ML20091E281
| ML20091E281 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/22/1992 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#292-12764 DCOM, NUDOCS 9204140065 | |
| Download: ML20091E281 (34) | |
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f BETORE Tile UNITED STATES %M,.M U NUCLEAR REGULATORY COMMISSION
'92 JAN 24 P2 :56
) USNRC Docke No. 50-322 In the Matter of ) t F ' E DT if M ' A"'
) LongIsland.!ghtingdd.I;[,M~[I'V"! E Long Island Lighting Company ) Consideration of Issuance'~
) of an Order Authorizing (Shorham Nuclear Power Station, ) Decommissioning a Facility Unit 1) ) and Opportunity for 11earingb
) (56 Fed. Reg. 66459 .d C O (December 23, 1991))
SCIENTISTS AND ENGINEERS FOR SECURE ENERGY, INC.'S PETITION FOR LEAVE TO INTERVENE AND REOUEST FOR PRIOR HEARINQ_
On Decentar 23, 1991, the Nuclear Regulatory Commission
("NRC") published notice in the Federal Register that the NRC is considering issuing an order to the Long Island Lighting company ;
("LILCO"), licensee of the Shoreham Nuclear Power Station
("Shoreham"), authorizing the decommissioning of Shoreham. 56 Fed. Reg. 66459 (1991).
The December 23, 1991 notice provides that "any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene" by January 22, 1992. Id. at 66459, Col. 3.
yNAVAILABILITY OF THE SilOLLY PROCEDURE Scientists and Engineers for Secure Energy, Inc.
("SEi") hereby submits that the NRC Staf f cannot make a proposed no significant hazards determination in connection with the proposed action.
i 9204140065 920122 PDR ADOCK 05000322 G PDR t
D503 J
m._._.__.__.____.__._____.__
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The so-called "Sholly" t rocedure whereby the Cc' aission -
makes a proposed no significant hazards consideration ;
determination on a proposed license amendment and then makes that amendment immediately effective prior to a hnaring upon issuance of a final determination does not apply to a decommissioning order issued pursuant to Section 103 or 104 of the Atomic Energy Act of 1954, as amended ("AEA") to amend the existing possession i
only license (" POL").
It is beyond-question that a-POL is not an operating '
license;-therefore, the Sholly Procedures cannot be applied to an amendment to such a reactor non-operating lica se. The Cormission's own regulations issued pursuant to the Sholly amendment'also recognize the limitation of these procedures to applications'" requesting an amendment to an operatina license for {
a f acility licensed under $ 50.21(b) or S 50 22 or for attesting facility." 10 C.F.R. $$ 50.91 & 50.92(c) (1991) (emphasis added).
PETITION'FOR LEAVE TO INTERVENE AND REOUEST FOR PRIOR HEARING $
Scientista and Engineers for Secure Energy, Inc. ( " S E," ,
or_" Petitioner") cnd its members would be adversely affected by e this_ proposed decommissioning order and, therefore, pursuant to section 2.714Lof'the Commission's Rules, SE2 requests that it be -
granted leave to intervene as a party and that a hearing be held to' consider.the merits of the proposed order.
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SE, views this decommissioning order an one part of the larger proposal to decommission Shoreham. Each stop in the decommissioning proposal that moves Shoreham closer to a fully decommissioned stato and further away from full-power operational status violates the dictates of the Atomic Energy Act of 1954 as amended ( " A EA" ) , 42 U.S.C. SS 2011 gi agg. (1988), and the National Environmental Policy Act of 1969 as amended ("NEPA"), 42 U.S.C. SS 4331 gi Eng. (1988). Thus, while the issues presented herein directly relate to the instant application, they necessarily include other unlawfully segmented actions taken and/or proposed l# by LILCO, and approved the NRC Staff, in furtherance of the decommissioning scheme.
1/ In Klenqc_v. Sierra Clu.k, the Supreme Court states that "when several proposals . . . that wil] have a cumulative or synergistic impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together." 427 U.S. 390, 410, 96 S.Ct. 2718, 2730 (1976).
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I. STANpJNG OF PETITIONER TO INTERVENE As the NRC Staff has stated the applicable law: To determine whether a petitioner has sufficient interest to intervene in a proceeding, the Commission has held that a licensing board may apply judicial concepts of standing. A petitioner must show that the action sought in the proceeding will cause an injury in fact and that the violation causing that injury is a violation of an interest protected by the AEA and/or the NEPA. Dollums v. NRC, 863 F.2d 968, 971-80 (D.C. Cir. 1988).
In addition, a petitioner must establish that the injury is likely to be remedied by a favorabic decision granting the relief sought ("redressability"). Qg11gan, 863 F.2d at 971.
The Court has recognized, in the context of NRC proceedings, "that widely-held, non-quantifiable aesthetic and environmental injuries are sufficient to satisfy" the injury in fact test." Dellums, 863 F.2d at 972. Also, the Dc11uma' Court recognized that an organization satisfies standing requirements by showing that '(a) its members would otherwise have standing to sue in their own right, (b) the interests that it seeks to protect are germane to the organization's purposa, and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lavsuit.' Hynt v.
Washincton State ADDie Advertisina Comm'n.,
432 U.S. 333, 343, 97 S.Ct. 2(34, 2441, 53 L.Ed.2d 383 (1987).
863 F.2d at 972.
In this case, SE, will submit affidavits of Pr( 'm.r Hiro M. Todorovich (its Executive Director), and its members Dr.
John L. Batoaan, Eena-Mai Franz, Dr. Stephen V. Musolino, Joseph Scrandis,-and Dr. John R. Stehn, in which those members elect to have their interests represented by the SE2 and allege violations of their rights under the AEA and NEPA together with allegations of hov approval of the instant application prior to completion of the NEPA process would injure their rights and the rights of SE2 under NEPA to participate in the development of, an. have the benefit of, an FEIS on the proposal and the entire proposal to decommission Shoreham, and how approval of the application would injure their rights under the AEA to have reasonable assurance of their individual health and safety, and SE 2 's rights and responsibilities to assure the reasonable assurance of the health and safety of its members.
It should also be noted that if this application is approved, many of SE 2
's members will suffer great losses of services by suffolk county and/or the Town of Brookhaven and increases in real estate taxes due to the loss of taxes on the Shoreham facility, which would be large and palpable financial and property harms to those me.mbers. Saa 56 Fed. Reg. 66460 col
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satisfying the " injury in fact test" in the context of NRC
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licensing decisions. Dellums, 863 F.2d at 973 (a single individual's "inabllity to find work").
Further, it is clear that the conduct of the development of an EIS pursuant to Part 51 of the Commission's regulations would avoid the injury to affiants' and SE 2's rights under NEPA since it would afford them the opportunity to participate in that process and the benefit of the resulting FIIS. It is also clear that the denial of the application would protect affiants' rights to adequate assurance of bealth and safety under the AEA. And it is equally clear denial of that application for decommissioning order would avoid the above-aantio: sed loss of significant services and increases in taxes on SE, members.
Given these facts, SE2 and its members satisfy the requirements for organizational standing, since affiants would otherwise have standing to intervene in their own right. The interests that SE, and its members seek to protect are germane to the SE,'s purposes and neither the claim asserted nor the relief requested reouireg the participation of the affiant members personally in the proceeding.
A key point here is that Shoreham's decommissioning is n21 a foregone conclusion. While LILCO and the State of New York wish to steer Shoreham towards decommissioning, the NRL has yet to formally approve any decommissioning plan, and before any such approval may issue, the NRC must complete an Environmental Impact
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Statement ("EIS") which includes consideration of all alternatives.
Petitioner's interests, as detailed below, will be protected, and the requiraments and purposes of the AEA met, if Petitioner is allowed to intervene in a prior hearing held on this matter and the remedies sought by Petitioner are granted as a result of that proceeding.
LILCO's efforts toward d2 facto decommissioning without an approved decommissioning plan are a DRE En violation of the AEA and a direct health and safety violation.
NEPA mandates preparation of an EIS prior to agency decisionmaking on major federal actions significantly affecting the quality of the human environment. The EIS must consider, intgr alia, the environmental impacts of, and the reasonable alternatives to, the proposal. Thus, HEPA ensures that agency decisionmaking not only includes environmental consideration, but also is structured in such a way that environmental consideration is meaningful.
SE, has determined that its responsibilities demand that it seek intervention in this instance in order to protect the interests of SE2 and its members and their property.
SE2 's af fian" srs live and/or work within both the ten and fifty mile li tations used by the Commission to determine whether an intervenor expressing contentions under the
ban . and safety provisions of the Atomic Energy Act has an interest sufficient to allow intervention.
SE2 has an interest in protecting the health and environment of its members, who live and/or work in close proximity to the Shoreham facilitf, from both the possible radiological impacts of the proposed amendment and the adverse health and other environmental consequences of non-operation of
-Shoreham cognizable under NEPA, for example, the air pollution produced by the oil and/or gas burning plants which would be necessary substitutes for shoreham.
Furthermore, the SE 2 's af fiant members depend on LILCO to meet their electric energy needs. SE, he t a vital interest in ensuring that an adequate and reliable supply of electricity will be available to meet its members' needs and that the electricity provided is available at reasonable rates. Shoreham is presently capable of meeting the growing electric energy needs of the Long Island area. Actions to decommission the facility and build substitute oil or gas burning plants, on the other hand, delay any increase in the Region's electric energy production capacity, anf also generate significant expenses which will inevitably be passed on to Long Island's ratepayers, including those whose interest". Petitioner seeks 'o protect.
II, PETITIONER'A .4TERESTL WOULD BE GREATLY AFFECTED BY T;'q_QAQEL The proposed order violates the requirements of the AEA at the expense of the Petitioner's membere right to n>onable assurance of radiological health and safety and circacea.its their NEPA rights to timely environmental consideration of the -
decommissioning proposal, including its reasonable alternatives.
Petitioner wishes to participate in each and every aspect of the hearing which touches and concerns these interests as well as the specific aspects identified below and in any amendment of this petition hereafter filed.
SE2 , on behalf of itself and its members, seeks leave to intervene and request a hearing to determine whether the proposed order sFould be varied, denied or deferred undar the AEA. The specific aspects of the proposed action as to which SE2 wishes to intervene are: (1) whether a grant of the proposed order would be arbitrary, capricious and/or an abuse of discretion pursuant to the Atomic Energy Act and the Commission's regulations, and subsidiary guidance thereunder; (2) whether, if a decision is made to operate Shoreham, the proposed order would totally-frustrate or significantly delay and increase the cost of returning the p' ant to an operational mode; (3) whether the proposed order would constitute an irreversible and irretrievable commitment of the Shoreham resource; and (4) whether the order would undermine the reasonable assurance that full power
operation, should it ultimately '.6 pursued, would or cou;.d be conducted with consonant with the public health and safety and national defense and security, particularly the reasonable assurance of the Petitioner's members protection (including their real and personal property) from the radiological hazards o.'
operating the facility.
In deciding y u:Cher or not such steps Thould be allowed, the NRC is obligated to cor. sider not only the immediate health and safety implications of proposed decommissioning actions, but also future such implications, the public interest
.in the plant as an operational entity, the national security and common defense interest in the operational plant, and finally, the environmental impacts of, and alternatives to, allowing a plant to be prematurely decommissioned.
SE2 also wishes to have full and fair NEPA _
consideration given the decommissioning proposal (of which the instant application is an interdependent part), including the need for power, the cost-benefit analysis of decommissioning, and the operation and near-term operation alternatives for Shoreham.
Any actions in frrtherance of the dg facto decommissioning proposal prejudice consideration of such mandatory NEPA analysis by, amu.g other things, making the alternatives further away in time, more costly, and less likely in fact.
N EFA , as implemented in regulations issued thereunder by the council on Environmental Quality ("CEQ") and the NRC,
l mandates that no major Federal action sigt'lic:atly affecting the quality of the human enuironment will be 1.plomanted without first receiving a full environmental review. As more fully detailed below, Petitioner's interests under NEPA will be protected, and the purposes and requirements of NEPA served, to the extent that such a NEPA review is conducted under the NRC Rules (including a hearing) and the remedies sought by Petitioner are granted in the proceeding. Petitioner's interests will be adversely affected should this-petition or the relief sought herein be denied.
The remedies sought by Petitioner specifically include the correction of this presumptuous " decision" that the reactor will never return to full power operation, as well as a return to the mandates of the NRC's regulations under the AEA and NEPA which require maintenance of the full power license obligations until an informed decision is made with all appropriate environmental and economic considerations.
If a full NEPA environmental review is conducted, it may be that the factors which first led to the construction of this $5.5 billion dollar reactor would lead relevant decisionmakers at the NP.C and elsewhere to favor the continued utilization of this brand new facility and reject the decommissioning proposal.
The increased risks of radiological harm to Petitioner's members, as discussed above, also constitute adverse
i' environmental impacts and would also increase the r_ak tnat the choice of reasonable alternatives would be limited. The application presents the issue of an irreversible and irretrieveable effect starkly. As a result, approval of the proposed order is barred by 10 C.F.R. SS 51.100(a) and 51.101(a)
(1990) until a record of decision is issued following completion of the required NEPA review of the decommissioning proposal. Ege Algg, 10 C.F.R. S 51.100(a) (1) (1990).
Intervention and a hearing on this proposed order, prior to its approval, addressing the aspects ident s f led in this Petition, is the only avenue available to Petitioner before the NRC for protecting not only its own vital interests but also those of its members as to this NP' icensing issue at this time.
The Petitioner must address each incremental, segmented step proposed by the licensee and the NRC Staff which would further advance the da facto decommissioning by the licensee in violation of the AEA and HEPA.
The violations of the AEA, by definition, increase the risk of radiological harm to those whose interests SE2 seeks to protect, its members.
The violations of NEPA also deny Petitiol. r its rights to information on, end to participate in, the formulation of an environmental review of the impact of, and alternatives to, the ongoing decommissioning of the Shoreham facility.
Petitioner must address the da facto'decommissioni , at ,
this time because LILCO obviously seeks to abrogate its )
obligations under its license before the NRC issues a final and fully informed decision on the decommissioning proposal, thereby both endangering the health and safety and other interests of Petitioner, its members, under the AEA, and jeopardizing the future viability of the reactor, and thereby avoiding a meaningful environmental analysis pursuant to NEPA. Without Petitioner's active involvement, the NRC Staff and the licensee would simply continue to circumvent the law and regulations and thereby deny Petitioner, which is interested in the development
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of a complete record, the opportunity to have such full AEA and NEPA consideration before significant alternatives are foreclosed.
Obviously, neither the NRC Staff nor the licensee !
appear to be in the least bit interested in representing the Petitioner's valid interests by complying with the requirements of;the AEA and/or NEPA. - Petitioner will bring to light the significat, regulatory, health, safety and environmental issues which-form the' bases for its challenge-to the proposed order and for all of the-licensee's actions toward da facto decommissioning. These essential issues are required by law to be addressed, and by addressing them now in this action the Petitioner will hasten their examination and appropriate resolution by the Commission.
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. III. SPECIFIC ASPECTS AS.1N) WHICH PETITIONER SEEKS TO j INTERVENE A. Specific Aspects of the Subject Matter As To Which Petitioner Seeks to Intervene Under the AEA f
, Sections one, Two, and Three of the AEA set out the Declarations, Findings and Purpose of that Act which must guide
- the commission's decisions pursuant to its substantive provisions. 42 U.S.C. SS 2011-2C13 (1988).
Section 2(e) of the Act explains that " utilization facilities are affected with the public interest," 42 U.S.C. S 2012'(1988). Petitioner submits that utilization facilities, such as Shoreham, are licensed to serve the public interest. In
- obtaining the-benefits that result from the license to operate a plant, a licensee also shoulders the burden of maintaining the
- plant operational for so long as the licensee holds the license and'the NRC determines that the publi: interest is-best served by an operable _ plant.
The decision as to-whether a plant shall be rendered inoperable then is not strictly for the licensee to make. While the plant-may be privately ovned, it was constructed-based on strict regulations established on behalf _of the public and with
. the understanding that it would serve the public for the duration-of:the plant's useful. life unless the proper Federal authorities determine that.it is in the public interest that the plant prematurely cease operation. Any such determination would have
V to b6 based on proper health and safety, environmental. and common defense and security factors. Thus, the fact that L4100 and the State of New York may have currently determined that they ,
wish Shoreham decommissioned is not the last word on the matter. ,
The Commission must make a proper determination cf the public interest, from local, state, and national perspectives weighing the environmental, economic, and other impacts and the alternatives before any operable nuclear plant is decommissioned.
Such a determination has yet to be made in this case.
Petitioner contends that the proposal to use the DECON approach to decommissioning as opposed to SAFSTOR or ENTOMB will cause additional unnecessary, and therefore impermissible, radioactive exposures to those whom it represents and therefore, their interests under the Atomic Energy Act would be harmed by approval of the DECON alternative and protected by a choice of another alternative or denial of the application for a decommissioning order which are the remedios which they seek. It is also contended that the Commission does not have adequate assurance of the financing of the activities under the decommissioning order or of the capability of the organization proposed to conduct the decommissioning order. Petitioner contends that these lacks of adequate assurance endanger the interests of those represented under the Atomic Energy Act and that a denial of the decommissioning order would protect their interests.
B. Specific Aspects of the Subject Matter As to Which Petitioner Seeks To Intervene Under NEPA.
The proposed order is one segmented part in implementation of a proposed major Federal action which, if approved, will significantly affect the quality of the human environment. Because preparation of an EIS and a final decision is required before any part of the decommissioning proposal may be implemented, the proposed order is in direct violation of Section 102 (2) (C) of NEPA and Petitioner's right to such NEPA
review, if it is approved prior to NEPA review of the whole decommissioning proposal.
Section 102 (2) (C) of NEPA provides that, prior to making a decision to implement a " proposal" for a " major federal action significantly affecting the quality of the haman environment," administrative agencies shall prepare an Environmental Impact Statement ("EIS") which evaluates, among other things, the " environmental impacts of" and the
" alternatives to" the proposed action. 42 U.S.C. S 4332 (1982).
The Council on Environmental Quality ("CEQ")
regulations, which are " binding on all federal agencies," further clarify the NEPA responsibilities of federal agencies. 40 C.F.R.
5 1500.3 (1988). Among other things, those regulations (a) mandate application of NEPA "at the earliest possible time to insure that planning and decirions reflect environmental values,"
(b) require that actions which are " interdependent parts of a larger action" be discussed in a single impact statement, and (c) prohibit actions which " limit the choice of reasonable alternatives" until the NEPA process is complete. 40 C.F.R. SS 1501.2, 1508.25, & 1506.1. The NRC's own NEPA regulations, which closely parallel those of the CEQ, also prohibit any " decision on a proposed action" or actions, especially one tending to " limit the choice of reasonable alternatives," pending completion of the NEPA process. 10 C.F.R. SS 51.100 and 51.101 (1989).
While the decommissioning proposal has been advanced by LILCO, a non-federal entity, the NRC's on-going supervision of that licensee's activities and the need for NRC approval of the various aspects of the decommissioning process make what otherwise might be a private action in another industry into a
" major federal action." The NRC controls whether the decommissioning proposal may proceed and, therefore, has a non-discretionary duty under NEPA to ensure that neither the Shoreham facility, itself, as the relevant part of the environment under the supervision of the NRC, nor the alternatives to its decommissioning, are adversely affected by premature implementation of the decommissioning proposal. Egg 40 C.F.R. S 1506.1(b) (1988).
To date, the NRC Staff has failed to recognize this duty and, instead, has given LILCo tacit and explicit permissions to implement an ever increasing number of steps in the decommissioning proposal which have no utility independent of that proposal.
LILCO and the NRC Staff claim that no steps have been taken at Shoreham which are irreversible or constitute irretrievable commitments of resources. This claim is subject to significant doubt in view of the judicial interpretation of these concepts in the context of NEPA and the facts of this case. E2A Commonwealth of Massachusetts v. Watt, 716 F.2d 946, 953 (1st Cir. 1983) ("each of these events represents a link in a chain of
bureaur tic commitment that will beccme increasingly harder to undo the longer it continues"); Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) ("the harm at stake is a harm to the environment, but the harm consists of the added righ to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision on the environment").
For example, if the concepts of " irreversible" and "irretreivable" are stretched to their theoretical definitional limits, the same claim could be made even if the plant had been razed but "could be" rebuilt. The issue is not whether the plant, its equipment and its staff could someday be put back together again, but rather over what duration and at what cost could the feat be achieved.
The farther away in time and expense LILCO and the NRC move the reestablishment of operational capability, the less likely it becomes that the alternative of operating Shoreham will be pursued. In the Spring and early Summer months of 1989, when LILCO made its intention to cooperate with New York State in a plan to decommission Shoreham plainly known to the NRC, the Shoreham plant sat ready for immediate full-power operation. As a fully licensed plant with a complete staff and fully functional equipment and systems, Shor' .aun constituted a valuable resource 1
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for the Long Is1*.1 area in that it was capable of immediately generating electrav energy.
The proposed order is another in a series of actions insti-;ated by LILCO, to be approved by the NRC Staff, in furtherance of the decommissioning proposal. As such, the proposed order would make the intended benefit and purpose of Shorehau (the supply of 805 MWe in full power operation) more remote in time and less likely in fact. It would, therefcce, violate NEPA and the Commission Rules (in particular, 10 Ce'.R. S 51.101 (a) (1) (1989)) if approved prior to completion of NEPA review.
The Petitioner first urged maintenance of the status EM2 (that is, full operational readiness at the Shoreham plant),
pending preparation of an EIS and a final decision on the proposal to decommission the facility, in its Section 2.206 request filed in July 1989. Petitioner has reiterated the need for the Commission to take such action in supplements to the initial request and at meetings between the NRC Staff and LILCO maragement. The NRC Staff's response has continually been that i an EIS will-have to be prepared before decommissioning can take i
place.F
! 2/ The NRC has stated that while:
decommissioning of a facility requires a license amendment necessitating the preparation of an EIS, such an amendment has not yet been applied for in this case. If (continued...)
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The CEQ definit!.in of " proposal" includes the statement: "A proposal may exist in fact as well as by agency declaration that one exists." 40 C.F.R. S 1508.23 (1988)
(explicitly adopted by the Commission at 10 C.F.R. S 51.14(b)
(1989)). A hard look at the reality of the present situation makes it abundantly clear that a decommissioning proposal exists "in fact" in this instance.
LILCO has entered into a Settlement Agreement with various entities of the State of New York that represents a decommissioning proposal. The Agreement (which may be terminated by its own terms or voided by pending suits currently before the in state Court of Appeals) provides that LILCO will not operate the plant but will take steps to remove the plant from cervice in an effort to both reduce costs and facilitate the transfer of the plant to an entity of New York State which will, in turn, take the final steps in the decommissioning process.
The Commission's own definition of the term
" decommission" supports Petitioner's contention that LILCO's actions to date constitute decommissioning. The Commission
' Regulations define " decommission" as meaning "to remove (as a 2/ (... continued) the Commission issues a license amendment authorizing the decommissioning of the Shoreham facility, an environmental review will be performed . . . .
Interim Reply to the initial Section 2.206 Request (dated July 20, 1989) (emphasis added).
facility) safely from service and r' oce residual radioactivity to a level that permits the release of the property for unrestricted use." 10 C.F.R. S 50.2 (1989) (emphasis added) .
Thus, under the Commission's definition, decommissioning is a continuina process beainnino with actions to remove a facility safely from service and continuina through to actions to reduce the level of residual radioactivity at the site until it is released for unrestricted use.
The proposed order violates Petitioner's rights under NEPA, and the NEPA regulations promulgated by the CEQ and the NRC, both (a) to have decisions on interdependent parts of a proposal for a major federal action informed by a Final EIS evaluating the proposal as a whole and also (b) to have alternatives to a proposed action preserved pending the preparation of an FEIS and the issuance of a final decision on the proposal as a whole.
Before this further step in the decommissioning plan is taken, an environmental evaluation of the decommissioning plan as a whole must be undertaken. The D.O. Circuit has stated that "NEPA creates a right to information on the environmental effects of government actions; any infringement of that right constitutes a constitutionally cognizable injury . . .
" Competitive Enterorise Inst.. et. al. v. Nat'l Hichway Traffic Safety Admin.,
No. 89-1278, slip op. at 28 (D.C. Cir. Jan. 19, 1990). Until an EIS has been prepared on the total decommissioning proposal, no
part of that plan, including this propored . acr, may be
, implemented.
In addition to failing to recognize this proposed order as yet another step in the inching implementation of the larger decommissioning proposal, the NRC has failed to prepare even an environmental assessment for this amendment. Section 51.21 of the Commission's regulations states that "[ajll licensing . . .
actions subject to this subpart require an environmental assessment except those identified in 5 51.20(b) as requiring an environmental impact statement, those identified in S 51.22(c) as categorical exclusions, and those identified in Section 51.22(d) as other actions not requiring environmental review." 10 C.F.R.
S 51.21 (1989).
Assuming arcuendo, that the proposed order may be considered a discrete action, distinct from the larger decommissioning proposal, it is not among those actions listv- in Section 51.20(b) which require preparation of an EIS. Likewise, the proposed amendment is not among the actions listed in subsections (c) or (d) of Secton 51.22 which constitutes categorical exclusions from environmental review. Thus, Section 51.21 mandates proparation of at least an environmental assessment ("EA") address,ing the environmental impacts of, and alternatives to, this licensing action. Further, Petitioner requests a proposed EA and also asserts that the proposed order
I involves unresolved conflicts concerning alternative . es of available resources. Egg 10 C.F.R. S 51.22(b) (1989).
An environmental assessment is intended to provide a basis for a decision whether a proposed action merits preparation of an EIS or a finding of no significant impact. This determination hinges on whether the proposed action will or vill not "have a sianificant effect on the quality of the human environment." 10 C.F.R. S 51.32(a)(3) (emphasis added); 333 also 42 U.S.C. S 4372(2) (c) .
Thus, the level of environmental scrutiny a proposed action must undergo is determined by the " significance" of the action's environmental effects.
The CEQ regulations provide guidance as to the meaning of "'significantly' as used in NEPA." 40 C.F.R. S 1508.27 (1988). Among the factors listed by the CEQ to be considered by an agency in evaluating whether a proposed action vill "significantly affect the quality of the human environment" is:
Whether the action is related to other actions with individually insignificant but cumulatively sionificant innacts. Significance exists if it is reasonable to anticipate n cumulatively significant impact on the environment. Sion!ficance cannot be avoided by terming an action temporar/ or by breakino it down into small component carts.
40 C.F.R. 5 1508.27 (b) {7) s1988) (emphasis added). An environmental assessment of this proposed order must, therefore, consider the cumulative impacts of the proposed order the other
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related actions which have or will be taken in furtherance of t' .
decommissioning scheme.
Furthermore, the CEQ defines " cumulative impact" as:
the impact on the environment which results from the incremental impact of the action yhen added to other cast, oresent and reasonably foreseeable future actions recardless of what acency (Federal or non-Federal) gr person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. S 1508.7 (1988) (emphasis added). The proposed order cannot be isolated from the continuum of "past, present, and reasonable foreseeable future actions" in furtherance of decommissioning. Rather, a proper environmental assessment will necessarily consider the proposed order in the context of the decommissioning proposal which has been, and continues to be, implemented in a segmented fashion. Such consideration must inevitably yield the conclusion that the piecemeal implementation of the individual steps in the decommissioning process cannot continue until an EIS evaluating the environmental impacts of, and alternatives to, the decommissioning scheme as a whole has been prepared and a final decision on that prsposal made.
The " Supplement to Environmental Report (Decommissioning) (December 1990) submitted in the name of the Long Island Power Authority" provides a totally inadequate basis for consideration of the decommissioning of Shoreham. For example, the consideration of socioeconomic impacts in Section i
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l l sals effects on the decommissioning propobases, and 4.1.1.1 fails to discuss hip and School District tax l the state, county, towns ulting from the proposa . [
y terms the loss of employment is and taxes reswritten in broad conclusor mon sense
{
Similarily, all Section 4 some cases, contrary to com i is in without any details and said that "[dlecommission ng it simply cannot be regional or local [
example, (for The not expected have any significant impact onSic Section 4.1.1.
t rates) . ham demanded an.ployment and unemploymen perating staff for Shoreit is beyond NRC's requirements for the od highly paid workers, very over 800 highly skilled an of those jobs will have at least a including the lost of cavil that the loss l employment, In similar significant impact on loca frr.in those loss personnel.lusion property and income taxes othing to support its conc fashion, the report provides n will result from the demographic shifts that "[njo significant31q Section 4.1.2.1cultural decommissioning." he impact on of the There is no Section 4.1.2 discussion of tThere is no disc He3 l of construction debris, or resources.
of the hauling and disposa i e and other impacts on local air, traffic, no s their effects sag Section 4.1.2.2 sense to assert that the considerations. common egative It is contrary towould have "no significant n proposal to decommission ious that the proposal is to !
on land use" since it obv i h is a great resoure:a for impacts very valuable facility wh c destroy a
~~_ ~^ ~ A-% -s '
, _ _ . _ _ _ - . . _ _ _ _ _ . _ _ . . - _ - _ _ _ _ - ..~ _ _ _
t 4
' both real estate and corporate tax revenue for the local community and the state, as well as the federal government, and electric energy. Egg Section 4.1. 2. 4.
The discussion of the LILCO preferred decommissioning
. alternative, DECON, and the alternative decommissioning methods is conclusory and totally-lacking in detailed quantative analysis l
of the radioactive and non-raC4oactive environmental impacts of the various alternatives. Egg Chapter 3.0.
k-4 There is a total absence of discussion of the -
implications of the proposal to decommission for the need for power that will be an effect of the proposal to decommission if
- it is approved.
The absence of such information from the Environmental
- Report would of course, result in an inadequate draft EIS, which e would-disable Petitioner and those whom it represents from offering intelligent and focused comments on the draft EIS, and
- thus results in inadequate-final-EIS. This would harm their
- interests-protected by NEPA, since the informational purposes of NEPA.would:be damaged and. Petitioner's rights and the rights of those whom it represents would be likewise damaged by the inadequate information and the resulting lack of assurance that
. the relevant decisionmakers would have complete environmental information available to'them for their consideration in making a f
h final decision on the proposal to decommission. In filing 4
,r- , , . . _ - - ,
contentions, Petitioner will further amplify these inadequacies in Supplemental-Environmental Report.
Petitioner has thus shown an injuries in fact that will result from the proposed order, including injuries which are within the zone of interests protected by NEPA, and that can be redressed by a decision not to approve the order and by granting the other remedies sought.
The particular aspects of the proposed order as to which Petitioner wishes _to intervene under NEPA are, inter alia, as follows:
-1. Does a proposal to decommission the Shoreham Plant exist "in fact"?
- 2. Would issuance of the proposed order prior to publication of an FEIS and a record of decision thereon violate the~ Commission's NEPA regulations, including without limitation, 10 C.F.R.c$$ 51.100 & 51.101 (1989)?
- 3. Do NEPA,=and the CEQ and NRC regulations promulgated thereunder, require that the-licensee maintain'all full power ~ license conditions in full accord with readiness for operation-at full. power pursuant to its full-power operating License, the Technical: Specifications and licensee commitments thereunder, as well as the Atomic Energy Act, the regulations and other normal NRC Staff requirements of a full power licensee, until such time as full NEPA review of the decommissioning
)
' proposal is completed and published and a decision on that proposal is subsequently made?
4._ Does the proposed order require that an environmental assessement ("EA") prior to becoming effective?
- 5. If the proposed order does require an EA prior to approval, what is the proper scope of that EA? That is, (a) i
'should the EA be' limited to the order as. defined in the Notice,
-(b) should.the scope ofLthe EA also include all:other pending and/or approved' requests by the licensee for amendments to, exemptions from,-and other permissions sought with respect to its full-power-Operating-License, which are pending at this time, or.
(c) shou.1d the, scope of the EA include all other proposals in fact, currently pending before the NRC?
6.. Is the Staff's determiratior. that an EIS is necessary for-the decommissioniaq cf Shorehba in its response to Petitioner's counsel dated July '0 , 1939 determinative of the need for'an1EIS?
- 7. If the NRCL Etaff's July 20, 1989 determination of
= .
initiation of te EIS process at this time?
- 8. Deis the Commission's approval of SECY-89-247 require the-in'tiation of the preparation of an EIS beginning now?
l l
IV. REMEDIES ,
I The Petitioner seeks the following remedies:
- 1. An order permitting the Petitioner's intervention as to the subject of the captioned notice.
- 2. An order directing a hearing on the issues presented by the captioned notice as detailed in this petition as j it may be amended.
- 3. An order requiring the NRC Staff not to issue the proposed order pendente lite to allow for an independent ;
t assessment by the Atomic Safety and Licensing Board of the issues i
identified herein. '
1
- 4. An order consolidating this petition with the l 1
petition of Scientists and Engineers for Secure Energy, Inc.
insofar as the two petitioners have common interests, i
- 5. An order consolidating this matter with related matters pending before the commission for which notices of an l opportunity for hearing have been and/or will be issued with !
respect to Shoreham.
l
- 6. - An order finding that there exists a proposal for the decommissioning of Shorcham, which is a major federal action significantly affecting the quality of the human environment and, therefore, ordering the licensee to prepare and submit an adecuate Environmental Report on the scope of that proposal (including, inter alia, the alternatives relating to full-power I operation) ; . and, further ordering, that all Shoreham proceedings l
l l
not ralet- to enhancing full-power operation be held in abeyance pending the submission of that Environmental Report, the subsequent preparation and publication of a Draft Environmental Impact Statement by the NRC Staff and further proceedings culminating in the Final Environmental Impact Statement and hearings thereon.
- 7. An order requiring the NRC Staff and the licensee to furnish the petitioner's attorney with all future communications and/or governmental filings originated by those parties or either of them, by telecopy, express mail, or overnight courier, which communications relate to Shoreham and/or issues affecting Shoreham.
- 8. An order denying the order application.
- 9. Order (s) granting such other relief deemed necessary and/or appropriate.
l
CONCLUSION WHEREFORE, for the above-stated reasons, the Petition
.for. Leave to Intervene should be granted, a hearing should be held prior to-approval of the proposed order and the other remedies herein sought'should be. granted.
Respectfully submitted,
? .
} Ac 4
fy-January 22, 1992- 4-_ _
yptes P. McGranery, gr
- Nw , Lohnes&-Albertso/ n Suite 500 1255 Twenty-Third Street, N.W.
Washington, D.C. 20037 (202) 857-2929-Counsel for. Petitioner Scienwists.and Engineers for Secure Energy, Inc.
lIn accordance with-10 C.F.R. 55 2.708(e) and 2.712(b), service
- -may be made upon the above-designated Attorney for Petitioner.
,,--w , , - s _
. . . . - . - - . . - . . . . . . . , . . . _ ~ - - . - . . . - - - - - - . ~ . _ . - .
K
.artiiD
'BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION
^
92 JAN 24 P2:55 '
) USNA: -Docket No."U$6p 2 M Q M
-In tht Matter!of ) _
naincu- '
) Long Island Lighting Co.;
- Long-_ Island-Lighting Company- ) Consideration of Issuance
) of an Order Authorizing
.-(Shorham Nuclear Power Station,- ) Decommissioning a Facility Unit 1)- ) and Opportunity for Hearing
) (56-Fed. Reg. 66459 3 (December 23, 1991))
NOTICE OF APPEARANCE Noticefis hereby given that the undersigned attorney
~
herewith _ enters an appearance in the captioned matter. In accordance with_10 C;F.R.-S 2.713 (1989), the following information is'provided:-
Name: James'P. McGranery, Jr.
Addresss: Dow, Lohnes & Albertson Suite 500 1255;23rd Street, N.W.
-Washington, D.C. 20037 Telephone Number: '
- 4?) 857-2929 Admission
- -
U.d. Supreme Court Name of Party: Scientists and Engineers for Secure' Energy, Inc.
n .N N 7 Jap'es P. -McGranery, 'Jy. .
~
Dated at Washington, D.C.
.this 22nd day.of January, 1992
u- ,,
1 t Ari;iO UbHKC BEFORE THE UNITED STATES
- NUCLEAR REGULATORY COMMISSION p
GF' ICE Of SE CRt It.e Y
) USNRC Docket No. 50-322 00ChiliNG A 'i 8VICI In the Matter--ofi ). SRANC61 ,
) Long Island Lighting'Co.;
Long1 Island Lighting company ) Consideration of Issuance
.) _of n Order Authorizing
- (Shorham Nuclear Power Station, ) Decommissioning a_ Facility 1 Unit - .1) ) and Opportunity for Hearing
) (56 Fed. Reg.-66459 (December 23, 1991)) E l
CERTIFICATE OF SERVICE
.I hereby: certify that one-copy of the Scientists and Engineers for Secure Energy,cInc.'s= Petition for Leave to Intervene and Request for Prior
' Hnaring is'being served upon the following by first-class nail, postage %
prepaid on this 22nd day-of January, 1992:
Sacretary of the Commission Office of the General Counsel
- U.S.: Nuclear Regulatory: Commission U.S. Nuclear Regulatory Commission Washington,LD.C.:20555 Washington, D.C. 20555 ATTN:- Docketing and Services Branch (one copy)
-(original and two copies)
W. Taylor Reveley,2III, Esq.
--Hunton & Williams Riverfront--Plaza,; East Tower
?951._ East Byrd Street.-
Richmond, Virginia 23219-4074 1
- (one copy)
% .s Jfmes P. McGranerff Jr.
Dow, Lohnes &-A14drtson Suite 500:
1255 Twenty-Third Street, N.W.
Washington, D.C. 20037 (202)'857-2929 Counso3 for Petitioner Scientists and Engineers for-Secure Energy, Inc.
& mio n .i i i in r rs ur rr