ML20082B444
| ML20082B444 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/21/1991 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#391-11939 91-631-03-OLA-2, 91-631-3-OLA-2, OLA-2, NUDOCS 9107150177 | |
| Download: ML20082B444 (15) | |
Text
.
//07 UllITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO!1 ATOMIC SAFETY AND LICENSING BOARD 91 E -3 rn M Before Administrative Judges:
Morton B. Margulies, Chairman Dr. George A.
Ferguson Dr. Jerry R. Kline
)
In the Matter of
)
Docket No. 50-322-OLA-2
)
LO!1G ISLAND LIGHTING COMPANY
)
ASLBP No. 91-631-03-OLA-2
)
(Shoreham Nuclear Power Station,
)
(Possession only License)
Unit 1)
)
)
PETITIONERS' AMENDMENT AND SUPPLEMENT TO PETITIOlls TO INTERVENE Pursuant to the Atomic Safety and Licensing Board's
("ASLB") Memorandum and Order of June 13, 1991, LBP-91-26 (" June 13 Order") in the above-captioned matter, Petitioners Shoreham-Wading River Central School District (" School District")1' and Scientists and Engineers f or Secure Energy ("SE ")
hereby amend 2
their petitions to intervene and requests for hearings and file a joint supplement to their petitions to intervene, including a list of the contentions which Petitioners seek to have litigated 1/
The School District is included because the ASLB's dismissal of the School District is on appeal and, therefore, not final.
9 9107150177 910621
.O PDR ADOCK 05000322 T'T '
G PDR
i j
-2 in the hearing.
Ee2 Dlag, 10 C.F.R. SS 2.714(a)(3) & 2.714 (b) (1)
(1991).U While attempting to comply with the June 13 Order, Petitioners object to the Order insofar as it requires the filing of contentions under the National Environmental Policy Act of 1969, as amended ("NEPA"), 42 U.S.C. S 4321 gt qtg. (1988), at this time, because requiring the filing of NEPA contentions is premature before the Long sland Lighting Company ("LILCO") has filed its environmental report.
See 10 C.F.R. S 2.714 (b) (2) (iii)
(1991).
The requirement to file NEPA contentions at this time severely prejudices the Petitioners' rights and the persons they represent, and is contrary to the public interest.
Further, the School District respectfully suggests that the June 13 Order errs in implying that the School District's claims for standing are limited to " organizational interests of a ratepayer and tax recipient" (June 13 Order at, e.q.,
- 18) and that those interests are limited to " economic" interests, finding that such interests "do not provide a basis for standing" under NEPA or the AEA.
Id.
In his April S, 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 2/
In accordance with the rights granted Petitioners by the referenced subsections of S 2.714, the School District and SE 2 reserve the right to further amend their petitions and file further contentions not more than " fifteen (15) days prior to the holding of the first prehearing conference" in these matters, 1222, on or before July 15, 1991.
3 accordance with the School District's position on matters affecting both general interests and specific health, safety and environ:tental interests of the students and employees for whom it responsible during work and school hours."
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 decisionmaking process."
i palti52re 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 s+.udents and employees are memberc of the most immediate sector of the "publ?.c" affected by decisions on Shoreham and that the continuing denial of NEPA review of the proposal to decommission Shoreham and the segmented part of that proposal presented ir.
this proceeding violates their rights under NEPA as enunciated in Baltimore Gas & Electrlg.
Further, the June 13 Order's (at 6) recognition of the School District's interest as a " tax recipient" and " ratepayer" l
l 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 the Nuclear Regulatory Commission ("NRC" or " Commission"), the School l
4 i
l District will eventually lose over $25 million in annual income.
In Egilumn v.
U.S.N.R.C.,
863 F.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
)
for standing.
The greater magnitude of injury threatening the School Dictrict should certainly suffice.
1 Having satisfied injury in fact, there it then a separate inquiry into whether the Petitioner can meet the
" causation and redressability requirements of Article III."
Jd.
In this case, the School District contends, on one leve), that if the public and the decisionmakers ever had before them the true environmental costs and benefits of the 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 Scicol District, its students and employees would be eliminated automatically.
Thus, there is a direct causation and sure redressability of the economic injury as well as other environmental injuries flowing from the indirect (e
q.,
air pollution) ef fects of the plan to replace Shoreham with fossil fueled generating units.
Under these circumstances, the School District certainly does have standing under NEPA.
l And, on a second IcVel, if the injury cognizable under i
NEPA is styled as the denial of the right to participate in the i
NEPA process, the denial of the information resulting from that l
process, and the denial of assurance that the NRC has taken a "hard look" at the environmental costs and benefits of the l.
l-
5-proposal, then the causation (failure to publish an EIS) and the redressability (publication of an EIS prior to approval) are easily identified and satisfied.
Furthermore, given the fact that the Final Environmental Impact Statement Related to the Operation of Shoreham (HUREG-0285, October 1977) ("FEIS") identified the resulting tax revenue to the School District among the principal socioeconomic benefits of the proposal to operate Shoreham,3' (FEIS at S 5.6), it seems truly snomalous that the June 13 Order would find that internst does "not qualify it for standing under NEPA."
June 13 at 24.
If the FEIS found those tax revenues (and 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 robstantial proportion of the. total School District budget (and that) proportion will continue sill 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 Tool 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).
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 "iroportant considerations to the surrounding areas."
(S 10.2).
6-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 HEPA, how can the ASLB find that the proposed deprivation of such revenues 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.
-CQNTENTION 1:
Petitioners contend that the NRC must require LILCO to prepare an environmental report and that the NRC Staff must then publish a draft environmental impact statement I, " D EI S " ) for comment, prepare a final environmental impact statement ("FEIS"), and follow other NRC procedures for the consideration of the environmenta? impacts of the proposal to decommission Shoreham before issuing the Possession Only License
(" POL") Amendment because that action is within the " scope" of the proposal to decommission Shoreham, which is a proposal for a major federal action significantly affecting the quality of the human environment requiring such environmer.tal consideration before the issuance of any " form of approval" by the NRC of the
_ proposal to' decommission Shoreham or any of its subsidiary proposals, including the action within the scope of this proceeding.
42 U.S.C.
S 4332 (1988); 10 C.F.R.
S 51.100(a)
(1991).
4
,-r.-
ir-.,-
--w,,w--
. - - -...,--w.%-=
m.
e
- ~ <
7-The action which is the subject of this proceeding is within the scope of the proposal to decommission Shoreham because it is an " interdependent (part) of (that) larger action and depend the larger action for (its) justification."
40 C.F.R.
1508. 2 5 (a) (1) (lii).
This action also constitutes a cumulative action "which when viewed with other proponed actions (both within and without the current scope of this proceeding) have cumulatively significant impacts and should therefore be discussed in the same impact otatement."
40 C.F.R.
S 1508. 2 5 (a) (2).
Such an EIS also "shall consider
. the 3 types of alternatives namely the "[n)o action alternative",
"[o)ther reasonable courses of actions", and "(m)itigation measures (not in the proposed action)."
40 C.F.R.
SS 1508.25 1508.25(b).
And that EIS is also required ("shall consider") 3 types of impacts, namely (1) Direct; (2) Indirect; (3)
Cumulative."
40 C.F.R. S 1508.25(c).
In asserting that these principles govern the need for an EIS embracing the proposal to decommission Shoreham (including its component parts),
petitioners note that the NRC explicitly adopted 40 C.F.R.
S 1508.25.
10 C.F.R.
S 51.14 (b) (1991).
CONTENTION 2:
The need for an EIS on the proposal to decommission Shoreham is established by the Commission's determination in-10 C.F.R. S 51. 20(b) (5) in the 1988 Edition and earlier years that a proposal to decommission a nuclear power reactor "should be covered by an environmental impact statement."
That requirement continues to exist for the proposal to
8-decommission Shoreham because the removal of the categorical requirement for EISs on all proposals to decommission nuclear reactors was based upon the Ejnal Generic Environmental Innagi Statement on Decommissionina Nuclear Facilities, NUREG-0586 (August 1988) ("GEIS") which was limited in its scope to facilities where decommissioning is necessary because such facilities are either "at the end of their normal lifetimes" or where there is a " premature closure of a reactor due to an accident."
GEIS at 8-1.
Since Shoreham is not at the end of its j
" normal life" and has suffeted no permanently disabling accident, 1
the proposal to decommission Shoreham is outside the scope of the GEIS and, therefore, the categorical requirement continues in I
full force and effect with respect to a proposal to decommission Shoreham.
Petitioners have made this assertion to the Commission repeatedly and the Commission has never denied that a proposal to decommission Shoreham is outside the scope of that GEIS.
CONTENTION 3:
Petitioners contend that LILCO's environmental report should be in the format prescribed by l
l Regulatory Guide 4.2 (Rev.
2, July 1976) as appropriately l
modified for the proposal at issue as a result of the future application of the Commission's scoping procedures at 10 C.F.R.
SS 51.28 & 51.29 (1991) since that format for an environmental report on a nuclear power station has been determined by the NRC Staff to be the format " acceptable to the NRC Staff for implementing (these) specific parts of the Commission's regulations."
NUREG-0099, Cover Sheet (July 1976).
m_.
h
- C2FTENTION 4:
An EIS is required for Commission consideration of the proposal to decommission Shoreham because the Plan submitted by the Long Island Power ?uthority in U.S.N.R.C. Docket No. 50-322 by Ictter of December 29, 1990 which L.LCO has requested the NRC Staff to consider pursuant to 10 C.F.R.
S 50.82 by SNRC-1781 (January 2, 1991) proposes the selection of the DECON alternative (Plan at i 2.1) which would foreclose the consideration of alternative decommissioning methods including SAFSTOR and ENTOMB.
Also, the NRC Staff has recognized that issuance of the POL allows the licensee to " ship the fuel support castings and peripheral pieces for off-site disposal.
Ese SECY-91-129,
Subject:
Status ar.d Developments at the Shoreham Nuclear Power Station (SNPS) at 3 l
(May 13, 1991).
The Commission approved SECY-91-129 in its Memorandum and Order in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-08 (at p.
13), __ NRC I
(June 12, 1991).
Since DECON is the only alternative "in which the equipment, structures, and portions of +he facility and site containing radioactive contaminants are removed.
from the site," it is clear that allowing LILCO to proceed with the disposal of reactor internals at this time would prejudice the consideration both of SAFSTOR which "is the alternative in which the nuclear facility is placed and maintained in a condition that allows the nuclear facility to safely stored and subsequently decontaminated (def erred conta aination) to levels that permit release for unrestricted use" and of ENTOMB which is "the
..,n, e,-----
- - - - -. - -. ~. -
. alternative in which radioactive contaminants are encased in structurely long-lived material, such as concrete; the ENTOMB structure is appropriately maintained and continued surveillance is carried out until radioactivity decays to a level permitting release of the property for unrestricted use."
GEIS at 5 2.4.
Further, with particular reference to a boiling water j
reactor such as shoreham, proceeding with DECON without a prior EIS forfelts the consideration of the NRC's recognition that SArSTOR "is advantageous in that it can result in reduced occupational radiation exposure in situations where urgent land use consideratic as do not exist."
GEIS at 5 5.3.2.
It also would deny the similar benefits of avoidance of radiation exposure available through the ENTOMB alternative which explicitly foreseen the entombment of "the pressure vessel internals and their long-lived isotopes.
along with other radioactive material."
GEIS at $ 5. 3. 3.
The avoidance of radiation exposures available through the choice of SAFSTOR or ENTOMB are "NEPA-based considerations" and Atomic Energy Act considerations which would be addressed in the EIS and would be foreclosed by allowing LILCO's proposed actions to go forward without such an EIS.
Egg Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) CL1-91-04 (at p.5),
NRC (April 3, 1991).
CONTENTION St Petitioners respectfully contend that the ASLB errs in rejecting their arguments that Shoreham when in a non-operating mode should not be relieved of its license
- 11 conditions as the POL and other license changes would permit because "when a power plant with. full power operating license undergoes outages, it is not relieved of its license conditions."
June 13 Order at 13.
The Board found that this did not support standing "because Petitioner has not presented anything convincing for one to conclude that a temporary outage in an operating plant is the equivalent for safety purposes, of a defueled plant that is shutdown and which licensee will not be permitted to operate."
Id.
Petitioners note that Shoreham has not operated for approximately two years and is being relieved to requirements of its operating license while other plants with operating licenses have been out of operation for periods of time as long or longer without being provided any such relief:
For example, Peach Bottom 3 (over two years), Three Mile Island 1 (over four years), Sequoyah 1 & 2 (more than 2 years), Browns Ferry 2 (more than five years), and Browns Ferry 1 & 3 (more than four years).
The fact that Shoreham is under a Confirmatory Order pursuant to which it must seek permission to restart operation does not indicate that LILCO "will not be permitted to operate" Shoreham, and does not differentiate Shoreham from many of the plants cited.
Petitioners do not consider their contention to be a
" bare conclusory assertion" but rather contend that this disparate treatment for Shoreham shows arbitrary and capacrious action by the Commission as a matter of law that may be rebutted i
by the NRC Staff and/or the licensee with a sufficient factual
. showing, that is, when the Commission has found certain regulatory requirements necessary for reactors with full power operating licenses although they are in a " outage" mode, there is either an irrebuttable or rebuttable presumption that not to require similar care for Shoreham constitutes a denial of the reasonable assurance of the health and safety of the Petitioners and those they represent.
CONTENTION 6:
Petitioners contend that the EIS required for consideration of the proposal in question does include the indirect effects of the adoption of that proposal, including the construction of fossil plants and transmission lines to replace Shoreham.
Ess 40 C.F.R. S 1508.8 (1989).
The Council on Environmental Quality ("CEQ") requirement for the consideration o.
and definition of the concept of such " indirect effects" has been adopted by the NRC.
10 C.F.R. SS 51.14(b) &
- 51. 4 5 (b) ( 2 ) (1991).
CONTENTION 7:
Petitioners draw the ASLB's attention to the fact that the NRC Staff has issued a possession only license to LILCO for Shoreham subject to administrative stays.
56 Fed.
I Reg. 28424 (June 20, 1991).
Petitioners inform the ASLB that it l
is their intention to seek further judicial stays in the U.S.
Court of Appeals for the District of Columbia Circuit on July 5, 1991, but sugg6st to the ASLB that the pursuit of judicial stays by the Petitioners does not deprive the ASLB jurisdiction to inforce 10 C.F.R. SS 51.100 & 51.101(a)(2) (1991) and that l
l l
i
13 -
consideration of thic matter by the ASLB is certainly no longer
" premature" given the pendency of that license.
Respectfully submitted, h
4, June 21, 1991
,/ % /.
te r -
i P Jt(m'es P. McGranery, D6', Lohnes & Alber n
w Suite 500 1255 Twenty-Third Street, N.W.
Washington, D.C.
20037 (202) 857-2929 Counsel for Petitioners Shoreham-Wading River Central School District and Scientists &
Engineers for Secure Energy, Inc.
1
UllITED STATES OF AMERICA i
11UCLEAR REGULATORY COMMISSIOlJ DEFORE THE ATOMIC S1sFETY A11D LICE!1'UEG BOARD *91 Ja -3 TJ: d4
~
)
s In the Matter of
)
Docket lio. 50-322-OLA-2
)
LO!1G ISLA11D LIGHTI!1G COMDA11Y
)
ASLDP 11o. 91-631-03-OLA-2
)
(Shoreham lluclear Power Station,
)
(Possession Only License)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the Petitioners' Supplement and Amendment to Petitions to Intervene in the above-captioned proceeding have been served on the following by first-class mail, postage prepaid (except as otherwise indicated below) on this 1st day of July, 1991:
Morton B. Margulies, Chairman Jerry R.
Kline Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
11uclear Regulatory Commission U.S. 11uclear Regulatory Commission Room E-407 Room E-427 4350 East West Highway 4350 East West Highway Bethesda, Maryland Bethesda, Maryland (by hand)
(by hand)
George A.
Ferguson Stephen A. Wakefield, Esq.
Administrative Judge General Counsel Atomic Safety & Licensing Board U.S.
Department of Energy U.S. Nuclear Regulatory Commission 1000 Independence Avenue 5307 Al Jones Drive Room 6A245 Columbia Beach, Maryland 20764 Washington, D.C.
20585 (by Federal Express (by first class mail) next day delivary)
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 (by telecopy)
(by first class mail)
.s
d
- Michael R.
Deland, Chairman Gerald C.
Goldstein, Esq.
Executive Office of the President Office of General 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 (by first class mail)
(by first class mail)
Stanley B.
Klimberg, Esq.
Nicholas S.
Reyncids Executive Director &
David A. Repka General Counsel Winston & Strawn Long Island Power Authority 1400 L Street, N.W.
200 Garden City Plaza, Suite 201 Washington, D.C.
20005 Garden City, New York 11530 (by first class mail)
(by first class mail)
Carl R.
Schenker, Jr., Esq.
Edwin J. Reis, Esq.
O'Melveny & Myers Mitzi A.
Young, Esq.
555 13th Street, N.W.
Office of General Counsel Washington, D.C.
20004 U.S. Nuclear Regulatory Commission (by hand)
Room 15-E9 One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 (by hand)
L._ /. A z.
JaVes P. McGranery,//f.
C6'unsel for the Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
_ _. _ _ _ _. _ _ _ _ _ _ _ _