ML20127D509
| ML20127D509 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 09/11/1992 |
| From: | Mcgranery J ENVIRONMENTAL & RESOURCES CONSERVATION ORGANIZATION, MCGRANERY, J.P., JR. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20127D475 | List: |
| References | |
| DCOM, LBP-92-23, NUDOCS 9209150075 | |
| Download: ML20127D509 (48) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f.;gi y;a ubPc Defore The Com::aiscion:
Ivan Solin, Chairman F 11 E0:01 Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail De Plenque
) Docket No 50-312-DCOM In the Matter of )
) (Docommise.ioning Order)
Sacramento Municipal Utility District )
(Rancho Seco Nuclear Generating )
Ptation) )
)
ENVIRONMENTAL AND RESOURCES CONSERVATION ORGANIZATION BRIEF IN SUPPORT OF APPEAL FROM LBP-92-23 James P. McGranery, Jr.
Suite 750 1255 Twenty-Third Street, N.H.
Washington, D.C. 20037 Counsel for Petitioner Environmental and Resources Conservation Organization 9209150075 920909 PDR ADOCK 05000312 G- PDR
_-__-_2_-_-__ _ - - _____ __-- _ _ _ ____ - ______- -__ - _ -______ _______ __ ____ _
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TABLE OF. CONTENTS Paoe
-STATEMENT 0F THE CASE . . . . . - . . _ . . . . . . . . . . . . .
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I. -_ECO, POSSESSES ;!!TANDING UNDER BOTH NEPA AND-THE AEA . . 4
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II. THE ASLB ERRED IN ITS STANDING ANALYSIS . . . . = . . . 8
- III. THE ASuB's" REJECTION OF THE 50-MILE PRESUMPTION IS ALSO IN ERROR . . . . . . . . . . . . . . - . . . . . 16 IV. . LTHE'ASLB ERREDJIN FINDING THAT ECO FAILED TO-ADEQUATELY--ALLEGE SPECIFIC INJURY IN FACT . . . . . . . 16 V.. .THE ASLB ERRED.IN ITS. REJECTION-OF THE' SPECIFICATION !
=OF TRANSPORTATION- .-. . . _: . . . . . . ... . - . . . . . . -
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- VI. THE-ASLBjERRS IN.ITS' DISCUSSION'OF THE ZOllE OF-INTERESTS .. .. . . .'. . . . . . . . . . . . _ . . . _ 25 VII.. THE ASLB' ERRED IN DENYING DISCRETIONARY STANDING TO-ECO-;. .-.. . . - . _ . . . . . . . . .. . . . - . - . , . - . .
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VIII.: THE ASLB--ERREDLIN. EXCLUDING ECO CONTENTIONS IDENTIFIED IN-ITS PETITION . . . . . . . . . . . - . . - . . . . . - . -.
2B .
IX./ ..THE?ASLB ERRED IN. REJECTING ECO'S-ENVIRONHENTAL LCONTENTION., - . . . . . .:.a.-. . . . . . . . . . . .. . . - . . 30
. X. : ,
THE-l ASLB L ERRED :IN REJECTING I ECO 's - AEA CONTENTIONS . . . . 36
- : XI . - _THE:ASLB ERRED IN.FAILING TO WITHHOLD THE ORDER WHOLLY DENYING THE-PETITION FOR LEAVE TO INTERVENE AND 1 LOR'THE REQUEST FOR-ALHEARING AND IN TERMINATING THE i- : PROCEEDING. 44 O . . .~ . .- . . . .:.:. . -- . - . .- -:. . . .. - . . - .
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-CONCLUSION . _ . _ . . .. . _ . '. . .. . .- . ._ . . . . . . . . - , . _ . - 47 i is
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STATEMENT-OF THE CASE This-is an appeal from the Atomic Safety and Licensing Board ("ASLB") Decision in LBp-92-23 in the above-captioned matter which denied Environmental and Resources Organization's
("ECO") petition for leave to intervene and request for prior hearing and terminated the proceeding while granting and denying various motions filed by the parties. This appeal is taken pursuant to 10 C.F.R. 5 2.714a (b) (1992) .
ECO relies on LBP-92-23 at 2-5 for the factual and procedural background.
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I. ECO POSSESSES STANDING UNDER BOTH NEPA AND THE AEA The Supreme Court has recently restated the three elements which a petitioner must satisfy to establish standing; "first, the plaintiff must have suffered an injury in fact--an invasion of a legally-protected interest which is (a) concrete and particularized...and (b) actual or imminent, not conjectural or hypothetical,...second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly traceable to the challenged action of the defendant, and not...the result of the indepen, nt action of some third party not before the Court. ... third, it must likely as opposed to merely speculative that the injury will be redressed by a favorable decision." Luian Defenders of Wildlife, U.S. ,
,112 S.Ct. 2130, 2136 (1992) (citations and internal quotations omitted). The Court also added that certain "
' procedural rights' are special: the person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy". U.S. at n.7, 112 S.Ct- at 2142 n.7. Contrasting the clear standing of "one living adjacent to the site for proposed construction of a federal licensed dam...to challenge the licensing agency's failure to ,
prepare an environmental impact statement, even though he cannot ,
establish with any certainty that the statement will cause the {
license to be withheld or altered, and even though the dam will ,
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not be completed for many years, (with the absence of standing for) persons who live (and propose to live) at the other end of the country from the dam (and therefore) have no concrete interests affected."
ECO's petition zatisfies these tests for standing pursuant.to both the National Environmental Policy Act of 1969 as amended ("NEPA") and the Atomic Energy Act of 1954 is amended
("AEA").
There is no doubt that ECO is threatened with a concrete and particularized and actual er imminent injury-in-fact. Not only would the decommissioning of Rancho Seco constitute and adverse change to the physical environment, but the threatened agency failure to prepare an Environmental Impact Statement ("EIS") creates a risk that serious environmental impacts will be overlooked and satisfies the suf ficient injury-in-fact test in and-of itself.
"The procedural injury-implicit in-agency failure to prepare.an EIS--the creation of a risk that serious environmental impacts-will be overlooked--is itself a sufficient ' injury in fact' to support standing provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of
.the challenged project-that he may be expected to suffer whatever environmental consequences the project may have". City of Davis 3
7 YA G212 RAD, 521 F.2d 661, 671 (9th Cir. 1975) "Whether Davis' municipal interests are non-economic or unquantifiable is immaterial". 521 F.2d at 671 (citations omitted). NEPA 5102(2)
(C) entitles both ECO and its members to comment on any EIS g
covering the proposal decommission Rancho Seco and to have their comments considered with the EIS during NEPA review. Thus, the failure to develop and file an EIS deprives ECO and its member of their opportunity to participate in the administrative decision making process and constitutes another " injury in fact" that is sufficient to support standing. 521 F.2d at 672.
Likewise, ECO " satisfies the caucal connection requirement" since there is no doubt that Rancho seco cannot bt decommissioned or otherwise made unavailable for potential future operation without the NRC's approval. As to redressability, ECO is entitled to presume that if the NRC performs an appropriate NEPA review that the results of that EIS will effect its decision in a beneficial fashion. However, as the Supreme Court has noted
.in its recent decision in Luian, another way of looking at this aspect is to say that a litigant alleging a violation of NEPA need not demonstrate redressability.
Further, with respect to geographical nexus, different actions have different ranges of geographical effect. While it may be necessary to observe or visit a particular tract of land to suffer injuries within the zone of interests of NEPA in some 4
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cases, other projects have much broader rang: f environmental effect. Major federal decisions which affect an entire region of
-the country (" Pacific Northwest") have been held to give standing _
to anyone living within the " region". Egg Forelaws On Board 11 Johnson, 743 F.2d 677, 680-82 (9th Cir. 1985). The question here has najor consequences for the future potent 3a1 electric power supply of SMUD in particular and all of California. The affidavit-of ECO's member establishes that he lives within SMUD (and there has been no proffer by SMUD or the NRC Staff to the contrary) and ECO's affidavit establishes that it is a citizen of California also with its principal offices within the state.
Thus both ECO and its member satisfy any relevant requirement for geographical nexus.
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II. THE ASLB ERRED IN ITS STANDING ANALYSIS The ASLB ruled that in order to obtain standing in its own right based on an adverse effect to its interests by the failure to have information made available in an EIS, ECO must also allege " explicit environmental harm with a direct impact upon" ECO, relying principally upon Foundation On Economic Trands y2 Lync, 943 F.2d 79, 84 (D.C. Cir. 1991) and Luian y_m. hat 19nal Wildlife Federation, 497 U.S. 871, , 110 S.Ct. 3177, , 111 L.Ed.2d 695, 712-13 (1990) ("Luj an I") . However, neither the Foundation decision nor Luian I (upon which Foundation relied) require an organization to specifically allege " explicit environmental harm with a direct impact upon the [ organization)".
LDP-92-23 at 7. Both of those opinions decided that the respective complaints before the courts should be dismissed for lack of subject matter jurisdiction, because "the organization had failed to identify any particular agency action that was the source of these injuries" or failed "to target their complaint to a particular proposal for federal action...that would trigger the obligation to prepare an environmental impact statement under NEPA". Foundation, 943 F.2d at 85-87.
In this case, ECO has targeted a particular proposal for federal action, namely, the potential approval of an application for a decommissioning order in the SAFSTOR mode for Rancho Seco without adequate NEPA review. Since the Supreme 6
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Court has determined that one may assume "that providing information to organizations such as (ECO) was one of the objectives of the statutes allegedly violated, so that (ECO) is
' aggrieved-Within the meaning' of those statutes", the fact that ECO has identified this violation of its rights in the context of a concrete licensing action suffices to support ECO's organizational standing on the basis of an injury to its informational interests which are explicitly identified in its Articles of Incorporation.
In addressing " injury-in-fact", the ASLB recognizes that ECO set forth basis for standing in both its April 20, 1992 petition and its June 29, 1992 supplement. LPD-92-23 at 10. The ASLB initially recognizes tnat ECO asserts that both and it and its members ' will be adversely af fected if sn environmental impact statement for the proposed decommissioning is not prepared". LBP-92-23 at 10.M The ASLB states that ECO's supplement " adds little.with respect to~ organizational standing, except to indicate that the contentions contained therein are examples of the injury suffered by ECO". LBP-92-23 at 11. The ASLB then says that only one of
.ECO's contentions bears on the organizational standing claim, 1/ The ASLB's allegation that the NRC Staff's failure to indicate.that it will prepare an EIS " deprives ECO of its ability to comment directly-on the environmental report by SMUD".
(citing the April 20th petition at 19-20) makes no sense.
7
.- i namely, "the reported lack of an EIS (including allogsd
-inadequacies in the licensee's environmental report)". LBP-92-23 at 11.
Contrary to the ASLB's assertion that "nowhere is there asserted any environmental harm that would affect organization, other than informationally" (LPB-92-23), the Affidavit of
-Organizational Interest by ECO's president clearly staten that, the interest that ECO seeks to protect under both the Atomic Energy Act of 1954, as amended ("AEI"), and the National Environmental Policy Act of 1969, as amended
("NEPA"), are (a) not only germane but central to ECO's purposes as demonstrated by its Articles of Incorporation,-(b) within the zones of interest protected by NEPA and AEA, and (c) the distinct and palpable harms to ECO's and its member interests that would occur from approval of the SAFSTOR proposal, especially prior-to-a hearing after issuance of a Final Environmental Impact Statement, can be avoided by a favorable decision on ECO's petition.
David Rossin, Egg Affidavit of Organizational Interest by Dr. A.
President of Environmental and Resources Conservation Organization at-1_6 attached to ECO's Amendment And Supplement To Petition For Leave To Intervene And Request For Hearing (June 29, 1992).
In turn, the particulars of those environmental harms are identified in the petition and-the supplement including the contentions. Unless one takes the point of view that since a not-for-profit corporation is an incorporeal entity and therefore cannot suffer harm from changes to the physical environment (including radiological and non-radiological impacts), ECO as a
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b n- 9; citizenfof-California will suffer harm from the injuries-describe'd.ab'ove in.its own right.F
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Likewise, the ASLB's consideration of ECO's standing as a' representative of its member _ omits significant facts of record r
'at and'is barren of judicial. citation to support its truncated zanalysis'.
.LThe ASLB takes a passage from ECO's oetition as 9
constitutingLthe "only_ description of how these individuals might be affected by the proposed-decommissioning action" LBP-92-23 at
--12 _- _ In Ldoing . so, the ASLB inpermissably' ignores ECO's Supplement i _
including the contentionsitherein addressing particularized harm E -
-to ECO and itsTaembers_within the zone of-interest of both NEPA-and the AEA and the further-particularized harms to ECO's member Jidentified--inithe : Affidavit of David R. Crespo-which.was attached-
-to--that Supplement.--Thus,.the ASLB's findings are, among.other-things,. arbitrary >and capricious short of_ statutory right and ,
unsupported byfsubstantial evidence'in a case. subject to Sections o ~
-556~and 557 of TitleLS of-lthe United States Code,.in violation of .
[
ECO's: statutory.and constitutional rights to standing in'this-J2/J It:is more than passing; strange that the ALSB- recognizes that the_" lack of EIS would at most affect ECO's informational interests", butinonetheless blindlyLdetermined that "ECO has'not
.satisfiedithe informational harmLcriteria sanctioned by recent icourt-decisions".- LBP-92-23:at 11. =This' strangeness is only_
compounded _by;the absence-of'any citation lto such "recent court decisions".
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matter pursuant to tho AEA and NEPA, and otherwise cannot curvive review.pursuantito the standards of 5 U.S.C. 5706(2)- (1988) .F In similar fashion, the Board errs in_ implying that ECO's pleadings-do'"not explicitly" indicate that its represented member depends on SMUD to meet his electric energy needs. LBP-92-23 at 12. In his affidavit, ECO's member explicitly indicated his reliance-on SMUD: "As a Sacramento area resident, I am also
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interested in' actions which will have a direct effect on the availability of reliable and environmentally benign electric l generation to meet my needs and those of-my family and the community as a1whole. Either Rancho Seco must be operated or
~ alternative-generating facilitics will have to be built and operated." Cresco'Aff. at 1.8.
The ASLB's sweeping assertion that "(n]owhere does ECO provide any factual basis for its thesis.that. radiological health and safety of.the two listed members would be compromised or that their future _ supply of electricity would_become unreliable" is .
-both misleading and irrelevant. LBP-92-23 at 12. It is misleading both because it is both confined to ECO's original-
~
l- petition-(thus omitting'ECO's Supplement'and the contentions e
I contained therein and'the affidavits attached thereto as wellias
-2/ Below in this brief, ECO will refer to the touchstones for review described in this sentence as.the "APA' Standards" to
. diminish unnecessary repetition.
10.
f1
the clarifications and evidence proffered at the pre-hearing conference) and because the affidavits and contentions provide the necessary factual premises. It is irrelevant because the principal thrust of ECO's contentions goes to the inadequacy of the AEA and NEPA documentation supporting SMUD's application for a decommissioning order and the potential inadequacy of the NRC, AEA and NEPA review of that application either independent of, or resulting fron, the inadequacios of SMUD's documentation as well as issues of law (for example, whether the decommissioning plan endangers ECO and its represented member as a matter of law in the absence of an approved decommissioning funding plan). These findings are not only unsupported by any citation to the record or judicial precedent, but independently violate the AEA and NEPA as well ac constituting violations of its "APA Standards". Egg note 3 above associated text. It should also be noted that ECO preferred an official California state report on the need for power issue at the prehearing conference. July 14 Tr. at 11.
In similar fashion, the ASLB errs in finding that ECO did not "show how, as it claims, the absence of Rancho Seco would lead to the substitution of fossil fuel plants that would contribute not only to acid raid, the greenhouse effects and other effects adverse to the environment, but also to the endangerment of national energy security". LBP-92-23 at 12-13 (foetnote omitted). First, the Crespo affidavit clearly supports these propositions. Second, not only did SMUD and the NRC staff 11
l both fail to deny that the substitution of fossil fuel plants would contribute to acid rain the greenhouse effect and other adverse to the environment as well as the endangerment of national energy security, but there is no literature that could be cited to the contrary. Also agg, July 14 Tr. at 11 (State report). For example, it is beyond argument that coal plants are unacceptable for air quality reasons in the Sacramento area and that U.S. supplies of oil and gas are dwindling resul'cing in increasing reliance on foreign oil and gas which the construction of substituted electric generation facilities would only ccepound.i' Moreover, the ASLB errs in assuming that ECO must "show how...the absence of Rancho Seco would lead to the substitution of fossil fuel plants". At the pre-hearing conference, ECO asserted without contradiction by SMUD or the NRC staff that Rancho Seco constitutes approximately half of SMUD's installed generating capacity. July 14 Tr. at 149. This demonstrates that there is at least the " potential" for such harm which is only reinforced by the fact that neither SMUD nor the NRC staff denied such a potential. It is the function of NEPA to address and consider such " potential" impacts so that the decisionmaker may if However, as noted previously, the thrust of ECO's environmental contentions at this staae (when there is only SMUD's environmental report to consider) is not whether the thesis in Mr. Crespo's affidavit is correct or incorrect, but rather that SMUD's environmental report is totally inadequate in failing to address such cumulative impacts and in failing to consider them in its cost benefit analysis.
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be aware of the risks entailed in approving or denying the i I
application. - Once again, SMUD's environmentah report falls entirely to address these risks.F f
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i While ECO' recognizes.that the principal: focus of judicial 5/
- review of the adequacy'ofLNEPA documentation is normally on the-Ladequacy of the acency8 t documentation, in these circumstances i where-such. agency documentat i on-i s not yet available,:the issue-of " adequacy" must,be limited to the applicant's documentation, namely,'SMUD's environmental report.
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III. THE ASLB's REJECTION OF THE 50-MILE PRESUMPTION IS ALSO IN ERROR.
As a pure presumption, the ASLB correctly states that it applies in a proceeding " 'with clear implications for the offsite environment or ***a clear potential for offsite consequences' Florida Power & Licht Co. (St. Lucie Nuclear Power Plant Units 1 & 2), CLI-09-21, 30 NRC 325,329 (1989)." LDP-92-23 at 13-14. Then, the ASLB goes on to say "(ijn other situations, a petitioner must allege 'some specjfic injury in fact' that will result from the action taken***'" LBP-92-23 at 14. The balance of the ASLB's discussion of the 50-mile presumption or geographic nexus presumption ignores the major proposition and concentrates on the adequacy of ECO's presentation on specific injury in fact which must be addressed only "in other situations."
This ignores the ASLB's prior determination that
" Decommissioning Plan and the Environmental Report...anLlyze certain effects of the plan extending as much as 50 miles from the facility" LBP-92-23 at 13. Given this determination, the Board should never have reached the consideration of whether a
" specific injury in fact" was deronstrated since the Board itself had already determined that SMUD's AEA and NEPA documentation demonstrate that "certain effects would result from the plan.
This finding is more definite than the lower thresholds of " clear implications" or "a clear potential" for the offsite environment 14
which the Ett.,Lucie decision found adequate to bring the 50-mile presumption into play.E ECO also notes that neither the NRC Staff nor SMUD provided any basis for a finding that neither ECO nor its number would be affected.
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l s/- Nor can it be argued with a straight face that a decommissioning order is not a "significant amendment" since it the only type of reactor license amendment for which the NRC has developed distinct regulatory. requirements undar both the AEA and NEPA after a regulatory and rulemaking effort of approximately ten-years. E.g., 10 C.F.R. $$50.75, 50.82 & 51.53 (b)(1992).
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IV. THE ASLB ERRED IN FINDING TilAT ECO FAILID TO ADEQUATELY ALLEGE SPECIFIC INJURY IN FACT.
While it should not be necessary to reach the issue of the adequacy of ECO's showing of "how any of the effects cited in the Decommissioning Plan or Environmental Report as extending as much as 50 miles from the facility affect the particular individual" (LBP-92-23 at 14) due to the applicability of the 50-mile presumption, if the Commission should reach this issue, ECO contends that the ASLB erred in finding that ECO failed to make an adequate presentation of " sono specific injury-in-f act". I' First, the ASLB ignores the fact that ECO is permitted to support a contention by expert opinion 10 C.F.R. 52.714 (b) (2) (ii) (1992) . Paragraph 2 of the Crespo affidavit identifies Mr. Crespo's expertise to support the injury alleged by him in that affidavit. Further, Dr. A. David Rossin's expert credentials in support of his affidavit were identified at the pre-hearing conference. July 14 Tr. at 17, 169-70.
2/ The ASLB's formulation of the issue ("show how any of the effects cited... affect the particular individual", LBP-92-23 at
- 14) is in error. First, as thrust of ECO'c contentions previously stated, the principal is not against the " effects cited",
but with the fact that direct and indirect effects and costs and benefits are n21 cited. Second, the issue is not "how" an effect would affect, but "whether" it would affect the particular individual and/cr ECO.
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Moreover, ECO identified with great particularity the requirements for the adequacy of an ER and with equal particularity identified the inadequacy of the environmental reports compliance with those requirements. ECO Supplement at 16-23.
Further, ECO particularly examined NUREG - 0586 which was prepared only "to assist the Nuclear Regulatory Commission
("NRC") in developing nolicies and promulgating amended reculatieng with respect to the decommissioning of licensed nv: lear facilities" NUREG-0586, 11.1; ECO Supplement at 23. ECO further pointed out that NUREG 0586 was limited to consideration of the decommissioning of a nuclear facility which has reached the end of its useful life and that since Rancho Seco has many years of useful life remaining, NUREG 0506's approach to the "no action" alternative was inapplicabin in this case.
Further, while ECO would concede (given the greater amounts of radioactive exposure of reactor internals assumed in NUREG-0586), that that report may be adequate for abounding analysis of gcDeric radioactive environmental effects related to Rancho Seco that fact does not eliminate or supplant the need for a particularized analysis of the radiological environmental of decommissioning Rancho Seco. However, the most critical fact in that NUREG-0586 devotes only two pages to considering all of the non-radioloaisal impacts of decommissioning and even then those 17 i
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l impacts are limited to consideration of a reactor at the end of f its useful life, a case not relsvant here. Not only do those facts demonstrate that a full consideration of the ngn-radioloaical environmental effects of the proposed decommissioning are required for the Rancho Seco application, but NUREG-0586 itself recognized that sites specific studios "will be renuired f2r the...envirenmental reports submitted with the application for licensing modification prior to decommissioning a -
specific facility. NUREG-0586 at Chapter 3; Hgg ECO Supplement at 23-24. The ASLB simply overlook" 1590e irrefutable facts and ignores the inadequacy of SMUD's envir5M9? tal report in violation of ECO's rights under NEPA and the "APA Standards",
Egg note 3 above and associated text.
The ASLB's rejection of ECO's atanding for failing to adequately allege " injury-in-fact" is premised on the ASLB's mistake in findings that Eco provided only " unsupported general references to radiological consequences" and " social-type environmental consequences that...come not from decommissioning but from-the prior, unrevealable action of SMUD to discontinue operation of the facility". LBP-92-23 at 15. This is error in violation of ECO's rights-under the AEA and NEPA as well as the APA Standards" erg note 3 above and associated text. These findings ignore the fact that ECO's allegation of AEA harm are supported by both legal argument and expert opinions as to the facts and omit reference to many categories of injury discussed 18
under injury-in-fact above particularly the facts that some of ,
the injuries above will flow from the fact that decommissioning ,
will make reversal of the decision to discontinue operation irreversible and the fact that even if decommissioning is approved the choico of SAFSTOR rather than DECO!1 would involve greater radiological risks under the AEA and greater environmental impacts under liEPA including cognizablo econori' impacts.
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V. THE ASLD ERRED IN ITS REJECTION OF THE SPECIFICATION OF TRANSPORTATION.
The ASLB rejected consideration of the transportation effects specified by ECO at the pre-hearing conference because those effects had (allegedly) not been previously mentioned because of an alleged lack of particularity, and because the ,
Doard determined that such inpacts are not at issue in this proceeding. LPB-92-23 at 14-15 & n.20. This was error in violation of ECO's rights under HEPA and the "APA Standards".
Egg note 3 above and associated text.
First, a dominant purpose of h pre-hearing conference is to obtain greater specificity of the issues identified and ECO identified the transportation effects in reply to the ASLB chairman's explicit request for such additional specification.
Therefore, if they had not been previously mentioned, that fact.
would ts irrelevant. Also, there was no objection by any other party this further specification by ECO. Further, the real issue '
is not precisely what the impact on ECO or its represented member would be but the fact that such impacts have not been addressed in either the AEA or HEPA documents.
Morcover, not only does the ASLB cite no authority for the' proposition that " transportation impacts are not at issue at l this proceeding" (LBP-92-23 at 15 n.20) but such-impacts l-1 20
-- n* - y,. y
(radiological and non-radiological) are a clearly unavoidable effects and cumulative impacts of any approval of the proposal to decommission Rancho Seco. Thereforo, even if discussion of such impact can be avoided in the AEA aspect of the consideration of the decommissioning ordor, they cannot be avoided in the NEPA consideration of the proposal to decommission Rancho seco. Egg, 40 C.F.R. 551508.7 (cumulative impact), 1508.0 (effects) &
1508.25 (scopo), all of which have been adopted by the NRC at 10 C.T.R. 551.14(b) (1992).
Moreover, the ASLB's twice-repeated major promise for rejection of these specification of possible harm from o transportation (e.a., "ECO's failure to mention transportation i prior to the pre-hearing conference") is clearly in error. The
! NRC Staff responso (at 4 n.6) recognizes that this issue was l
l raised in ECO's Supplomont. Thus, the ASLB's ruling on this issue also violates ECO's rights under the AEA and NEPA as well as the "APA Standards". Egg note 3 above and related text.
[
In so far as the issuo " lack of specificity" is i
concerned, ECO clarified at the pre-hearing conference that an i
l impact on ECO's member was poswible, but that transportation I
! issues had not simply been addressed by SMUD.
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To the extent-that it was argued that transportation was outsido the scopo of this proceeding, that argument was 21 l
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limited to transportation og sport fuel, July 14 Tr. at 48-49. )
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VI. THE ASLB ERRS IN ITS DISCUSSION OF THE ZONE OF ,
INTERESTS.
In its discussion of the zone of interests (CL1-92-23 '
at 16-17), the ASLB simultaneously finds that " protection of financial interests" is D21 within the zone of interests sought to be protected either by the Atomic Energy Act or HEPA" and that "NEPA does protect some economic interests". Emphasis added.
Not only are these findings mutually exclusive, they are without the support of citation of any judicial authority and ignore the fact that most of the alleged economic harms will f'~v not from the current decision not to operate, but from approva4 of the proposal to decommission Rancho Seco which would be the destruction of a major existina environmental asset with the potential for generating huge amounta of electricity from a non-airpolluting source. Thus, it is clear that the alleged economic In or financial harms would result from " environmental damage".
similar fashion, even if one assumes that some form of decommisoloning is approved, the choice of SAFSTOR over DECON is alleged to entail additional and, therefore, imprudent risks cognizable under the AEA and NEPA with consequent additional financial or economic injuries. These risks have simply n21 been addressed by SMUD's AEA or NEPA documentation. The absence of E
such discussion is a procedural injury compounding the injuries 23
to the physical environment all of which are alleged and cognizable under NEPA and the AEA. !
I This ASLB characterization of ECO's presentation is a i perversion of ECO's filings and ,an impermissible obstruction of ECO's rights pursuant to the AEA and NEPA, as well violating the "APA standards" gge note 3 above and associated text.
24
VII. THE ASLD ERRED IN DEt1YING DISCRETIO!1ARY STAND 7NG TO ECO.
The ASLB denied discretionary standing to ECO based upon a naked determination "that ECO vould not reasonably be expected to assist in building a sound record on which the Commission may base its decision in this proceeding". LBP-92-23 at 17-18. Such a determination without citation to anything in the record, or the absenen of a showing violates ECO's rights not only under the AEA and NEPA, but most especially ECO's rights to a reasoned decision based on the record pursuant to the "APA Egg note 3 above and associated text. Moreover, Standards".
this totally ignores not only the expertise identified in the Crespo affidavit, but more especially, Dr. A. David Rossin's expertise which was identified by Eco at the pre-hearing conference in reply to the Chairman's explicit request. July 14 Tr. at 169-70.
In short, the unreasoned denial of discretionary standing constitutes, among other things, an abuse of discretion requiring reversal according to the Commission's own precedents.
Florida Power & Licht. Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, NRC (June 28, 1991).
25
i VIII. THE ASLB ERRED IN EXCLUDING ECO CONTENTIONS IDENTIFIED f IN ITS .2ETITION.
The ASLB's decision to exclude consideration of contentions identified in ECO's original petition is arbitrary and capricious and an abuse of discretion as well as violating ECO's rights pursuant to the AEA, NEPA and the "APA Standards".
Een note 3 above and associate text.
The ASLB ruled tnat: "Because of our direction that contentions be filed in the supplement. we rule that only information appearing in the supplement would be considered as contentions". LDP-92-23 at 18-19.
In its supplement, ECO clearly identified its intent to rely on contentions contained in its original petition. ECO Supplement at 6 ("these injuries are identified by ECO's previously submitted contentions as supplemented herein") In their responses, neither the NRC Staff nor SMUD objected to this incorporation by reference. Purther, such incorporation by reference is common. SAS, e.o.. NRC Staff Response at 2. ("which is incorporated herein by reference").
It should also be recognized that to disallow incorporation by reference serves no useful purpose, but would-only engender cumulatively larger amounts of paper being filed 26
with the Commission as the procondinga novos ons otago to another. It should also be recognized that the Commiscion's ,
rules do not bar the inclusion of contentions with the original petition and request nor do they bar incorporation by reference of such early stated contentions in tha supplement. Further, the NRC regulations often encourage incorporation by reference.
Et22, 10 C.F.R. Parts 1, Subpart A, App. A i 1(b) (1992) .
In short, the ASLB's refusal to allow ECO to address its early filed contentions requires reversal and remand for a new prehearing conference.
i L
1 27 l
l .
IX. THE ASLB ERRED IN REJECTING ECO'S LNVIRONMENTAL CONTENTION.
The ASLB's rejection of ECO's environmental contention (LBP-92-23 at 20-26) violates ECO's rights under HEPA and the nuncil On Environmental Quality and NRC regulations pursuant thereto and cannot uurvive review pursuant to the "APA Standards" Et2 note 1 above and associated text.
First, the ASLB erra in finding that "the impacts that ECO now seeks to have discussed relate only to the cessation of operations--they are not impacts of decommissioning" (LBP-92-23 at 24), since appropriate versions of the "no action" alternative would oreserve the notential for future operation and approval of deconmissioning would destrgy that potential. The ability to avoid the impacts is not destroyed by the current " cessation of operations", but would be destroyed by approval of decommissioning. Therefore, it is clear that those effects are
" impacts of decommissioning".
For the same reason, the ASLB orrs in finding that "ECO has not taken issue or raised any environmental questions" with respect to decommissioning. LBP-92-23 at 25. The Board's error in this respect is all the more remarkable because it recognizes that the Commission requires consideration of the "no action" alternative (LDP-92-23 at 25) but, nonetheless, fails to address 28
}
l SMUD's totally inadequate and summary dismissal of that alternative without any detailed, much less quantitative, consideration of the direct, indirect and cumulative costs and benefits of that alternative. Egg SMUD Response at 19-20; Citizens Aaainst Bur 11naton y2 Busev, 938 T.2d 190, 192 (D.C.
Cir. 1991).
With the sole exception of the Commission's exclusion of consideration of resumed operation as an " alternative" (a position that ECO urges the Commission to reconsider), the ASLB is in error in alleging that 2CO's environmental contention addressed matters "that the commission had already ruled are outside the scope of consideration of a proceeding such as this".
LBP-92-23 at 25. The Commission has made no ruling on the scope of direct, indirect, and/or cumulative effects which must be addressed in the applicant's supplemental environmental report.
The ASLB errs in finding that "we will not entertain an unsupported generalized claim that the Commission is placing undue reliance on the GEIS in its assessment of the impacts of decommissioning the particular facility." LBP-92-23 at 26. At the time of the issuance of LBP-92-23, not even the NRC Staff, much less the Commission, had decided what reliance, if any, it was placing on the GEIS in its assessment of the impacts of decommissioning Rancho Seco. Moreover, ECO's contention went to the SMUD Environmental Report. It could not attack an 29 1
environmental assessment or an environmental impact statement which do not exist.
Despite ECO's clear explanation at the pre-hearing conference (July 14 Tr. at RA94, 166-68), the ASLB characterizes ECO's reliance on Staff questions concerning the environmental report as an " attempt to incort ate by reference the questions asked by the staff concerning s environmental report (which) fails to comply with the Commission's pleading requirements"
-relying on Louisiana Enerav Services. L.P., (Clairborne Enrichment Center) LBP-91-41, 34 NRC 332, 316, 357-58 (1991).
LDP-9?-23 at 26. Passing over the fact that unreviewed ASLB decisions do not constituto valid precedent, ECO was not relying on any Staff questions to forn a contention, but rather relying on the Staff questions as evidence in support of ECO's contention on the inadequacy of the environmental report. H?reover, the ASLB is in flagrant error, and in contradiction of a former section of its own opinion, in finding: "ECO does not describe the significance of the matters to which the questions are addressed or why, indeed they might constitute a defect in the Environmental Report." LBP-92-23 at 26. ECO spells out in great detail the various reauirements for an environmental reports ECO Supplement at 16-28. AND ECO discussed in great detail the various ways the environmental report did not meet those requirements. With the respect to the Staff questions, ECO noted that they identified "further particular inadequacies of 30
discussion, detail and quantification in SMUD's environmental 1
report. SCO... contends that each one of those particularized inadequacies further demonstrates the inadequacies of SMUD's I l
environmental report in violat2on of SKUD's duties pursuant to the NRC regulations, the CEQ regulations and NEPA itself." ECO Supplement at 28. Having previously spulled out those " duties pursuant to the NRC regulations, the CEQ regulations and NEPA itself," there is nothing further for ECO to have done.
Moreover, this broad stroke of dismissal is inconsistent with the ASLB's earlier recognition of the particularity with which ECO has presented its case. LDP-92-23 at 20-21 ("goes on to particularize", "goes on to define", " describes requirements",
"first pacific claim", " lists several reasons", "goes on specifically to describe", and "(m)ost specifically").
Also, the ASLD's reliance on a portion of the statement of consideration for the Commic.sion's 1988 Decommissioning Regulations is misplaced. " General Requirements for Decommissioning Nuclear Facilities", 53 Fed. Reg. 24018, 24039 (June 27, 1988). First, it is doubtful that the Commission's statement of consideration may expand the legitimate purpose of the GEIS beyond the purpose expressed in the GEIS itself. ECO Supplement at 23 citing NUREG-0586 11.1. Second, it is obvious from the passage cited by the ASLB that as insofar as the GEIS may be adequate for NEPA purposes, it is adequate only for the consideration of radioloaical effects, not non-radiol.2EiEal 31
1 i- ,
Jeffects (" integration into the waste disposal process", "a large quantity of vaste must be handled and disposed of"). 53 Fed.
I Reg. at 24039 cl. 2. The_ inapplicability of the GEIS to the i current situation is further demonstrated of the fact that while ,
the Commission therein determined that the "no action-alternative ,
need not be considered because the reactor had reached the end of l it usetul life by age or accident, the Commission has here l determined, as the ASLB recognized, that the "no action" alternative must_be considered. However, SMUD's environmental report fails to do so. LBP-92-23 at 25.
Finally, whatever degree of reliance the applicant, the NRC staff or theLCommission may place on the GEIS, the ASLB l failed to address the GEIS' own recognition of its limitations in
. finding that "[sjite-specific" studies "will be required for the safety analysis and the-environmental report submitted with the .
application for license modification prior to decommissioning a
. specific facility," NUREG-0586 at 53.1; ECO Supplement at 24.
-ECO also notes that while the ASLB Chairman demurred to
~the suggestion ~that the adequacy of NRC Staff and environmental assessment would be dependent upon the adequacy of SMUD's
-environmental report (July 14 Tr. at 118), the' GEIS recognized
- that the environmental assessment would-be " based on" the applicant's environmental report. NUREG-0586 at x.
T 32 l:
E l:
.. a. -. m, _ _ . _ _ _ _ . _ _ _ _ _-- _- . _ . . _ _ _ _ _.
4 Purther, the ASLB erred in f ailing to address ECO's contention that reliance on the GEIS is diminished by the fact that the chapter relevant to Rant ) Seco (Chapter 4) relies on only 14 documents where the 9 documents addressing radiological issues are il years old and the 5 other documents prepared in the last 10 years are limited to gronomic coal issues. ECO Supplement at 24. It should also be noted, as was pointed in the pre-hearing conference (July 14 Tr. at 84-86), that the consideration of non-radiological environmental effects contained in the GEIS on PWR decommissioning is extraordinarily scanty (3 paragraphs at !TUREG-0856 at page 4-17), conclusory, and barren of mention of most of the direct, indirect and cumulative effects of decommissioning identified by ECO in its contentions (and excluded contentions).
l l
I.
6
~
33
X. THE ASLB ERRED IN REJECTING ECO's AEA CONTENTIONS.
1 Contention IV.A The ASLB rejected ECO's contention ]
that a large part of SMUD's decommissioning plan had been invalidated by SMUD's termination of NRC review of the hardened SAFSTOR portion of the decommissioning plan. Despite the unmistakable languLve of DAGM/NUC-92-067 (March 20, 1992) ("we request that the NRC terminate its review of the Rancho Seco ISFSI SAR"), the ASLB avoids this clear cut contention by allowing the NRC Staff and SHUD to rewrite history in "more felicitous" language at the pre-hearing conference. To substitute " suspend" for " terminate" . There is no thesaurus on earth that would relate those two verbs as synonyms.
Moreover, the proposition that the ASLB accepts, namely, that safety review can be suspended while environmental review continues is patently absurd. EAA SMUD Response at Attachment 1; LBP-92-23 at 27-28. How can one assess the environmental conseg~ances of an unknown design? If the necessary premise for safety review (itg2, the design of the facility) htas been withdrawn, there is no design or factual premise for environmental review. But see July 14 Tr. at 92.
The rejection of this clear and concise contention going through the heart of the adequacy of the decommissioning plan proposal pursuant to the AEA violates ECO's rights pursuant l
34 l
i
l to the AEA and cannot withstand review pursuant to the "APA Standards". S22 note 3 above and associated text.
Contention IV.B In rejecting Contention IV.B (LBP 23 at 18-29), the ASLB violates ECO's rights pursuant to the AEA and this violation cannot withstand review pursuant to the "APA Standards". Egg note 3 above and associated text.
The ASLB simply ignores ECO's contention that the SMUD decommissioning funding plan should be reviewed in this proceeding or any action on the decommissioning order should await approval of SMUD's decommissioning funding plan in another proceeding". ECO Supplement at 29. While accepting ECO's legal promise for the relief requested ("ECO may be technically correct"), the Board ignores ECO's contention that in thoce circumstances, the decommissioning funding plan should either be reviewed in this proceeding or this proceeding should be held in abeyance pending possible approval of that plan in another proceeding. Contrary to the Board's assertion, ECO clearly identified a " material... legal dispute". Id. July 14 Tr. at 141-63. The Board's speculation as to whether the Staff may grant an exemption is irrelevant. Id. And the ASLB's characterization as "the crux of ECO's concern (b)eing that its views on the exemption be taken into account" (LDP-92-23 at 28-
- 29) is woven out of the whole cloth. Nowhere in ECO's succinct contention IV.B did ECO express that concern. This rejection of 35
_ -. _. ~ _ _ . _ _ _ _ . . - _ _ _.
. e l
contention IV.B violates ECO's rights pursuant to the AEA and cannot withstand review pursuant to the "APA standards". Egg note 3 above and associated text.
Contention IV.D. In rejecting ECO's contention IV.D (LBP-92-23 at 29-30), the ASLB errs as a matter of law in the reading of-42 U.S.C. 52241(a)(1988), misconstrues its jurisdiction depriving ECO of its statutory rights, assumes the existence of a-non-existent proposed finding of no significant hazards consideration, and cites a commission decision inapplicable to ECO's legal argument because this argument was not presented to the Commission in the context of CLI-92-4.
It was clear error of law for the ASLB to find that the introductory " phrase (to $2241(a)) only authorizes the Commission use a three-member licensing Board...." LBP-92-23 at 29. What that phrase does, and was' intended to do as the legislative
~ history demonstrates, is to show that the only eections of the Administrative procedure Act which would not be applicable to ASLB's are sections 7(a) and 8(a), thus making it clear all other sections of the APA (as particularly relevant here S U.S.C.55554, 556,~557'& 558) are applicable to ASLB proceedings including the requirement for a prior hearing except in the limited circumstances provided for in Section 558(c) (which are not applicable here).
36
-- . - - - .- ~- .. - _ _ - . - - . , _ _ - . -
4 a l
If the ASLB had correctly understood this proposition, l
then it would have recognized its inherent jurisdiction to protect its jurisdiction to require a prior hearing in the circumstances of the instant proposed amendment to a license which 10 not an operating license. The Commission should reverse this error of law by the ASLB or treat the issue as a certified question of law and decide the issue itself.
Contention IV.E. The ASLB arred as a matter of law in denying ECO's contention IV.E and its Motion for an order to Compel Service. LBP-92-23 at 30-31. At the core of the ASLB's denials (s the determination that 10 C.F.R. El2.701(b) and 2.712(1992) require " service only on ' parties,' which ECO is not". LBP-92-23 at 30 (footnote omitted). In so doing, the ASLB rejected ECO's reliance on 10 C.F.R. $2.714a (1992). This was clear error.
If the phrase "(a]ny other party may file a brief in support of or in opposition to the appeal" in $2.714a (a) does not indicate that a " petitioner" is a " party", then a petitioner would be barred from filing a brief in support of or in opposition to an appeal by another participant in proceeding.
This is contrary to common sense and would be in violation of the petitioner's due process rights. ,
i 37 i
t
_ __ .-_ =. _ - - - - -
Likewise, the phrase in $2.714a(c) that an order granting a petition "is appealable by a party other than the petitioner" also clearly implies that a " petitioner" is a
" party".
Further, it would be a violation of ECO's due process rights to require it to daily visit the NRC's Public Document room ("PDR") and " squirrel through" the NRC's files to obtain documents that have been filed with the NRC 2-4 weeks previously which is the normal transit time for a document to arrive in the PDR. Given tho fast moving pace of NRC proceedings, petitioners would be greatly disadvantaged as the applicant is allowed to constantly shift the ground of factual material to be considered without ' he interveners timely awareness of such shif ts.
ECO also notes that the NRC Staff serves petitioners and potential. petitioners (such as ECO) with all NRC written communications with the licensee / applicant. This is a further indication of the dictates of due process in these circumstances.
Given all of these factors even if ECO were not legally "a party" to the proceeding, the failure of the ASLB to exercise
-its discretionary authority to require service by the licensee in the11nterest of justice constituted an abuse of discretion.
38
' Finally, the ASLB's determination that "ECO was unable l
to identify any document with which it had not been served" (LBP-92-23 at 31) undercuts the ASLD's denial of the requested reliefs if ECO were able to identify documents with which it had not been served, ECO's awareness of those documents might indicate that !
J service was not necessary. l In short, neither this ruling nor the denial of the related motion can withstand review pursuant to the "APA Standards". Egg note 3 above and associated text.
Contention IV.P. The ASLB erred in denying ECO's contention that the NRC Staff's March 12, 1992 series of questions to the licensee demonstrates diverse defects in the decommissioning plan which would constitute an independent basis for-denying the decommissioning order pursuant to the AEA and granting ECO's request for a hearing to consider the adequacy of SMUD's responses to the Staff's criticism. ECO Supplement at 30-
- 31. This rejection violated ECO's rights pursuant to the AEA and cannot withstand review pursuant the "APA standards". Egg, note 3 above and associated text.
The Board errs in finding that ECO failed to explain the "the significance of any question". LBP-92-23 at 31. If the necessary information for NRC Staff review had been included in 39
a .~
k e the application, the NRC Staff would not have needed to ask for that relevant information.
The Board also erra in finding that ECO "does not bother to reference the licensee's extensive April 15, 1992 responses". LBP-92-23 at 32. ECO informed the ASLB of its review of the April 15 responses in Petitionor's Motion For An Order To Compel 'ervice at 3 (July 17, 1992). ECO informed the ASLB that "the fact that ECO had reviewed the SMUD April 15 submission prior to formulating its contentions did not affect the validity of any of those contentions, but did, at least i temporarily, avoid the vasting of time". Id. at 4. ECO's analysis is confirmed by the yet further requests for information by the NRC staff on July 9 and August 19, 1992. Exg,. U.S. NRC,
" Request For Additional Information Regarding The Proposed Decommissioning Plan - Rancho Seco (TAC NO. 80518) (August 19, 1992). And as previously discussed, ECO is not incorporating the :
HRC staff-questions to raise the substantive issues addressed theroin, but only as support for-its proposition that the application is inadequato.
The ASLB also recognized the contention raised by 5 7 of the crespo affidavit LBP-92-23-at 12. However, the ASLB erred in limiting that contention to its AEA aspects and in failing to recognize it also as a NEPA contention. Further and more importantly, the ALSB erred in finding that: "no data or 40
~ _ - __ _ _
_ _ _ _ _ _ _ _ _ _.]
_ _ __ y. . . _ . _. _. _ _ __ . - _ _ _ - . _ _ _ __ ,. - _ _ _ . _ . . . . . . _ . . __ . _-
L.J .
witnesses, (expert- or 'otherwise) Lare identifiedi to support thic claim". LBP-92-23 at 32.-~Not only does Mr. Crespo's affidavit.
iform-the basis-for-identifying Mr. Crespo-himself as an expert, but Dr. Rossin's affidavit also addresses these issues, and as
. previously mentioned, .his qualifications as an expert were
,c o2lered at the pre-hearing conference in response to the AOLB's
~
Chairman's inquiry,- together with an express offer to provide Dr.
g-. Rossin as a-witness in the proceedings. Thus the-ASLB's
. rejection of this contention (s) is in violation of ECO's and its member's rights under the AEA and NUPA and cannot withstand 7
review pursuant the "APA standards". EAA note 1 above and associated text.
.T 41
- ,.-~, - - e -
y,. _ .. 4
l XI. THE ASLB ERRED IN FAILING TO WITHHOLD THE ORDER WHOLLY DENYING THE PETITION FOR LEAVE TO INTERVENE AND OR THE REQUEST FOR A HEARING AND IN TERMINATING THE PROCEEDING.
The ASLB orred in denying ECO's Contingent Motion to Withhold Any Order Wholly Denying the Petition For Leave To Intervene and or the Request For a Hearing and in terminating the Proceeding on chat petition and request prior to giving ECO an opportunity to file contentions after issuance of the agency's environmental and safety review documents in the above captioned matter. LBP-92-23 at 33-36. These errors are violations of ECO's rights pursuant to the AEA, NEPA, and the APA, as well as ECO's rights to due process pursuant to the U.S. Constitution which cannot withstand review pursuant to the "APA Standards" Egg note 3 above and associated text.
In denying ECO's contingent motion, the ASLB held thU _
ECO's " vested right" to amend was limited to the period until 15 days prior to the first pre-hearing conference and that any further contentions would be subject. the " late-filed" contention criteria of 10-C.F.R. $2.714 (a) (1) (i)-(v) . LDP-92-23 at 34.
First, it is well established that the adequacy of the support for the agency decision in the above-captioned matter depends primarily on the adequacy of the agency's environmental and safety review record. While it is true that thu adequacy of the 42 l
I applicant's environmental and safety submissions may cortribute
-to the adequacy of the record formed by the agency, those applicant submissions to not control the adequacies of the agency documentation.
Second, it goes without saying that the scheduling of
'he proceeding is totally within the control of the agency.
Third, the NRC regulations explicitly vest petitioners such as ECO with the right to amend its contentions or add new contentions based on the NRC's environmental documentation. 10 C.F.R. 52.714 (b) (2 ) (iii) (1992 ) . Although ECO made this point in its pleadings before the ASLB, the ASLB arbitrarily and capriciously fails to address this argument. ECO also notes that while the regulations do not explicitly vest a petitionur with a.
right to file contentions based on the NRC Staff Safety Evaluation Report, the same considerations of due process that dictate that a petitioner have the opportunity to submit contentions based on the agency's NEPA review, also dictate that a petitioner should have the opportunity to submit contentions based-on the agency's AEA review.
Fourth, ECO explicitly pointed out to the ASLB that even if it is permissible to subject NEPA contentions to the
" late-filed" contention criteria (which ECO contends is not permissible), the failuru to grant ECO's contingent motion in 43
s .
1 l
this case would result in the closing of the record and subject ECO's contentions premised on the NRC staff NEPA review to not only the 52.714 " late-filed" cot.cention criteria, but also the even more stringent criteria applicable to a motion to reopen a closed record. ER2 10 C.F.R. $2.734 (1992).
Nonetheless, the ASLB violated ECO's rights by not only closing the record, but terminating the proceeding LBP-92-23 at 36.
t ECO submits that since the agency has total control of the scheduling of the proceeding, it is in violation of ECO's rights pursuant to the AEA, NEPA and APA to schedule the proceeding in such a manner as to deprive ECO of the right to submit contentions based on the agency's NEPA and AEA reviews.
ECO further contends that it would error for the NRC to subject such contentions based on such agency documentation to the " late-filed" criteria since so-called " lateness" would be due only to the arbitrary and capricious scheduling of the proceeding, not to any failure of diligence on behalf of ECO.
Finally, ECO notes that the Courts have assumed that the agency /NEPA documentation would be available in time for the petitioner to submit contentions based thereon. E.c., U.C.S. v2 N.R.C., 920 F.2d 50, 56 (D.C. Cir. 1990).
44
o .
CONCLUSION WHEREFORE, the Commission should reverse LDP-92-23 and remand with instructions that ECO does have standing, that ECO's NEPA and AEA contentions should be admitted, that SMUD should ,
furnish copies of all further submissions to the NRC to ECO's counsel at the same time and in the same manner as those submissions are made to the NRC, and that proceeding should be _
held in abeyance until the NRC Staff documentation pursuant to NEPA and the AEA are available to ECO, and that allow ECO should be allowed a reasonable time (not less than 20 days) to submit additional or amended contentions based on such NRC reviews.
Respectfully submitted, a, r b .
ames P. McGranery, r.
Suite 750 1255 Twenty-Third Street, N.W.
Washington, DC 20037 Counsel for Petitioner Environmental and Resources Conservation Organization September 8, 1992 45
UNITED STATES-OF AMERICA [6[
NUCLEAR REGULATORY COMMISSION Before The Commission: '92 SEF 11 A10 :01 Ivan Selin, Chairman ,
Kenneth C. Rogers ,: ,
James R. Curtiss
~'
Forrest J. Remick E. Gail De Planque
) Docket No. 50-312-DCOM In the Matter of )
) (Decommissioning Order)
Sacramento Municipal Utility District )
(Rancho Seco Nuclear Generating )
Station) )
)
CERTIFICATE OF SERVICE I hereby certify that a copy of tne foregoing Environmental and Resources Conservation Organization's Notice of Appeal from LBP-92-23 and accompanying Brief in support thereof in the above-captioned proceeding have been served by first class mail, postage prepaid on each of-the following on this 8th day of September 1992:
Administrative' Judge Administrative Judge Charles Bechhoefer,. Chairman Richard F. Cole Atomic Safety & Licensing Board Atomic Safety & Licensing Board
-U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington,_D.C. 20555 Administrative Judge Charles A. Barth, Esq.
-Thomas D. Murphy Office of the General Counsel Atomic Safety & Licensing Board- U.S. Nuclear Regulatory Commission U.S. Nuclear' Regulatory Commission Washington, D.C. 20555 Washington, D.C.-20555
l Thomas A._Baxter, Esq. Office of Commission Appellate David R. Lewis, Esq.- Adjudication Shaw, Pittman, Potts'&'Trowbridge U.S. Nuclear Regulatory Commission 2300 N Street, N.W. Washington, D.C. 20555 Washington, D.C.-20037
(']
V% /
'hb, )
% .se 79 f1 gytnec P. McGranery /A/.
Counsel for Petiti6her EnsAronmental and-Resources Conservation Organization
. -