ML20082B246

Movant-Intervenor Brief in Support Accompany Notice of Appeal.* School District Urges Commission to Reverse & Remand Dismissal Order W/Appropriate Guidance.W/Ceritifcate of Svc

ML20082B246
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/28/1991
From:	Mcgranery J DOW, LOHNES & ALBERTSON, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY
To:	Remick F NRC COMMISSION (OCM)
Shared Package
ML20082B228	List: ML20082B227 ML20082B246
References
91-631-03-OLA-2, 91-631-3-OLA-2, OLA-2, NUDOCS 9107150066
Download: ML20082B246 (10)

Text

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I Of'"4,30 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION J COMMISSIONERS: "E 'II ~I

• l 1

Kenneth M. Carr, Chairman  :

Kenneth C. Rogers James R. Curtiss Forrest J. Remick

)

In the Matter of ) Docket No. 50-322-OLA-2

)

LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-631-03-OLA-2

)

(Shoreham Nuclear Power Station, ) (Possession Only License)

Unit 1) )

)

MOVANT-INTERVENOR'S BRIEF IN SUPPORT OF ACCOMPANYING flQIICE OF AEPEAL Pursuant to 10 C.F.R. 5 2.714(a) Petitioner Shoreham-Wading River Central School District (" School District"), by counsel, submits this brief in support of its notice of appeal of the Atomic Safety and Licensing Board's ("ASLB") denial of its petition for intervention and its request for a hearing in the above-captioned proceeding, as well as that ASLB's dismissal of the School District from participation in the above-captioned proceeding. Egg Lona Icland Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-26 (at 19), 33 NRC (June 13, 1991) (" Dismissal Order").

SUMMARY

OF ARGUMENT The School District urges the Commission to reverse and remand the Dismissal Order both because entry of that order was premature and because the ASLB erred in its understanding of applicable standing law, as well as overlooking the assertions of 9107150066 980618 PDR ADOCK 05000322 O PDR

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harms to the School District and the persons it represent that are within the zones of interest of both the National Environmental Policy Act of 1969, as amended, 42 U.S.C. S 4321 gt arg. (1988) ("NEPA") and the Atomic Energy Act of 1954, as amended, 42 U.S.C. 5 2011 El arg. (1988) ("AEA").

I. The Dismissal was Prenature.

Pursuant to 10 C.F.R. S 2.714 (a) (3) (1991), the School District has a richt to be able to amend its petition for leave to intervene "without prior approval of the presiding officer at any time up to fifteen (15) days prior to the holding of the special hearing conference (or) the first prehearing conference."

The School District also has an absolute right to be able to

" supplement" its petition to intervene at any time prior to fifteen (15) days before the special prehearing conference or the ,

first prehearing conference. 10 C.F.R. 5 2. 714 (b) (1) (1991).

Since the Board scheduled the prehearing conference for July 30, 1991, the School District has the right to amend and the right to supplement its petition at any time before July 15, 1991. The School District also proffers that it had planned to amend and supplement its petition including an affidavit fui;ther specifying the interests that would be harmed by issuance of the possession only license prior to the Co0 mission's fulfillment of its obligations under NEPA and the AEA, as well as by specification of contentions.

The ASLB's denial of the School District's petition to intervene and dismissal of the School District from the above-

3-captioned proceeding when the School District still had, by regulation, the unfettered right to amend and supplement is in direct violation of the School District's procedural rights under the AEA and the regulations adopted pursuant thereto. The Commission should reverse and romand with instructions to the ASLB to allow the School District adequate time in which to supplement and amend its petition for intervention and request for hearing.

II. The ASLB Misperceived the Standing Requirements Mnder NEPlu The School District respectfully suggests that the Dismissal Order also errs in implying that the School District's claims for standing are limited to " organizational interests

. . . of a ratepayer and tax recipient" (May 23 Order at 24) and that those interests are limited to " economic" interests (May 23 Order at 25), finding that such " economic interests do not qualify it for standing under NEPA or the AEA." May 23 Order at 24.

In his April 5, 1991 affidavit (at i 5), the President of the Board of Education of the School District also cited, in support of standing, his responsibility for decisions "in accordance with the School District's position on matters affecting both general interests and specific health, safety and environmental interests of the studer.ts and employees for whom it responsible during work and school hours."

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It is well established that one of the " twin aims" of NEPA is to ensure "that the agency will inform the public that it has indeed considered environmental concerns in its l decisionmaking process." Baltimore Gas & Electric co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437, 446-47 (1983).

There can be no doubt but that the School District, the President of its Board of Education, and its students and employees are members of the most immediate sector of the "public" affected by decisions on Shoreham and that the continuing denial of NEPA review of the proposal to decommission Shoreham and the segmented parts of that proposal presented in this proceeding violates their rights urider HEFA as enunciated in Baltimore Gas & Electric.

The ASLB's Dismissal Order states:

The injury the School District asserts is that without an environmental review Petitioner's right to comment and the Commission's duty to have available considered detailed information concerning significant environmental impacts before decisions are made would be violated.

Although the purpose of NEPA is to ensure well-informed government decisions and stimulating public comment on agency actions, the failure of an agency to prepare an EIS does not 1pco facto result in a cognizable injury that affords standing under NEPA. A petitioner must show it has suffered, or will suffer a distinct and probably harm that constitutes an injury in fact.

. . . School District made no such showing of a distinct and probably harm

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therefore its claim for organizational standing and (Eis) that issue must be denied.

As to representational standing on the NEPA issue, School District's President of I the Board of Education makes the same  !

argument _as SE2's members on injury. He l claims his rights for meaningful comment on the environmental considerations of '

decommissioning will be prejudiced or ,

completely denied if there is no environmental review. The claim is too vague to identify a palpable injury and does not provide a basis for establishing representational standing for the School

-District.

Dismissal order at 17-18. ,

This reasoning is totally insensitive.to the plain language of NEPA which commands: .

Copies of such (environmental impact statement) . . . shall be made available to . ,

. .-the public as provided by Section 552 of Title 5, United States Code, and shall-  !

accompany the proposal through the existing agency review processes.

42 U.S.C._ S 4332 (2) (C) (1988). The denial of the availabilit',1 of the information in'the EIS to the School District is a " distinct and' palpable harm" to the School District within the zone of ,

interest protected-by NEPA.- The Supreme _ Court has-repeatedly identified-that one of the " twin aims" of NEPALis "to inform the  ;

public that the agency has considered environmental concerns in its decis'ionmaking process. Through the disclosure of an EIS, the public is made aware that the agency has taken environmental considerations into-account." Weinberaer v. Catholic Action _21

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lipwail/ Peace _ Education Proieci, 454 U.S. 139, 143, 102 S.Ct. 197,

, 70 L.Ed.2d 298, 303 (1981). There can be no doubt but that both the School District as an institution and the person it represents would be "among the injured" in the relevant public if an EIS on the proposal to decommission is not prepared and i

published "and the fact that that particular environmental l interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." Sierra club v. Morton, 405 U.S. 727, 734, 92 S.Ct.

1361, 1366, 31 L.Ed.2d 636 (1972). In other words, the violation of Petitioner's right to the information confers by NEPA constitutes a " distinct and palpable harm," an injury in fact" that is within the zone of interest of NEPA.

Further, the Dismissal Order's recognition of the School District's interest as a " tax recipient" and " ratepayer" satisfies the " injury in fact" requirement for standing: "The fact of economic injury is what gives a person standing to seek judicial review . . . ." Sierra Club v. Morton, 405 U.S. 727, 737, 92 S.Ct. 1361,-1367, 31 L.Ed.2d 636 (1972). If the proposal to decommission the Shoreham Nuclear Power Station, Unit 1

("Shoreham") and its segmented parts is approved by tha Nuclear y Regulatory Commission ("NRC" or " Commission"), the School District will eventually lose over $25 million in annual income.

In Dellums v. U.S.N.R.C 1 , 863 T.2d 968, 973 (D.C. Cir. 1988), the Court found that " inability to find work (by a sinale individual) constitutes injury in fact" satisfying that element of the test

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for standing. Certainly, the much larger threatened economic injury to the School District should qualify.I' Having satisfied injury in fact, there is then a separate inquiry into whether the Petitioner can meet the

" causation and redressability requirements of Article III." 14 On one level, the School District argues that the injury in fact is a deprivation of information, which is guaranteed by NEPA. On that level, the School District contends that the cause of the injury in the NRC's violation of the command of NEPA to produce such an EIS and that the harm can be redressqd by a simple order requiring the preparation of such an EIS and forbidding issuance of the POL until the EIS process is completed.

On a second level, the School District alleges an eco.7omic injury in fact which is threatened by the proposal to decommission Shoreham. In this case, the School District contends that if the public and the decisionmakers ever had before them the true environmental costs and benefits of the 1/ Any contention that economic interests are outside the " zone of interest" to be considered under NEPA and, therefore, that economic harms that may result from a NEPA violation are not cognizable harms flies in the face of the plain language of NEPA:

"The congress, . . . declares that it is the continuing policy of the Federal Government, in cooperation with . . . concerned public and private organizations, to use all practical means and measures . . . to foster and promote the general welftre, to create and maintain conditions under which man . . . can . . .

fulfill the social, economic and other requirements of present and future generations of Americans." 42 U.S.C. S 4331(a) (1988)

(emphasis added).

proposal to decommission Shoreham as a result of NEPA review, that proposal would be withdrawn. If that proposal were withdrawn the threatened economic harm to the School District, its students and employees would be climinated automatically.

Thus, there is a direct causation and sure redressability of the economic injury as well ao other environmental injuries flowing from the indirect (e.g., air pollution) effects of the plan to replace Shoreham with fossil fueled generating units. Under these circumstances, the School District certainly does have standing under NEPA.

Furthermore, given the fact that the Final Environmental Impact Statement Related to the Operation of Shoreham (NUREG-0285, October 1977) ("FEIS") identified the resulting tax revenue to the School District among the principal socioeconomic benefits of the proposal to operate Shoreham,F 2/ The FEIS recognized among other things, that the " major economic impacts from the operation of [Shoreham) are derived from the tax revenues." In particular, the FEIS recognized (at S 5.6.3) that there was a substantial benefit from the " taxes paid to the Shoreham-Wading River School District during construction of the plant [since they) represent a substantial proportion of the total School District budget (and that) proportion will continue will continue to increase when the plant goes into operation. . . . " The special benefit-of Shoreham to the School District by way of its tax contributions was also singled out in the FEIS.at S 5.6.5 " Summary of Socioeconomic Impacts."

In Chapter 8, the FEIS addressed the "need for the station" concluding that the energy demand and LILCO's commitments to the New York Power Pool to maintain a minimum reserve margin justified a new electrical generation plant the size of Shoreham (S 8.4.1 & 8.4.3), that there would be significant cost savings in providing electricity from this nuclear plant rather than from oil-fired plants (S 8.4.2), and that other alternative electric energy sources were not " feasible" on Long Island (S 8.2).

(continued...)

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(FEIS at S 5.6), it seems truly anomalous that the May 23 Order would find that interest does "not qualify it for standing under NEPA." May 23 Order at 24. If the FEIS found those tax revenues (and hence, the School District's ability to provide a better education for the citizens of the District) to be a principal socioeconomic benefit to be addressed in the FEIS under NEPA, how can the ASLB find that the proposed deprivation of such revenuos is not a harm which would " qualify it for standing under NEPA?"

It would appear that any EIS addressing the proposal to decommission Shoreham would have to address the loss of those tax revenues as a " socioeconomic cost" of the approval of the proposal, a cost directly affecting the School District.

III. The ASLB Erred in Dismissing the School District Before Discovery was Completed and Without Providing Any Rational Basis for its Decision.

On the hand if one styles the consideration of the petitions t- intervene and request for hearings at this stage of the proceeding as being a kin to the consideration of a motion for summary judgment by the NRC Staff and the Licensee, it is clear that it is improper to dismiss before there has been 2/ (... continued)

Finally, in the Benefit-Cost Summary (Ch.10), the FEIS recognized

" direct benefits" from Shoreham as its production of up to 5 billion Kwh/yr of electricity, its " favorable effect on system reliability, and a savings in system fuel costs," as well as identifying the contribution to "the local property, revenue and sales taxes

. . . and the new jobs created as "important considerations to the surrounding areas." (5 10.2). '

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" adequate time for discovery." Egg, e.o., Luian v. National Wildlife Federation, 110 S.Ct. 3177, 3187 (1990).

On the other hand, the ASLB's Order mispreceives l l

various of the harms alleged by the School District in part styling them as "conclusory generalizations which do not meet the regulatory requirements for standing as provided 10 C.F.R. 2.714 (a)(2)" while the ASLB itself provides no bases for its own bare conclusion. Dismissal Order at 18. The Dismissal Order should be reversed and remanded for lack of a rational basis on this ground along under both NEPA and the AEA. And further, it should be noted that neither the School District nor SE2 were in any position to submit to their experts the proposed possession only license requirements until those became available by virtue of SECY-91-129 in the second half of May, 1991. The School District should be allowed a reasonable time to examine the proposed license before being summarily dismissed from the proceeding.

CONCLUSION WHEREFORE, the Schoo] District urges the Commission to reverse and remand the Dismissal Order with appropriate guidance.

Respectfully submitted, June 28, 1991 & ,

f/mes P. McGranery,[/f.

DOW, LOHNES & ALBERTSON Suite 500 1255 Twenty-Third Street, N.W.

Washington, D.C. 20037 Counsel for the Petitioner

. .eo a.n DEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION

'91 J1 -1 P4 3 COMMISSIONERS!

Kenneth M. Carr, Chairman ,

Kenneth C. Rogers "* " ? s .

James R. Curtiss Forrest J. Remick

)

In the Matter of ) Docket No. 50-322-OLA-2

)

LONG ISLAND LIGHTING COMPANY ) ASLBP No. 91-631-03-OLA-2

)

(Shoreham Nuclear Power Station, ) (Possession Only License)

Unit 1) )

)

CERTITICATE OF SERVICE I hereby certify that copjes of the Movant-Intervenor's Notice of Appeal and Brief in Support of Accompanying Notice of Appeal in the above-captioned proceeding have been served on the following by first-class mail, postage prepaid on this 28th day of June, 1991:

Morton B. Margulies, Chairman Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 George A. Ferguson Stephen A. Wakefield, Esq.

Administrative Judge General Counsel 5307 Al Jones Drive U.S. Department of Energy Columbia Beach, Maryland 20764 1000 Independence Avenue Room 6A245 Washington, D.C. 20585 W. Taylor Reveley, III, Esq. Samuel A. Cherniak, Esq.

Donald P. Irwin, Esq. NYS Department of Law Hunton & Williams Bureau of Consumer Frauds Riverfront Plaza, East Tower and Protection 951 East Byrd Street 120 Broadway Richmond, Virginia 23219-4074 New York, New York 10271 Michael R. Deland, Chairman Gerald C. Goldstein, Esq.

Executive Office of the President Office of Genera 1 Counsel Council on Environmental Quality New York Power Authority 722 Jackson Place, N.W. 1633 Broadway Washington, D.C. 20503 New York, New York 10019

Stanicy B. Klimberg, Esq. 141cholas S. Reynolds Executive Director & David A. Repha General Counsel Winston & Strawn Long Island Power Authority 1400 L Street, 14 . W .

200 Garden City Plata, Suite 201 Washington, D.C. 20005 Garden City,14ew York 11530 Carl R. Schenker, Jr., Esq. Edwin J. Reis, Esq.

O'Melveny & Myers Mitzi A. Young, Esq.

555 13th Street, fl . W . Office of General Cour.sel Washington, D.C. 20004 U.S. 14uclear Regulatory Commission Washington, D.C. 20555

,n . ..~ A. .

J .es P. McGranery, ft /

nuel for the Petip/./ ohors Shoreham-Wading River Central School District

,