ML20082D389

Lilco Support of NRC Staff Motion for Reconsideration of LBP-91-26.* for Reasons Listed,Nrc 910625 Motion Should Be Granted & Request for Hearing & Petition to Intervene in Amend Proceeding Should Be Denied.W/Certificate of Svc

ML20082D389
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/10/1991
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#391-11983 CLI-90-08, CLI-90-8, CLI-91-04, CLI-91-4, LBP-76-12, LBP-91-07, LBP-91-26, LBP-91-7, OLA-2, NUDOCS 9107240018
Download: ML20082D389 (10)

Text

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LILCO, July 10, 'Is9,e oiifD J2 15 P 4 :25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f

1 BEFORE Tile _ ATOMIC SAFETY AND LICENSING BOARD i

In the Matter of

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LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OLA " d

)

(Shoreham Nuclear Power Station,

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Unit 1)

)

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LILCO'S SUPPORT OF THE NRC STAFF'8 MOTION FOR RECONSIDERATION OF LBP-91-26 I_._ Introduction On June 25, 1991, the NRC Staff filed a Motion for Reconsideration (June 25 Motion) of Lona Island Liabtino Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-26, 33 NRC __

(June 13, 1991), asking the Board to reconsider its ruling that Scientists and Engineers for Secure Energy, Tnc. (SE ) had 2

demonstrated standing to intervene in the proceeding on the

" possession only" license (POL) amendment for Shoreham.

Pursuant to 10 C.F.R. S 2.730(c), Long Island Lighting Company (LILCO) supporto the Staff's June 25 Motion.

II. Backcround On April 8, 1991, SE, along with Petitioner Shoreham-Wading 2

River Central School District (SWRCSD), jointly submitted an amended request for hearing and petition to intervene on LILCO's 9107240010 910710 rN

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proposed amendment to transform Shoreham's operating license into a FOL.1/

Accompanying the amended petitions were affidavits from seven SE2 members, including Miro M. Todorovich, SE 's 2

Executive Director.

LILCO and the NRC Staff responded in opposition to the amended petition on April 23 and April 29, 1991, respectively.

On June 13, 1991, the Board issued LDP-91-26.

The Board ruled that SWRCSD had failed to establish standing and "should have its petition for intervention and to hold a hearing on the POL denied." LBP-91-26, slip op. st 19.2/

The Doard found, had demonstrated standing to intervene with however, that SE2 respect to issues based on the National Environmental Policy Act (NEPA).

SE2 was therefore given an opportunity to submit contentions in the FOL amendment proceeding.2/

I 1/

Petitioners initially filed requests for hearing on the POL amendment on September 20, 1990.

In Lsmst Isinnd Lichtina Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC __

(March 6, 1991), the Board ruled that neither SE2 nor SWRCSD had demonstrated standing to intervene, but gave both Petitioners an opportunity to amend their petitions.

3 1/

On June 28, 1991, SWRCGD took an appeal from the Board's ruling pursuant to 10 C.F.R. S 2.714a.

That appeal is pending.

LILCO will respond in opposition to that appeal by July 15, 1991.

2/

SE2 submitted contentions on the POL amendment on July 1, 4

1991.

LILCO will respond in opposition to those contentions by July 15, 1991.

e 3

III.

Aroument A.

SE Alleges Informational Injury and a Prefert.se 2

for "Mothballino" as a Decommissionino Alternative As noted, in LBP-91-7, the Board ruled that SE had not 2

established standing to challenge the proposed pol amendment.

The Board, however, gave SE2 an opportunity to cure the defects identified in the initial petition.

This SE has failed to do.

2 Of the numerous claims asserted in GE 's amended petition 2

and affidavits, the Board has laentified only one agency " action" relevant.to standing: "the commission's inaction in conducting an environmental review of the alleged decommissioning" prior to the issuance of the POL.

LBP-91-26, slip op. at 9.$/

The alleged harm to SE, as expressed in the Todorovich affidavit, is fear of 2

being precluded by that agency action from an opportunity to

" comment upon an environmental impact statement ("EIS")

. on the decommissioning proposal before that proposal is implemented or before steps are taken which tend to limit the choice of S/

.The Board based its decision in LBP-91"26, in part, on "further guidance (from the Commission) in CLI-91-4."

LBP-91-26, slip op. at 8.

The commission's ruling did not, of course, reouire the Board'tc find standing for SE.

In CLI-91-04, the 2

commission stated that the Board could consider a properly pled contention that the POL requires an EIS 11 " petitioners satisfy the NRC's standing requirements in their amended petitions."

Lono Igland Lichtino-Co. (Shorehem Nuclear Power Station, Unit 1), CLI-91-04, 33 NRC

, slip op at 5 (April 3, 1991).

Although the Commissio_n_'s ruling clarified the one issue on which SE2 could proceed under NEPA, the Commission in no way reduced the threshold showing necessary to establish standing.

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e e

4 alternatives."

Todorovich aff2 davit at 5.i/

SE2 also professos an environmental interest in tre decommissioning alternative of "mothballing.

(SAFSTOR)."

Id. at 6.1/

The Board, citing Comoetitive Enteror3ge Inst. v. Nat'l Hlahway Triffic Safety Admin., 901 F.2d 107 (D.C. Cir. 1990),

found that SE 's claim of programmatic and informational harm 2

(informational injury), along with its preference for SAFSTOR as an alternative method of decommissioning, fell within the interests protected by NEPA.

LBP-91-26, slip op. at 11.

had standing to file Accordingly, the Board concluded that SE2 contentions on the NEPA issue pursuant to 10 C.F.R. S 2.714(b).

B.

The staff Is correct in Urging that 8E Has Not Established standina 2

To establish standing under NEPA, SE2 must allege that specific " programmatic concerns are being directly and adversely affected" by the challenged agency action.

Comnetitive i

Enterorise Ins 12, 901 F.2d at 122 (quoting American Leoal Federal Communications Comm'n, 808 F.2d 84, 92 L

Foundation v.

1 l

1/

SE 's other affiants also assert that issuing a POL before completi;on of a NEPA review wou]d jeopardize their opportunity for " meaningful comment" on the environmental aspects of the decommissioning proposal.

Bateman affidavit at 4; Franz affidavit at 3; Hull affidavit at 3; Musolino affidavit at 3-4; Scrandis affidavit at 3; Stehn affidavit at 4.

Given the more precise language in the Todorovich affidavit, and the fact that all seven affidavits apparently were drafted by the same person, LILCO assumes that " meaningful comment" in this-context means an opportunity to comment on an.EIS before reasonable decommissioning options are foreclosed by agency action.

l/

A.ccord Bateman affidavit at 5-6; Franz affidavit at 5; Hull affidavit at 5; Musolino affidavit at 5; Scrandis affidavit at 5; Stehn affidavit at 6.

I u.

le-I l

5 (D.C. Cir. 1987).

Even assuming that SE has identified a 2

relevant federal action and asserted a cognizable interest under l

1 NEPA, the test for standing, as expressed in Comoetitive Enterorise Inst., requires more:

To establish standing (on the basis of informational injuryJ, petitioners must assert a olausible_M between the agency's action, the information injury, and the organization'a activities.

Id. at 122 (emphasis added).2/

Thus, although the objectives cf NEPA may " lower [] the threshold for establishing injury to l

informational interests,"El they do not eliminate the threshold requirement of establishing a plausible causal connection between the challenged agency action and the alleged injury.

LILCO supports the Staff's June 25 Motion because SE has i

2 1

failed plausibly to specify such a link.

As the Staff states in its motion to reconsider:

"SE does not detail how the grant of 2

a POL amendment will foreclose a particular method of

{

decommissioning."

Staff's June 25 Motion at 12-13.

Unless SE2 can show how the issuance of the POL prior to any required environmental review will injure its interests, the Board can i

only speculate what the link between the agency's action and the t

l alleged injury might be.

Such speculation is not permissible.

i Egg Luian v. Nat'l Wildlife Federation, 110 S.Ct. 3177, 3188 i

1/

Because petitioner " failed to establish any connection I

between the alleged injury and the (agency action]," plaintiff's assertion of standing failed in Community Nutrition v.

Blogh, 698 F.2d 3239, 1254 (D.C. Cir. 1983)-(cited in Comoetitive Enterorise l

Inst., 901 F.2d at 122) (emphasis in original).

E/

Comoetillve Enterorise Inst., 901 F.2d at 123.

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6 (1990) (a court may not assume "that general everments embrace the ' specific facts' needed to sustain a complaint").

As noted, on July 1, 1991, SE submitted an Amendment and 2

Supplement to Petitions to Intervene (July 1 Supplement),

containing a list of the contentions SE2 seeks to litigate.

The only contention arguably relevant to SE 's alleged informational 2

injury is its assertion that the offsite disposal of reactor internals pursuant to a POL would prejudice the decommissioning decision against "mothballing."2/

If by "mothballing" SE2 1

means the option of SAFSTOR, SE simply is wrong.lE/

SE

'8 2

2 assertion that "DECON is the only alternative 'in which the equipment, structures, and portions of the facility and site containing radioactive contaminants are removed.

from the 1/

SE also alleges, but fails to explain or to Lapport with 2

evidence, that the disposal of reactor internals, as authorized under the POL, could lead to increased levels of occupational radiation exposure that would be avoidable under the alternatives of SAFSTOR or ENTOMB.

SE 's assortion is flawed for two reasons.

2 First, the assertion could be valid only if the offsite disposal of the fuel support pieces under the POL actually foreclosed l

SAFSTOR or ENTOMB as decommissioning options.

As explained i

below, it does not, in fact, foroclose those options.

Second, SE 's assertion ignores the fact that Shoreham today is virtually 2

j free of radiological risk.

LILCO removed the fuel from the reactor in the summer of 1989 and placed it in secure underwater t

storage in the plant's spent fuel pool.

Even when operational, the plant operatod only at low power, for the equivalent of two days of full-power operation.

Thus, today, the irradiated fuel gives off only_about 250 watts of thermal energy and has a correspondingly low radiological inventory.

19./

If, on the other hand, by "mothballing" SE2 means the maintenance of the facility with a view toward future operation, then the petition to intervene must fail.

Ths Commission already has determined that resumed operation is not an issue in this proceeding.

Lono Island Lichtino Co. (Shoreham Nuclear Power i

Station, Unit 1), CLI-90-8, 32 NRC 201 (October 17, 1990).

I l

m

0 t

7 site ' "11/ is erroneous as a matter of law.

NRC regulations

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permit decontamination and certain types of relatively minor disassembly and removal of components prior to approval of a decommissioning plan,12/ and the commission has determined, in approving SECY-91-129, that disposal of the fuel support pieces does Dat fall within the class of " major structural changes to radioactive components" that may not be undertaken before approval of a decommissioning plan.

SECY-91-129 at 3.

Thus, NRC regulations permit the disassembly and removal of minor reactor components,-such as the fuel support pieces, no matter which decommissioning alternative is employed.

SE has failed to 2

confront t..ls fact or to otherwise establish that the issuance of the POL will foreclose any method of decommissioning or otherwise skew the evaluation of decommissioning alternatives.

SE 's failure to allege any set of circumstances plausibly 2

linking the issuance of the POL to the premature foreclosure of a decommirisioning option demonstrates that its concern amounts to 11/

July 1 Supplement at 9 (emphasis in original).

11/

In promulgating its final decommissioning regulation, the NRC stated:

Although the Commission must approve the decommissioning _ alternative and major structural changes _to radioactive components

_of the facility or other major changes, the licensee may proceed with some activities such as decontamination, minor component disassembly, and shipment and_ storage of spent fuel if these activities are permitted by the operating license and/or S 50.59.

53 Fed. Reg. 24,025-26 (1983).

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8 nothing more than a general, unspecified fear.

Such an

" interest" is not a sufficient basis for standing.11/

Having failed to link the harm it alleges to the action at issue in this proceeding, it follows that SE has not demonstrated that it has 2

suffered an injury within the zone of interest protected by NEPA and is not entitled to intervene.

IV.

Conclusion For the reasons above, the NRC Staff's June 25 Motion should be granted and SE 's request for hearing and petition to 2

intervene in the POL amendment proceeding should be denied.

Respectfully su pitted,

(

W. Taylor Reveley, III Donald P.

Irwin David S.

Harlow Eric A. DeGroff Counsel for Long Island Lighting company Hunton & Williams Riverfront Plaza, East Tower 951 East Byra Street Richmond, Virginia 23219 DATED:

July 10, 1991 12/

Egg, g2gt, Allied-General Nuclear Services (Barnwell Puel Receiving and Storage Station), LBP-76-12, 3 NRC 277, 283-06 (March 25, 1976) (to establish standing, the potential injury must be " specific" and " concrete," as contrasted with a general concern or interest in a proceeding because of fears that a problem might be precented).

a LILCO, July 10,1991 UNITED STATES OF AMERICA

[i.! N NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensine Board 91 J!t 15 P4 :25 In the Matter of

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^

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LONG ISLAND LIGHTING COMPANY

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Docket No. 50-322-OLA

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(Shoreham Nuclear Power Station,

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Unit 1)

)

CERTIFICATE OF SERVICE I hereby certify that copies of LILCO'S SUPPORT OF THE NRC STAFF'S MOTION FOR RECONSIDERATION OF LDP-91-26 were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mail, postage prepaid.

Administrative Judge

• Mitzi A. Young, Esq.*

Morton B. Margulies, Chairman Office of the General Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, Fourth Floor 11555 Rockville Pike 4350 East West Highway Rockville, Maryland 20852 Bethesda, Maryland 20814 James P. McGranery, Jr., Esq.*

Administrative Judge

• Do'v, Lohnes & Albertson Jerry R. Kline 1255 23rd Street, N.W., Suite 500 Atomic Safety and Licensing Board Washington, D.C. 20037 U.S. Nuclear Regulatory Commission East-West Towers, Fourth Floor Docketing and Service Section 4350 East-West Highway Office of the Secretary Bethesda, Maryland 20814 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge

• George A. Ferguson Atomic Safety and Liev. sing Board Nicholas S. Reynolds, Esq.

5307 Al Jones Drive David A. Repka, Esq.

Columbia Beach, Maryland 20764 Winston & Strawn 1400 L Street, N.W.

Washington, D.C. 20005

l J 2-Stanley D. Klimberg, Esq.

Stephen A. Wakefield, Esq.

Executive Director and General General Counsel Counsel U.S. Department of Energy j

Long Island Power Authority 1000 Independence Averiue, S.W.

i 200 Garden City Plaza, Suite 201 Washington, D.C. 20585 Garden City, New York 11530 Gerald C. Goldstein, Esq.

Carl R. Schenker, Jr., Esq.*

Office of General Counsel Counsel, Long Island Power Authority New York Power Authority O'Melveny & Myers 1633 Broadway 55513th Street, N.W.

New York, New York 10019 Washington, D.C. 20004 Samuel A. Cherniak, Esq.

New York State Department of Law Bureau of Consumer Frauds and Protection 120 Broadway New York, New York 10271 l

h h 5. A u2l w david S. liarlow Hunton & Williams Riverfront Plaza, East Tower 951 East Dyrd Street Richmond, Virginia 23219 4 074 DATED: July 10,1991 l

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