed. Reg.

24,024 (June 27,1988).

However, this language merely reflects the normal situation under the rule whereby the preliminary gun will in fact have been filed before the POL application. Sec 10 C.F.R. 5 50.75(f). Nothing in the rule itself or in the Statement of Considerations indicates that POL issuance would be tied to the preliminary plan required by section 50.75(f). In fact, our decommissioning regulations do not require any POL - the Staement of Consi& rations merely describes the POL as something the licensee may seek in order to be relieved of requirements not necessary for safety in a " posse *sion ocly" mode.

Our decommissioning regulations also include amendments to 10 C.F.R. Part 51 to address NEPA requirements related to decommissioning. Notably, while the rules tncmselves included a Generic Envienmental Impact Statement and required a supplemental environmental review in connection with approval of the final decommissioning plan,10 C.F.R. 6 51.95(b), the categorical exclusion applicable to issuance of POLS in 10 C.F.R. I 51.22(c)(9) was left unchanged.

We believe that the decommissioning rules do not contemplate that a POL din rect. U1IX) has consisundy stated that under the conuact er setdanas agreaners oldi the stais or New York and under New Yoak Stats taw. only UPA is ermded ic A

= the shoresen raciliry. see Ulco Response at 6 7, 6

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would,- in normal circumstances, need to be prtx:eded by submission of any

- particular environmental information or acempanied by any NEPA review related to decommissioning. Accordinglyat do not believe that NEPA or 10 C.F.R. Part 51 serves as a basis foi linking a POL with the filing cr review of any preliminary dcTmmissioning plan. Of course there nuy te special circumstances when some NEPA review for a POL may be wananted despite the categorical exclusion, for example if the POL clearly could be shown actually to foreclose alternative ways to conduct decommissioning that would mitigate or alleviate some significant environmentalimpact; But, from the papers fileo wlth -

us at this preliminary stage, no such special circumstance appears in this case, indeed Petitioners are concern (d not with alternative ways to decommission, but with operation as an alternative to decommissioning. We hwe addressed this latter mauer in CL1 %8.

C.

Action Before the Licensing Board We hereby forward the two petitions before us now, with their assorted supplements and answers, in addition to the pleadings filed by LIPA, DOE, CEQ, and the State of New York, to the Licensing Board for further proceedings in accordance with tie Commission's Rules of Practice, specifeally 10 C.F.R. 52.714(a)(2), and in accordance with the opinions expressed herein and in CL1-4 l 90-8.

The additional concurring views of Commissioner Curtiss a% dw dissenting views of Chairman Carr are attached.

It is so Ordered.

For the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, -

this 24th day of January 1991, y

1 ADDITIONAL CONCURRING VIEWS OF COMMISSIONER CURTISS.

' I agree with tie majority's conclusion'that the decommissioning rule does c not require the submission of a decommissioning plan, either in preliminary or final form, prior to the issuance of a possession-only license (POL). With regard 7

I-to thequestion of whether the Commission sheuld declare, as a ~ atter of policy, m

that such a plan should be submitted prior to isstonce of a IOL, I am persuaded that such an ap[ roach would be unwise for the following feasons:

First, I see no econection between the objectivet th:.1 have been articulated in the decornmissionmg rule and the suggestiori ht a decornmissionieg tlan should be required prict to issuance of a POL. As the inajority points out, there is no information that would indicate that issuance of a POL wijl in any w%y foreclose alternative apprt.4hes to decommissioning. Nor wiu issuance of a POL detract in any way from the ability of tic Licentco ia raise ce maintain

' decommissioning funds. Indeed, irwisting upon a decommitioning plao prior to issuance of a POL may well lead to exactly the opposite resalt, with the 12censee obligated to continue otherwise unr.-cessary em:nditures to comply with the tenns of its full-power operating liccase, when so:h funds would, in my view, be more properly husbanded to carry out the ultinute task of decommistoning thi facility, coce the Licensee has re. ached tic decbion th'at this is the course

' that it wishes to pursue.

Second, to the extent that the cbjective here, Jar Lliose who are arguhg tM:

a ::lecommissioning plan must be submitted and rpproved prior to issnance of a POL, is to coratinue the debate over whether the Shoreham facility should be preserved in a fashion that would permit it to cperate as some future point in llan, I do not believe that this agency should becorre. the formn for debating such broad national policy questions. As a legal matter, we have eddressed our responsibilities in CLI 90-8 Beyond that, we tiak considerable damage to our position and responsibility as un independent arbiter of safety queations by entertaining what is essentially a policy dispute over h future of this facility.

Moreont, the precedents that wouki necessaray be estabiished to actommodate such a debate would cit-ost certainly have significet aOctse consequences for future proceedings in other cases, opening the door for bcth opponeras as well as proponents of nuclearpower to litigate broad national enrigy policy issues in r

NRC proceedings. Such a result would, in my judgme x, quickly prove to be a costly mistake, in my view, if quettions still retNdn as to whether the Shoreham facihty should be preserved in a fashion that would permit it to operate at some fature pont in time, there are other more appropriate venues for the conduct of that debate.

DISSEN'.ING VIEWS OF CliA:(Rh1AN CARR The Staff has argued and I agree that LILCO tr.ust submit a preliminary plan" containing sufficient information prior to issuance of a defueled operating liccuse or possession only license (POL) to provide the Cornmission tie noces-sary assurar.cc that adequate funding for safe decommissioning will be provided 8

on a timely Ws SW TlopN its decommissioning ruld, (12 Conanissim envisioneo /. orruly p'ign.dar N. nrd termination of o;rrathn and decurn-missionir/ d :.acility, thewsecsM 'd provide assurance of On avaitaliility of fuG 'or decorathalonly 'selHW tre f acility shutdosn by onc of s v-l' eral spec ic car A &e ii (WR. 450J/.4 He). Under 10 C.F.R. 50.7$(f), 5 years Nfrie t c pt)cckd etut c(Cacility c) erat on, the licensee would submit t

a pretin.Ny 0 rommissioning plawnr. ising a cost estimate for decommis-sioning and 2 op-to-date assessment of the major technical factors that could affect plaming for decommissioning. To submit this information the licusec was rxpected to have evaluated the upcoming decommissioning of its facility sufficiently to anticipate the alternmive to be used, the major steps necessary to carry out decommissioning safesy, and whether Ac funds accumulagd were l

sufScier.t to ensure safe (c Ammissioning of whether the level of lands should be adjusted. Then, within.' years of perm. ment cessation of operatic', the li-

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censee is requirci. to subad, a decommissioning plan with a detailed analysis and description of the steps necessacy to safely remove a facility from servke end reduce residual radioactivity to a level that permits release of the property y

- fo unrestricted use and termination of the livnse.

The derJeled licet:se that Shcrcham has applied for in this case is essentially the same as a possession-only license. While the Commissiori recognhed when it issued id 6ccorwthloning rules that a possession-only license would ordinarily be issued before decommisA mi g plans were "finalimi," Le., before the 10 C.F.R. 6 50.82 plans were retW.xl and approved, some preliminary decommissic.dng informafft was needen. Indeed, that was the information expected to be provided under section 30.75(f). While literai applicatiun of section 50.75(f) is not possible in this cusc that is no reason,o abandon o

altogether the rationale behind the Commission's adoption of the stepwise t

approach to di.commisr? Aing reqeements in the first place, i.e., to ensure that decommissioning of all licensc4, faci'itics wiU be accomplished in a safe and timaly min'er and that adequate licensee funds will tu 'm.ilaole for this purpose. Indeed, the Cornmisske nuay_ have Fmater reason to be concerned aboutimderstanding how prenaturely shutdown facilitier intend topwext with decomicissioning and J,inding than for those that follou the normt140 year progresWn to lice 2@ termination. The more abrupt thc - shutdown, the less extensive will beany pivming about decommistioning, and once a facility is no longer gencA ting reveare for 10 owner, there is less incentive to proceed with a timely and, safe decommissioning, because a source of funds derived directly frorr the plant will no longer be avail @le for decommissbning.

1.dso belien that we nec< preliminary decorarcissioning loformation from the licensee pr!or to k,suance of the TOL in order to Wiplemcut the coutst: we estabushed to CLI 90-8 to icect our obligations under the National Envirorrrm+

81.1 Policy Act '*NEPA), in that decis'on we ininxl that the NRC Sta# riced -

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not prepart an environmental assessment or an environmental impact siatentni reviewing and analyrjng resumed operation of Shoretum as a nuclear smti plant as an alternative under NEPA. Ilowever, we concluded Oct the Commis-sion did have an obligatkm to ensure Otat NRC action su;h as issuance of a possession only license does not forecioso or materially affect a decommission-ing option that will te sutject to an environmental redew upon consideration of the licensec's decommissioning plan See CLl 90-8, 32 NRC at 207 n.3.

Consequently, as Staff recognized in its filing with the Commission, Oc Com-mission would reed some preliminary decommissioning information in order to assess the effect of activities to te carried rv toder de ICL on the reastmable ogicos evallable for decommissioning.

For these reasons, I telieve that the licensec should submit a preliminary decommissioning plan, such as that contemplated under 10 C.F.R. I50.75(r),

before a possession only license is issued, and I therefore resNctfully dissent from the decision of rny colleagues.

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Atomic Safety and l

Licensing Appeal

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ATOMIC SAFETY AND UCENSING APPEAL PANEL

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i Chrbtine N. KoN. Chairman i

Alan S. Aceenthal Dr. W. Rood Johnson l

TNmas S. Moore

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l Howard A.Wilber G. Paul Dollwerk, til 1

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C6te as 33 NRC 11 (1991)

AL40 943 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL DOARD Administrative Judges:

G. Paul Bollwerk, lli, Chairman Alan S. Rosenthal Howard A.Wilber in the Matter of Docket Hos. 50-443 OL

$0-444 OL (Offsite Emergency Planning issues)

PUBLIC SERYlCE COMPANY OF NEW HAMPSHIRE, of al.

(Seabrook Station, Unita 1 and 2)

January 7,1991

'Ihc Appeal Board dismisses as premature a joint intervenor appeal of LBP.

90-44,32 NRC 433, and LBP-9012,31 NRC 427 (1990).

RULES OF PRACTICE: FINALITY OF DECISIONS

" Tic test of ' finality' for appeal purposes before this agency (as in the courts) is essentially a practical one. As a general matter, a licensing leard's action is final for appellate purposes where it either disposes of at least a mahr segment of the case or terrninates a party's right to participate; rulings which do neither are interlocutory." Toledo Edison Co. (Davis-Besse Nuclear Power Station),

ALAB 300,2 NRC 752,758 (1975)(footnotes omitted).

11

110L13 OF PRACTICE: FINALITY Or DECISIONS When issues are remanded to a Licensing Board as a part of an Appeal Board's consideration of a " major segment" of a proceeding, any appeal concerning tic Licensing floard's resolution of any of those issues snust await a final floard determination on all of the remanded matters ast,0ciated with the major segment.

MEMORANDUM AND O*1 DER

• n ALAB 924,8 on review of LilP-88 32.8 we femanded four issues to tie Licensing Board in this operating license [roceedmg involving the Seabrook nuclear facility: neal for letters of agreement (LOAs) with school personnel; sufficiency of the special needs survey for the New llampshire portion of the Seabrook plume exposure pathway ernergency planning rone (El'Z); cffect of advanced life support (ALS) patient preparation on evacuation time estirnates (ETEs); and the adequacy of beach sheltering implementation. 'Thereafter, in LBP 9012,5 he Licensing Board both undertook to resolve the IDA and special t

needs survey issues rad addressed (without resolving) the ALS patient and beach sheltering issues in ALAll 933,* on the motions of the applicants and the NRC staff we dismissed appeak taken by vMous intervenors from LDP 9012. This action was founded on an application of the standard of appeatability set fcsth many years agn in the Davls Besse proceeding:

A test d *nnal ty" for appeal prp mes before this apncy (as in the tamaru)is essentially a i

pactical one. As a general snatter, e licensing twed's saim is Enat for appellate purgen whers it shhet dispeas of at least a major segment d the cast or terminates 6 pany's right 8

to panicipate; suhngs which do twither are interlot.vtwy As n saw it, LDP 9012 did not dispose of a " major segment" of this pracceding.

We now have before us a new notice of appeal filed jointly by intervenors Massachusetts Attorney Genera'. (MassAO) and the New England Coalition on Nuclear Pollution (NECNP). This notice addresses the Licensing Board's I s0 NRC s31 (19891 patations for review penidas.

3 28 NRC 667 (1988) 8st NRC 421(19901 Di NRC 491 (1990) 8Teleeb Maen Co. (Davis Desse Naciear Ptwr sudenk AL.AB 300, s NRC ?$2. 758 09'5) 7memass s.n!aad).

12

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December 18,1990, memorandum and order (LDP-90 44),' in which de Ikiafd granted the applicants' motion for summary disposition on the ALS patient issue.

In addition, the notice references those Firtions of LBP-9012 that relate to the ALS patient and special needs survey issues.

Although the issuatre of LUP 9044 mis apparently the genesis of inter-venor, new appeal, tte requisite fmality was not Ichieved with the rendition of Otat decision.1 Of the issues tenumded in ALAB 924, there still remains for Lleensing Board disposition Oc teach sheltering matter.' As suggested in ALAll 933' Here is no good reason why that sheltering issue should receive uppellate review apart trom the Ottee other matters that ALAll 924 returned to tte Licensing Board.

In this connection, it is significant that, as above noted, each of the four issues subject to remand was initia'ly ruled upon in LDP 88 32, the Licensing Boant decision concerned generally with the adequacy of die emergency plan for Oc New ilampshire portion of de EPZ. In other words, sdl of them are New llampshire emergency planning issues and, as such, appropriate for appellate consideration as part of an entity comprising a " major segment" of Oc case.

Accontingly, any intervenor appeal concerning Oc Licensing Board's resolution in LUP 90-44 and L11P 90-12 of certain remanded issues must await a final determination of all the remanded matters associated with that major segment."

Ibr die foregoing reasons, the joint appeal by the Mas:AO and NECNP from die Licensing Board's December 18,1990 memonindum and order LBP 90-44, s

'32 NkC 43) (1996 lbs therming Based that issued tJnPM44 was assututed acparsiety fan the *dfatie" Iberd that lasued t.lLP ts 31. See ss ied Reg 41,411 0 9901 la this instanos, es And Giu administrouve scuan of no riswasianus in analys.mg whether ths Board's determmatam an the At,s pets 41 issue le "fmsP' op se to be rewwwsble sww.

'in AIAll 939,32 NRC 16s,179 50 (1990), in neixene te gusethma relarat by b therming Board we densed that the Based nahe any neoensary eisps to ensure that ow reoned is clest wha avssid to several erwaars comestr.ing shshortrig fw ti,e ',sach pnpulation under the New llampshus emmuuzy plast by era.rs dated Navinnher 14 and 24,1990, the thansing Dosed reguated that ne parues provide ihar views relative to these malisse and 6nduied that the oubyect will tie taken op at a lvdestag emforawe one odedulat few lanuary 23, 1991.

'st NRC at 49%. In AIXi9'13, M. et 496 97, os also were omrreted with IN quasnan d wheder Ow tJtersing Ikstd's diammaal d one 6rnervenar frese funhar parucipsnan regardag the semarsled insure fu!rthed the Dens.8um esiserwm of terminsuan el a party's right to prucipais, and fesaid that de Bussd's acnas was then reviewsbla. %st fmatr/ yardatick is era insi ionied h pus besarwe.

d l'ln reviewing IJiP-SE 12, in salinan to es frar issume naturned to tw thessirt Based in AtAB.924, in AlAB 932, si NRC 371. 415 20 (1990). we also remanded an isma sw.cerning Ow cakulsthm of the I*I14 stained fur the New Itampshire pneuem sif 94137. It is est endantamim3,, however, that h esspmaa to uus romand the oakul.unne have been revised and 6ncorpersied in the Nes llamphne onwrgary plae6 See LAtter fase T. l'es ed=um to NRC thicanent Ceasel Dent (Aug is,1990)(forearding vovie d ET1s).

s "he sane er.alysw windd apply with peren to en varitmis issues dwt may be oubyact to sersonit nn dw course of our ossuuterstum (se yet onenrrelesest) d anaher majnr tese segressa, the Mamatnsens emergmcy planning sad June 1958 full perucipsuan esercies mouers en review relsdvs to the IJcenstag Bosm's emerinatanuns in tJLP-89-32,30 NRC 37s (1989), and velswd orders.

13

32 NRC 433, and its May 3,1990 memorandum arut order, LDP 90-12,31 NRC 427, is dismissed as premature, it is m ORDERED, IOR Ti!E APPEAL !!OARD Lucille Williams Secretary to tic Appeal Board

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i Atomic Safety l

and Licensing i

Boards issuances I

i ATOMIC SAFETY AND UCENSING BOARD PANEL g

B. Paul Cotter

• Chief Administrative Judge O

Robert M. LazD,* Deputy Chief Administrative Judge (Executive)

Y, Frederick J. Shon,* Deputy Chlet Administrative Judge (Technical)

O Members Dr. GeotDe C. Anderson Dr. Cadet H. Hand, Jr.

Dr. Kenneth A. McConcm Chartes Bechhoofor*

Dr. Jerry Harcour*

Morton B. Margules*

j l

Peter B. Bloch*

Dr. David L Hetrick Marshall E. Miller y

]

Gwtn O. Drg;ht Ermet E. HW Or. Peter A. Mons Dr. A. DWon Canihan Dr. Frank E Hooper Dr. Rohard R. Partrek m

James H. Carpenter

• Etzabeth B. Joinson Dr Harry Rein VJ Or. Rchwd E Cole

• Dr. Waner H. Jordan Lester S. Rubenstein

[~.

Dr. Thornas E. Elleman Dr. Charies N. Kelber*

Dr. David R. Schmk Dr. George A. Ferguson Dr. Jerry R. Khne*

ivan W. SrWth*

b Dr. Hany Foreman Dr. Peter S. La#

Dr George Tidey Q

Or. Rotwd E Foster Dr. James C. Lamb lli Sheldon J. Wolfe f

John H Frye til*

Gustavo A. UnenberDor J

James R Gleason Dr. Ernmeth A. Luebke

)

• Permanent pann! rnembers v

Cite as 33 NP" 15 (1991)

LBP 911 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Adminletratlye Judger.:

4 Morton B. Margulles, Chairrnan Dr. Georg A. Ferguson Dr. Jerry R. Kline in the Matter of Docket No. 50-322-OLA (ASLBP No. 91621014}LA)

(Confirmatory Order Modification, Security Plan Amendment, and Emergency Preparedness Amendment)

LONG ISLAND LIGHTING 1

COMPANY (Shoreham Nuclear Power Station, Unit 1)

January 8,1991 LICENSE AMENDMENT PROCEEDINGS: SCOPE s.

In Ikense amendment proceedings, the Commission hearing notice defines the scope of the proceeding, which binds the licensing board.

LICENSE AMENDMENT PROCEEDINGS: STANDING A pe.titioner may base its standing upon a showing that an organization or its members are within the geographic zone that might be affected by an accidental

. release of fission products. Ilowever, absent situations with otnious potential for offsite conseque.nces, a petitioner must allege some specific injury in fact that will result from the action taken.

i 15

I.lCENSE AMENDMENT PROCEEDINGS: PETITION TO

'NTERVENE lttitionen may amend petilkms to inte vene to cure denciencies found t>y the Liecnsing Daard.

MEMORANDUM AND ORDER (Ruling on Requests for Intervention)

I.

INTRODUCTION On March 29, '990, NRC Staff (Staff) issued a " Confirmatory Order Modifying License (Effective immediately)," which modified the Shoreham Nuclear Power Station (Shoreham) full-power v,trating license held by Imr; 1sland Lighting Company (LILCO). Tic Order prohibited LILCO from placing any nuclear fuel in the Shoreham reactc< vessel without prior approval from the NRC. The Federal Register Notice of the setion provided an opportunity for hearing to adversely affected persons. 55 Fed. Reg. 12,758,12,759 (Apr. 5, 1990). On April 18,1990, Scientists and Engineers for Secure Energy (Secure Energy) and Shoreham-Wading River School District (School District) filed scrurately a " Petition to Intervene and Request for llearing" in response to the Notice. 'Ihis matter will be referred to as Oc Confirmatory Order Modification.

LILCO on January 5,1990, fileo an application for an amendment to the Shoreham operating license that would allow changes in the physical security plan for de plant and a reduction in the security forces. A federal Register Notice of this application filing was published together with Staff's proposed finding that the amendment did not involve a significant hazards consideration.

The Notice provided an opportunity for hearing to affected persons. 55 Fed. Reg.

10,528,10,540 (Mar. 21,1990). In response, both Secure E;,ergy and School District filed a separate " Petition to Intervene and Request for llearing" on April 20,1990, This matter will be referred to as the Security Plan Amendment.

Staff, on March 30,1990, published a Federal Register Notice advising of a December 15,1989 LILCO request for an amendment to its Storcham license removing certain license conditions reganting offsite emergency preparedress activities and of a Staff proposed finding of "No Significant liuards Consid-eration." The Notice offered an opportunity for hearing to affected persons.

55 Fed. Reg.12,076 (Mar. 30,1990), Secure Energy and School District filed separate requests to intervene and for a hearing to te held. This matter will be referred to as the Emergency Preparedness Ameruiment.

The full power operating license for Shoreham, to which all of the changes relve, was issued to LILCO on April 21,1989. Lilf0 and the State of New 16

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I York had reached an agreement on Fettuary 28, 1989, that Lil40 would not operate Shoreharn. Licensec would sell Shoreham to the 14mg Island hmer Authority, which under New York State law is prohibited from operaung

Shoreham, Pursuant to the agreement, Li!IO lua removed the nuclear fuct from the reactor vessel along with in< ore instrumentation, core internals, anJ control rod guide tubes, Water has l<cn removed from the teactor vessel, it is attempung i

to sell the nuclear fucJ that was used for startup activities and low powes tesung.

'the Liccusec has disbanded a portion of its technical stafIand has begun training the remaining staff for defueled operation only, CL190 8,32 NRC 201 (1990),

in CLI.90 8, the Nuclear Regulatory Comtration (NRC ct Comtnisslan) took up k six peddons and, Inter alla, found:

in summary, the tc.edest NRC octkm related to Shorehem deconsnissianing wiu be ememel of the decision or how that demnmisskadng will be accomplished. hs, it fc4km e that NRC need be roncerned at presma under N!?A onry whh whaher the three actkms that ett she subject d the hr.arins requests will prejmhce M octkm. Cleerly they do ed, because they have no preju(adel effect tai Acw decartuninskming win be scocunplished heefors, beceuw decommisekming ocslans are direaed mulely at ensuring safe arul environmentally unmd dommmissioning, k folkws lhet slearnatives to the deciske no:io tversie the pierd are beyond the scope or our review and swed nut b4 cmsidered seder Nt?A. Ses NADC v. -

IFA. s22 F.2d 104,12631 (D.C. Or,19s7),

32 NRC at 208 (emphasis e original).

The Commission conclJded that the Staff need not Glc an Environmental Assessment or an Environmental Impact Statement reviewing and analyzing resumed operadons of Shoreham as a nuclear power plant as an alternative under -

the National Environmental Iblicy Act (NEPA), it forwarded the six petitions for handling by an Atomic Safety and Licensing floard (Ilourd) with directions to review and resolve all other aspects of these hearing requests in a manner consistent with this oginnon."

Staff and Lilf0 Aled timely responses to each of the six petitions requesdng intervendon and hearing. LILCO, who agreed to the ConGrmatory Order Modi.

Acadon and seeks the Security Plan and Emergency Preparedress Amendments,

- opposes Petitioners' requests as does Staff,-

Ittitioners, in a joint pethion to the Commission, dated October 29,1990, requested that CL1908 be reconsidered and vacated insofar as that order

+

precludes the consideration of the alternative of reteud operadon of Shorcham in the context of the [roposal to decomrnission the plant. LILCO and Staff oppose the request.5 8 o. Heremba s.1990, to naud wmee to to penWpen in tem tree suues tempenns et umst wwws en whosher ihn naard should nas pnmend with sowww at the peuunns taking 6nso eenaderetum the aquest tar IComanen0

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r in this Memorandum and Order, the Incard rules on Oc petitions requesting intervention and hearing. We firxt that in all instances petitioners have failed to meet the requirements of 10 C.F.R. 6 2.714(a)(2) to permit intervention. In accordance with Cornmission practice, Petitioners are given the opportunity to file amended petitions that may cure the defecu that the Board has fou.%

II. SCOPE OF PROCEEDINGS A.

llearing Notlees 1.

Confirmatory Ordtr hlod{fication The " Confirmatory Order Modifying License (Effective immediately)," 55 Fed. Reg. 12,758,12,759 (Apr. 5,1990), recites that, consistent with LILCO's agreement not to operate Shcreham, it has completed defueling the reactor and reduced staff. It states utat LilfO is proceeding with plans to discontinue maintenance for systems Licensee considers unnecessary to support operations when the reactor is defueled.

The Confittnatory Order asserts that the NRC has determined that the public health ard safety require that the Licensee not return fuel to the reactor vessel without prior NRC approval because (1) the reduction in the Licensec's onsite support staff is below that necessary for plant operations;.:xt (2) the abscree of NRC-approved procedures for returning to an operational status systems and equipment that the Licensee has decided to deactivate and protcct rather than maintain until ultimate disposition of the plant is determined.

It further asserts that on January 12,1990, L!l40 submitted a letter to NRC which stated that it would not place nuclear fuel back into tic Slgreham reactor without prior NRC approval.

Staff found the commitment as set f(rth in the letter to be acceptable and necessary and that, with the com nisment, plant safety is reasonably ensured. It further determined that the health and safety require that the commitment be confirmed by the Confirmatory Order.

Pursuant to 10 C.F.R. 5 2.204, Staff also determined that 3 public lealth and safety require that the Confirmatory Order te effective itamediately which was then ordered.

Persons adversely affected by the Confirmatory Order were given the oppor.

tunity to request a hearing. The Order defined the hearing issue to be "whether the Confirmatory Order shall be sustained." $5 Fed. Reg. at 12,759.

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Security Plan Amendment By amendment request filed January 3,1990, LlLCO seeks changes in the Shoreham Security Plan that mild result in the reclassification of certain porilons of the plant designated as " Vital Areas" or " Vital Equipment." *the changes would a50 eliminate, nr modify, certain other safeguards committnents that reileet the reclassification. One of the modificatkms would te to redtce de security force to be consistent with the objecdves of the revised security program.

~1he federal Register Notice of the requested amendment contained a no significant hazards determinatlon by Staff. Staff found, in surgut of tie no significant hazard determinatkm, that the poposed Security Plan change (kies not involve a signincant increase in die probability, or consequences, of an accident previously evaluated; does not result in any physical changes to die facility affecung a safety systemt and (kies not involve a reduction in any margin of safety. Licensee was offered the opportunity to file a request for hearing, and any person whose interest snay be affected by de proceeding could file a written petition for le ave to lutervene.8 55 Fed. Reg. 10,528,10,540 (Mar 21,1990).

' 3.

Emergency Preparedness Amendment in response to a proposed amendment of the Shoreham Emergency Prepared.

ness Plan requested by LILCO, a Federal Register Nodce containing a Staff proposed no significant hazards determination and an gportunity for hearing was published. 55 Fed. Reg.12,076 (Mar 30,1990).

'Ihe amendment would allow the Licensee to cease certain offsite emergency preparedness activities if the reactor we void of all fuel assemblics and the spent fuel, with a burnup of appmtimsicly 2 effective full power days, was s

stored ir.he spent fuel storage g)ol or oder approved storage.

Staff found that the pmposed amendtnent would (1) not involve a significant increase in the pmbability or comcquences of an accident previously evaluated:

- (2) not create the possibility of a new or different kind of an accident from any accident previously evaluated; (3) not involve a significant reduction in a margin of safety.

- Licensee was perm!tted to file a request for a hearing, and any person whose -

- interest may be affected by the proceeding was given the opportunity to file a petition to intervene.8 55 Fed. Reg. at 12,076.

8Amenema h 4 wu lasud hm 14.1990, ehensing de sawy Pine tw a dernW sheeham.

8Amandream h 6 was issusJ kly ll, s 990, shocsing om Fawreeney Propandness P n f s e derwind shnseham.

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11. The IIcaring Notice Delines the Scope of the Proceeding ne Commission follows k rule in licensing matters that the hearing notice published by k Commission for the proceeding defines die scope of the pm: ceding and binds the licensing teard. Northern Indiana Public Serv!ce Co. (Dailly Generating Station, Nuclear 1), ALAD-619,12 NRC 558, 565 (1980); Commonwalth Edison Co. (Carrell County Site), ALAB-001,12 NRC I8, 24 (1980).

%e hearing notices in k three matters before the Board derme k scope of the proceedings as follows:

(1) Should the Confirmatory Order be sustained?

(2) Should the amendment of the Shorchun Security Plan be sustained?

(3) Should the amendment of the Shoreham Ernergercy preparedness Plan be sustained?

Petitioners, in each of the six petitions filed, state that they view each i

respective order as one part of the larger proposal to decommission Shoreham.

%ey assert that each step in the decommissioning proposal that moves Shoreham closer to a fully decommissioned state and further away from the full power operational status is in violation of the Atomic Energy Act of 1954 (AEA), as amended, and NEPA. ney take the position that while de issues presented in the petitions directly relate to the respective orders permitting modifications to the Shoreham license, the petitions "necessarily include other unlawfully segmented actions taken anNor proposed by LILCO and the NRC Staff in furtherance of the decornmissioning scheme."

Mich of the peutions are given over to the issue that the modifications of the Shotcham license are trx11vidual actions in de proposal to decommission Shoreham and that injury results from this inchoate decommissioning for which standing slould be afforded and relief granted.

L2LCO and Staff take the position that the issue of decommissioning and its ramifications are beyond the scope of the procceding and therefore should not be considend.

De Board agices with the position of LILCO ar,d Staff, A reading or

. the hearing nodecs for each of the modifications fails to indicate that any

• .ocommissioning of Shoreham, in whole or in psut, is at issue in any of them.

ine hearing notices are published to afford prospective participants notice of the matters at issue, if the Commission reviewed the modifications as part -

of any decommissioning of Shorcham, it would have said so. In tie absence of any declaration by the Commission in the notices, infeaed or expressed, that decommissioning of Shoreham is an issue in the requested hearings, we shall respect the orders and consider decommissioning outside the scope of the proceedings.

20

The Commission provided additional guidance that the scope of One proceed.

ings did not involve decommissioning in its firding in Cll 004, cited above.

it considered the question as to whcther the three actions that are the subject of de hearing regiicsts will prejudice decommissioning.411 answered the question by stating " Clearly Ocy do not, because they have no prejudicial effect on how decommissioning will be accomplished." 32 NRC at 208 (emphasis in origi.

nal). "Ihe Commission looked upon the modifications of the Shoreham license as not constituting a part of decommissioning because they do not determine how decommissioning is to be performed.

Ibr the reasons given, tie 11oard vill not consider any alleged injuries or claims for relief by Petitioners tosed upon the assertion diat Oc license modifications are part of the decommissioning of St oreham.

III. LEGAL REQUIREMENTS FOR INTERVENTION Section 189(a)(1) of the Atomic Energy Act, which provides for a learing to any person whose interest may be affected by the amending of a license, is implemented in 10 C.F.R. 5 2.714. Section 2.714(a)(1) states that "[a]ny person whose interest may te affected by a proceeding and who desires to participate as a party shall file a written petition,,. to intervene."

Requirements for such petitions are contained in 10 C.F.R.12.714(a)(2),

which provides:

'!he pe:Em shad sa forth whh particularity the interest of the pcthkmer in the pomedng.

how that interest may be affeded by the nauha of the poceedaig. including the reasons why petumet should be permitted to irnervene, with particular refema to the factors in paragragdi (dXI) of this seaion, and the specine espea w aspects of the eutiect mattet of the poceedra.: io which peinmer wishes so innervene.

To determine whether a petitioner has sufficient interest to intervene in a proceeding Os Commission has held that a licensing toard may apply judicial concepts of standing. Forfland General Electric Co. (lYbble Spdngs Nuclear Plant. Units 1 and 2), CLI 76-27,4 NRC 610 (1976).

Judicial concepts of standing require a showing that (a) tie action sout,ht in a proceeding will came injury in fxt and (b) the injury is arguably within the zone of interesu protected by statutes covering the proceeding. Metropolifan l

Edison Co (Thre Mlle Island Nuclear Station, Unit 1), CLI 83 25,18 NRC 327, 332 (1983). A petitioner should allege, in an NRC proccaling, an injury in l

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• secdon so.s of 10 CIR. daruus ?.. - 6aning as fauows; "'Demmrnisaan' stauw to renovo (=

facihty) safel fenra servks and reAus ruidual ridinacdvtty to a level dei permiis masse of the ytper:y fw l

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i fact that is within the zone of interests protected by the AEA or NEPA. Niagara Mohawk Power Corp. (Nine Mile Ibint Nuclear Station, Unit 2), LDP 83-45, 18 NRC 213,215 (1983).

In addition, the petitioner must establish (1) that it personally has suffeted, or will suffer, a distinct and palpable harm that constitutes an injury in fact; (2) that the injury can be traced to the challenged action; and (3) that the injury is likely to te rensedied by a favorable decision granting the relief sought. Dellums

v. NRC,863 F.2d %8,97I (D.C. Cir.1988); see also Nuclear Englarering Co.

(Sheffield, Illinois Low-level Radioactive Waste Disposal Site), ALAD 473,7 NRC 737,743 (1978).

Ibr an organization to have standing, it must show injury in fact to its organizational interests or to Oc interest of members who have authorized it to act for them. If the organizadon is depending upon injury to the interests of its members to establish standing, the organitation must provide with its petition identification of at least one member who will be injured, a deacription of the nature of that injury, and an authorization for the organization to represent that individual in tie poceeding. PAlladelphia Electric Co. (Limerick Ocnerating Station Units 1 and 2), LDP-82 43A 15 NRC 1423,1437 (1982).

A petitioner may base its standing upon a showing that an organizadon or its enembers are within the geographic zone that might te affected by an accidental release of fission products. Houston Ughting and Power Co. (Soudi Texas Project, Units 1 and 2), LBP.7910,9 NRC 439,443 (1979). Close proximity under those circumstances has been decined standing alone, to estabilsh the requisite interest for intervention. In such a case, the petitioner need not show that the concerns are well fourxled in fact. Distances of as much as 50 miles have leen held to fall within the zone. Virginia Electric and Power Co. (North Anna Ibwer Station, Units 1 and 2), ALAB 522,9 NRC 54,56 (1979); Duquesne Ught Co. (Beaver Valley Power Station, Unit 2), LDP-84-6,19 NRC 393,410, 429 (1984).

'Ihe Commission does not allow the presumption 10 be applied to all license amendments. It only does so in those instances involving an obvious potential for offsite consequences. Those include applications for constmetion permits, operating licenses or significant amendments thereto, strh as the expansion of the capacity of a spent fuel pool. 'Ihose cases involve the operation of die reactor itself, or major alteradons to the facility with a clear potential for offsite consequences. Ateent situations s/ith obvious potential for offsite consequences, a peutioner must allege some specific injury in fact that will trault frorn the action taken. Florida Power and ught Co. (St. Lucie Nuclear Power liant, Units I and 2), CLi 89 21,30 NRC 325,329 (1989).

Economic interest as a ratepayer does not confer standing in NRC licensing proceedings. Three Mlle Island, CLI 83 25 supra,18 NRC at 332 nA. Those economic concend t.re more properly raised before state economic regulatory 22 L

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agercies. Public ScrWct Co. r/Nrw /lampshire (Scalvoo6. Station, Unit 2) CLl-84-6,19 NRC 975,978 (1984); Philadc/phia Electric Co. (Limerick Generating Station, Unlu 1 and 2), ALAB 789,20 NRC 1443,1447 (1984).

l Assertions of broad public interest in (a) regulatory matters, (b) the admin-istrative process, and (c) the development of economical energy resources do not establish the particularized interest necessary for particymdon by an individ-nal or group in the nuclear regulatory sidjudicatory process. Three Afile hiand, CLI 83 25, supra,18 NRC at 332.

lY. CONFIRMATORY ORDER MODIMCATION A,

Secure Energy's Position oeiIntervention i

Secure Energy asserts that it meets all criteria for standing. It describes itself as an organization dedicated no correcting misunderstandings on fundarental

~ scleritific and technological issues permeating the " national ersergy deletc."

Petidoner offers its views, based on the expertise of its mernbers, to the public and to governmental agencies with responsibility for the resolution of energy i

Issues.

Many of its memters are said to live, wrk, and have property interests in the vicinity of the nuclear plant. Secure Energy claims diat the organization and its members have a special interest in the radiologically safe and envirormientally benign operation of Shoreham to provide them with reliable electricity and to

- avoid de substitution of fossil fuel plants and their adverse effects, i.e., relying i

on imported gas and oil which have adverse effects on the physical environment, j

the trade deficit, and nadonal energy security.

Secure Energy seeks organizational standing asserting, laser alla, that die Commission interferes with its informational purposes by its refusal to condact a NEPA study which deprives the organization of its ability 10 carry out lu organizadonal purposes.

Secure Energy asserted that it is irQured by Staff's refusal to prepare an envi.

i ronmental impact statement on the decommissionbig of Shoreham because that deprives Petitioner of the ability to (1) comment direedy on the envimamental report prepared by LILCO and t% Draft Environmental Impact Statement pre.

pared by the Staff; (2) advise its memters of the environmental risks involved with each alternative explored by the environmental studies; and (3) report the findings and recornmendations based upon the environmental evaluadons to the public and politicalleadership as set forth in Secure Energy's charter.

Petitioner cites in support of its position Competittw Enterprise last., v.

National 11/ghwy Trq(Jic Sqfety Admin.,901 F.2d 107 (D.C. Cir.1990), for the proposition that organizational standing is established whenever the agency's

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action interferes with the organization's informadonal purposes to the extent that it interferes with the organtiation's activities.

Representational standing is soaght on tie twis of five named individuals with mailing addresses in Shoreham, Port Jefferson, rind Westbury, New Yort

'! hey are said to live andMr work and have property interests within a 50-mile radius of Shoreham and have an intercat in wtether the Confirmatory Order provides reasonable assurance of their radiological health and safety under AEA and wtether the decision on the Confirmatory Order and the larger proposal, of which it is s part, is maic in accordarce with NEPA.

Memters have an interest in obtaining sufficient amounts of electricity at reasonable rates. 'They are concerned that dismantling Shcreham and building substitute oil or gas txtrning plants will delay any increase in energy production capacity and increase costs which will te passed on to the ratepayers. Secure Energy seeks to protect its members from adverse health consequences that would result from the substitute oil burning plants.

Secure Energy views the Confirmatory Order Modification as an effort toward defacto decommissioning of Shoreham without an approved decommissioning plan, which it alleges is a per se violation of the AEA and a direct health and safety vblation. It contends that LILCO's efforts to save money t>y shuulng down tie operation, eliminating staff, and permanently defueling the reactor endanger the health and safety of its memters during the unapproved decommissioning.

Secure Energy further asserts that LI!IO has failed to maintain the reacttr at a full operational level and that the continuous refusal to abide ty the terms of tie full power operating license has severely ircreased risk to the radiological health and safety of its members, it also states that NEPA mandates that an Environmental Impact Statement be prepared prior to agency decisionmaking on major federal actions significantly affecting the quality of the human environment, such as the defacto decommissioning of Shorcham that is taldng place,

'Ihe specific aspects under NEPA that Secure Energy Security wishes to intervene on are (1) whether the Confirmatory Order is arbitrary, capricious, andhr an abuse of discretion and/or not supported by substantial evidence; (2) whether, if a decision is made to go to full power operation at Shoreham, the Confirmatory Order gives reasonable assurance that such full power operation would be conducted with reasonable ass irarse of pmtecung the public health and safety and national defense and security; and (3) whether, if a decision is made to decommission Shoreham, the Confirmatory Order gives reasonable assurarce that such decommissioning will be conducted in accordace with the public health and safety and the national defense and security.

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As to NEPA, Peutioner expects a full environmental review which must address all aspects of what it considers the de facto decommissioning of Shoreham.

Petidorer seeks fourteen remedies in the proceeding. We first two involve requesting an order permitting Petitioners' intervention and directing a hearing on the issues presented. De other remedies requested range from requesting an order vacating the Confirmatory Order pendente lite to a fmal decision and cader finding that the Confirmatory Order must be permanendy vacated. De Executive Director of the organization is a signer of the peution.

II, Staff's Response to Secure Energy's Petiikm on Confirmatory Order Modification Staff submits that the petition falls to demonstrate that the Petitioner's interests will be adversely affected by the ConGrmatory Order, or that Secure Energy is entided to a hearing. It recommends that the petidon be denied.

Staff asserts that Secure Energy does not direcdy identify any impacts that the Confttmatory Order may be expected to have upon its interest. Petidorer is said to be concerned with nonrelevant matters such as full. power operation and de alleged de facto decommissioning of Shoreham. Staff asserts that Secure Energy has falled to demonstrate their capacity to represent their members, it is Staff's position that the Confirmatory Order does not authorize LILCO to take any actions that would affect the public health and safety or in any way alters the presen; status of the plant. Staff states that the Confttmatory Order merely recogrUes that certain actions, already taken by LIILO, could have an adverse impact on pubhc health and safety if the Licensee should later decide to refuel the reactor vessel and the order requires prior NRC approval for such an actir'n. It does not consider this a defacto decommissioning of de plant.

Staff asserts that it only provides that the plant may not be refueled absent the adopdon of approved steps to ensure the protection of the public health and safety.

Staff considers de environmental aspects of Petitioner's concerns to be beyorxl the scope of any proceeding on the Confirmatory Order. Its asserts that the Confirmatory Order neither permits plant oneration, nor forbids it, nor does k constitute part of a decommissioning of the plant. The issue at any hearing to be held has been defined as whether the Confirmatory Order should be sustained.

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C.

LILCO's Response to Secure Energy's Petition on Confirmatmy Order Modification LILCO's view is that the petition is an attempt to keep Shoreham operaung and that, ahhough Secure Energy alleges that the Confirmatory Order results in a violation of law, it does not suggest that there is a significant safety issue associated with the Confirmatory Order. Secure Energy's allegations are said to depend on its view that the Confirmatory Order Modification is part of an eventual decommissioning.

LILCO views Secure Energy as attempung to require Licensee to maintain Shoreham in full readiness to operate regardless of circumstances, unless and until a decommissioning plan meeting all regulations is aPFoved. LILCO states this would prevent the NRC from granting various kinds of relief routinely available to facilities in extended shutdown and inflicts totally avoidable costs on Licensee and its ratepayers. LILCO considers the Secure Energy petition as looking to block implementation of its setticment agreement with the State of New York not to operate the facility.

Licensee asserts that Pethioner seeks to use a hearing on the Confirmatory Order to raise the issue of LILCO's alleged de facto deca.:.missioning of Shezcham which is beyond dv scope of the proceeding. It also asserts that Secure Energy is attempting to expand the scope of the proceeding to require j

NRC to take enforcement action against ULCO for supposed violation of tM AEA, Commission reguladons, and the terms of the Shoreham license because of Shoreham not being maintained in operational readiness.

Licensee claims that Petitioner only feebly connects the Confirmatory Order with the harms that are said to result from LILCO's alleged illegal actions.

LILCO questiom whether Secure Energy's asserted interest in protecting the health ard safety of its members is germane to its organizational interests, which appear primarily educational and informational in nature and are not directed toward advocacy against perceived health and safety threats from any specific nocicar plant.

ULCO cialms Ittitioner cannot credibly argue that the Confirmatory Order should not be sustained. Tb do so would in effect 15 arguing that L1140 should be allowed to place fuel back in the reactor, which would undercut the Secure Energy position. UlfO argues that if the current situation is unsafe as Tetitioner argues, refuellag the reactor would make it more unsafe.

Licensee also argues that the environmental harms that Perilloner pesceives if Shoreham does not operate would not stem from any action by the NRC, J

much less by the issuance of the Confirmatory Ordet ULCO asserts that the Confirmatory Order is not the reason that Shoreham will not operate. It is solely a matter of a LILCO decision.

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LILLO requests that the petition for leave to intervene, and requests for J

hearing, should be denied.

i D.

School District's Petition on the Confirmatory Ord<r The School District petithm differs from that of Secure Energy insofar as the description of the Petitioner including its organirational purpose, whom it seeks to represent, and the nature of delt interest.

School District alleges that it seeks intervendon in order to protect the intesests of School District, its students, and employees.

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L De School District is reported to te about 12 square miles in sire, with the Shoreham facility located whhin its boundaries. Ittitioner asserts that it is located within the S0-mile limitation used by the Commission to determine whether an intervenor expressing contentions under the health and safety provi-sions of the Atomic Energy Act has an interest sufficient to allow intervention.

lYtitioner depends on LILCO to meet the energy needs of its physkal plant whkh includes five schools. School District's stated interest is to ensure sre adequate supply of elecirkky at reasonable rases, in its view, any acdras to dismande the facility, and to build substitute oil burning pInnts, will turm the region's electrk energy production capacity and increase rates. Another economic interest of the School District is that the property taxes paid by LILCO -

for Shoreham consutute approximately 90% of School District's tax base.

School District also claims that it has an interest in protecting the lealth and environment of almost 2000 studems and 500 employees who live and/or work in close proximity to the Shoreham facility, from the radiological impacts of the ConArmatory Order and the adverse heahh and other environmental 3

consequences of non operation of Shoreham. These are said to be air pollution 1

' produced by substitute oil and gas plants. The harm is said to be cognizable under NEPA. It seeks represerational status for the President of the Board of Education who resides in W>iig River, New York. De petition was signed by the Superintendena of Schools of School District.

t E.

Staff's and LILCO's Responses to Sebool District's Pdition Staff filed a single response to the petitions of Secure Energy and School District, and there is no disdnetion made as to the twopt=

LILCO, in response to the School District pedtion, asserted that it was not Immediately apparent that an erdity whose primary purpose is the operadon t

of facilities for the educadon of schoolchildren has an organizadonal interest in protecting persons from the adverse radiological and environmental impacts

. stemming from the non operation of a nuclear plant. It claimed that School 27

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District's only real interest is an economic one, which is inadequate to establish standing.

I'.

Iloard's Ruling on Secure Energy's Petition on Confirmatory Order Modification The Board firgis that Secure Energy has fallqd te satisfy de requirements of 10 C.F.R. 6 2.714(a)(2) to establish standing.

Secure Energy, as an organization. has isot established that it will suffer a distinct and palpable harm that consututes an injury in fact. Its organizational interest is educational and informational in nature on the subject of the " national energy debate." Although it may view the Confirmatory Order Modincation as tcing in conillet with its views, this fact does not cortstitute a distinct arvi palpable harm that satis 0cs the interest requirement for intervendon.

Secure Energy's organizational status is not unlike that of a petidonet whose

" interests lie in the development of economical enesgv resouices, incitxting nuclear, which have the effect of strengthening the economy and increasing the standard of living." Tic Comrnission found that such broad public interest does not establish the particularized interest necessary for participadon by a group in agency adjudicatory processes. Threr Afile Island, CLI.83-25, supra, 18 NRC at 332. See aise Slcria Club v. Aforton,405 U.S. 727,739 (1972),

wlere tic Supreme Court said that "a mere interest in a problem no matter how longstanding the interest and no mattet how qualiGed die organizadon is in evaluadnF the prob!cm, is not sufficient by itself to render die organizadon a.!versely allected or aggrieved within the meaning of the APA."

Another defea in the Secure Energy petition is that it has failed to identify eny injury that can be traced to the challenged action. Dellums v. NRC, supra, 863 F.2d at 971.

The action that can be challenged in the Conntmatory Order Modification proceeding is whether the agency was correct in determining that the public health and safety require that the Licensee not return fuel to the reactor vessel without prior NRC approval. Secure Energy did not klentify any injury stemming imm this determination.

The cause of Secure Energy's alleged injury is stated oy Petitioner to result from the Commission permitting the defacto decommissioning of Shoreham which also involves the agency's failure to require Lil40 to maintain a full.

power operational status under the Shoreham full power license. This alleged de facto decommissioning is said by Pedtioner to be violative of AEA and NEPA.

The Confirmatory Order ModlAcation is never treated by Secum Energy to be more than incidental to the asuon cited as the proximate cause of Pedtioner's injury.

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l As discussed previously, under section 11.U, the nwiet of the allegd defacto dccommissioning of Shoreham and what it is said to tntall is beyond de scope of this procec@ng. *Ihis places Secure Energy in 0 e position of having failed to link the subject challenged nction to any resulting injury.

Irritioner's reliance on Compensive Entreprist Inst., supra, does tot bol-N ster Secure Energy's case. The Court held tlutt "[allkt;ntions of injury to an organization's ability to disseminate Information may te deemed sufficiently particularized for study purposes where that information is essential to the in-jured organization's activities." Furthermore, "to sustain informational standing, organiations c ust poir" to concrete ways in whkh tielt programmatic activ-ities have been harmed." They must show how the lack of an assessment has significantly harmed their aldlity to educate and inform the public about a zone of irnerest Fotected by NEPA whose purpose is to protect the environment.

Secure Energy has not made the necessary showing. Its focus ims teen on decommissioning and restart, two natters not at issue in this Foceeding.

Petidoner has not shown how, in a corcrete wsy, the lack of an envitunmental assessment of the Confirmatory Order Modifictidon would injure its ability to disseminate informatLm that is essential to its Jetyramntatic status ark 1 is in the zone of interest protected by NEPA.

As to representadonal standing, Secure Energy has not stated that hs or.

ganti.ational purpose provides authority to represent members in adjudicatory proceedings such as this ore. Even if t1:4s can te infttred from the fact that its Executive Director is a signator to the petition, Secure Energy has not satisfied the requirements for representational standing.

Petitioner states that the five members whom it seeks to repesent have authorized it to do so. 'their interests were not broken down individually but were stated collectively by Petitioner.

For an organization to rely upon injury to the interests of its memlets, it must provide, with its petition, identification of at least une of the persons it socks to represent, a description of the nature of irduty to the person, and deaionstrate that the person 'n 'e represented has la fact authorized such representation. LimericA, LDP-82 ',3A, supra,15 NRC at 1437. No supporting statement containing that information was submitted from any memter sought to be represented, as is required.

Although the members are said to live and/or mk and have property interests within a 50-mile radius of Shoreham, this de.5 not create a presumphn of standing because it is not a proceeding for a construction termit, an operating license, or a significant amendment that would involve an obvious potential for offsite consequences. St. Lucie, CLI 89 21, supra.

Shoreham is a defueled ntricar power plant that has not teen used com-mercially. To satisfy standing requirements, it would have to be shown by Secure Energy that a member's particularized injury in fact results from the l

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- Chnfirmatory Order which trquires that LILCO not refuel Shortham without prior NRC approval. petitio,ict has failed to Mnc this showing.

Member interest.'in part, is described as obtaining sufficient amounts of clectricity at reasonable rates, it is very well settled in Commission practice thn a ratepayer's interest does not confer standiag in NRC licensing proceeding.

As to Secure Energy wanting to protect its members from adverse Icalth consequences that would result from substitute oil-burning plants, there was no nexus shown between the Confirmatory Ordes and the alleged resultant construction of substitute oil burning plants and the harm that would be created.

Absent such connection, no purpose wuld be served in discussing whether-construction of oil burning planu is a cognirable harm that the Commission can overcome.

Secure Energy has not established the requisite interest for standing, organt-radonally or representationally.

As to the specific aspecu on which petitior.er sicks to i stervene, the one -

- relating to whether the Confirmatory Otder is supported tsy substantial evidence, is relevant. 'Ihose alleged aspects that relate to decomrnissioning and operating 4

Shoreham at full power are not issues in this proceeding and M <hcrefore inclevant.

i G.

Board's Ru'ing on School Distrlet's Petition on Con 6rmatory Order

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Modl8 cation e

'Ihe Board finds that School District has failed to satisfy the requirements of 10 C.F.R.12.714(a)(2) to establish standing.

4 iSchool District's organizational.irderest is that of a ratepayer and a tax recipient. *Ihese are economic concerns which arc outside of the Commission's jurisdiction 'Ihe Commisslon has no regulatory responsibility for rates and tat -

~ distribution.1 'Ihey do not confer standing in NRC licensing proceedings and therefore School District has no basis for organizational standing.

As to its representational standing, School District wishes to protect the health and environnient of its employees, one of whom has been identified as the

- President of the Board of Education. No supportirg st.kesnent was received stating that the person' had in fact authorized such representation..Such a statement is miuired before representational standing can be granted.

]

Again, the fact that the individual nuy reside and work in close proximity to the nuclear facility does:not create a presumption of standing. 'there is '

= no obvious potential for offsite consequences where the action. complained of' requires that the Licensee not refuel a defueled rector without prior NRC approval..

i The School District's petition fails to particularve any injury that it traces

' to the ConGrmatory Order. Although the School r.. strict claims that it wants to.

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protect the health and safety of employees fium the radiological impacts of die Confirmatory Order, it does not identify what those radiological impacts arc, This is a defect in its claim for representational standing.

As for its claim to wa7t to protect its employees from alleged adverse health and okr environmratal consequences of non operadon of Shoreham, it is beyond the scope of the proceeding and cannot povide a basis for standing.

Non operation of Shoreham is not at issue.

School District has failed to establish the requisne interest for standing organizationally or representationally.

The Board similat _ rules on School District's specific aspects and request for relief as it did for Secure Energy for the reasons given.

V.

SECURITY Pl.AN AMENDMENT A.

Secure Energy's Position on Intervention Secure Energy's "It'ition to Intervene and Request fw llearing," dated April 20,1990, fundamentally is a repeat of its petidon to intervene on the Confirmatory Order Modification. To avoid repetition, we will discuss the petition to intervene on the Security Plan Amendment to de extent that it differs from that previously considered and decided.

Ittidoner asserts that the proposed reducticv In physical txurity of vital plant systems, with a reduction in onsite security personnel, would unaccept-ably increase tbc risk of radiological sabotage and hence adversely affect the radiological health and safety of Petitioner, its employees, and their property, Secure Energy also claims that the action interferes with die organization's in-formational purposes.

Peddoner asserts that to reclassify equipment and areas deemed vital for Shoreham as not vital would deprive that equignent and those areas of the degree of physical security that wais dec:ned essential fw protecdon against radiological salotage in the granting of Shoreham's full power operating license.

Secure Energy states that such increased vulnerability to radiological salotage, by dermidon, would significandy increase the risk of such satotage and, hence, unavoidably and significantly increases the direct and/or indirect endangerment of Petitioner members' radiological health and safety.

Secure Energy claims that the increased risk of sabotage and risk to the Shoreham equipment coristitute adverse environmental impacts and wuld in-crease the risk that die choice of rtasonable alternatives under NEPA would be limited.

Specific aspects on which Securt Energy seeks intervention under die AEA include whether the Settlement Agreement piohibits further (peration of the Shoreham facility and matters relating to LILCO's compliance with its Shoreham 31 n

full-power operating license. Another issue raised is whether NRC should take action on increasing physical secrrity requhements at Shoreham Ircause of an October 16,1989 License Event Report stating that two whiskey bottles were found inside the protected area.

An aspect d.at Secure Energy wants considered under NEPA is its allegation that the change in the physical security plan is anouer step in the decommission-ing process and that, tefore this step car, be taken, then te an environmental evaluation of Oc decornmissioning plan as a whole. It also raises as an aspect Oc obligation of LILCO to conform to its full-power operating licen>e and the imposition of remedial measures to accomplish it.

II, Staff's and LILCO's Responses to Secure Energy's Petition on Security Plan Amendment Staff's response to the new matters introduced by Secure Energy in its petition on the Security Plan Amendment is as follows:

Staff clahr.: that Peutioner has failed to set forth with particularity how the proposed amendment could have any adverse impacts upon its interests.

petidoner asserts that Staff had determined that despite the proposed changes to the physical security plan, the plan will continue to have a level of protecdon that is adequate to meet a test of radiological sabotage. Petitioner has failed to confront this determination, in terms of demonstrating with particularity, that the proposed reductions in physical security could adversely affect its interests. Staff states that Petitioner's bare allegation of adverse impacts is simply Insufficient to afford it standing to participate in a proceeding on tle applicadon.

Staff a setts that marry of the purported aspects that Sectne Energy see'a to participate in are beyond the scope of any proceeding on the proposed l

amendment.

LILCO filed a single response to Secure Energy's petitions for intervention on the Confirmatory Onler Modification and the Security Plan An crhiment. It answered the new material in the petition to intervene on the Security Plan Amendment as follows.

LILCO states that its security plan was better than that required by reguladon and that the plan's sclative effeedveness in the context of a nongerative and defueled reactor was not affected by the revision which rnects NRC regulation.

LILCO claims that the amended security plan will still 14 in compliance with applicable NRC requirements. Licensec asserts that Staff has made such a finding and that petidoner's bare allegation, that the proposed amendment is not in compliance with the AEA and implementing regulations and that there is a lack of reasonable assurance of the protection of health and safety and the national defense and security, merely tegs the question, 32 i

Licensee further claints that Petitioner's generalized allegatiu of harm is insufficient. It states that a conclusory assertion of danger is totally inadequate to establish any injury in fact. His is said to be particularly true since Storcham is not operating and is in a defueled configuradon.

LILCO c'so argues that under NEPA implementing regula*. ions, NRC need not perform an environmental review before approving the ansendment. It cites 10 C.F.R. H 51.14(a) and 51.22 which set forth categorically excluded actions.

Specifically listed under 10 C.P.R. 651.22(cX12) is the tilstuance of an amerwimas to a license prmant to Parts 50,. of this chapet relatins edely to safegud a matters (i.e., protection against sabcAage a loss or derersion of special i

smclear materia!) or issuana of an agproval of a safeguards plan sutuniued prrouant to Parts 50,70,72, and 73 of t!.is chapter, provided that the amendmers or arproval does not involve any signi6 cant constructiwiimpacts. These amendments and appetwals are conAned to (i) organizational and procedural malers, (ii) modi 6 cations to systems used for security arvtlor materials accournabilny,(iii) administrative changes, and (iv) review and approvabf transpcutasiai sovies prsuare to 10 CIR 73.37.

Licensee asserts that its proposed amendment to the physical security plan is of an organizadonal and procedural nature, and that the NRC reed not perform an environmental review before approving the amendment.

C.

School District's Petition on Security Plan Amendment School District's petition to intervene on t!.c Security Plan Ainendment, like that of Secure Energy, fundamentally repeats its peution to intervene on the Confirmatory Order Modificadon and is virtually identical to Secure Encrgy's petition on the Security Plan Amendment No purpose would be served in repeating the positions taken by the peutioner that have already been decided in regard to the Confirmatory Order Modificadon or again restating the new mat! rial that Sect:re Energy has presen*cd in its petition on the Security Plan Amendment which School District reiterates.

A new matter that de School District's petit'cn raises is that the organi.

zadon seeks to represent the interest of the Superintendcat of Schools of the School District, who resides in Centerport, New York. His differs from its Confirmatory Onter Modification petition in which it seeks to represent the in-terest of the President of the School District's Board of Education.'

D.

Staff and LILCO's Responus to School Board's Petition on Confirmatory Order Modification Staff and LILCO treated the School Board's and Secure Energy's petitions as identical and did not submit a different response to the School Board's petition.

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E.

Itoard's Ruling on Set:ure Energy and School Board's Petitions on Security Plan Amendment As weh the petitions on the Conftrmatory Order hiodification, which the subject petitions essenthily duplicate, Secure Energy and Mool District ime failed to satisfy the requirements of 10 C.F.R. 6 2.714(a)(2) w :stablish simding.

Tbr the reasons stated urW.t section IV.F. Secure Energy has not cAabliced that it is entitled to organizational standing because it has not show? itscK to have suffered an injury in l'act recognized in law. It tic not established inw, in a concrete way, tie lack of an environmental assessmerd on the Securitt P:e Amendment would injust its ability to disseminato information that is essential to its programmatic activities and is in the zone of int rest protected by NEPA.

As to representational standing, it has not submitico $c supporting statement required for such representation, as specified in Limer. :k, LDP 82 43A, supra, i

15 NRC at 1437. Tte petition is therefort deficient.

Purthermcre, Secure Energy has the burden of f nowing that a member's particularized injury in fact results from the Security Plan Amendment. Secure Energy has failed.in this requhement.

Secure Energy's claims of injury are alleged to emanate from the rfefacto decommissioning of Shoreham at.d LILCO's failun: to rnalntain a full-power op-

^

erational status under the Shoreham fall-power licenn, As previously discussed, those are not the issues in this proceeding. T1e issue in this proceeding is the Security Plan Amendment for a defueled plant and its ramifications. Tiere was no neaus shown tetween Secure Energy's alleged adverse tu Ith consequences tn its incmbers that are said round result from the construction of substitute oil.burnin6 P ants and the changes in Shoreham's security plan. No meritorious l

claim of ussibic injury in that area was presented.

l Similarly, Secure Energy has not otherwise established that any of its members will suffer a distinct and paljuble harm constituting an injury in fact result}ng fru.n the amendment to the security plan.

Petitioner's assertion, that to reclassify as not vital, equigunent and areas deemed vital to Shoretuun under its full power operating license would deprive the equipment and areas of physical security, which in turn would increase vulnerability to radiological sabotage and the risk of such sabotage and result in an increase in danger to members' radiological health and safety, does not satisfy the requirements of showing a particularied injury in fac4.

'Ihat which Petitioner has presented is an abstract argument that is uncon-nected to the le;>l end factual issues in the proceeding. Tte issue in this pro-ceeding is whether the security changes fcr a defueled plant that hos riever been in commercial operation can result in harm. This issue was never addressed try Petitioner, i

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Purthermore, thers is no factual reedicate to Itutioner's claim of increased

(

risk ta members' radiologual health and safety. Secure Energy wrives at its claim of increased radiological health and safety risk by building inference on inference which does rot result in a suppormble conclusion.

%ett was no informfjon prvyided to show that the changes in the secune plan for a Gefueled phrat that was nevec in commercial orcration will result in increased vulferability to s:(.ctage or the risk of such sabotage. Even if it were shown that there were such increased Sulterability and risk of sabotage, dere was Jio showing that 11 couki result in radiological harm. liow would the sabotage translate into radiological harm? For caample, would the theft of 5p*,nt fue's widt a tgirnup of approximately 2 effective full power days or its destruedon in storage result in mdiological harm to offsite members?

Secure Energy had the burden of providing such information, which it falled to do. The Commission has held that absent situations with obvious potential for ofisite consequerces, a petitioner must ah,le some specific injury in fact that will result frotu the action taken. St. Lacle, CLI.89 21, supra,30 NRC at 329.

Whetter the changes in the security plan are categorically excluded from an environmental review as LILCO contends cannot be decided by the Board at this Ome. Incuflicient information was pUvided to the Board to make that detenninadon.

Secme Erergy has not established the requisite interest for standing, organl-radonally or representationally.

De aspects of tie s bjeft matter of die proceeding as to which lttidoner wishes to intervene mlate to Secure Energy's allegadons of decommissioning of Shoatham, the failure of LILCO to operate the facility at full power, or the twed for increa;ing security requirements, none of which are issues in this proceeding, f

Ittitioner has failed to establish standing.

l' School District's petition on the Security Plan Amendment is virtually idendcal to that of Secure Energy except as to organizational purpose and does not differ hi any material respect. We rnake the same rulings on the Sclool District's petition as we did on Secme Energy's. Ittitioner has also failed to establish standing.

YL EMERGENCY PLAN AMENDMENT A.

Secure Energy's Ihltion on Intervention The subject amendment would release LILCO from complying with live licensing conditions on offsite emergency preparedness if (1) the reactor is void of all fuel assemblies; and (2) the spent fuel, with a burnup of approximately 35 3

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m

2 eiTective full-power days, is stored in the spent fuel storage pool or other approved storage connguration.

%c five licensing conditions in LILCO's full-power operuting license NPF-82 require LILCO to shutdown Shoreham at least 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> prior to commencement of a strike by las workers,2.C(9); place Shoreham into shutdown in the event of a hurricane in the Long Island area,2.C(10); modify its offsite emergency plan so as to provide that a knowledgeable LEROS representative will be sent to the Suffolk County Emergency Operadons Center (EOC) tqon the declaradon of an alert or higher Emergency Claulfication Level (ECL),2.C(11); have a trained person available 24 hots a day, whenever SErcham is operating above 5% rater 10wer, to expedSe cc' version of LILCO's 13rentwood facility into a LERO EJC upon declaration of an niert or higher ECL,2.C(12); and conduct quarterly training drills, with full or pretial participation by LERO,2.C(13).

In i.s petition, Secure Energy again repeats what is contained in its two pctitions that we picviously reviewed. Dere is no need to weat those matters here.

New material presented is Petitioner'c claim that t'a amendment would albw the cessation of certain emergency plantdng activities including required exercises or drills, it asserts that such cessation of practice would greatly reduce the effectiveness of LERO "and thus gmatly dday and prejudice LILCO to return to full power operation with the same degree of reasonable assurance of the public health and safety offered by the regular practice and training currently required." It states that such vulnerability to radiolo;ical nartr s;gnificantly increases the risk of such harm and, hence, unavoidably increases the threat 1

to racmbers' radiological health and safety. Secure Energy also alleges that these increased risks of radiological narm also constitute adverse environmental irnpacts and would also increase the sisk that the choice of reasonable alternatives would be limited.

Again, most of the specific aspects of the subject matter that Petitioner seeks to intervene on dent with full-power opertitions and LILCO's obligation to adhere 80 me Chorchim full-power license, both c, ' Mich are not relevant to this proceeding. It also raises the questions of whetnet the Emergency Plan Amendment shorhl not be heard with the Security Plan Amendment; whether Federal Emergency Management Agency findings are required c2 the subject issue; and whether the license amendment, whirt. prmits discot.dnuance (*

quarterly drills, involves a significant reduction in the murgo of safety and herease the probability of radiological harm, in addition to making its pivvious arguments on NEPA aspects, based on La contention that this is but a step in a de facto decomtnissioning, Secure 5 tiro is an organintion created by IRfo and safred by sorne s.000 orits own amplopus and erstrackra in onict to prtwide an erraite ernergancy inspones capab0ity tha is adequate to meet the regulahwy ar,andania.

36 i

Energy raises tic matter of wheder an environmental assessment is required if, assuming arguendo, the Emergency Plan Amendment is a discrete action.

Secure Energy a:scrts that the proposed actior is not among ttose listed in 10 C.F.R. I bl.20(b) that reoulte prepe.~Jon of an Environmental Impact Statement nor is it listed in 10 C.F.rt. 5 51.22(c) or (d) which provides for categorical exclusions and othcr actions not requiring environmental review. It claims that then under 10 C.F.R. I 51.21, an environmental assessment is required. It states that the environmental assessment will provide a basis for Ocussion of whether tie proposed action merits preparation of an Environmental Impact Statement or a finding of no significant impact, 11 Staff's and ULCO's L3peses to Secure Energy's Petition on Eroargener via. *. utt.dment Stal <cspe. is to. x inatters introduced by Secure Energy as follows:

Staff asser's ths. 4.irumhaent,vould only be effective while the plant is in a dfueled concitan and that Ittitioner has failed to show that any ir@ry might result from the reduced level of emergency preparedness which would exist while the plant is in this position, it claims that Petitioner does not contend that it would be endangenxl by granting the subject amendment, which wuld only suspend emergency planning activities while the plant remains in a defueled condition. Staff asserts that Ittitioncr's claim is only concerned with !cssened

= cmergency preparedness at such time that the Licensee seeks to began full power operation. Staff states that under these circumstances, Petitioner has failed to set forth _"with particularity" how the proposed amendment could adversely affect its interests.

Staff alleges that Petitioner's list of specific aspects are more related to decommiseiming and are beyond the scope of a proceeding on the proposed amendmeu LILCO ar;ges that Petitioner does not confmc itself to the Emergency Plan Amendment but extends itself to a request by Licensee for an exemption under 10 C.F.R. 650.12 whereby LILCO would cease offsite emergency preparedness activities and disband LERO. It cites Petidener's claim that the " proposed license amendnant... effectively climinates the offsite Emergency Response Plan anf !sperst,. the organization which is charged with implementation of thtt t..

Licensee asserts that Secure Energy never confronts the fact that Shoreham is shut down and defueled and that no credible accident requiring an offsee emergency response can occur. It claim" hat Petitioner's assertions are legalistic rather than factual and that no showing was made of a connection between the

$mendment and any rpecific injury.

37

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g'3 LC. lScoool District's Petition on Emergency Plan Amendment and '

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Staff's and LILCO's Responses :

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L De School District's petition on the Emergency Plan Amendment does

=not differ in any. significant way from'that of Secure Energy, except as to.

L organizational purpose. Staff and LILCO cach filed single responses to both-

~

petitions and nale no distinction _ between the petitions,

f -

D.

Snard's Ruling on Secure Energy and School Board's Petitions on Emergency Plan Amendment

r 1

__ As with'the other petitions, which they essentielly duplicate, the Secure 1 Energy and School District petitions on the Emergency Plan Amendment fall to satisfy the requirements of 10 C.F.R.' $ 2.714(aX2) to establish standing.-

1 ecure Energy has not established that it is entitled to organizational standing S

beM;se it has not shown lirt to have suffered an injury in fact recognized in law. His' matter was fully discussed under section IV.F on the Confirmatory z Order Modification.'

_ As to representational standing Secure Energy has not submitted the support-

,_ ing statement required for such representation, as discussed in Limerick. Like-its other two petitions, this petition is similarly deficient, Again, Secure Erv,rgy's claims of injury are alleged to emanale from the dc

! facto decnmmisskming of Shoreham and Lilf0's failure to maintain a full--

' power operatiasal status under the Shoreham full power license. Dey are mat-5 ters not at issue in this proceeding.- At issue is the Emerge.my Plan Amendmec s

which relcac LIlfO from complying with_ five emergency planning license.

[

_' conditions when the reactor is void of all fuel assemblics and the spent fuel, C

which had limited use(is stored in the spent fuel pool or in other approved f

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storage.

i Secure Energy's claims _of injury are unconnected wl.) this situation which

" is a condition precedent to the lifting of the license conditions.-

. _ - Secure Energy's_ claims of injwy are not organizationally and representatbn-f?

1 ally related in any way to a plant that will be defueled and will have l's spent fuel in storage before any of the conditions can be removed, No particularized i

(injury was identified that can be traced to the challenged action,-

m f gain, Petitioner j W an abstract argument that is unconnected with:

]

A

' the segal and factual issues in the proceeding. Secure Energy complains _ that-the amendment will reduce the effectiveness of LERO and will cause delay in

' returning LILCO to full-power operation. Full power operation is_ not at issue.

- How effccuve does LERO have to be for a defueled plant and what radiolog! cal _

consequerces can be expected from a less effective LERO when the facility s

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is defueled and not operating? %ese critical questions are not addressed by Secure Energy although it is its responsibility to do so if it is to obtain standing.

Dere was no cred!ble showing that the amendment would increase the risk of radiological harm to members' health sad safety. %cre was no factual basis offered to support ec bare argument.

Because Petitioner's claim of injury is premised on the erroneous belief that the issues in the proceeding are the decommissioning of Shoreham and Licensee's failure to maintain its operational status at full power as authorired by its license, which are not at issue, it has failed to show an injury in fact to itself or to its rncmbers diat is protected by the AEA or NEPA.

LILCO's claim that IYtitioners erroneously extended the scope of the pro-cceding to '.actude a separate arquest by LILCO to cease all ohV8e emergency preparedness activities is not a significant matter We agree that the 10 C.F.R. 6 50.54(q) exemption request by LlLCO which wouPJ allow it to cease its off-site emergency preparedness activities is not within the scope of this matter, llowever, Security's basic claim is that the amendmerit will render LERO less effective. That is the issue the Board has considered.

nose specific aspects of the subject matter of tha proceeding m to which Petitioner seeks to intervene include matters in issue as well as those that are outside the scope of the proceeding. The latter include those dealing with de facto decommissioning and stquiring LILCO to operate at full power. Certainly, whether the license amendment which permits discontinuance of quarterly drills involves a sigallicant reduction in the margin of safety and increases the probability of radiological harm would be a valid subject of a hearing.

Security Energy has provided no authority to support the issue it raises as to whether Federal Emergency Management Agency fmdings are required on the issue. Section $J.47 of 10 C.F.R. calls for such agency fmdings prior to issuing an operating license for a nuclear power reactor, nat is not the nature of this

_ proceeding.

At this time, there is no basis to consider on hearing the Emergency Plan Amendment with the Security Plan Amendment. No standirig has been established by Secttre Energy in either proceeding.

If a hearing vere granted, the aspect that Petitioner would participate in, whether under 10 C.F.R. i 51.21 an environmental assessment is required of the -

proposed amendment, appears to be a matter at issue.

Rr the reasons given, Secure Energy has not established the requisite interest for standing, organhationally or representationally.

School District's petition on the Emergency Plan Amendment is virtually identical to that of Secure Energy. We make the same rulings as to both petitions.

"ntitioner also has failed to establish standing.

39

l 4

V.

CONCLUSION De Itoard having reviewed each "Pedtion to Intervene and Request for 11 earing" has determined that Petitioners have failed to establish standing in each of the three matters, as required by 10 C.P.R. 5 2,714(a)(2). Also, in the case of the Security Plan Amendment, they have not identified a specific aspect relevant to the subject matter of the proceeding, as provided for in section 2.714(a)(2).

De deficiencies that have been fotmd to exist have been discussed in detall in this Memorandum.

Petitioners have basically predicated their cases on the claim that these matters are part of the defacto decommissioning of Shoreham and are concerned about resumed operation of the facility.

De Commission's ruling iM fu-90-8 did not fmd Petitioners' position to be meritoricus. De Commission found that resumed operation of Shoreham is not to be considered as an alternative in an environmental review of decommis-sioning under NEPA. It further found that the license changes that we are to consider do not foreclose any NEPA alternative that must be considered in that assessment. The three license changes now before this Board are not an im-permissible segmentation of any decision to decommission. De Commission's decisior, stripped away Petitioners' main arguments for standing.

Petitioners did not have the benefit of the Commission's precedential decision on decommissioning in CU-90-8 at the time that they filed their various petitions to intervene. Delt petitions focused on matters that the Commission subsequently determined to be beyond the scope of consideration under NEPA in any proceeding on reactor decommissioning. The Board concludes that because of dese circumstances Petitioners should be afforded the opportunity to amend their petitions to intervene to take into account the recent Commission decision and the deficiencies in their petitions that are specified in this order, nis conclusion is predicated in part on the Commission being rather liberal in permining petidoners the opportunity to cure defective petitions to intervene.

It has done so on the bases that, "the participation of intervenors in licens.

ing proceedings can furnish valuable assistance to the adjudicatory process."

Virginia Electric and Pow Co. (North Anna Power Station, Units 1 and 2),

ALAB 146,6 AEC 631,633 (1973).

Order Based upon all of the foregoing, Petitioners are afforded the opportunity to amend their petitions to cure the defects found by the Board.

Amended petitions are required to be filed within twenty (20) days after service of this Order. LILCO shall file its response within ten (10) days of 40

service of the amended petitions, and Staff shall have an additkmal five (5) days within which to respond, FOR Tile ATOMIC SAFETY AND LICENSING BOARD -

Morton B. Margulics, Chairman ADMINISTRATIVB LAW JUDGE Bethesda, Maryland January 8,1991 e

41

Cite as 33 NRC 42 (1991)

LBP 912 t

UNITED bTATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFET) AND LICENSING BOARD Before Administrative Uudges:

John H Frye,111, Chairman Dr. Charles N. Kober Dr. David R, Schink 1

la the Matter of Docket Nos. 50-250-OLA4 50-251 OLA4 (ASLBP No. 9142542 OLA4)

(Emergency Power System Enhancement)

FLORIDA POWER AND LIGHT COMPANY

~ (Turkey Point Nuclear Generating Plant, Units 3 and 4)~

January 23,1991*

De Licensing Board denies a petition to intervene because Petitioner failed to demonstrate that he resides and/or works in the vicinity of the plant in question and thus has standing.

RULES OF PRACTICE:- INTERVENTION Section 2,714(a) of 10 C.F.R. requhes that a petitioner state his or her interest with particularity and how that-interest may be affected by the ptoceeding.

Judicial concepts of standing are applicable.

• n a i ry 25, t991.

. 42.

4 RULES OF PRACTICE: INTERVENTION

, As a general proposition, a person whose base of normal, everyday activities is within 25 miles of the site can fairly be presumed to have an interest which might be affected by reactor construction and/or operation, thus satisfying the r

injury in fact" test. Gulf States Utilitics Co. (River Bend Station, Units 1 and 2), ALAB 183,7 AEC 222,226 (1974); Florida Powr and Light Co. (St. Lucle

Nuclear Power Plant, Units 1 and 2), CLI 89 21,30 NRC 325 (1989).

RULES OF PRACTICE: INTERVENTION The burden rests with the pedtioner to demonstrate that he or she satisfies

- the requirements of 10 C.F.R. 62.714(a). Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 83 25,18 NRC 327,331 (1983).

. MEMORANDUM AND ORDER (Ruling on Petition to Intervene)

In July and September,1990, Florida Power and Light Company (FPL) propn,cd a number of design changes for its Wrkey Point Plant located in Dade County, Florida. These changes, part of its Emergency Power System enhancement project, would add two emergency diesel generators, two battery chargers, a battery bank, and associated support and electrical distribution equipment.- FPL also seeks permimn to modify the Tbchnical Specificadens to reflect these changes.

Following receipt of FPL's application, the Commission's Staff published a notice indicating that this application wr.s under consideration.8 This nodce offered an opportunity for interested perus to petition for a hearing with regard

- to these changes. Thomas J. Saporite., Jr., filed a timely request for hearing and petition for leave to intervene in response to the nodce.2 Both FPL and Staff oppose the petition on the ground that Mr. Saporito has not demonstrated that he has standing to intervene, -

Isee ss Fed. Reg. 39Mi (sett 26,1990) Dn Nreice siso indicewd that the Canonusion propossd nu&ing a "no signi8 cast hasants" desennination onder 10 C.FA 4 50.92 which, punuant to 10 C.FA i 50.91(4)(4), would pennn the i===== ef the licanes anauhners recpanned by ITt,in advance of the crumpletion of any bestias

- bdd as a sendt of a request Aled in respcmse to the Notice. on December 2s,1990, the Canunission issued the rati-=at 2 The Nuclear Energy Accountabilky Project tNEAP) was also inchaded with Mr. Seperito as a Puitioner, but subsequently inawed to whhdraw ha petitirst. Da swtion supreserted that NEAP oculd be dissolved on December 31.1994 Dis ameien wee grermed an December 11

E!y. NEAP's pennian is not further eensidered in this Mernorandura and order.

43

The Commission's requirements with regard to standing are set out in 10

' C.F.R. 52.714(a). This provision requires that a petitioner state his or her interest with particularity, how that interest may be affected by the proceeding, and why he or she should be permitted to intervene. The Commission has icld that judicial concepts of standing are to be utilized in its proceedings. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and 2), CL176-27,4 NRC 610 (1976). Thus, in order to be successful, a petitioner must allege an injury in fact to his or her interestt and that that injury is within the zone of interests protected by an applicable statute. It is well settled that "as a general proposition, a person whose base of normal, everyday acdvities is within 25 1

miles of it'e site can fairly be presumed to have an interest which might be affected by reactor construction and/or operation," thus sausfying the " injury on fact" test. Gulf States Utilities Co. (River Bend Station, Units 1 and 2),

ALAB 183,7 AEC 222,226 (1974) (emphasis in original), in Florida Power and Light Co. (St. Lucie Nuc! car Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325 (1989), the Commission affirmed this proposition, noted that living within a specific distance from the plant would confer standing on individuals in proceedings on major amendments to a power plant license. Tle Commission has held that the burden rests with the petidoner to demonstrate that he or she satisfies the requirements of 10 C.F.R. 52.714(a). Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 83 25,18 NRC 327, 331 (1983).

Mr. Saporito's petition recites that he lives and wcrks in and ahuut the Oty of Miami. Florid as the Esectalve Director of NEAP and as a self.ernployed individual shh the Alrnow Service Corporation. %e interesu of Mr. Saporito could be adversely affected if a scrims nuclear acciders occurred at the Turkey Point nuclear ptant as a direct or indirect resuh of the igrarains of the ticense amendment under considers'iml.8 The petition makes no other representations with regard to the standing of Mr. Saporito to request a hearing and to intervene in the proceeding.

FPL asserts that the meaning of the quoted statement is unclear. Il notes that the statement that Mr. Seporito wrks for NEAP and Airflow Service Corp.

"in and about" Miami does not address the extent to which his work occurs in Miami as opposed to some other place.' Moreover, FPL notes that recently it was brought out in Mr. Saporito's deposition taken in connection with an unrelated proceeding before the Department of Labor that, in the course of its 3-year existence, Attilow Service had generated revenues of about $600-$700.

Thus this work co?]d not be extensive.

3Petitum at 2.

4Assurning diat NEAP ha.s an been dasolved, wai for that organization wadd no innger saim.

44

Ibrther, IPL notes that the representation that Mr. Saponto lives in Miami does not exclude other places of alcle. It observes that in a related Commission procceding concerning the hrkey Ibint Plant (the OLA 5 proceeding), a brief filed on Mr. Saporito's behalf on September 5 stated that his residence was in Jupiter.s Ibliowing submission of its response to the petition, FPL brought to the Board's attention the fact that it had received two chang %f address notices from Mr Saporito. He first of these, received on November 29, indicated that Mr. Saporito's mailing address was changed to 8135 S.W. 62nd Place, Miami, Florida 33143. FPL represents that this notice recited that it became effective in July and notes that if this is so, it conflicts with Mr. Saporito's sworn testimony given in August in the Department of Labor proceeding to the effect that his address was in Jupiter, Florida. He second, received on December 2, stated that the mailing address was changed to P.O. Rox 129, Jupiter, Flodda 33468 0129.8 FPL notes that the atiparcat inconsistency in Mr. Saporito's representations raises serious questions concerning the location of his abode.'

Staff also asserts that Mr. Saporito has failed to demonstrate that he has standing, noung that he has given insufficient information concerning both his residence and employrrent. Staff notes that Mr. Saporito did not state in his petition where he resides in Miami. Nor did he provide sufficient elaboration of the extent of his work activities in that city,'

On December 5, we afforded Mr. Saporito an opportunity to respond to the answrs filed by FPL and Staff, including FPL's response to the notices of change of address. Houston Lighfing and Pour Co. (Allens Creek Nucleat Generating Station, Unit 1), ALAB 565,10 NRC 521 (1979). On December 26, Mr Saporito filed his reply. Although that reply stated that he had been directed to respond both to the answers opposing his petition and to FPL's comments prompted by the notices of change of address, Mr. Saporito addressed only the latter.' He substance of Mr. Saporito's reply is:

8 Mr. sapodio does not question W1/s and sufr's assation that Jupiter is too remote fan the Turkey Posas station to auwort standms, ses stafr's Answer et 8. FPt/s Answer at s. In ha resp =as. FPL notes that Mr.

saposito regeweemed that Jupur is about s3 adles fan ths 'hutey Point station in an amended petition Aled in du related 'OLA s* proceeding

'The nietion to widuhsw NEAP's petition bd on December 8, indicated that Mr. saporiso's snailing address was 813s s.W. 62nd Place. s. Miami, Florids 33143.

7 3e# Wi/s November 9 Response to Petition at 1114. and its response in the notices of change of address of December s. TPL also takes the posizimi thet Mr. saporito has not suced an admisst% contersim.

8 sufr's November 14 Response to htitim at s4. suft also ukas the position that Mr. saposito has faued to sute an admissible carpentim.

'De reply noted in passing that FP!/a answer to the petitim had also suggesied that there was emne inconsisinney besmeen the representations made in this pmceedmg and in the Department e(Labor's proceedmg 45 l

i I

l

Mr. Saporito's mailing addrus remained at 1202 Sious Suces, Jupiter, Horida at that time and did not chanse until same time after July 1990 and well before the time that Petitioner rded a Request for llearing and Inve to Intervene in this proceeding. '

Mr. Saporito addresses none of the other arguments raised by FPL and Staff.

Ilere some doubt exists as to where Mr. Saporito lives. De peution recites that he " lives and works in aru about the City of Miarni," but indicated an address in Jupiter, Florida, as did a brief filed on his behalf in die OLA 5 proceeding on September 5. A notice of a cLmge af Mr. Saporito's malling address received by FPL on November 29 and effective in July 1990, indicated that mail was to be send to him at a Miami address. %ls was followed by a second notice received )y FPL on December 2 changing Line mailing address back to Jupiter. De motion to withdraw NEAP's petition, filed 3 days following FPL's response to the notices of address change, indicated that all future filings should be directed to Mr. Saporito at the Miami address. When FPL pointed out that the first nodce changing the malling address to Miami was inconsistent with Mr. Saporito's sworn testimony in the Department of Labor pmceeding indicating his residence in Jupiter, Mr. Saporito's response was that his malling address "did not change until some time after July 1990 and well before the time" he filed his petition.

Mr. Saporito's representations as to his address may be summarized as follows:

Date Document Representation September 5 Brief in OLA 5 Resides in Jupiter.

October 25 Petition in this proceeding

" Lives and works in and about the City of Miaml."

Address indicated in signature block is P.O. Box 129, Jupiter.

Received by FPL Change of address effective Direct mail to November 29 July 1990 8135 S.W 62nd Place, Miami.

Received by FPL Change of address Direct mail to December 2 P.O. Box 129, Jupiter.

30 Reply at 4. The matainent that Mr. saponto's maihls addscas muamed in Jupher "at that time" prestinably seters in My 1990. In the peceding paragragt or the eply. Mr. saporito states that NEAP's change er addreas to Miami from lupter became stractive in My 1990.

46

Decemter 8 Motion withdrawing Direct mail to NEAP's petidon 8135 S.W. 62nd Place, Miami.

December 26 Reply to FPL and Staff Malling address did not change to Miami from Jupiter until after July and before October 25.

In these circumstances, a representation that Mr. Saporito " lives and works in and about" Miami not far from the plant in question is insufficient to support standing. When confronted with objections that he had not adequately set forth a basis for standing by clearly indicating where he wrks and lives, Mr. Saporito responded only that at the Omc of the filing of his pedtion, his mailing address was in Miami. While we would ordinarily assume that an individual petitioner receives mall at his residence, in this case such an assumption is not warranted.

%c frequent changes of that address in a short period of time underscore the questions concerning Mr. Saporito's standing raised by FPL and Staff, it was incumbent on Mr. Saporito to affirmatively state where he resides and the extent to which his work takes pixe in proximity to tic plant. Absent such a statement, we cannot conclude that his " base of normal, everyday acdvitics" is close enough to the plant to support standing.

Mr. Sa;mrito's failure to have affirmatively responded to the questions raised regarding hh standing, when coupled with his representadons made over a period of about 2 wecks in late November and early December that his mailing address changed three times in a period of less than 4 months, prevents us from concluding that he resides at the Miami malling address and thus has standing.

His is particularly so in light of the fact that the last change followed hard upon FPL's comments on the earlier two nodces.

Accordingly, Mr. Saporito's petition filed in this proceeding is denied."

_ Ptn uant to 10 C.F.R. 6 2.714a(a), within 10 days after its service, Mr. Sapor-ito inay appeal this Memomndum and Order by filing a Nodce of Appeal and "in nin t aw rauh.

e nm amun wh,sha w sq w h uu.%s u. ohn piranas er to cra.

i I s,714, 47

. - ~. _ _...

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. accompanying brief with the Commission.' See 10 C.F.R. 62.785 as an5 ended

+

.,., _.- October 18, 1990 (55 Fed. Reg. 42,944, Oct. 24,1990).

^

it is so ORDERED,-

Tile ATOMIC SAFETY AND.

LICENSING BOARD

]

)

• l Dr. David R. Schink" ADMINISTRATIVE JUDOE -

i i

Dr Charles N. Kelber ADMINISTRATIVE JUDOB John H Frye, III, Chairman -

- ADMINISTRATIVE JUDOE.

- Bethesda, Maryland ;

January 23,1991.

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I Cite as 33 NRC 49 (1991)

LBP 913.

UNITED STATES OF AMERICA 3

NUCLEAR REGULATORY COMMISSION j

_l ATOMIC SAFETY'AND LICENSING BOARD o

1

- Before Administrative ' Judges:

-a-l van W Smith, Chairman 4

Dr. Richard F. Cole I

Dr. Kenneth A. McCollom j

i in the Matter of Docket Nos. 50 443-OLR-34-5 50 444-OLR-3& 5 '

- (ASLBP Nos, so.419 03 OLR 3; 91630 01 OLR 5)-

(Offshe Emergency Planning)

- PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

-j

- (Seabrook Station, Units 1 j

and 2)

' January 29,1991 i

4

. MEMORANDUM ~AND ORDER'

.~ (Resolving Issues Remanded in ALAB 937 and ALAB 942)

~

4 L On January _18,1991,' respective counsel for the Massachusetts Attorney.

L General, Staff of the Nuclear Regulatory Commission, and Pubik Service Company of New Hampshire (fcr the Licensecs) filed a joint stipulation in :

which the Massachusetts Attorney Ocneral withdrew his Contention 47, Basis R, as remanded in. ALAB-937 and Contention-56,- Basis A, as remanded in l

' ALAB 942.8 The Licensing Board considered the joint stipulation in a prehearing conference conducted on January 23,1991. 'Ihe signatory. parties, as well as Ecounsel for the Federal Emergern.y Management Agency (FEMA) and counsel -

13Joht stipulaisi Regenting Cosmeraians Ranandel b AIAB-937 and AIA&942, January 18,1991,

~

49

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4 i I

f for New England Coalition on Nuclear Pollution (NECNP), stated positions on-tic joint stipulation.

ALAU.937 The stipulation regarding ALAB-937 approves changes in the support plan providing for the use of route guides for ensuring adequate supervision of chil-dren evacuated to the School llost Pacility at fioly Cross College in Worcester, Massxhusetts. Since the stipalation anticipates that the changes will be subject to the oversight of the NRC Staff and FEMA, and since FEMA was not a party to the stipulation, the Licensing Board inquired whether FEMA is willing to un-dettake the oversight responsibilities. Counsel for FEMA reported that FEMA had been consulted and regards the stipulated changes as an enhancement to the plan and has no objections. The Board accepts counsel's statement as a com.

mitment by FEMA. 'lY. 28,456-57. NECNP also pports the stipuladon as to both remands 'IY,28,458. The stipulation regi

.g ALAB-937 is appropriate, as is the withdrawal of the associated contention.

ALAB.942 The contention remanded by ALAB-942, Contention 56, Basis A related to certain predetermined Protective Action Recommendations (PARS) based-in significant part upon monitoring of radiation levels within containment.

ALAB 942, 32 NRC 395, 418 (1990). The Massachusetts Attorney General now stipulates that the issues have been resolved by changes made in the Seabrook Plan for the Massachusetts Communities (SPMC) since the filing of

the contentions as reflected in the form of the SPMC received into evidence.

The Board reviewed Basis A and its eight subbases and recognizes that the

- subject matter in general was covered in the SPMC and the attendant litigation.

No party objects to the stipuladon regarding ALAB-942. Tr. 28,46162. The

' Board accepts the Massachusetts Attorney Ocneral's stipulation that the issues -

raised by his own contention have been resolved and accepts the withdrawal of his Contention 56, Basis A.

ORDER The Board grants the Licensec's motion (Tr. 28,461) for an order. (1) accepung the joint stipulation, (2) declaring the issues remanded in ALAB-937 and ALAB 942 resolved, and (3) directing the NRC Staff, in cooperation 50

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~ with FEMA,' to overge compliance with the commitments made in the jolat stipulation. It is so ORDERED.,

' FOR T}iB ATOMIC SAFETY

, AND LICENSING BOARD i

Ivan W. Smith, Chairman.

i ADMINIS'IRATIVE LAW JUDOB s

.). Bethesda, Maryland e January 29,1991 t

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Directors' DECISIONS Under

10 CFR 2.206 L

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Cite as 33 NRC 53 (1991)

DD 911 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Robert M. Bernero, Director in the Matter of 1

ALL NUCLEAR FACILmES January 15,1991 The Director of the Office nf Nuclear Material Safety and Safeguards has denied a Petition subinitted by Eldon V.C. Greenberg on behalf of Nuclear Control Institute and Committee to Bridge the Gap. 'I12 Petition asserted that there is an immediate possibility of terrorist attacks against domestic nuclear facilities which might accompany the outbreak of hostilities in the Middle East and requested that, therefore, the NRC on an emergency basis require that existing licensee contingency plans against truck bombs be put into effect immediately and that immediately thereafter, the NRC undertake an evaluation of the adequacy of the plans and require any such improvements as it deems necessary.

NRC: REVIEW OF THREAT ENVIRONMENT In response to recent world events, the NRC is continually revicwing the threat environment associated with commercial nuclear facilities.

DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206.

His letter is to acknowledge receipt of the " Petition for Rulemaking and Request' for Emergency Acdon" C' Petition") which you submitted to both the Secretary and the Executive Director for Operations of the U.S. Nuclear Regulatory Commission ("NRC") on January 11, 1991, on behalf of Nuclear

- Control Institute and Committee to Bridge the Gap (" Petitioners"). Dat portion of the Petition reqisesting emergency action is being considered by the NRC _

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l Staff as a petition for emergeny action pursuant to 10 C.F.R. 6 2.206 and my Director's Decision is set out below. That portion of the Petition requesdng rulemaking to amend 10 C.F.R. Q 73.1 of the NRC regulations will be considered as a separate matter.

'the Peddoners assert that there is an immediate possibility of terrorist attacks against dornestic nuclear facilitics which might accompany the outbreak of hostilities in the Middle East. To respond to this concern, Petitioners request the NRC, on an emergency basis, " forthwith to require that existing licensee contingency plans against truck bombs, as developed under Generic letter No. 89 (r1, be put into effect at once" and immediately thereafter, the NRC "should undertake an evaluation of the adequacy of the plans and require such improvemenn therein, on a plant by-plant basis, as it deems necessary to ensure their adequacy."

In irsponse to recent world events, de NRC is continually reviewing die threat environment associated with commennal nuclear facilitics. Based on eval-uation of Intelligence Community and other relevant data, we have determined that there continues to be no credible thicat of terrorist actions against any NRC-licensed facility that warrants implementation of contingency plans against truck bombs at this time. Nevertheless, the situation resulting from activides in the Middle East continues to be closely monliore.d so that, if warranted, individual facility, regional, and national contingency plans can be implemented.

In summary, I hse determined that, while the issues raised in the Petition are cause for ongoing vigilance by the NRC, no immediate action is necessary regarding these mattas. I have reached this determination with the benefit of the ongoing NRC activities noted above. As I indicated, your petition for rulemaking will be considered separately.

FOR THE NUCLEAR REGULNIORY COMMISSION Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards Dated at Rockville, Maryland, this 15th day of January 1991.

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l Denials of Petitions "or Rulemaking 1

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Cite as 33 NRC 55 (1991).

DPRM 911 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forreat J. Remick in the Matter of Docket No. PRM 50-50 CHARLES YOUNG January 11,1991 The Nucicar Regulatory Commission is denying a petition for rulemaking submitted on April 18,1988, by Mr. Charles Young of Glen Ellyn, Illinois, in his own behalf which requests that the Commission rescind 10 C.F.R. I 50.54(x) and (y) to preclude deviation from license conditions or tecimical specifications for licensed nuclear power plants in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specification: that can provide adequate or equivalent protection is inunediately apparent.

LICENSE CONDITION: COMPLIANCE DURING EMERGENCIES Unanticipated circumstances can occur during the course of emergencies.

'Ihese circumstances may call for responses different from any considered during the course of licensing. For exampic, the need to isolate the accJ.mulators to prevent nitrogen injection to the core while there was still substantial pressure in the primary system was not foreseen in the licensing process before TMI-2; thus, the technical specifications prohibited this action. Other circumstances requiring a deviation from license requirements can arise during emergencies involving multiple equipment failure or coincident accidents where plant emergency procedures could be in conflict, or not applicable to the circumstances.

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t-REGULATIONS: INTERPRETATION (10 C.F.R. I 50.54(x) and (y))

'Ihe Commlssion added paragraphs (x) and (y) to 10 C.F.R. I 50.54 (47 Fed.

Reg. 35,996) because an accident can take a course different from that visualized when the emergency procedure was written, thus requiring a pmtective response at variance with a procedure required to be followed by the licensee, in addition, performance of routine surveillance testing, which might fall duc during a period for which the plant is in an emergency status, may have to be delayed or cancelled because it criuld either divert the attention of the operating crew from the emergency or cause loss of equipment needed for proper pmtecuve action.

REGULATIONSt INTERPRETATION (10 C.F.R. I 50.54(O and (y))

Paragraph (x) of 10 C.F.R.150.54 is similar to the so<alled " General Prudendal Rule" contained in both the International Regulations for Preventing Collisions at Sea,1972, and the Inland Navigational Rules Act of 1980. This rule states: "In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which make a departure from those rules necessary to avoid immediate danger." Thus, a Comrnanding Officer of a ship is permitted to deviate from written rules to the extent necessary to save the ship, REGULATIONS: INTERPRETATION (10 C.F.R. I 50.54(x) and (y))

Paragraph (x) of 10 C.F.R. I 50.54 is also very similar to a Federal Aviation Administration (FAA) rule governing the operation of aircraft,14 C.F.R. 5 91.3, which states that "[i]n an emergency requiring immediate action, the pilot in command may deviate from any rule... to the extent necessary to meet that emergency. Each pilot in command who deviates from a rule,,, shall, upon the request of the Administrator, send a written report of that deviation to the Administrator."

As the Commission stated in the Statement of Considerations for the final rule adopting 10 C.F.R. 650.54(x) and (y), "[t]he Commission had both the Genemi Prudential Rule and the FAA rule in mind when it framed the proposed rule"(48 Fed. Reg.13,966, Apr.1,1983).

56

DENIAL OF PETITION FOR RULEMAKING I.

Tile PETITION By letter dated April 18, 1988, Charles Young,262 Sheffield Lane, Glen Ellyn, Illinois, petitioned the U.S. Nuclear Regulatory Commission to rescind the provision that authorizer nuclear power plant operators to deviate fmin technical specifications during an emergency. De Petitioner notes that the technical specifications (a) prescribe settings for safety systems at nuclear power plants, such as the emergency core cooling system, so that action of a safety system will correct an abnormal condition before fuel design limits are excec4c4; and (b) require an automatic safety system to operate t.s long as the abnormal condition that threatens the nuclear fuel exists in the plant. De etitioner cites several cases of practices involving nuclear power reactors that he considers to be hazardous, in his opinion, these practices could lead to an accident similar to the one at nree Mile Island, Unit 2. De Petitioner claims that three official investigations have confirmed tha' itmage to the nuclear reactor at Three Mile Island, Unit 2, could have been prevented if the operators had folloud the requirements of the plant's operating lleense and technical specifications.

According to the Petitionct, the three investigations and ticir applicable findings are as follows:

(l) The President's Canmission found that reacscr core damage would have been prevented if the high pressure injeaion system had na been throttled. IKemeny Canmissior. Finding Na 4 at 28.1 (2) Calculations by the Special Inquiry Group show that use d the h;gh pressure irdection system would have prevented cwerheating d the fuel and release d radioactive material (Rogovin, Vol. II, Part 2,1 D1b, at 558,5611 (3) ne Special Investigation by the Senate Subcanmittee on Nuclear Regulatian found the cause of severe damage to the reactor core was the inawrupnate overriding of automatic safety equipment by plant and managers. [Ilut Report Chapter 2 Findings and Conclusions, Na 2, at 9.1 ne Petitioner believes that the NRC should rescind the existing provisions in paragraphs (x) and (y) of 10 C.FR. 650.54 to adequately protect the public health and safety from the hazards of nuclear radiation from nuclear power reaClors.

II, PUBLIC COMMENTS ON TIIE PETITION Notice of receipt of the petition and request for public comment was published in the Federal Register on August 26,1988 (53 Fed. Reg. 32,624). On October 57

i 20,1988, the original notice of receipt for PRM 50-50 was corrected to provide addidonal information in support of the Petitioner's original intent by revising two sentences in the Grounds for the Petition. 'Ihc correction had the effect of increasing the number of plants included in the basis for die petition (53 Fed.

Reg. 40,432) 'Ihe 60-day comment period of the original petidon expired on October 18,1988. A total of seven (7) public comment letters were received, representing eleven organizadons. All of the commenters wre opposed to the petition fcr rulemaking. The comment letters may be examined in the NRC public document room. All comment letters have been evaluated by the. NRC Staff.

III. REASONS FOR DENIAL lt is the Commission's position that emergency conditions can arise during which a license condition could prevent necessary protective action by die licensee, Technical specifications contain a wide range of operating limitations and requirements concerning actions to be taken if certain systems fail and if certain parameters are exceeded. Most technical specifications are devoted to keeping the plant pararneters within safe bounds an6 keeping safety equipment operable during normal operation. Ilowever, technical specificadons also require the implementation of a wide range of operating procedures which go into great detail as to actions to be taken in the course of operat.w to maintain facility safety. These procedures are based on the various conditions - normal, transient, and accident conditions - analyzed as part of the licensing process.

Nevertheless, unanticipated circumstances can occur during the course of emergencies.' These circumstances may call for responses different from any considered during the course of liccasing. Ibr example, the need to isolate the accumulators to prevent nitrogen injection to the core while there was still substantial pressure in the primary system was not foreseen in the licensing process before TMI 2; thus, the technical specifications prohibited this action.

Other circumstances requiring a deviation from license requirernents can arise during eme.gencies involving multiple equipment failure or coincident accidents where plant emergency procedtrres could be in conflict, or nr/ 71icable to the circumstances.

An accident can take a course different from that visualized when die emergency procedure was written, thus requiring a protective response at vanance with a procedure required to be followed by the licensee, in addition, performance of routine swveillance testing, which might fall due during a period for which the plant is in an emergency status, may have to be d; layed or cancelled because it could either divert the attention of the operatine, crew from the emergency or cause loss of equipment needed for proper prott.ctive action.

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It was for these ree ma that.the. Cortmission added paragraphs (x) and (y) to -

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10 C.F.R. 6 50.54 (47 Fed. Reg.~ 35,996).:

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- Paragraph (x) of 10 C.F.R. 650.54 is =similar to the so<alled "Ocaeral -

y PrudenGal Rule" cretained ?.n both the huernational Regulatioct for Preventing.

Collisions at Cer.,1972, and the Inland Navigational Rules Act ef 1980. This -

rule rtales:

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~_ la construins and cumplyins wkh these Ruin due sesord shan be had to d dansers of.

mavisation and couision end to eny spnlal circumstances,induding the hmitadens of the ve. is inwad, whidi m ke a departwo fran sian ruiu nece. ry to evoid immedime danser.

Thus, a Commanding Officer of a ship is permitted to deviate from written

- rules _to the extcut pccessary to save theLahlp.

Paragraph (x) of 10 C.F.R. 6 50.54 is also very similar to a Federal Aviation

- Administration (FAA) rule governir.g the operadon of aircraft.14 C.F.R. l 91.3, Twhich states that ?[1]n an tenergency requiring immediate action, the pilot in "S

' command may deviate from any rule.. -J 10 the extent necessary to meet that emergency. Each pilot in command who deviales from a rule.-.. shall, upon -

the request of the Administrator, send a written report of that deviation to the-.

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- As the Commission stated in the Statement of Considerations for the fmal :

rule adopting 10 C.F.Ril50.5d(x) and (y), "[t]he Commission had both the General Prudential Rule and the FAA rule in mini when it framed the proposed rule"(48 Ped. Reg.-13,966,' Apr.1,1983).

, A!! of the public cornments received by the Staff on the petition opposed any

' change to 10 C.F.R. 6 50.54(x) and (y). Most of the commeructs observed that t

. technical specl6 cations do not diciale mitigation strategies or recovery ruons Tunder accident conditions as the Petitioner stater; rather, generic emergency

. operating procedures approved by the NRC_are relied upon for this purpose iI

Instead.' Examples of proceduralized deviations from technical specifications -

d Nere citedi These exampics included: - inhibinng detrimedai automatic plant responses; tiefeating interlocks tol allow preferred flow paths; taking manual control of automatic systems; maintaining plant parameters (such as~ reactor water :

?g level) outside normal ranges; and cross-tying nonsafety eqiilpment to perform -

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accident midgation functions.

? One commenter noted that_without 10 C.F.R. 5 50.54(x) and (y), operators may be reluctant to take reasonable: actions in an emergency immediately ;

needed to protect tiu health and safety of the_public c Another commenter

noted that requiring operators to ototin permission from the NRC to deviate.

from technical speci6 cations during an emergency could result in diversion of

personnel resources at a critical time.

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e J-5 A third commenter,-a legal firm representing five utility licensees, stand that even if the Petitioner's statement that the TMI accident would not han e 4 --

occurred had operators complied with technical specification and operating.

license conditions were true, tilis conclusion did not support elimination of 10 2 C.F.R. I 50.54(x) and (y).- As the Kemen) Commission found, [t]he accident at

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..,. :. TM1 occurred as a result of a series of human, institutional, and mechanical

- failures." The commenter further stresses that "10 C.F.R.' i50.54(x) and (y)'

were promulgated subsequent _ to TM1," Furthermore, the commenter pointed out that one of the lessons learned from TMI'is that the range of circumstances

' addressed by the technical specifications is limited and that strict adherence to 1

them in an emergency can actually be hazardeus to public health and safety.

-- Ihe Petitioner has not shown that the requested rule change'to rescind -

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yl paragryhs (x) und (y) of 10 C.F.R. 550.54 would enhance the public health l and safety or lessen the impact on the environment, llence, the Commission

. has decided to deny the petition for rulemaking.

FOR THE NUCLEAR REGULATORY COMMISSION 1

' SAMUEL J. CIIILK

. Secretary to the Commission Dated at Rockville, Maryland,_

thir 1Ith day of January;1991.

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