ML20091E283
| ML20091E283 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/22/1992 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#292-12765 DCOM, NUDOCS 9204140074 | |
| Download: ML20091E283 (36) | |
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BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION
'92 Ju 24 P2 33
) USNRC Douket Ho.;rDn ,,s ELM IIN In the Matter of ) N I 's %
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Long Island Lighting"do"[/' ; "#
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 (December 23, 1991))
SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT PE~ITION FOR LEAVE TO INTERVENE AND REOUEST FOR PRIOR HEARING On December 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.
UNAVAILABILITY OF THE SHQLLY PROCEDURE Shoreham-Wading River Central School District (" School District") hereby submits that the NRC Staff cannot make a proposed no significant hazards determination in connection with the proposed action.
9204140074 920122 PDR ADOCK 05000322 G PDR DSO3 l l
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The no-calle.\ 'Sholly" procedure whereby the Commission makes a proposed no signifit: ant hazards cc. sideration determination on a proposed license amendment and then makes that amendment immediately offective prior to a-hearing upon issuance of a final determination does not apply to a decommissioning order issued pursuant to Section 103 or 104 of the Atomic Enargy Act of 1954, as amended ( " A EA") to amend the existing possession only license (" POL"i.
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 license. The Commission's own regulations issued pursuant to the Sholly amendment also recognize the limitation of these procedures to applications " requesting an amendment to an 2DtIA11Dg license for a facii licensed under S 50.21(b) or 5 50.22 or for attesting facility 10 C.F.R. SS 50.91 & 50.92(c) (1991) (emphasis added).
PETITION FOR LEAVE TO INTERVENE AND REOUEST FOR PRIOR HEARING i
Shoreham-Wading River Central School District (" School District' or " Petitioner") and its students and employees vould be adversely affected by this proposed decommissioning order and, therefore, pursuant to Section 2.714 of the Commission's Rules, the School District requests
- hat it be granted leave to 1
i intervene as a party and that a hear.ing be held to consider the merits of the proposed order.
The School District viewn this decommissioning c;' der as one part of the larger proposal to decommission Shoreham. Each step in the decommissioning proposal that moves shorcham closer to a fully decommissioned state and further away from full-power operational status violates the dictates of the Atomic Energy Act of 1954 as amended ("AEA"), 42 U.S.C. 55 2011 21 ggg. (1988), and the National Environmental Policy Act of 1965 as amended
("NEPA"), 42 U.S.C. $$ 4331 gi ggg. (1988). Thus, while the issues presented herein directly relate to the instant application, they necessarily include oth4? unlawfully segmented actions taken and/or propose 6M by LILCO, and approved the NRC Staff, in furthorance of the decommissioning scheme 4 1/ In Kleene v. S(grre Club, the Supreme Court states that "when several proposals . . . that will have a cumulative or i synergistic impact upon a region are pending concurrently before an agency, their environmental consequences must be considered l
together." 427 U.S. 390, 410, 96 S.Ct. 2718, 2730 (1976).
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I. STANDING OF PETITIONER TO INTERVENE i As the NRC Staff has stated the applicable law: To l determine whether a petitioner has sufficient interest to l
intervene in a procate.ing, 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 B the NEPA. Dellums v. NRC, 863 F.2d 968, 971-80 (D.C. Cir. 1980),
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.In addition, a pes;sLoner must establ5.sh that the ,
injury is likely to be remedied by a favorable decision granting the relief. sought ("redressability"). Dellums, 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, th Dellums' Court recognized that an organization satisfies standing requirements by showing >
that '(a) l's 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 purpose, and (c) neither-the claim asserted nor the relief requested requires the participation of individual members in tha lawsuit.' Eunt v.
'Wasninaton State ADDie Advertisina Comm'n.,
432 U.S.-333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1987).
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863 F. 2d a t , 'a7 2.
In this case, the School District will submit the affidavit of Elk *mt L Prodoll, the President of its Board, in which he elects * . ave his ir.terests represented by the School District and alleges violations of his rights under the AEA and NEPA together with allegations of how approval of the instant application prior to completion of the NEPA process would injure his rights and the rights of the School District under NEPA to participate in the development of, and have the benefit of, en FEIS on the proposal and the entire proposal to decommission Shoreham, and how approval of the application would injure his rights under the AEA to have reasonable assurance of his health and safety, and the School District's rights and responsibilities to assure the reasonable assurance of the health and safety of its students, faculty and other employees.
It should also be noted that if this application is approved, the School District will suffer the loss of an excess of approximately $26 million annually in real estate tax revenue (about 86% of its total annual income) from the loss of taxes on the Shoreham facility, which would be a large and palpable financial and property harms to its ability to educate its students. Egg 56 Fed. Reg. 66460 col 1. Such economic injuries have been recognized as independently satisfying the " injury in fact test" in the context of NRC licensing decisions. Dellums, i
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. ETs F.2d at 973 (a single individual's " inability to find work").
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- Further, it is clear that the conduct of the I
development of an EIS pursuant to Part 51 of the Commission's regulations would avoid the injury to affiant Prodoll'c and the :
School District's rights under NEPA since it would afford them the opportunity to participate in that process and the benefit of the resulting FEIS. It is also clear that the denial of the application would protect-affiant Prodell's rights to adequate assurance of health and-safety under the AEA. And it-is equally clear denial of that application for a decommissioning order ;
would avoid _the above-mentioned loss of significant tax revenue l to the School District.
Given these facts, the School District satisfies the !
requirements for organizational standing, since affiant Prodoll r
would otherwise have standing to intervene in his own right. The
-interests.that the School District seeks to protect are germane to the School District's purposes and neither the claim asserted [
nor the relief requested requires the psrticipation of affiant Prode11 personally in the proceeding.
A key point here is that Shoreham's decommissioning is D2t a foregone conclusion. While LILCO and the State of New York-wish'to steer Shoreham towards decommissioning,-the NRC has yet
' to formally approve any decommissioning plan, and before any such-approval may issue, the NRC must complete an Environmental Impact P
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. scat m t , EIS") which includss consideration of all alternatives.
Petitioner's interests, as detailed below, will be protected, and the requirements and purposes of the AEA mot, if petit.ioner 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 de fasis decommissioning without an approved decommissioning plan are a Ett gg 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, inter A113, the environmental impacts of, and the reasonable alternatives to, the proposal. Thus, NEPA ensures that agency decisionmaking not only includes environmental consideration, but also is structured in such a way that environmental consideration is meaningful.
The School District has determined that its responsibilities demand that it seek intervention in this instance in order to protect the interests of the School District, its students and employees and their property.
The area of the School District is about twelve square miles. The Shoreham facility is located within the boundaries of the School District and, thus, the School District is within both
the ten and fif v mile limitations used oy the Commission to determine whether an intervenor expressing contentions under the health and cafety provisions of ths Atomic Energy Act has an interest sufficient to allow intervention.
The School District has an interest in protei.cing, and an obligation to protect, the health and environment of almost 2000 students and 500 employees, who live and/or work in close proximity to the Shoreham facility, from both the possible radiological impacts of the proposed amendment and the adverse health and other environmental consequences of non-operation of Shcroham cognizable under NEPA, for example, the air pollution produced by the oil and/or gas burning plants which would be necessary substitutes for Shoreham. Among those expressly wishing their interests to be represented by the School District is Albert G. prodell, President of Shoreham-Wading River School Dictrict's Board of Education, who resides at Remsen Road, Wading River, New York 11792.
Furthermore, the School District depends on LILCO to meet the electric energy needs of the District's physical plant which includes five schools.
The District has a vital interest in ensuring that an adequate and reliable supply of electricity will be available to meet its 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
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l substitute oil or gae baaning plants, on the oth.r hand, dclay :
I any increase in the Region's electric energy proodction capacity, and also generate significant expenses which will inevitably be passed on to Long Island's ratepayers, including those whose interests Petitioner seeks to protect.
Aside from electric rates, the District has an additional economic interest in this matter which stems from the fact that the District derives significant tax revenues based on the value of Shotcham as an operating plant. The property taxes paid by LILco for the Shoreham facility constitute approximately eighty-six percent of the School District's total income and the loss of such revenue would detract from the employment, educational and recreational opportunities which the Petitioner offers its employees and students adversely affecting the quality of their environment. On the other hand, denial of the application would avoid such injuries.
II. PETITIONER'S INTERESTS UtJLD 1E GREATLY hrrECTED BY THE ORDER The proposed order violates the requirements of the AEA at the expense of the Petitioner's, its students', and its employees' right to reasonable assurance of radiological health Lad uafct/ :nd circunv ..tc their NEPA rights te tire'y :
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.
The School District, on behalf of itself, its students, and its employees, seeks leave to intervene and requests a hearing to determine whether the proposed order should be varied, denied or deferred under the AEA. The specific aspects of the proposed action as to which the School District 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 plant to an operational mode; (3) whether the propored order would constitute an irreversible and irretrievable I
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l commitment of the shoreham resource; and (4) whether le crder would undermine the reasonable assurance that rull power operation, should it ultimately be pursued, would or could be conducted with consonant with the public health and safety and national defense and security, particularly the reasonable assurance of the Petitioner's and Dr. Prode11's protection (including the w1 and personal property) from the radiological hazards of operating the facility.
In deciding whether or not such steps should be allowed, the NRC is obligated to consider not only the immediate health and safety implications of proposed decommissioning actions, but also future such implications, the public ir.terest 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 alternativac to, allowing a plant to be prematurely decommissioned.
The School District 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 furtherance of the dg. facto decommissioning proposal prejudice consideration of such mandatory NEPA analysis by, among other things, making the alternatives further away in time, more costly, and less likely in fact.
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NEPA, as implemented in regulations issued the"ounft by the council on Environmental Quality (dCEQ") and the NRC, mandates that no major Federal action significantly affecting the quality of the human environment vill be implemented without .
first receiving a full environmental roview. As more fully detail.d beluw, FuLilloner:= i..te.wste uinder NEPA will be
- _ protected, and the purposes and requirements of NEPA served, to the extent that such a HEPA review is conducted under the NRC Rules (including a hearing) and the remedies nought 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 NF/A 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 NRC 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 students and employees, as discussed above, also constitute adverse environmental impacts and 'tou4d also increase the risk that the choice of reasonabic alternatives would be limited. The application presents the issue of an irreversibic 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. Egg glas, 10 C.F.R. S 51.100(3)(1) (1990).
Intervention and a hearing on this proposed order, prior to its approval, addressing the aspects identified 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 students and employees as to this NRC licensing 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 NEPA.
The violations of the AEA, by definition, increase the risk of radiological harm to the School District and those whose interests it is obligated to protect, its students and employees.
The violations of NEPA also deny Petitioner its rights to information on, and to participate in, the formulation of an 4
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4 environmental review of the impact of, and alternatives to, the ongoing decommissioning of the Shoreham facility.
1 Petitioner must address the gg facts decommissioning at this time because LILCO obviously seeks to abrogate its obligations under its license before the NRC lasues a final and fully informed decision on the decommissioning proposal, thereby both endangering the health and safety and other interests of petitioner, its students and employees, under the AEA, and jeopardizing the future viability of the reactor, and thereby avoiding a meaningful environmental analysis pursuant to NEPA.
4 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 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 significant 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 fasis 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. SPECIPIC ASPECTS AS TO WilICH PETITIOrlER SEEKS TO INTERVENE A. Specific Aspects of the Subject Matter As To Which Petitioner Seeks to Intervene Under the AEA Sections One, Two, and Three of the AEA set out the Declarations, Findings and Purpose of thet Act which must guide the Commission's decisions pursuant to its substantive provisions. 42 U.S.C. SS 2011-2013 (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 '. hat result from the license to operate a plant, a licensee also shoulders the burden of mainte.ining the plant operational for so long as the licensee holds the license and the NRC determines that the public interent is best served by
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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 owned, 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 prope: Enderal authorities determine that it is in the public interest that the plant prematurely cease operation. Any such determination would have
be based on proper health and safety, environmental, and common defense and security factors. Thus, the fact that LILCO 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 of the public interest, from local, state, and natiomil 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 anterests under the Atomic Energy Act would be harmed by approval of the DECCN alternative and protected by a choice of another alternative or denial of the appljcation for a decommissioning order which are the remedies which they seek. It is also contended that the Commission does not have adequate assurance of ths financing of the activities under the decommicsioning 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.
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l B. Specific aspects of the Subject Matter As to Which Petitioner Seeks To Intervene Under igPA.
I 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 P.;titioner's right to such HEPA 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 human 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. 5 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 decisions reflect environmental values,"
(b) require that actions which are " interdependent parts of a
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larger action" ba .sc'. sed in a single inpact s'2tement, and (c) prohibit actions which " limit the choice of reasonable alternatives" until the NEPA process is complete. 40 C.F.R. SS 1501.2, 3*98.25, & 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 indugiry into a j federal action."
"ma*or The NRC controls whether the decommissioning proposal may proce J and, therefore, has a non-discretionary duty under HEPA 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 adv6rsely affected by premature implementation of the decommissioning proposal. Eas 40 C.F.R. S 1506.1(b) (1588).
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
l decommissioning proposP 1 wh i. .h havn no uti.ity Andependent of that proposal.
LILCO and the NRC Staff claim that no steps have been taken at Shoreham which are irreversible or constitute irretrievabic commitments of resources. This claim is suoject to significant doubt in Niew of the judicial interpretation of these concepts in the context of HEPA and the facts of this case. Egg Commonwgalth of Massacnusetts v. Watt, 716 F.2d 946, 953 (1st Cir. 1983) ("each of these events represents a link in a chain of bureaucratic commitment that will become increasingly harder to undo the longer-it continuos"); Sierra club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) ("the harm at stake is a harm to the gaylronmerit , but the harm consists of the added rir>k 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").
Fcr example, if the concepts of " irreversible" and "irretreivable" are stretched to their theoretical definitional limits, the same clain 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 somedsy be put back together again, but rather over what duration and at what cost could the feat be achieved.
The farther away in time r . expense LILCr and the NRC l 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 Stato 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, shoreham-constituiad a valuable resource for the Long Island area in that it was capable of immediate1v generating electric energy.
The proposed order is another in a series of actions instigated 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 Shoreham (the supply of 805 MWe in full power operation) more remote lin time and less likely in fact. It would, therefore, violate NEPA and the Commission Rules (in particular, 10 C.F.R. S 51.101(a) (1) (1989)) if approved prior to the completion of NEPA review.
The Petitioner first urged maintenance of the status gug'(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 sun-1.monts to the initial request and at meetings between the NRC Staff and LILCO management. The NRC Staff's response has continually been that an EIS will have to be prepared before decommissioning can take place.F The CEQ definition of " proposal" includes the statement: "A proposal may exist in fact as well as by agency declaration that one exists." 40 C.F.R. $ 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 state Court of Appeals) provides that LILCO vill not operate the plant but will take steps to remove the plant from service in an 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 app 1.ied for in this case. If the Commission issues a license amendment authorizing the decommissioning of the Shoreham facility, an environmental review will be performed . . . .
Interin Reply to the initial Section 2.206 Request (dated July 20, 1989) (emphasis added).
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effort to both reduce costs and facilitate the order of .no plant to an entity of New York State which will, in turn, take che final steps in the decommissioning process.
The Commission's own definition of the term
" decommission" supports Pctitioner's contention that LILCO's actions to date constitute decommissioning. The Commission Regulations defines " decommission" as meaning "to remove (as a facility) safely from service and reduce 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 becinnina with actions to remove a facility safely from service and continuina through to actions to reduce the level of residual radioactivity at the sito until it is released for unrestricted use.
The proposed order violates Petitioner's rights under HEPA, 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 I
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a whole must be undertaken. The D.C. Circuit has stated that "NEPA creates a right to information on the environmental effects of government actions; any infringement of that right constitutes
" Competitivs a constitutionally cognizabic injury . . .
Enterprise Inst.. et. al. v. Nat'l Hichvav Traffic Safety Admin.,
No. 89-1278, slip op. at 28 (D.C. Cir. Jan. 19, 1990). Until an EI3 has been prepared on the total decommisnioning proposal, no part of that plan, including this proposed order, 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 "(a)11 licensing . . .
actions subject to this subpart require an envAronmental assessmer.t exuept 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 (1909).
Assuming arquendo, that the proposed order may be
- considered a discrete action, distinct from the larger decommissioning proposal, it is not among those actions listed 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 preparation of at 1 cast an environmental assessment ("EA") addressing the environmental impacts of, and alternatives to, this licensing action. Further, Petitioner requents e propes9d FA snd also asr.erts that tbn propored order involves unresolved conflicts concerning alternative uses 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 will not "have a sianificant effect on the quality of the human environment." 10 C.F.R. S 51.32 (a) (3) (emphasis added); ERA also 42 U.S.C. S 4 372 (2) (c) .
Thus, the level of environmental scrutiny a prcposed action must undergo is determined by the " significance" cf tne action's environmental effects.
The CEQ regulations provide guidance as to the neaning of "'significantly' as used in NEPA." 40 C.F.R. 5 1508.27 (1988). Among the factors listed by the CEQ to be considered by an agency in evaluating whether a proposed action will "significantly affect the quality of the human environment" is:
i Whether the action is related to other actions with individually insignificant but cumulative 1v -j;nificant j imoacts. Significance exists if it is reasvt. b ;e to l
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anticipate a cumulatively significant impact on the environment. Sionificance cannot be avoided by terming an action temporary or by breakinn it down into small conoonent earts.
40 C.F.R. $ 1$08.27(b) (7) (1988) (emphasis added). An environmental assessment of this proposed order must, therefore, consider tne cumulative impacts of the proposed order and the other related actions which have or will be taken in furtherance of the decommissioning scheme.
Furthermore, the CEQ defines " cumulative impact" as the impact on the environment which results from the incremental impact of the action when added to other Dast. Dresent and reasonably foreseeable future actions Eggardless of what ace.ncy (Federal or non-Federal) SI Derson undertakes such other actions. Cumulative impacts cra result from individually minor but collecti'.ely significant actions taking place over a period <>f 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,
4 and alternatives to, the decommissioning scheme as a whole has been prepared cnd a final decision on that proposal made.
The "Supplenant to Environmental Report (Decommissioning) (December 1990) submitted in the name of the l Long Island Power Authority" provides a to' ally inadequate basis for consideration of the decommissioning of Shoreham. For example, the consideration of socioeconomic impacts in Section 4.1.1.1 fails to discuss the decommissioning proposals effects on the state, county, township and School District tax bases, and the loss of employment and taxes resulting from the proposal.
Similarily, all Section 4 is written in broad conclusory terms without any details and in some cases, contr..iy to common sense (for example, it simply cannot be said that "(d]ecommissioning is not expected have any significant impact on regional or local employment and unemployment rates). San Section 4.1.1. The NRC's requirements for the operating staff for Shoreham demanded over 800 highly skilled and highly paid workers, it is beyond cavil that the loss of those jobs will have at least a very significant impact on local employment, including the loss of property and income taxes from those lost personnel. L. similar fashion, the report provides nothing to support its conclusion that "(njo significant demographic shifts will result from the decommissioning." Egg Section 4.1.2.1.
g There is no discussion of the impact on cultural T
resources. Sag Section 4.1.2. There is no discussion of the
impacts of the hauling and disposal of construction debris, or their effects on local air, traffic, noise and other considerations. Ess Section 4.1.2.2.
It is contrary to common sense to assert that the proposal to decommissior,would have "no significant negative impacts on land use" since it ebvious that the proposal is to destroy a very valuable facility which is a great resource for both real estate and corporate tax revenue for the local community and the state, as well as the federal government, and electric energy. Ess 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 quantativ6 analysis of the radioactive and non-radioactive environmental impacts of the various alternatives. Ess Chapter 3.0.
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 ft is approved.
The absence of such information from the Environmental Report would of course, result in an inadequate draft EIS, which would disable Petitioner and those whom it represents from cifering 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
l NE".. would be darnged 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 final decision on the proposal to decommission. In filing contentions, Petitioner will further amplify these inadequacies in Supplemental Environmental Repor t.
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 alla, 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. SS 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
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operation a. 'ull 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 compir's d and published and a decision on that proposal is subsequent 1v made?
- 4. Does the proposed order require st least an environmental assessement ("EA") prior to becoming effective?
- 5. If the proposed order doer require an EA prior to approval, what is the proper scope of that EA? That is, (a) should the EA be limited to the order as defined in the Notice, (b) should the scope of the 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) should the scope of the SA include all other proposals in fnct, currently pending before the NRC?
- 6. Is the Staff's determination that an EIS is necessary for the decommissioning of Shoreham in its response to Petitioner's counsel dated July 20, 1989 determinative of the need for an EIS?
- 7. If the NRC Staff's July 20, 1989 determination of the need for an EIS is binding on the Staff, does NEPA require initiation of the EIS process at this time?
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- 31 -
- 8. Doen ** i Cormission 't, approval of SECY-89-247 require the initiation of the preparation of an EIS beginning now?
(
b
x IV. ;MIDAIS 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 it --y be amended.
- 3. An order requiring the NRC Staff not to issue the
- 1 order pendente lite to allow for an independent ent by the Atomic Safety and Licensing Board of the issues
,1fied herein.
- 4. An order consolidating this petition with the petition of Scientists and Engineers for Secure Energy, Inc.
insofar as the two petitioners have common interests.
- 5. An order consolidating this matter with related astters pending before the commission for which notices of an opportunity for hearing have been and/or will be icsued with respect to Shoreham.
- 6. An order finding that there exists a proposal for the decommissioning of Shoreham, 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, jnter alig, the alternatives relating to full-power operation); and, further ordering, that all Shureham proceedings
not related to enhancing full-power oper tion be held .n aleyance pending the submission of that Environmenwal heport, 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 licensen 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 application.
- 9. Order (s) granting such other relief deemed necessary and/or appropriate.
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CONCLUSION WHEREFORE, for the above-stated reasons, the Petition for Leave to Intervene should be granted, a hearitig should be held prior to approval of the proposed order and the other remedies herein sought should be granted.
Respectfully submitted, January 22, 1992 _
'u _ , _ /4 l= , - ?
James P. McGranery, /Jp.
Dow{ Lohnes & Albertton Suite 500 1255 Twenty-Third Street, N.W.
Washington, D.C. 20037 (202l 857-2929 Counsel for Petitioner Shoreham-Wading River Central School District In accordance with 10 C.F.R. SS 2.708(e) and 2.712(b), service may be made upon the above-designated Attorney for Petitioner,
- u. __ _
s W
. utriilii)
BEFORE THE UNITED STATES- U*"C NUCLEAR REGULATORY COMMISSION 32 - 3124 P2 32
.. _ ) USNRC Docket NQf r5f t322cet,1 AP In the Matter of ) 00cnEltNG ^ MdLL
) Long-Island LightinSRdd.Hi 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 (December 23, 1991))
NOTICE OF APPEARANCE Notice is 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: (202) 857-2929 Admission: U.S. Supreme Court Name:of Party: Shoreham-Wading River Central School District
-JfdesP.McGranery r.
Dated at Washington, D.C.
this 22nd day of January, 1992 t
~ _ _ . . _ _ _ . _ . _ .. _ _. _._
I u.uifill?
BEFORE THE' UNITED STATES usHidC NUCLEAR REGULATORY COMMISSION
$2 Jf,N 24 P2 64
) USNRC: Docket No. 50-32;#ICc or IECPt It M In1the Matter of ) hotddNG 3. SEWd
) Long Island Lighting Co.; SB MC" Long Island Lighting Company ) Consideration of-Issuance
) of an Order Authorizing
- (Shorham Nuclear Power Station, ) Decomuissioning a Facility Unit 1) ) and Opportunity for Hearing
) (56 Fed. Reg. 66459, (December 23', 1991))
CERTIFICATE OF SERVICE I
il hereby certify that one-copy of the-Shoreham-Wading River Central. School
~
-District's-Petition for Leave to Intervene and Request for Prior Hearing is
.baing ser(ved upon'the following by first-class mail, postage prepaid on ,
this 22nd, day of January, 1992:
Secretary of the Commission Office of the General Counsel U.S. Nuclear. Regulatory Commission U.S. Nuclear Regulatory Commission
_ Washington,.D.C. 20555 Washington, D.C. 20555
. ATTN:- Docketing and Services-Branch (one copy)
(original and two copies)
LW? Taylor Reveley, III, Esq.
Hunton & Williams Riverfront Plaza, East Tower 1951 East Byrd Street
' Richmond, Virginia 23219-4074
-(one copy)
A.
Jaues P. McGranerg// Jr.
D8W, Lohnes & Albertson Suite 500 1255 Twenty-Third Street, N.W.
Washington, D.C. 20037 (202)_857-2929 Counsel for Petitioner Shoreham-Wading River Central School District I
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