ML20096D003

Nuclear Regulatory Commission Issuances for February 1992. Pages 47-82

ML20096D003
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Issue date:	04/30/1992
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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NUREG-0750, NUREG-0750-V35-N02, NUREG-750, NUREG-750-V35-N2, NUDOCS 9205150078
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NUREG-0750 Vol. 35, No. 2

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Pages 47-82 NUCLEAR-REGULATORY COMMISSION ISSUANCES Fe>ruary :1992

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NURCG-0750 Vol. 35, No, 2 Pages 47-82 I

1 NUC_ EAR REGULATO9.Y COMNISSION ISSUANCES February 1992 This report includos the issuances received during thu specified period from the Commission (CLI), the Atomic Safety and Uconsing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Dy Ntons (DD), and the Denials of Petitions for Rulomaking (DPRM).

The summaries and headnotes procoding the opinions reported heroin are not to be deemed a part of those opinions or have any independent legal signincance.

U.S.

UCLEAR REGULATORY COM. MISSION f

Prepared by the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington DC 20555 (301/492-8925) l l

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'I COMMISSIONERS tvan Selin, Chairman Kennetn C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque

' B. Paul Cotter, Chief Administrative Judge. Atomic Safety and Lcensing Board Parel P

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m CONTENTS lssuances of the Nuclear Regulatory Commluion

. GEORGIA POWER COMPANY, et al-(Vogtle Electric Generating Plant, Units I and 2)

Dockets 50424 OLA,50425 OLA MEMORANDUM AND ORDER, CLI-92 3, February 12,1992...... 63 j

LONG ISLAND LIGilTING COMPANY

' (Shoreham Nuclear Ibwer Station, Unit 1)

- Docket 50-312-OLA 3 (License Transfer).

- MEMORANDUM AND ORDER, CL192-4, February 26,1992 (W

' ' ACRAMEN'ID MUNICIPAL UTILITY DISTRICT S

i (Rancho Seco Nuclear Generatlng Station) -

- Docket 50 312 OLA (itssession Only License)

MEMORANDUM AND ORDER, CLI 92-2, libruary 6,1992....... 47 l

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CU 92 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t

COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Fortest J. Remick E. Gall de Planque in the Matter of Docket No. 50 3t?-OLA (Possession-Only License)

SACRAMENTO MUNICIPAL UTILITY DISTRICT J (Rancho Seco Nuclear Generating Station)

February 6,1992 The Commission considers the Environmemal Conservation Organization's appeal of a Licensing Board ortkat that denied the organization's petition for tea,e to intervene in a pnxceding involving an amendment that, if granted, would convert the Rancho Seco operating liccase into a " possession.only" license (POL).The Commission finds that the Petitioner has failed, on nppeal, to demonstrat that it has standmg to intervene in the proceeding. The Commission therefore directs tie Staff, aner it makes the findings necessary for the issuance of a license amendment, to issue the POL, subject to a two stage administrative stay to allow orderly processing of anticipated judicial challenges to th., iction.

REGULATIONS: INTERPRETATION (10 CE.R. I 2.762)

Tue Commission regulations in 10 C.F.R. 92.762 apply only to appeals from

" initial decisions," i.e., decisions of a licensing board that dispose of a major portion of, or conclude, the proceeding before that board, such as a decilion to grant,Isuspend, revoke, or amend a license.

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REGULA110NS: INTERPRETATION (10 C.I'.R. I 2.714a) -

l The Commission's regulations in section 2.714a allow for an immediate appeal from decisions granting and/or denying in whole a petition for leave to intervene

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I REGULATIONS: INTERPRETATION (10 C.F.R. I 2.714a)

Section 2.714a contains a completely different provision for appeal than

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section 2.762. Section 2.762(b) provides that the brief in support of the notice of appeal may be filed within 30 days of the notice of appeal. Section 2.714a

. requires the appilant's tuef to be submined wuh the notice of appeal. within

10 days of the Licensing Board's decision.

REGULATIONS: INTERPRETATION (10 C.F.R. 5 2.714a) -

' When the Commission adopted 10 C.F.R. 6 2.714a. it contemplated less stringent requirements for briefs filed under section 2.714a because these bricts must be filed in a shorter tirne frame and -- presumably - will address much narrower. issues than an appeal from the final decision of an entire licensing process.

REGULATIONS: - INTERPRETATION (10 C.F.R. I 2.76" While there is a clear benefit to the reviewing body in having the assistance of the items specif.ed in 10 C.F.R. 6 2.762 - such as a Table of Contents and a table of cases -in the brief submitted, the Commission does not find that these items ari required under its rules.

REGULATIONS: INTERPRETATIONS (PLEADINGS)

Prior Commission case law requires that all briefs -- including those filed under 10 C.F.R. l 2.714a - shall contain a " statement of the case" or " statement of facts" including "an exposition of that portion of the procedural history of the case related to the issue or issues presented by the appeal" Public Service

. Co. of Oklahoma (Black Ibx S:ation, Units 1 and 2), ALAB 388,5 NRC 640, 641 (1977). However, the Commission can exercise its discretion and waive that requirement on occasion.

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REGULATIONS: INTERPRETATION (Pl.EADINGS)

All parties who appear before the Commission " bear full responsibility for any misapprehension of (their) position caused by the inadequxies of [their) brief..,." Wisconsin Electric Power Co, (Point Beach Nuclear Plant, Units -

I I and 2), ALAB-666,15 NRC 277,278 (1982).

i RULES OF PRACTICE: INTERVENTION PETITIONS NRC regulations provide that "la]ny person whose imerest may be affected by a proceeding and who desires to participate as a carty to [the] proceeding" should file a petition to intervene setting forth tlut interest and the "possible effect of any order th t may be entered in the proceeding on the petitioner's interest " 10 C.F.R. I 2.714(a) and (d).

RULES OF PRACTICE: STANDING TO ISTERVENE The NRC has "long held that judicial concepts of standing will be applied in determining whether a petitioner has sufficient interest in a proceeding to le er titled to intervene as a matter of right under section 189 of the Atomic Energy Act " Aferropolitan Edison Co. (Three Mile Island Nuclear Station, Unit I),

CLl-83-25,18 NRC 327,332 (1953).

P RULES OF PRACTICE: STANDING TO thTERVENE 1he NFC has _ held that, in order to satisfy " judicial" standing, a petitioner must demonstrate that 15. could suffer an actual " injury in fxt" as a consequence of the proceeding and that this interest is within the " zone of imerests" to be protected by the statute under which the petitioner seeks to inte Sce, e.g.,

Aferropohtan Ediscs Co. (Three Mile Island Nuclear Station, Ut.

1-85-2, 21 NRC 282,316 (1985).

NEPA: SCCPE OF INTERESTS PROTECTED It is true that NEPA does protect some economic interests; however, it only

. protects against those injuries that result from environmental damage.

NEPA: SCOPE OF INTERESTS PROTECTED A petitioner's loss of employment that results directly from a licensec's decision not to operate a nuclear facility and that does not result in environmental i

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~ damage, does not fall within the " zone of interests" protected by NEPA and cannot support a petitioner's standmg to challenge the agency's action.

RULES OF PRACTICE: -- STANDING TO INTERVENE nere is Commission precedent for rejecting an assertion of " informational interests" as grounds for standing. Edlow International Co. (Apent for the Government of India on Application to Export Special Nuclear Material), CLl>

76-6,3 NRC 563,572 (1976),

NEPA: SCOPE OF INTERESTS PROTErlED

" Interest" means an interest affected by the outcome of the proceedmg, not an interest in the proceeding.

RULES OF PRACTICE: STANDING TO INTERVENL A petitioner seeking te intervene cannot demonstrate standing simply by asserting a loss of information if it is not allowed to participate in a proceeding.

REGULATIONS: INTERPRETATION (10 C.F.R. I 2,788(c))

The NRC's siay pmcedures apply only when there is an order in existence to be stayed. If there is no order in existence to be sta>rd, the proper motion is a motion to hold in abeyance.

MEMORANDUM AND ORDER This matter is before the Commission on an appeal by the Environmental Conservation Organization ("ECO") from an order by the Atomic Safety and Licensing Board (" Licensing Board") wholly denying its petition for leave to intervene in a proceeding involving an amendment to the Rancho Seco operating license. De proposed amendment would allow the Sacramento Municipal Utility District ("SMUD"), the Licensee, to possess both the reactor and its nuclear fuel but would remove SMUD's authonty to operate the Rancho Seco facility --in essence converting the openiting license into a so<alled

" possession-only" license (" POL"). The Licensing Board found that ECO did not have standing to intervene in the proceeding and that its proposed contentions were not in accordance with our directions for proceedings of this nature. ECO challenges these findings and, in addition, alleges that the Licensing Board ta w

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denied it "due pnvess" in the puteedmg below.11e NRC Stall and SMUD luve respinded in oppositioa to the uppeal.

Af ter due consideration, we fmd that the pentioner tus f aded to demonsuate on this appeal that it has standing to inters etic in the poecesiing, petitioner aho l

recently moved for a stay of the isseiance of the POL pending dis [wition of this appeal. In view of our sesolution of this matter, that motion is ra. < nwt.

Ilowever, in order to pernui orderly processing of anticiguted judicial thallenges to this action, we have directcd the Stall to institute a two4tage administrative tay, alter it has made the findings necessary for issuance of the IOL.

I, l' ACTUAL ll ACKGitOl'ND in June 1983. SMUD's ratepayers adopted a public referendum directing SMUD to cease operations at Rancho Seco. On April 26,1990 SMUD applied for an ameruiment to the Rancho Seco operating beente that would authori/c only the "use an<1 possession" of the facility, not its operation.1his type of amended license la generally termed a poss in only license or POL.1he NRC Staff published a corrected notice of the I, 3d amendment in the fr&ral Register and proposed to issue the amendmeni m an immedutely cfIccthe bash following a imding of "no significant hatards considerations." 5', Fed. Reg, a1,280 (Oct.10,1990).

On Novernber 8,1990, ECO filed a petition to intervene and a rey st for a hearing in addition to commenis opposing the proposed findmg of

• no significant harards consideiations," and the Staff and SMUD filed opposition to ECO's petition c't? comments. On January 30,1991, we referred the matter to the Licensing Board for further proceedings in accordance with our Rules cf Practice. $ct 56 Fed. Reg. 6691 (Feb.19,1991). 'the Licenting Ikuud invited ECO to fue a respmse to the Staff's and SMt i pleadings tuul ECO filed such a response on March 4,1991, in the interim, in a similar case involving the S%rcham nuclear power plant, we issued guidanec regarding the admissibility of contentions directed at challenging a Staff decision not to pepare an Environmental Impact Statement ("ElS") for actions of the sort under consideration here, See long hland Ligluing Co. (Shoreham Nuclear Power Station, Unit 1), CLI.91-4,33 NRC 233,237 (1991) ("SW1um, CLI-91-4").

On April 15,1991, by agreement of the parties, ECO fik,, additiona' af tidavits supporting its peGlion. Also on Apil 15. I:CO filed a document that it termed a 'Turther Amendtrent" to its pedtiort The Staff and SMUD moved to state this pleading, alleging that they had not consented to this hiing and that il constituted an unaathorized " reb.s!" or " reply" pleadmg not allowed by our Rules of Practice.

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a On May 1,1991, the Liccasing Daard issued a Memorandum and Order on the petidon to intervene. LitP 91 17,33 NRC 379 (1991). After reviewing the

- filings tefore it, the Licensing !!oard found that it could not determine whether i

ECO t.ad demonstrated standing to intervene in the poceedmg. Ilowever, the Licensing Itoard believed that it wuld be assisted in determining the issue of

- standing by reviewing proposed contentions addressing the issues ECO wished to litigate. Accordingly, the Licensing floard directed ECO to file poposed contentions ty June 3,1991, and scheduled a prehearing conference to review the issue of standing for June 25,1991, j

in LTip.9117, the Licensing floard provided several specific directhms to ECO. First, the Liecdsing lioard sjuiGeally ilated that "lnjo furthel fdings (after the June 3d date) will le permitted absent specific leave of the Board."

l LDP 91 17. 33 NRC at 392. Second, the Liccasing Board reminded ECO to" pay particular heed" to our directions describing admissible contentions regarding the lack of proposed EIS W Shore'en, CL191-4, supra, and to our ruhngs in previo;4 Shorc/wn cates that de scope of any EIS ordered would be limited to alterrudve snethods of decommissioning, not alternathes to the decision to decomtnission. LDP-9117. 33 NRC at 392 93. 'Itird, the Licensing floard agreed that ECO's "Further Amendment" constituted an unauthortied reply to the responses to the petidon and ordered the pleading stricken. Id. at 381 n.3.

ECO filed twenty-five proposed contentions on Juric 3,1991, as directed.

On June 10, 1991 ECO filed an additional $ct of six contentions. Iloth the Staff and SMUD ressmded in opposition to both sets of proposed contendons.

in addition, the Staff moved to strike the second set of proposed contentions as untimely because these contentions were not filed within the time limits establided by the 11oard's instructions in LDP 9117. SMUD supputed the Staff's motion but also requested that the Licensity Daard rule on the addidonal contentions and dismiss them.

After reviewing the proposed cor'entkos and the transcript of the prehearing conference, the Licensing Board dismissed :he proceeding. See LDp.9130, 34 NRC 23 (1991). Initially, tic Licensing floard ruled that ECO's first set of contentions did not satisfy the directions contained in Shorc/wn, CLI 91-4, and in our earlier rulings. Sec L11P 9130,34 NRC at 2627. Moreover, the Licensing Board found that ECO's second set of poposed contentior.- vere untimely, i.e., filed outside the deadlines established in LDp.9117, and that ECO had made no attempt to satisfy the five factors required for acceping late.

filed contentions, found in 10 C.F.R. 5 2.714(aXIXi)-(v). See LDP 9130, 34 NRC at 27 Finally, the Licensing Board found diat ECO had failed to c$tablish standing. See id p! 27 28 52 e

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11. ARGUMENIS Ol' pARill;S A,

1;CO's Arguments an Appeal On appeal, ECO argues Out: (1) It has standing to intervene in the license amendment proceeding; (2) the Licensing Bmrd erred in dismissing its first j

set of proposed contentions; and (3) the Licensing Itaard ("Astil") deprived I

!! of due process by its procedarat rulit.gs and by dism:ssing die second set of pnposed contentions. First, ECO argues that it demonstrated Manding to inter-

,ene through its " informational interests" in an EIS and through its members' economic interest in employment at the plant, Appeal at 1-4. Moreover, ECO argues that the ASLB erred in findmg that ECO had only a " general interest" in the proceeding, not a speelfic injury," /d. at " 9.

Second, ECO argues that the ASLB erred in fmding that ar'y EIS need not consider tle opdon of " resumed operation" of Rancho Seco, id. at 4 $; in its characteri/adon of ECO's contentions as directed solely at that issue, d. at 5-6; in finding that the NRC's Generic Envinmmental Impact Statement ("GEIS") for decommissioning NUREG-0586 (1988), was applicable to de Rancho Sew's proposed decommissioning, id. at 6-7; and in requiring that ECO's NEPA contentions be filed tefore SMUD had filed its environmental reput. /d.

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Fmally, ECO argues diat it was deprived of "due process" in the proceeding below because the ASLB issued its decision in LilP-9130 before ECO had a charre to addrecs argurnents presented in two Staff pleadings Out were not f,crved on it, id. at 10-11; because the ASLB erred in strikin he "Further Amerdment" filed on April 15,1991, id. at 11 12; because Oc ASLB atruck de proposed contentions filed on June 10,1991, as being untimely filed, and because the ASLB - according to ECO - dismissed the first set of prossed contentions without a specific discuss 5n of each one,id. at 910.

II. ' The Staff's and SMUD's Hesponses

~ 1n response, the Staff ud SMUD argue that ECO has not demonstrated standing to intervene because (1) prior Commission precedent has climinated

" informational huerests" as a basis for standmg, citing Edbw International Co.

_ (Agent for Oc Government of India on Application to Export Special Nuclear Material), CLI 76-6, 3 NRC 563,572 (1976), and because case law holds that 4

ECO's members' interests in employment at she facility cannot support standing because taose interests were not germane to ECO's organizational purpose, citing /lunt v. Washington Apple Advertising Comm'n,432 U.S. 333,343 (1977).

Next, the Staff and SMUD argue that the Licensing floard correctly applied De Commission's Shorchans rulings when the ikurd held that any environmental r

53

review of the proposed early dwommissioning of Rancho Seco need not review alternatives to the decision not to operate the facility; instead whateser environmental filings wre required need only address alternative methods of dxommissioning. Derefore, they argue that the Licensing floaid entrectly dismissed the first set of proposed contentions because they were f.olely directed toward obtaining an EIS analyring " resumed operation" or "mothballing" as an alternative to dxommissioning. In this regard, they argue that the Comrnission i

has aircady held that Oc OEIS will apply to nuclear plants that are prematurely decommissioned. Additio:r.lly, the StafIargues that ECO has failed to brief why 1

its contentions were improperly denied. Sec NRC Staff Response at 24 n.10.

Finally, the Staff and SMUD aryue dat ECU was not prejudiced by its lack

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i of opportunity to resMmd to two pleadings that were not served upon it; that the Licensing Board correctly struck the "Purther Amendment" as an improper

" rebuttal" argument; and that the Licensing Board correctly rejected the second set of proposed contentions because LUP-9117 expressly provided that there would be no tilings made after tic AStil's established deadline without specific t

leave of the ikurd.

111. ANALYSIS A.. Sufficiency af ECO's lirlef First, we must address the Staff's and SMUD's (" respondents") arguments that ECO's trier is in violation of our Rules of Practice. See Staff Brict at 20 & n.9; SMUD Brief at 13 & n.17. Respondents argue that ECUS Brief is t

in violation of 10 C.F.R. 9 2.762(d) which requires that all appellate briefs "in excess of ten (10) pages mt*t contain a table of contents, with page references, and a table of cases (alptabedcally ananged), statutes, regulations, and other

- authorities cited, with refereaes to the pages of the trief u here they are cited."

10 C.F.R. 5 2.762(d). ECO failed to include these tables in its brief, llowever, section 2.762 ~ on its face - applies only to appeals irom "inillal -

decisions," i.e., decisions of a licensing board that dispose of a major portion of, or conclude, the proceeding before that board, such as a decision to grant, suspend, revoke, or amend a license. All the cases cited by the respondents in their briefs, supra, were decisions of that nature. Instead, this matter is before the Commission under 10 C.F.R. 6 2.714a, which allows an immediate appeal from decisions granting and/or denying in whole a petition for leave to intervene.

His section contains a completely different provision for appeal in Otat while section 2.762 provides that the brief in support of die notice of nppeal may be filed within 30 days of the notice of appeal (10 C.F.R. 5 2.761(b)), section 2.714a requires the appellant's trief i ' be submitted with the notice of Ypeal, 54

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within 10 days of the Licensing floard's decision. When we atbpted Section 2.714a, we contemplated less stringent requirements for triefs filed under section 2 714a because these ttriefs must te filed in a much shorter time frame and -

presumat4y - will address muh narrower issues than an appeal from the final decision of an entire licensing process.3 Derefore, while there is a clear benefd to the reviewing tuly in having the assistance of the items specified in section l

2.762 - with a corresponding tenefit to the writer of the twici - and while organizing the pleading in this fashion also provides a discipline in assisting brief writers to (tganize their thoughts and idcas clearly, we do not hnd that it l

is required under our rules.8

~ 11. lYtitk>ner's Standing i

1.

Introduction in its appeal, Petitioner argues that it has two alternative bases for standing to pursue this matter. First, lttitionet argues that it has standing based upon its l

i members' loss of ernployment sit Rancho Seco. Second, lttitioner argues that it has standing as an organlation tecause the agencyi failure to issue an EIS has deprived it of the opportunity to participate in the EIS process. We find that the Licensing Board celrectly ruled that neither alleged injury provided Ittitiorer with standing in this matter,'

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3Marnava, seethe 2%2 =ss nrnmed in adopmg nur new sweDate pr=+bres, ma 56 l-ed Reg 29,440,29A08 (Jure 27,1991L ahNwsh a was setein.J imdes the intenm strenste rules Sea $$ I ed. lleg 42.444 (tkt. 24

- 1990). MeanwMe, accam 2 714e e emawd eseeraisuy wwhanged Su $5 Ied Reg at 29,40E Tkm, we hsw alssys ennsmed estum 2.7144 es stan tmg alona Iow pnar cow law repres that all bnets - iswbdes skes Bed under setuun 2.714a -- thall cwam a

• statemens d the c4se* or "staramera d futs* incNdeg *an espet6nn d that punion a the pw4 dural himary of the come related to the tasue or issues pesented by the argeal* #%Mc Jeruwe Ce qf Ous4pais (Diack atia

$6stm, Uruts I and 2), AtAh.388,5 NitC t.40, N1 (1971). In dus toer. INotLmer cicarty faaed tu peuvide us wi h tbs informanan in tu htief. Iloweve, we h4ve detersuned to etarras our dis 6:esmn and waive owe t

E repmw en dus occaawst We ranmd s0 partne who appear before us that they " teas fuD respmaibnuy fue any pas.ble nuupprehmume d (dwr) p<miuon uused by the inadapseum d (diearj bnef.. ? Macegsaa Derpts Power Co. (Palai Bendi Nut, lear Plant, Unuts i and 21 A1ABM.15 NRC 277,278 (19K21 8Bernre the IJeansing Bostd, Pennoner i*so asserted that ti could suffer addhmal injunes (f. (t) SMUD tmA scuen unda the POL to demantle the pant er silow a to draerwraa and then changed hs n%d and donded to

• reswne opeancm* withnut adequately vossanna the piara in iis turma creditate, (2) 5Mt'D trae actu uvuler the POL la erake " resumed operasan* imposible, venuldnt an tioth a shariage d electrwal poea and increased erwinnunessi polluta rnwn verlacement micray sources k INain<sier's nernhers and (3) sMUD was eDoved to decorretussica the feelhty wntwt fileg a decunmasmrung plan under 10 Cf M Dal2. he lumams Hosrd famd tant three amerted injunes did rus provids Peuuuner with standmg to etzunge om }UL. See graeretty ll1P4117,33 hTC at 3tL90 Decause ivtnkmcr dnes run thstange dwee valmas em ament, we do n.s address

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i, Crittria Required to Establish Standing Secuon 189(a) of the Atomic Energy Act provides Out the Commission shall

" grant a hearing upon the request of any person wiose interest may be affected L

by the proceeding, and shall ainst such person as a p.trty to the prweeding

• 42 U.S.C. 52239(a). Amirdingly, NRC regutathms prmide that "lalny penon whose interest may be affected by a proceeding and who desires to partici ute j

f as a party to [the) proceeding" stuuld file a petitkm to intervenc setting hyth that interest and the "possible effect of any order that may be entered in the proceeding on the petitioner's interest." 10 C.P.R. I 2.714(a) and (d).

"We have long held that judicial concepts of standing will be applied in determining whether a petidoner has sufficient interest in a proceeding to be entith'd ta intervene as a matter of right under section 189 of the Atomic Energy Act." Aferropolitan Edison Co. (Three Mile Istarxl Nuclear Statkm, Unit 1),

CLI 83 25,18 NRC 327,332 (1983), in order to satisfy " judicial" standing, we have held that a prospective petitioner must demonstrate that 11 could suffer an actual" injury in fact" as a consequence of the proceeding and diat this interest is within the " zone of interests" to te protected by the statute under which the

. petitioner secks to iniervene. Sec, e.g., Afriropolitan Edison Co (Three Mile 1 stand Nuclear Station, Unit 1), CL185 2,21 NRC 282,316 (1985); fortland Genera' Electric Co. (Pebble Springs Nuclear Ibwer Plant, Units I and 2), CL1-76-27, 4 NRC 610, 61314 (1976); Edkiw trucinational, Cl 1-75-6, supra, 3

- NRC at $72; see generally Lylan v. National Wildhfe redcration.

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110 S. CL 3177,3185 86 (1990),

3.

Petitioner's Econornic Standing Argument

%c Licensing Board correctly di: missed Petitioner's economic standing ar-gument based upon its members' loss of employment at Rancho Seco. Peti-tioner argued that SMUD had teen allowed to close Rancho Seco and initiate decommissioning activities wideout being required to perform an environmental review, and that these actions caused its members to lose their employment, ne Licensing Board held that this injury was not within the scope of interests protected by NEPA. LBP-91 17, 33 NRC at 390-9L 11is true that NEPA does protect some economic interests; however, it only protmts aga!nst those injuries 0at result from environmental damage, Ibr exan,ple, if the licensing action in question destroyed a woodland suca, those persons who would be deprived of their livelihood in a k> cal timter industry could assert a protected interest under NEPA. Srr, c.g., Jeracy Ceratal Tower and Light Co. (ibried River Nuclear Ocnerating Station, Unit 1), ALAll 139,6 AEC 535 (1973)(marina opesators have standing under NEPA to complain of the introduction of shipworms in the vicinity of their business, resulting from 56

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tie operation of a melcar power plant),l'acific Gas and Elcrtrie Co. (Diablo Canyon Nudcar Power Plant, Units I and 2), ALAll.223,8 AEC 241 (1974).

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(cornmercini fisherman has standing under NEPA to complain of the discharge of cooling water that may affect his catch).

l Ilerc, inwever, as the Appeal Board stated on an earlier occasion, Petitioner's members' loss of employment was not " occasioned by the impact that the

[ agency action) would or might have uptm the environment." Trnnessrc l' alley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALA11413, 5 NRC 1418,1421 (1977), quoting Long Island Lixhting Co. (lamesport Nuclear power Station, Units I and 2), ALAD 292,2 NRC 631,640 (1975) (Opinion of Mr. Rosenthal). Instead, the loss of employment results directly from SMUD's d: cision not to operate the facility, not from any environmental damage Therefore, petitioncr*s members' has of employment at Rancho Seco itself does ret fall within the" zone of interests" protected tiy NEPA and cannot support INtitioner's standing to challenge the agency's action.

4.

l'etitiontr's informational-Standing Argument petitionet tssens that it has standing to contest the proivsed amendrnent because it will su!Ter an injury to its "infor mational interests" if it is not alknved to participate in the EIS process. This alleged injury has two aspects: first, the injury of being deprived of tic right to comment on the EIS; and second, the injury of being deprived of information to disserninate because of the lack of an NRC prepared EIS, See LDP.9130,34 LC at 27 28. The Licensing floard found that these injuries were not sufficient to establish starding by themselves because they constituted a " general interest" in the proceeding, not a "sp cific injury " Id. at 28.

This deciskst was consistent with prior Commission precedents. We have al-ready rejected the assertion of " informational interests" as grounds for standing.

Edlow /ntentational, supra. Because that case is chmely arialogous to the case at bar, a brief review of that case arxl our holding there is in order at this time.

In Edlow, we teviewed two n;plications for licenses to export "special nuclear material" intended as fuel for the Tarapur Attunic Power Station in Indiai Three organti.ations* petitioned for leave to intervene and requested hearings reganting these proposed licenses. See generally Id., CLI 7tw6,3 NRC at 563-

68. The petitioners asserted "institudonal" interests based upon alleged injuries that could result to their haformational and educational aethities in addition to

" representational" interests tiot derived from alleged injuries to the individual mernbers of the or}',anizations. Id. at 572.

i 8 The Nsuaal Ren men ikfense Counett. Os s,erra (%b, and ow Un e et Canurned smnasta Jc4 3 MC at ses

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1he organir.adonal interests anetted by de Edlow petitioners wrre almost i

. kkntical to the organisatkmal interests asserted by ECO in this case. Tie Edlow petitioners asserted an interest in "' disseminating information' and ' promoting' wise use of technology and resources and the (kveloivnent of sound energy policy," Id. Moreover, tie Edlow "[pletitiorers allegc[d] that a 'falure of the Commission to carry out relevant analyses of the risks leed by the pending proceedings impairs petitioners' abihty to fulfill their inforniation and educadonal functions....'" Id.

1hc interests asserted in ECO's organi/adonal charter appear to be no dif.

ferent. See Anicles of Incorporation of Environmental Resources and Conser-vation Organization (" Art. Incorp."), attxhed to Petitioner's Reply of March 4,1991. See generally L13P 91 17, 33 NRC at 382. Ibr example, ECO secks

"[t)o provide accurate technical and financial informadon about energy supply and demand in California in the years to come...." Art. Incorp. at 1 ECO l

also seeks "[t]o provide expert and ot9ective informadon about safety and en.

l vironmental issues concerning nuclear crergy in general and de Rancho Sao Nuclear Generating Station in particular.., " Id. at 2. Finally, ECO secks "It}o provide factual information to specific parties or organir_ations... and to petition the (NRC) to accept and consider informadon this orgarutathm can provide in its deliberadons,.,," 14.8 We found that the fdlow petilkmers had faikd to demonstrate that they had

{

standing to intervene as a matter of right and that while the Edlow petiboners were " interested" in the prucceding, they had failed to demonstrate an " int" rest" affected by the outcome of die proceeding, i.e., they had failed to demonstrate that Ocy could be harmed by the actual grant or denial of the liceme itself.

lhus. we were hard preseed to see how petnimen' desire to have the Ctenminum carry out selevant analysea

}

(a concern _direaed not to the grarsing or knist of a pasticular lacme. tut to the prwess ti Ctunmissim action) is an *uncrest imhichl may tw affected by the prmcedmg. In out j

view, the term *pemeedms" can mly tw interpreted to mean tie micone m the ments d the hecue. 'this is (lear from on language of the bcense This is dear frurn tie innial language d Seoko 189(e) which speaks of procerdmgs 'for the grantmg (etc.) of any

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twense.

r I k la clear that 1%uuone's Artides d Inmrprestmn are a "thineenth" her or 'af er the-fan" cmum. dsswa sp spectrica!!y its the purpnea ur estabhshing "infiematumal s'andmg " Ifo riled sta petium to arnarverw and request rm hearing on Nwernhw s.1990. Ilowner, r:Ctra Arude of incarnesten sie dated on January 10, 1991. The affidava er htr. Rosam, ICo's puident, dracnbes these Arkcies as *pondmg," pmmably befou the oppnynsw agency d the mio d cahlerma See Rream Aff. davit (Aprd 12.1991) anastie6f la JWtasier's 7

pleadmg d Aged 15,1991.

I 58

3 NRC at $72. Accordingly, we concluded that "lplarticipation in a hearing is not an end in itself, but must be related to an issue - in this case, grant or denial of a license" id. at $74.

Our analysis is the same here. ECO claims to be " interested" in the p oceeding tecause it wishes to ** disseminate information" segarding the need for future energy sources in California. Ilowever, this interest is tiot an " interest affccted by the proceeding" itself, i.e., it is not an injury caused by the grant or denial of the proposed license amendment. Irntead, ECO simply alleges before us dat it will not te able to perform its "infumational" activities unless it is alk)wed to " participate" in the EIS proecss, i.e., unless the Commission "carties out its relevant analyses," Id. at $72. As in Edlow, we firxl that this " intr rest" is not sufficient to emfer standing on ECO as a matter of right.

Before the Licensing Board, Peutioner relied heavily upon Competithe Enterprise institute v. National liigItwy Traffsc Safety Administration, 901 F.2d 107 (D.C. Cir.1990), for the pmposition that "lo]rganirational standing is established whenever the agency's action interferes with the organiration4 informational purposes to the extent that it inte:feres with the organiration's activities." Ittidon at 23. Sec generally LDP-91 17,33 NRC at 382% 391-

' 92. While Itutioner does not cite that case in its trid on appeal, it does raisc that argument. See Ittidoner's Drief at 2 3. Ilowever, we not only find that the i

Competithe Erderprise decision is inapposite but also that its validity has been

- severely compromised by a more recent decision by that same court.

1he Competithe Enterprise Court found that "a right to specific information under NEPA has so far tecen recognir.e4 for standing purposes only when the infortnation sought relates to environmental iriterests that NEPA was designed to protect." 901 F.2d at 123 (citations omitted, emphasis in original). "We find that there is a critical difference tetween seeking an EIS for the purpose of did seminating informatJon about potential environmental harm and seeking an EIS as a vehicle for obtaining and disseminatN information on a nonenvironmental 4

issue" 14. A subsequent decision har tied that the " informational stand-ing" concept implicitly endorsed by 6, snpctit/ve Enterprise Court sequires an allegation that the requested information telates to specific environmental issues with a direct impact on the petitioner. C/ty ofles Angeles y, N1//$A, 912 F.2d 478,49$ 98 (D.C. Cir.1991),

flowever, ECO makes no such allegation m this appeal. Instead, we fmd orily a generailred allegation that if the NRC issues a POL without preparing an EIS.-

LCOl'ai armi its encuders' nghts to prticipte in the devckpient and umsideratkai uf the IT.lS, to have acorse to the infortnauan made available through that EIS, and to le suurul by the existenct c.f that IV.!S that the Cornrnission has taken d.e acquired "hard k=4" at the twTusal to annmimm madi s!! have teen denied

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Ittitioner's litief at 2 3. Mcucover, the allegation is supported only by Pe-titiones's Articles of incorioration, issjed at the " thirteenth hour," well.ifter the stMt of this proccerling, and clearly written with the Comprtitive faterprhc guidelines in mind. See note 5, supra.

'This vague, generalited allegation supixvted only by the "after the-fact" action if insufficient to satisfy the requirements of Comprthhr Enterpruc.

We read that decision to require an allegation that the wganinthin tus been denied access to information relating to a specific environmental issue with particular application to petitioner, not just that petitioner nas been denied necess to " environmental information" in general that has no specific impact on the petitioner. Furthmnore, that " impact" or " application to k petitioner" must be bawd upon an established organirmional purlose, not some justification drawn up after the fact to satisly required guidelines not met in the original petition.

Otherwise, as the ticensing Ikard noted, petitioner would have standing to intervene "w th regard to any other power reactor," L11P 9130,34 NRC at 28, based upon any post loc rationaltatkm that could be devbed by an ingenious mind. We do not tunt the Competithe Enterprhe Court intended such a result.

We certainly would not permit such a result with regard to intervention in our lleensing proceedings.-

i Moreover, even if the Competithe Eruerpthe Court had intended such a result, that decision has been si;;nificantly undermined by die recent decision in Foundation on Economic Trends v. Lyng,943 Y.2d 79 (D.C. Cir.1991). The Lyng Court reviewed the concept of " informational standing," 943 F.2d at 83-84, and cott.:luded that "we have never sustalaed an organistion's starkling in a N11PA case solely on the basis of ' informational injury,' that is, damage to the organization's interest in disseminating the environmental data an impact statement could be expected to contain." 943 F.2d at 84 (emphasis added).

'Ihe Lyng Court reached the logical conclusion that such a pmvision "would potentially climinate any standing requirement in N11PA cases, save when an organintkm was foolish enough to allege it wanted the information for reasons

- having nothing to do with the environment." /d.

Additiormily, the Lyng Court observed that "li]t was not apparent" how 4

' k concept of " informational standing" was different from the concept of generalized " interest" in a problem that the Supreme Court had found inst f ficient for standing in Sirrra Club v. Morton,405 U.S. 727,739 (1972). Wrthermore, the Lyng Court could find no difference between the concept of "informatienal standing" fer an organistion and " informational standing" for an individual, another concept that the Snprerne Court had found iruufficient to support standing. Un!ted States v. Richant or. 418 U.S.166,176 80 (1974). Finally, the Lyng Court found that such a concept " exists day in and day out whenever the federal agencies are not creating information a memb:i of the public would 60

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I like to have." 943 F.2d at 85 (cruphasis added). The Lyng Court foutui that this l

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could allow a prospective plaWiliol hertow standmg met itsett in every case increty ty requesung the agency to pret art lan 13S)

• tah in turn wuuld grunnit the agenn to es.gase in *egerwy t

saksi" ty faihg to horno the sequest.

Id. at 85, in sum, w find that the C(vnpetitive Enterpelse decision does not supgurt Ittitioner's standing to challenge the proposed Rarrho Seco IOL and tha' even if it did support such an argument, it would be of questionalile value.'

C.

Petitioner's Request for a Stay of the POL On December 3,1991, Ittitioner filed a pleading asking that we " stay" issuance of the ICL pend'ng our resolution of this appeal. As we noted on a similar occasion, our stay procedures do not apply to a situation in which there is no outstanding order to " stay." See Long Island Lighting Co, (Sinircham Nucicar Powu Stadon, Unit 1), CLl 91 8,33 NRC 461,468 (1991)("Shorcham, CL1918"). See 10 C.F.R. 8 2.788(e). Thus, we consider this a request for an

" anticipatory" stay or a " motion to hold in abeyance " /d. In view of the fact that w have resched this rnatter, that request is now moot.

Petitioner to requested an administrative stay to allow orderly processing of an anticipated request for a judicial stay of the ICL. We have granted similar requests in similar situations. See Shorcham, CL1-918, 33 NRC at 47172.

We hereby direct the Staff to enter h twb stage administrative stay of the ICL

$1milar to that it issued in the Shorclaim decisko, supra. Src $6 Fed. Reg.

28,424, 2F,426 (June 20,1991). When the Staff issues the IOL, it shall stay the

- effectiveness of the amendment for 10 working days, if ittitioner files a petition for review and a ti.otion for a judicial stay within that time with a United States Court of Appeals, the Staff shall ecnd the administrative stay for an additional 10 working days.'

'lWa9re se rmd that IG has railed to danmostrate stant!ma m dus appeal, we &> nd reach the inhet iwues raised. We new that 100 aWges Out the Ikensmg floard unpmpo.ly entluded warums stan&ng arger,aus by atriking enr e d sta pleadmgs Ikieevar. IfD has not betsi premued lawn taisms any standag arg2ments on dus aneal. -

'We rwned the pernas that "Im)apr diamanilms and other envwas that nr/cano dnwnmusmntng under the NRC's segulauans # met *wai. NRC anemal of a decanmismuung plan

• ses Lear lat.reilhuas Co

($4weham Nuclear Power stenon,l'ers 1). ClJ 912. 33 NkC 61. 73 mi (1991)

- 3%=uaru na its ae mal praetwo, dw Stan sheld also review o!! d pesausser's p,q asd mussnua,a end says!y -

linalf osih tussed to any apphcable and decertwHs safssy or ennnrunasaal Faure casamed thercan pn<w to issuing the 101.

61 t

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1% CONCLt!SION In corslusion, we lereby find that (1) Petitioner has failed to demonstrate that it has $tmding to challenge the proposed IOL amendment on this appeal; (2 ) the Staff may issue the IOL when it makes the findings necessary for the issuance of the license amendment; and (3) the Staff should irclude a two-stage administrative stay in the POL w hen it is issued.

Commis:;ioner de Planque did not participate in this matter.

It is so ORDERED.

rvr the Commission' SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland this 6th day of February 1992.

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'Cummmonar Rankh e-as not preens ror As'affirmaum cl dus Order, if he hed been pnemt. he mdd hne agemed iL 62 1,m _ -.

.1.

Cne as 35 NRC 63 (1992)

CLl 92 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gall de Planque in the Matter of Docket Nos. 50-424 OLA

$0 425-OLA GEORGIA POWER COMPANY, et af.

(Vogtle Electric Generating Plant, Units 1 and 2)

February 12,1992

'Ihe Commission considers the Petitioner's appeal of a licensing toard decision dismissing its contentions aiid denying its petition to intervene on amendments to operating license requirements pertaining to emergency diesel generators. The Commission dismisses the appeal for the Petitioner's failure to file a brief supporting its appeal; however, certain technical issues related to operation of the d'esel generators are referred to the NRC Staff for further review.

RUI.ES OF PRACTICE: RESPONSIIIII.lTil:S OF PARTIES Participants in NRC proceedings, whether acting pro se or represented by counsel, are expected to become familiar with the applicable rules of practice.

63

_. _ _ _ _ _ _ _ _ _ _ _ _. _ _ _.. _.. _ = _ _..

ROLES OF PhACllCEt CONTI:NTIONS ( Al'I'F.ALAltiLITY OF DISMIFEAt.)

Appeals hon. a lleensing board order having the cifeet of dismissing all of

. a prospective party's contentions and denying intervention lie undet 10 C.I'.R.

( 2.714a.

RULF.S OF l'RACTICE: ilRIEFS The necessity of a brief sup[vrting an appeal has 'ong been emphasticd in the NRC's appellate practice; rnere recitation of a party's prior position in the proceeding and its general dissatisfaction with the outeon c of the proceeding is no substitute for a brief that identifies and explains the errors of the licensing

. teard in its order below.

RULES OF PRACTICP: LICl:NSING llOARD REFERRAL, OF ISSUES TO STAIT If a licensing board tetieves from its involvernent in a proceeding that serious safety issues remain to le addressed, in circumstances in which the remaining intervenor has been dismissed, the board may refer any outstanding concerns to the NRC Staff for appropriate action.

NUCLEAR REGULATORY COMMISSION: lil'ALTil AND SAFETY RESPONSilllLITY If an adjudicatory prxcedmg is terminated, the Commission may refer remaining safety issues c, potential concern to the NRC Stalf for teview pursuant to the Commission's general supervisory author ty and responsibility for safety matters.

MEMORANDUM AND ORDER I.

INTRODUCTION On May 25,1991, Georgians Against Nuclear Energy (GANE) filed an appeal from the Atomic Safety and Licensing third's Memorandum and Order, LDP-9121,33 NRC 419 (1991), that ditmissed GANE's proffered contentions and denied its petition for leave to intervene in this proceeding on a proposed amendment to each of the operatint, licenses for the Vogtle Electric Generating 64

plant. Because GANE was the only party secking a hearing on the amendment, the liturd's order also had the elfcct of tesminating the proceeding. Although GANE*s May 25th filing sausfied the requirement to file a notice of appeal, G ANE has not filed a brief in support of its position on appeal. Both the NRC

' Staff and Georgia power Com;uny, the Licensee, have noted this deficiency and ask that we dismiss the appeal.

T..e Commission has jurisdiction ever the appeal in accordance with the interim appellate prucedures in effect at the time of the Licensing Board's decision. Sec 10 C.F.R.12.785, note (b) (1991) We agree that GANE should be dismissed for falling to file a brief in support of its appeal; however, we are directing the NRC Staff to provide its evaluation of certain matters related to the operadon of the dicsci generators and their associated instrumentation.

11. IIACKGROUND

'Ihe proceeding concerns an amendment to the technical specifications for each of the Vogde units to permit the Licensee to bypass, in emergency start conditions, the high Jacket water temperature trip of the emergency diesel generators. The intended purpose of the change is to minimite de potential for spurious trips of the diesel generators during emergency starts. The Staff and the Licensee believe that the change will enhance safety, particularly in light of a serious loss-of-power event that occurred at Vogtle Unit 1 on March 20, 1990 During that event, the Licensee had difficulty in establishing sustained operauon of one of its emergency diesel generatori, and investigation of the event indicated that a trip of the dicsci yencrator we likely caused by a spurious trip signal from the ldgh jacket-water temperature sensors.'

A notice of the proposed change and of opportunity for hearing was published in the federal Register on June 22,1990, and the Staff approved Osc change as an amendment involving "no sign'.ficant hazards consideration" on July 10, 1990.8 GANE filed a petition to intervene on July 23, which was referred to the Ll:ensing Board for consideration. Although both the Staff and the Licensee opposed the petition, the Board declined to reject the petition on its face but scheduled a prehearing conference to further consider the petition and any supplement thereto. LBp.90-29,32 hKC 89 (1990).

3 3u NtIR1.0 Id10. tems or Vaal AC IWr and the kai dual lleet Rsemaal symam tktmg M,d tap operatinas as WJe Umi l on Mardi 20,19W

• at 3-21,6-12Os. lwo). The encumaw contains the agen or the NRC's spenat tendern invemignmn Team.

1 55 Fed. Peg. 253% Uune 22.19W) and 5s Fat Res. 32.337 (Aug 8.1% Fwn pnar to issuing the funnat amendmord, the AhC Stat gave tack sypnwel to the changs under a "Tanparery Warwr or comphance" fawn tho toduucal spectfwatums urail the amendmers appbcauem could be paxcased 3m 14ater rann o. I ainas, o&e or Nucia:1 Res&r Regulauce, to W.o. Haintem m. cenegis Power Co (May 25,19W).

65 1

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lYior to the gelearing conference, OANE filed a ut of eight proposed cantentions, Both the Staf f and the Licensee oplued GANE's contentions and indicated their belief, inter alia, that G ANE had failed to provide adequate tuses i

for its contentions. *Ihe lloard summarily rejected twc of the contentions for lack of relevance to t',

proceeding.' Despite the structural flaws in the remaining contentions, the board telieved that a number of safety matters derived from the contentiom might be appropriate for hearing, but it deferted ruling on the contentions, largely on the strength of the Licensee's offer to provide the Board and parties acklitional infortnation in an attempt to resolve potential issues informally.

1he Licemcc thereafter submitted a supplemental statement, which descrited its ressmse to the loas of power incident and provided additional analysis sup-guting the Foposed changes to the tecimical specificatiom. After considering the Staff's and OANE's initial respomes to the Licensce's filing and an ad-f ditional round of comments frorn de parties, the Board eventually dismissed GANE's ternaining contentions, primarily for their lack of sufficient specificity to warrant admission, and indicated its satisfaction diat any outstanding concerns over the amendment had been answered LilP 9121 supra. GANE asks us to "put aside" the Licensing Ikurd's decision.

l IIL ANALYSIS As noted at the outset of this decision, both the Licensec and the NRC Staff urge us to dismiss GANE's appeal because OANE has not filed a suppvting brief We agree that GANE has not satisfied the briefing requirement to perfect its appeal, despite OANE's urging that we consider its original May 25th filing as its trief. -

In its August 8th " Acknowledgement of NRC Staff and Ocorgia Power Cormnents on GANE's Appeal," OANE asserts that it was uncertain of the

" conventions" involved in'an appeal and had *no prior knowledge that a brief

. would te expected." OANE's claimed unfatnitiarity with the procedural rules

does not excuse its failure to file a brief. We eyect all partleipants in NRC proceedings, whether acting pro se or represented by counsel, to become familiar with the applicable rules of practice. Sec Dule Pvarr Co. (perkins Nuclear Station, Units 1,2, and 3), ALAD 615,12 NRC 350,352 (1980). The necessity of a brief in our appellate practice has long been emphasired, See Florida Power and Light Co (*!brkey Point Nuclear Generating Plant, Units 3 and 4),

CL1915,33 NRC 238,241 (1991); Afississippl Power and Light Co. (Grand Gulf Nuclear Station, Units I and 2), ALAD 140,6 AEC 575 (1973).

5 %nce nntaenc. or* o u s n.= r. h>= sia.ma -) gu 2, mo, unruu a.

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in this case, the Licensing Board provided specific instructurs for taking an appe'd. Aldough the Commission belieses that the Licensing Ikurd enuncously indicated that an appeal would te governed by the provisions of 10 C.F.R. 95 2.760 and 2.762 then in effect (rather than 10 C.F.R. 6 2.714a), the error was of no consequence to GANE's fundamental obbgation to file a brief

• At most, the Board's error allowed GANE a more generous perk >d within w hich to file a brief. While GANE could be excused for relying on the instructions contained in the Licensing Board's order, GANE did not heed dose instructions and file a brief.

Even if we were to allow, as GANE asks, its May 25th filing to stand as G ANE's "brief," that document simply does not come to grips with the Licensing Board's determination that G ANE failed to meet the requirements of 10 C.F.R. 6 2.714 applicable to its proffered contendons) Mere recitation of GANE's prior position in the proceedmg and its general dissatisfaction with the outcome of the proceeding is no substitute for a brief that identifies and explains the errors of the Licensing Board in the order below. See Clevelami Electric illuminating Co. (Perry Nuclear Power Plant, Units I and 2), ALAll441, 24 NRC 64,69 (19S6). We therefore dismiss the appeal in view of GANE's failure to file a brief.

Although we dismiss GANE's appeal in the adjudicatory proceeding, we are asking the Staff to give further consideration to cenain rnatters that appear related, at least in part, to GANE's expressed concerns with operation of the diesel generators at the Vogtle plant. In this negard, GANE appears to concede that the Licensing Board, within the limits of its jurisdiction m this proceeding, ruled appropriately with respect to GANE's contentions and that, even from GANE's perspective, the change to permit bypass of the high jacket-water

'llecause the Daard's andar had the c' feet d damasang e# or GANI's cavucntums and dery6ng uncrvenu4es og terw that m1 ann 2.7144 gmerned appc4'.a rann LEP 9121. su Howma LgWg eH fower Co. (Alicrw Creek Nudaar omeratirig stainst. (Inn 1). AIAll 585,1I NRC 469 0930). har hhad LaWg Co (shorcham Nuclear Iwer seun, Una 1). ISP 9139. 34 NRC 273. 244 0991) he pnmary a4mfname d de &swutm besweer sectum 2.714a and then arylasble senan 2.762 cma: ins the tunmg d the sumustang bner. He brwr must te r. led crvuurveru); mth an a

~ under seman 2.7144, tan u nie requ6rsJ unul 30 stays after the mece of ameal tf sectwn 2 762 governs t er the Comnussion's ensed appenaw g=nedures,56 I ed kes 29,403 Dans 27,1991).Oss detwn in gmedure may have greawr stgarainee, became mest appeals, eaccis thae that he under secuan 1714a, are subject to et new daamamary reyww gemedurn I Geers!!y. On ticensing B4 erd Inund that oANt. had failed to refer to om legal authrevy mder o hwh it ideved te applastiort should be judged,10 prtwule 4 hncf Snplansum of Lhe bases for es uventuwe,40 set forth a concue stawunant d the rans, eapen guu<si, or sources and documema m what u interWed to rely. or to pnmde the supputm; eraama ror as dapute wh the Lkenaca 1.llP-91-21,31 NRC si 422-24. Ce 10 C.1 IL (2.714(b)(21. As the Itoard naca, GANI s cumraws could have bem summardy &amaned we bcLeve stat the tiansee deserves great coda here for attanptar.g to seule or m olve GANL's civaerns informally thrtagh a profra of oddaumalinfirmaticus We do not v ew, he+ever, the inforwat etchange of mnmmia that foDomed as havmg had t'f substanual beenng m the adm6ns:bahty of GAN1/s ravitninsa in the shaense of the ht.gants' agreanent to pursue inrormal ramaluum d the issues, the Daard oculd have been biamd to n,le m the runv1mura and, hmng danussed tnan. to refes any outstand.ng conor ns a rn ght have had so the stafr for appnenete actan Su nrids Power a=f Lgar Co. tTurtcy hare Nudcar Genernur.g P. ant. Uruis 3 and 4). C1191 13. 34 NHC 185, lit (la91).

i7

p temperature trip in emergency costitions is preferable to prior practice.' Thus, we believe that OANE's " appeal" can be l'airly understood to seck relief from the Commission in its broader safety oversight role, rather than to challenge the Licensing floard's disposition of GANE's contentions in the narrow amendment proceeding. Where, for any number of reasons, an adjudicatory proceeding is terminated, we may still refer safety matters of potential concern to the StalT for review. Sec 7urAcy Point, supra note 5, CL1-91 13, 34 NRC at 188.

. j Our specilie direction to the Staff w hich describes the issues of interest to ISc

~

Commission will be contained in a separate Stati Requirements Memorandum to be issued to the Staff in the near future, t

IV. CONCLOSION lbr the reasons stated in this decision, GANE's appeal frum the Licensing i

11oard's Memorandum and Order, L13P-9121, is dismissed and the proceeding is tenninated. The Commission is referfing certain other matters to the NRC Staff for evaluation purseant to the Commission's general supervisory authority and responsibility over tafety mattei.OST.EITECTIVENESS llEALING When an action is taken subject to a post-eficctiveness hearing, the action must be conditioned on revertirig to fu previous condition if the hearing does not ratify the action talen. In this case, the Staff should condition the transfer of the K)L (1) on the license's reverting to LILCO if LIPA ceases to exist or othertilse ts found to be ungttaliFed to hold the license and (2) on LILCO's providing certification to the NRC Staff that it will retain and maintain adequate capability and qualifications to take over tac license prtimptly in the event that either of these situntions occurs.

OPERA *I1NG LICENSES: AMENDMENTS Once a transfer is firsalized through the post-effectiveness hearing process, there remair.s the need - for administrative purposes - to have the license changed to refixt the name of the new licensee. Such as amendment, which t

presumes an cifective uansfer, presents no safety questions and clearly involves no significant hazards considerations.

RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA)

Petitioners request Out this action be held in abeyance until the resolution of the question of LIPA's existence under New Wwk state law. Given the reversion of the license back to LILCO rnandated here under those circumstances, and the fxt that Petitioners did not immediately file such an action in state court, so 70 t

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there is no indiution from the state court that there could be some merit in petitioner's argument, the Commission denies Petitioness' request.

RUI.ES OF PRACTICE: IhthlEDINIE EITEC1tVENESS OF DECISIONS (STAY PENDING APPEAL)

Petitioners request that the Commisslan stay the transfer's effectiveness pending their capected challenge in the Court of Appeals. The D.C. Circuit has observed "that tribunals may properly stay their owr. orden w hen they have ruled on admittedly difficult legal questions

" iLishingtoa Merrepohtan Arca Transit Commission v. Ifoliday Tours, Inc., $$9 F.2d 841,844 (D.C. Cir. l977).

1hc Commission does txt perceive a difficult legal question here, particularly in view of tic Commission's prict interpretation and tle deference customarily accorded an agency's interpretation of its organic statute.

RULED CF PHAllCE: thlMEDI ATE EITECilVENESS OF DECISIONS (STAY PENI';NG Al' PEAL)

RULES OF PRACTICE: STAY OF AGENCY ACliON i

- (IRREPARAllLE ilARht)

Petitioners fail to convince the Commission that they will suffer any irrenara-ble injury shcald it deny the stay. LIPA cannot do anything taxlet this license that LILCO could not do. Both the School District and Lilf0 may have serious

. economic interests at risk The courts have held consistently t!ut mere economic loss does not constitute irreparable injury, it is the Commisf on's intent to avoid making decisions based solely on economic reasons. Thus, the balaro of equi-ties in this matter does not tilt in Petitioners

• favor, and the Commission denies Petitioners

• request for a stay pending appeal.

MEMORANDUM AND ORDER I,

INTRODUCTION This matter is before the Commission on two different requests. The NRC Staff has pmposed to issue an immediately effective amendment to the Shoreham operating license, and the Shoreham-Wading River Central School District

(" School District") and the Scientists and Engineers for Secure Energy ("SE2")

(collectively " Petitioners") have aded the Commission to " stay" issuance of 71 s v.

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the poposed amendment. The propised amendrnent would intnsfer owiictship of Shoreham from the Long Island Lighting Comptny ("LILCO") to the Long 1 stand power Authority ("LIPA").

His matter presents a true anoma;y: an unprecedented situatior in which ore utility is transfening the license - amended to " possession only" status

- for an almost totally unused nuclear rextor, which has been defueled, to another entity that intends to decommission and dismantle it. Shoreham is not a fully operating nuclear textor with a full radicuctive inventory, arx! LIPA le not authorlied to operate Shoreham, either by its creadng chaner under state law or i

by the Ih.ense to te transfened. Dus, de acdon before us is not one in which a nxicar textor is teing transferred to a udlity that intends to, arxl would le authortred to, operrte the facility, After due consideration, we have concluded that tiu proposed license transfer is not an " amendment" as Out term is normally construed but - as de Ittidoners themselves argue - a "heense transfer," which is a selutate and distinct action under the Atomic Energy Act ("AEA"). llowever, the AEA does not require a pre-effectiveness or " prior" hearing for a license transfer, in adjillon, we have determined that a pre effectiveness discretionary heanng is not appropriate under the facts of this case. Finally, we have denied Pethittiers' requests (1) to hold this action in ateyance pending resolution of the question of LIPA's existence under New York state law and (2) for an administrative or " housekeeping" stay pending judicial challenge, %erefore, when the Staff has conditioned the transfer as we direct herein to assure that tic results of any post effectiveness hearing will not be prejudiced, the Staff may approve the immediately effective transfer of the Shoreham license from LILCO to LIPA.

II. -I'ACTUAI, llACKGROUND' On June 28,1990, LILCO and LIPA filed a joint application to transfer the Shoreham license fnwn 1.lLCO to LIPA. Tt e NRC Staff noticed recci of the application and issued a notice of opportunity for a hearing and a proposed Gnding of "nn tignificant hazards consideration" ("MilC"). Src $6 Fed. Reg, 11,781 (Mar. 0.0,1991). Petitioners responded with commerds opposing the proposed NSilC finding and peutioned for leave to intervene and requested a hearing on the proposed amendment. Administrative proceedings are now ongo.

ing before the NRC's Atomic Safety and Licensing Board (" Licensing Board"),

3 we have damseed si length an nunerms ua awms the raan) badgrmnd surwyhng IJtfo's decinum not to operate 5%elian $4c e a ClJ 90 s,32 NRC 2010 990L Ctj 914 33 NRC 610991). CIJ 918,33 NRC 461 09911 Therefore. we wiu nra sepeat that t+* ground here.

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which directed Ittitiorcrs to hie proposed contentions. %ese contentions are now being reviewed by the Licensing Ikurd.

On December 17, 1991, Ittitioners Gled a plembng with the Commisshn asking that it " stay" issuance of the pogosed amendment pending cotopletion l

of the administrative proceedings tefore the Licensing lloard. On Iwember l

19,1991, Ittitioners filed an additkmal pleading " suggesting" that LipA would cease to exist under the " sunset" provisions of New huk law. 11y order of Ikccmber 23,1991, we directed the Staff. LILCO, and L5PA to respond to toth pleatings, and tlwy love filed responses.2 he Staff has also filed a paper recormnendmg that it te allowed to inue the proposed amendment on an "immediately effective" basis under the Commis-skm's Sholly provisions, a copy of which has been sernd on Ittilkmers. Sec SliCY 92-041 (Feb. 6,1992). Itut;oners love respynded to the Staf f's paper and LIPA has filed a reply to Petitioners' comments. We accept both papers hr filing We have abo accepted a letter sulmutted by Ittidoners, dated January 22, 1992; two letters submitted jointly by LILCO and LIPA on January 31,1992, and Fehrnary 14,1992; a pleading by Petitior ers, d.ited February 24,1992; and another pleading by Petitioners on February 26,1992, less than I hour before issuance of this Order.

Ill. ARGUMl;NTS OF PAltTil:S A.

Petitioners' Arguments Petitioners raise several arguments in support of their stay request. First, lttitioners trgue that the Staff cannot apply the "Sholly" or "immediately ef-fective" procedures to the progned license transfer amendment. Ittitioners

- argue that Congress' authorization to the Commission to issue immediately ef-fcctive amendments,42 U.S.C. 9 2239(a)(2)(A), applies only to amendments to

" operating" heenses and that the current Shoreham license is not an operating licenu because the Commission has amended it to a " possession-only" license

(" POL *'). Src Petitionen' Motion (" Pet. Min ") at 3-4, in midition, Peutioners argue that the Atomic Energy Act distinguishes telween amerdments to op-erating licenses and requests to transfer control of a license. Sec 42 U.S.C.

6 2239(aXI). Therefore, argue Petitioncts, because the Sholly prwisions only apply to operating license amendments aM tecause the transfer of control ef a plant is separate from a license amendment, the Staff cannot isse the proposed

. amendment on an immediately effcetive basis. Itt. Mtn. nt 4-6.

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Second, Petitioners present two alternative arguments tused upon LIPA's financial condition. Ittitioners allege that LIPA is bankrupt and does not have the necessary management competency to perform the decanmisskming of Shoreham. Dus, Petitioners argue tha. LiPA is neither financially mr technically qualified to hold the Shorelm ense /d. at 6 7, in the alternative, v

Ittidoners filed a separate pleading entit'.I" Suggestion of Mootness"in w hich

(!cy allege that LIPA will cease to exist under the " sunset" provisions of New York State law if they havc no outstanding liabilities. While Ittitioners conecde that LlPA has outstanding liabilides, they argue that the statute could te interpreted to require "to net liabilities " See Suggestion of Moouless at 3 7.

Bird, Itutioners point out that the Staff's nnposal to issue the transfer on an immediately effective tusis is tused ugun the fact that only a IOL is being transferred and that the issuance of the POL is now before a federal Court of Appeals. Ittitioners argue that if that court reverses the issuance

. of that amendment, the IOL would revert to a full power license, leaving LIPA in possession of an operating license for a plant that it would not be qualified to operate and thereby in a situation outside the Staff's proposed NSilC determination. Itt. Min. at 7-8. Finally, Petidoners again argue that the proposed license transfer is a part of the proposed decommissioning of Shoreham and that the Commission cannot approve the proposed transfer without an environmental review of the decommissioning of Shoreham, including the alternative of " resumed operation."

-i S

11. LIPA's Response

-In its response, LIPA argues as a threshold matter that Petitioners' filing f

is both untimely and procedurally defective. Ilriefly, LIPA argues that the Stay Motion d >cs not comply with the requirements for a stay motion under 10 C.F.R. 62.788 of the Commission's regulations and, in any event, is an unauthorized co.. ment on the proposed NSilC findmg. LIPA also argues that the motion constitutes an unauthorized supplement to Petitioners' original petition because it raises new information and allegations tot previously raised. Sec LIPA Response ("LIPA Resp.") at 2-3. LIPA also argues that Ittitioners are motivated by philosophical and monetary concerns, not public health and safety concerns, implying that the Commission should reject their filings for this reason alone. See id. at 3-4.

Turning to substantive arguments, LIPA argues that it has the requisite

" financial" and " managerial" integrity to become an NRC licensee, that LIPA 15 not bankrupt, and that, in any event. LILCO will supply all of LIPA's Shoreham.

8 atm we am raw a =pon.. on us n; inima, u wi raw. ihaa p6kns ea< runs laws ahns t

74

related expenses. Sec (d. at $4, thing LIPA's Res3mnse to Ittilioners' Original ivtition before the Liecusing Board. In addition, LIPA argues that under Commission precedent the mere pendency of a challenge to the IOL cannot bar transfer of the IOL to LlPA, and that esca if the Court of Appeals were to vacate the IOL, LlPA is statutorily barred under New Wwk state law from operating Shoreham. Src LIPA Resp. at 74.

Next, LIPA argues that under pnor NRC Stalf pmctice, transfer of control of a facility can be accomplished by an immediately effective license amerkiment following an NSilC finding. Src id. at 9, citing LIPA, LILCO, and NRC Staff Responses to Ittitione.s' Original Ittition before the Licensing ikwd.

Essentially, LIPA, LILCO, atxj the Staff C Resporklents") argued before the Licensing lioard that in the just the StafI has issued prugued NSilC fmdings and immediately effective amendments to effectuate changes in ownership shares. Respondents argued that this gractice estabhshed a valid Commission precedent that should be followed in this case, although apparently there has j

never been a challenge to this gractice and the Staff itself conceded "the facial

' l validity of PetitionersN arguments." Sec NRC Staff Response to Original Ittition (May 17,1991) at 38. Ibnhermore, LIPA argues that the Sholly procedures apply to any license issued under 10 C.F.R. 6 50.52 because NRC regulations do not specifically refer to a IOL; irr,tead, the term "10L ' is simply an NRC term referring to a specifically amended Part 50 license. Sec LIPA Resp. at 9-12.

Finally, LIPA argues that Ittitioners have misinterpreted the applicable provisions of the New York " sunset law which they allege may cause LlPA to cease to exist. Fitst, LIPA argues that the law was intended to terminate agencies that were inactive, not ongoing agencies that were actively perforrning

. t their duties. See id. at 11 12, 13 16. Second, LIPA argues that its termination would conflict with provisions of the LIPA Act and that the LIPA Act would take priority, See ld. at 12, 16 19, C,. NRC Staff Response First, the NRC Staff argues that no "special circumstances" exist that would justify the Commission's debying issuance of the license transfer, Initially, the Staff argues that Commission pncedent holds that pending judicial chat!cnges -

do not warrant staying Corecission proceedings. Se Staff Response (" Staff Resp.") at 3-4, citing, e.g., Conswners f'ower Co. (Midland Plant, Units I and 2),4 NRC 474,475 n.1 (1976). Additionally, the Stalf argues that the proposed amendment will only transfer the license as already amended, i.e., a lOL, Furthermore, even if issuance of the ICL is vacated by the Court of Appeals, the Staff argues that Shoreham is currently defueled. LIPA is contractually prohibited from operating the reactor, and the reactor cannot be restaned without 75 V

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NRC approval. Accordingly, tie Staff argues Giat any p>ssitile court deciske vacating the M)L would not affect public health and safety and should not delay de ptopssed transfer. Sec Staff Resp. at 4 5. Morrover, the Staff argues that Ittidotm have failed to demonstrate tlut LIPA is not qualified to hold the Shoreham license. Ser id. at 5-6.

Second, the Staff argues that tecause the Atomic Energy Act does not specifically preclude use of a license amendment to transfer t. license, it should be allond to ust - immediately effccuve provisions of 10 CF.R. I 50.91 to accomplish this task. are Staff Rup. at 6 7. The Staff den lists several other arnendments that it argues are similar to 'his proposed amendment and have been issued under the Commission's Sholly provisions in recent years, and it argues that the Commission has acknowledged this practice. Sec id, at 7-8. ' third the Staff argues that not only have Ittitioners failed to address the traditional stay criteria contalnnt in 10 CF.R. 6 2.788, but that they cannot satisfy thern. See Staff Resp.at 812.17inally, the Staff supportt LIPA's arguments that Itutioners have misinterpreted the " sunset" provisions of hew York law. Sec id. at 1214.

IV. ' ANAINSIS A.

The Atomic Energy Act Does Not Require a llearing liefore Transfer of a License Ittitjoners argue that the transfer of a license is a different action from a license amendment under the Atomic Energy Act ("AEA"). Section 184 of the AEA provides that jnjo license granted hereundet.. shall be transferred, assigrwd or in any manner dagesed cf. eider voluntanly or inwduntarily, directly or indirectly, thstmgh transfer of unarul of any bcense to any person. unicas the Commisske shall. after secunns full infuernsthei. fmd that the transfer is m accordana with the ptwisions of this Acs, and shall give its conocid in writing.

42 U.S.C. 5 2234. Section 189a(l) of the AEA provides that li)n any proceedmg tuder this Act, fu the grarging. susp:nding, rewOng.or amendmg of any bcense to t<nstructum permit, or any smlicatkm to transfer exotrul... the Onminske shall grard a hearing upe the reyucst of any person wtwne interest may te affected by die pwceding and shall admit any such retson as a party to sa.h poceedh.g.

42 U.S.C. 5 2239(a)(1).110 wever, this language does not indicate whedier this hearing is to come before the action taken of after the action taken (i.e., a pre-effectiveness or post effectiveness hearing).

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'the requiren.ents for a gre effectiveness or " prior" hearmg are found in the second and thhd sentences of section 189a(1). 'lhere, the AEA requires the Commission to hold a pre effectiveness or " prior" hearing on certain applications for a construction permit (second sentence),' and to offer a pre-effectiveness hearing on certain applications for an amendment to a constmetion permit, an operating liccuse, or an amendment to an operating license (third and fourth sentences).8 Where applications for nelions that do rot fall into the four categories described above are involved, the Commission has construed f cction lH9a(l) as not requiring the offer of a pre-effcctiveness or " prior" hearing. Ibr esample, the Commission generally does not offer pre effectiveness notice and hearings in actions regarding materials licenses. Sre 10 C.F.it, part 2, Subpart L This interpretation is longstanding, and supported by the legislative history of the 1957 amendments to the AEA which added the $ccond sentence to section 189. See Joint Committee on Atomic Energy Staff Report "A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities" at 8 (1957).

In this case, Petitioners argue that tie proposed tetion constitutes a " transfer of license," not an amendment to an operating reactor license. We agree, llowever, this agreement does not achieve Ittitioners' desired result of a hearing prus to tie transfer. If this action is a " transfer" rather than un " amendment" to an operating license, it is not ote of the four actions for which the Commission is required to offer a pre-effectiveness hearing. Instead, a " transfer of conuol" invokes only the Icaring rights afforded by the first senterre of section 189a(1).

• fhus, by their own arguments, Petitioness have effectively taken themselves outside the scope of the AEA's acquirements for a pre-effectiveness hearing, Quite simply, the AEA does not require the offer of a prior hearing on an application to transfer control of a license twfore the transfer is made effective.'

11. _ in These Circumstances, a Discretionar) llearing Is Not itequired While we have concluded above that the Atomic Energy Act does not require a pre-effectiveness hearing before granting a license tninsfer, we must aho consider whether we should direct that a hearing be held as a matter of discretion.

Under section 161c of tic Atomic Energy Act.

• Added by Nh I. Na as 2%,715 tat 576,67 0957).

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'In wwe d this rmdag, we naul mes read the arguments peecrued by the staff and tilIXMIPA tha the 1.cenne may be traewferrsd by an utme&ately effewtve twenas scn edmara that preserva no sign ruant barards cwaideratums llumever. wue the transfer La fealued thruush the peL<!!atveneaa heanns pwens, thee tomams the need - for adrmnistrative purynes,- tc haie the twerne danged to mAntt Lbe name d the own-bcennee. b4 en amendment, 3hid peaunus en eMottive transrer, pearnta no safety quesu ma and clearly involves no synhcart hasarda connulmu<ma_

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o,e nunminen is nouvind to... hat stub hc.emse si on rt unuisa.i eney deem nuessary and proper to antist u en enerdsing any audueny m,sded m eius Att.

42 U.S.C. 6 2201(c). We would direct the luMny of 1. pre-effectheress hearing regarding a proposed transfer if one wese nece y or desirable because poteollally significant public health and safety issues wre raised.

Ilowever, such a case is not presented here. l'irst. S6 tham was operated

_ only during low power testing; as a sesult, the radioactive invent my in the Shoreham reactor and spent fuel pool is equal to that generated by appri timately 2 days of full. power ogeration.1hus, the public health and safety risks presented

. hete are much reduced comnared to those of a plard that has been fully operational. Rirtherinore, LILCO appears to hne taken actions.'iat may hase ef fectively foreclosed operation of Shoreham without substantial teconstruction activities by any future owner.

Second, LIPA is statutorily prevented by New York state law from operating Shoreham as a t.aclear plant. Third, the license that h being transferred is subject to two conditionL - (1).the licem.e has been amended to allow "posacssio,.

only" of the facility; ud (2) the license is subject to a confirmatory order preventing LILCO from placing fuel into thy Shoreham reactor core witin>ut NRC permisshm. 13y acceptirg the transfer of the weham license, LIPn accepts it subject to those conditions.1hus, even if LlPA wished to cirrate the facility, as it cannot do under New York law, and even if it could physically operate the facility, wl.ich it apparently cannot do at this time tecause of actions taken by LILCO,it cannot legally operate the facility for two separate reasons without N8't%riar approval, which would only te given after NRC review and, in the case e r thw X)L, a prior oppottunity for nterested members of tic public to participate.

Rmrth,~ nd perhaps more important for petitioners' apparent goal of pre-venting the dismantling of Shoreham, LIPA cannot take any aedons that wuuld foreclose any decommissioning options for Shoreham until the NRC approves a decommissioning plan. Under our regulations, LILCO cannot at this time take any actions that would foreclose a decommissionmg alternative. Long Island LigMng Co. (Shoreham Nuclear Power Station, Unit 1), CLI-912, 33 NRC 61,73 n.5 (1991). As we noted above, LIPA succeeds only to the license that LILCO holds. Clearly LIPA cannot take any acuan under the transferred li-cense that LILCO could not have taken.1hus, I.lPA may not take any actioa that would foreclose a decommissioning alternative until approval of a doctwn-missioning plan. Consideration of a proposed decommissioning plan has teen noticed in the Federal Register.. ice 56 Fed. Reg. 66,459 (Dec. 23,1991), and Petitioners will have an opportunity to challenge the proposed plan if ticy can demonstrate that they meet the normal prerequisites for intervention under our Rules JQactice, 78

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Fifth, we have reviewed the Staff's safety evaluation and we are convinced.

__ thai the transfer presents no public health _ and safety _ issues tlk need to be -

addressed in a hearing prior to the administrative proceeding..As vm noted above, the spent fuel is stored in the spent fuel pool and cannot be returned to the

- reactor without NRC permisslon. Moreover, the total radioactive contamination is equivalent to that generated by 2 days of full power operation.- Finady, the Staff points out that in the interim LIPA has retained a numter of LILCO personnel and hired a numte af qualified personnel from other utilities. Given the limited scope of activities that LIPA can undcriate until a ruling on the decommissioning plan, its inability to operate _ t" plant from both a legal and practical standpoint, the reduced harard from a p mt that was operated only at low power for a short tine, and the evident availability of qualified personnel to t aintain the plant in the imetim, we fmd that the transfer does not raise any public health ard safety issues that watrant a prim hearing.

In summary, we find that the transfer presents no public health and safety issues requiring that we hold a prior hearing as a matter of discretion.

C.

Issuance of the Transfer

'We have found that the AEA does not require a prior hearing for a transfer of control. We have also found that a discretionary hearing is not required -

in this,casc. Ilowever, there are three issues that we believe need to be addressed before isauance of the license transfer, two of which require Staff action. Firsti pc,titioners correctly poht out that the license t ;asferred is the modified " possession-only" license (*FOL") and that the Staff has " conditioned"

. the transfer on the license being 3 POL. Sec 56 Fed. Reg. I1,781. 'the action granting the POL amendment is now before the Court of Appeals, and Petitioner!

_ argue that a decision by that court vacating the POL would undermine the tosis for the liccase transfer. Ilowever, even if the Court of Appeals reversed the

- POL, the public health and safety is still protected by the Confirmatmy Order

~

preventir g the Licensee from loading fuel into the Shoreham reactor. *ltus, we do not find that this possibility prevents the transfer.

Second, lttitioners argue thtt LIPA may soon cease to exist under New York " sunset" law. _We do not fmd Petitioncis' arguments convinciag at this -

, prelimi mry 5, age, but this is a questiorfor state law that presumably must be decided by New York state courts.1 Third, Petitioners have challengo'.! die license

- transfer in what we now hotd will be a post-effectiveness hearing. Obviously,-

- that proceeding holds ~the potential far a.hnding that LIPA does not. qualify-

- as a licensee! Therefore, for these two reasons, before approving the license -

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transfer, the Staff should condition the transfer (1) on the license's reverting to LILCO if LIPA ceases to exist or is otherwi.;c found to be unqualified to hold the license and (2) on LILCO's providing certification to the NRC Staff that it 79' r

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a will retain and maintain adequate capability and qualifications to take over the license promptly in the event that either of these situations occurs. %is action is without prejudice to Petitioners' rights in the post effectiveness proceeding before the i.icensing Board.

V.

REQUEST TO 110LD IN AllEYANCE AND l'OR AN ADMINISTRATIVE STAY Petitioners request that we hold this actio, in abeyance puding resolution of the question of LIPA's existence under New York state law. llowever, at this time, they have not actually filed an action seeking such a resolution.1 Moreover, as we noted above, Petitioners have not tresented a persuasive argument on this issue at this preliminary stage. Our position might well be different had lYtitioners filed such an action immediately in a New York state court and were there in turn some indicadon from the state courts that there could be some merit in Petitioners' argument,' Accordingly, we deny Petitioners' request to hold the transfer in abeyance pending action by the New York state courts.

Petitioners also request that if we authorize the issuance of the transfer, we

tay its effectiveness pending their expected challenge in the Court of Appeals.

De Court of Appeals for the D.C. Circuit has observed "that tribunals may

- properly stay their own orders when they have ruled on admittedly difficult legal questions and when the equities of the case suggest ' hat the status quo should be maintained." Washington Metropolitan Area Transit Comm*n v. Ilohday Tours,l.ie.,= 559 F.2d 841,844 (D.C, Cir.1977). We de not perceive a difficult legal question here, particularly in view of the Commission's prior interpretation and the deference customarily accorded an agency's interpretation of its organic statute.

7 on Fehnury 25.1992, aAer tLs <wder was substanuaUy cannp!aa. *e NRC's othe or the secnstary infamed cansal re he parues t1 de shoreham proceedwes. inclu4ng c =4nseJ ror Muman, thet the Commassam =(n.lJ affirm na - Jar relanna to tina matter, la respmse, counns! far Nd<nmu advised the seestary that he wended to rue an additimal pisadmg that evenmg with the Cannunason. As agprataniteJy 530 p.ro., the so nsa y nreved

- I%t.oners"%tice of tJLLWLIPA Esasseradan and Commeremera or state Can Acunn."

~ This plext.ng cmtests sewrul asacrdern regarding staternema by tJffo,tJPA in lencre or January 31.19Y2 sad f etuuary 14,1992,syre, and announces Pctitaoners' mitent to seca e dedaratim m New Yest courts that

' LJPA has sear.:4 to exst und-s New York *s.mset" law. As a result or dus annotawed inkmian to 61e a state court astic, Pentra en tenew thcar seques that the NRC not transfer the twense w tJPA IlPA and tJ1Eo have Aled a jomt n sponse ut cyposnim.

Wg bquired at an carla:t dets to ans ir Pt:dtimers muuld seek sim,h an actw in our behaf that sisch art actam -

was appt yriate an 1%taioners' pen. See laster tram 3.P. ht;orancry (January 22. I?921 syre. hMwcr, as we noted above, we have cmdiumed the transfer upon (1) dw. luense revuung to tJIfo ir the New Yak

• wit disenives IJPA and (2) tJILO cerdrying dist it will ectam and maisam suffleien capecuy in take back the hcense in that enreahty. 3.g a. Accoren6.y, Peuucners' picadma in response in the Cawassan's decisim to ec+,n

. dna issue as not sufficamu to stay wr decasian_

sin adadori.'as a eesult d sudt a state coun proceeding. we could have reviceed pleadmgz irnm parues rnme remuir with New Ymk law can ws are.

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Secondo. Pethioners have. failed to convince us that they will suffer any irreparable injury should we &ny the stayi After all, as we noted ateve, this action simply transfers to LIPA that which is held by LILCO. LIPA cannot do anything under this license that LILCO could not do. LIPA cannot

-operate the plant,-it cannot load fuel into the plant, and it cannot foreclose a deconlmissioning option until the Staff a[ proves a decommissioning plan, Both the School _ District at 1 LILCO may have serious economic interests at risk. Quite simply, if LILCO 1: olds Shoreham on March 1,1992, it appears that LILCO may be required to make a tax payment to the School District, which LILCO_ naturally seeks to avoid. Presumably, the Schc-ol District scels to receive that payment, which it would lose if this order becomes immediately effective.-

_ %c courts have consistently held that " mere economic loss does not constitute irreparable injury." _ Ohio ex rel. Celetecnc v. NRC, 812 F.2d 288, 291 (6th Cir,1987). See, e.g., Sampson v. Murray. 415 U.S. 61, 90 (1974); l'irginia

' Petroleum Jobbers Ass'n v. FPC, 259 P.2d 921. 925 (D.C. Cir.1958); Jolv1 poll

v. Thornburgh. 898 F.2d 849, 851 (2d Cir,1990). In this case, we are not in a position to judge which economic interest is more compelling or whether

- the parties are able_ to seek redress and recovery of any funds expended or not expended in future litigation. Moreover, it is our intent to avoid making any decision based solely on economic reasons. Thus, we fmd that the ba:ance of i equities in this mauer does not tilt in favor of the Petitioners.

As for the public interest, as we noted above, factor; associated with the tax

' payment do not, in our view, cairy the day one way or the other,- tused upon the record before us. O!her public interest factors am subsumed in our discussion of a discretionary hearing and also do not support issuance of a stay. Thus, we deny Petitioners

• request for a stay pending appeal.'

VL CONCLUSION-Based upon the foregoing, we find that the Atomic Energy Act does not require a pre-effectiveness hearing before approval of a license transfer and that, under the cimumstances of this case, a discretionary pre effactiveness hearing is not required.' We deny Ittitioners' request to hold the transfer in abeyance 2,

[

_ pending a determination by New York state courts that LipA will not cease to

'We have isused adminstradvs a "h-4=cptng* stays in prenous proceedtngs, such as the issuana of the sharaharn POL brewer, in ihm instanos, both IJLco and tJPA did mm contest mah e asay nere, they det As we emed ahows, there are no pubhc halth and safay issue pruaa in h cam in addinen, tJ!ro submined

- Gus nppikanna a=cr one and a half years ago and it has ba:n pending wienna tesoLium smes that time. hnally, as we noted above. IJ1fo may fece a potenual tan paymera if this u, der i, ma ef'ecuve beiure hlavh 1.1992-

' Af6er considenng all these issues. m f.nd I, hat the balarwe of equides does not scigh in favor or a "rumscheeping" stay or this maner.

81

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i:

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cxist and we deny Petitioners' request for an administrative stay. 'Ihe Staff may -

' issue an order approving the license transfer on an immediately effective basis -

when it has conditioned the transfer as we have specified above,

Commissioner de Planque did not participate in this Order.

It is so ORDERED.

Rir the Commission l! 1

~

S AMUEL J. CilILK Secretary of the Commission I

Dated at Rockville, Maryland, this 26th day of February 1992.

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