ML20062C071
| ML20062C071 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/03/1990 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#490-10932 OLA, NUDOCS 9010290221 | |
| Download: ML20062C071 (41) | |
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}g 1-7 LILCO,MaylgiES990 L
'l UNITED STATES OF AMERICA g W -7 ' Pl2 :41 j
NUCLEAR REGULATORY. COMMISSION l
l' ONICE Of SicRnAgy 00ChiIlNbe, M g y g;l'.
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URANU'!
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 "M
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(Shoreham Nuclear Power Station,
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l Unit 1)
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LONG ISLAND LIGHTING COMPANY'S OPPOSITION TO-i
'f INTERVENTION PETITIONS AND REQUESTS FOR EEARING ON-CONFIRMATORY ORDER AND ON AMENDMENT TO PHYSICAL SECURITY PLAN I.
Backcround-A.
Procedural Posture l
On' April'18, 1990,'the Shoreham-Wading RiverJCentral School
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l District (SWRCSD) and Scientists ~and Engineers for Secure Energy,
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2 Inc. -(SE 2) (collectively, " Petitioners"), - each filed virtually -
L identical petitions for leave to intervene-and requests'for hearing on the NRC's issusnco of an immediately effective Con-firmatory Order prohibiting Long, Island' Lighting company,'the licensee of the now-defueled Shoreham Nuclear Power-Station,.from
.c placing nuclear.. fuel back in the reactor vessel without prior NRC approval.
55 Fed. Reg. 12758-59 (April 5,-1990).
On April 20, 1990, the same Petitioners.again filed vir-tually identical petitions for leave to intervene and requests-9010290221 900503' i
PDR ADOCK 05000322 1
9 PDR j So3
for-hearing, this time on a-pending amendment to the Shoreham-p Physical Security Plan.I' l
pursuant to C.F.R. S 2.714 (c), LILCO opposes these four virtually identical petitions.2/
B.
Facts j
The present proceedings arise out certain actions taken.by LILCO at Shoreham following the effectiveness of its Settlement t
Agreement with the State of New York.
Under the Settlement Agreement, LILCO has agreed never to operate Shoreham.
- Instead, LILCO will cooperate with the Long Island Power Auth'ority~(LIPA) to obtain the NRC's permission to transfer the plant to LIPA, who L
will decommission it, y
I' Because the Physical Security Plan contains restricted' Safeguards Information, it is not possible_to detail ~the pro-posed changes here.
It can be' stated, however, that the changes-fall into three general categories:,
(1) reduction orselimination of certain prior commitments by LILCO that exceed NRC. require-ments, (2) incorporation of=recent regulatory-changes pertaining-to fitness-for-duty requirements under 10'C.F.R. Part 26, and!(3) ministerial changes.
l 2/
Generally, in this opposition ~LILCO refers jointly to "the Petitioners' arguments," as there is little or no substantive
-distinction in the positions that Petitioners have'taken.. The'
.only differences'within each pair of' petitions involve their.
description of the respective Petitioners.
The only-differences between the pairs of pleadings involve cursory descriptions of
'i the NRC actions on which Petitioners seek a hearing.. Where,ifor.
purposes of citation, it is necessary to refer specifically to the separate petitions, LILCO uses the following short forms:
SWRCSD April 18 Petition, SE 2 April 18 Petition, SWRCSD April.20 Petition, and SE 2 April 20 Petition.
I
On August 9, 1989, LILCO completed the movement of Shore-F from the reactor vessel into the ham's mildly radioactive fuel plant's onsite spent fuel pool. -Shoreham will remain in this defueled condition until the plant is transferred to LIPA.
Following the plant's defueling, LILCO has taken steps to reduce its Shoreham-related costs, including the cutting back of-staff and the reduction of certain surveillances and-maintenance programs for plant systems that are not required to be kept I
" operable" under Shoreham's technical specifications with the 7
plant in its present condition.
Those-systems are not being allowed to deteriorate, however, but are,being protected from irreversible degradation under an extensiveElay-up program-developed and implemented by.LILCO's Office of Nuclear Opera-tions.F All of LILCO's actions at Shoreham h' ave <been consistent with
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NRC regulations and the terms of its-operating libense.F In F
The plant operated at low power for the equivalent of only two effective days of full power operation, and the irradiated-fuel gives off only about 550 watts of thermal' energy.
F LILCO's lay-up program was described generally to the NRC in a letter from Anthony F. Earley, Jr., LILCO President, to Dr.
Thomas E. Murley, Director of Nuclear Reactor Regulation 1(Sept.
19, 1989).
U Nevertheless, both SWRCSD and SE 2, in joint petitions filed with-the NRC pursuant to 10 C.F.R.
S 2.206 on July 14,.1989 and July 26, 1989-(subsequently supplemented on July 19,' July 21,.and July 31, 1989, and on January,23,'1990), have alleged that L
LILCO's activities at Shoreham violate the NRC's regulations, the terms and conditions of Shoreham's operating license, and the National Environmental Policy Act (NEPA).
Petitioners requested, l
inter alia, that the NRC issue an "immediately effective order" to require LILCO to restore the " status gM2 ante" at Shoreham, (continued...)
.~
4,
those instances where NRC approval has been required:before taking a certain action, LILCO has-sought.such approval.
On January 5, 1990, LILCO submitted, pursuant to 10-C.F.R.
$ 50.90, two related license amendment requests.
Under the l
first, LILCO-sought to revise its license to provide that it was l
authorized to " possess, use, but not operate Shoreham." AlongL with this request'for a'"defueled operating license,"_LILCO submitted a proposed set of revised technical specifications'and a Defueled Safety Analysis Report describing the nonoperating,,
1 defueled configuration in which Shoreham would be:placed if.the' license amendment request were approved.
See Letter from William-E. Steiger, Jr., LILCO Assistant Vice President-Nuclear opera--
R tions, to NRC (Jan.
5, 1990) (SNRC-1664 ).
LILCO's second application'was to amend the Physical Secur-ity Plan for Shoreham in certain ways consistent with the defuel-ed, nonoperating status of the plant. The: plan had been substan-F
(... continued)
H inc12 ding placing the fuel back in the reactor and returning the.
1 level of staffing back to that suitable to support. full power-
)
operation.
On July 20, 1989, Dr. Murley informed Petitioners j
that, while the NRC would take action on their'$ 2.206 petitions-
~1 "within a reasonable time," their request that the NRC take "immediate" action was' denied.
On October 13, 1989,.SWRCSD and SE 2 filed a petition for review of-the NRC's denial of their request for immediate relief.in the U.S. Court of Appeals for the District of Columbia' Circuit.
Both LILCO and the NRC Staff moved for dismissal of the petition on the ground that there was no' final agency' action.
On January 22, 1990, the Court, citing Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978),. cert. denied, 441 U.S.
906 (1979), granted LILCO's and.the NRC Staff's motions "for lack of a reviewable final order."
The Court also noted the
" absence of any showing of imminent irreparable injury."
On -
March 8, 1990, Petitioners sought rehearing en banc.
This request was denied on April 23, 1990.
l 1
a.
e-z 5-tially modified in 1982, as-a means of settling issues then-pending before an Atomic Safety andLLicensing Board, so as to incorporate various features that substantially exceeded those~
necessary to comply with the NRC's regulations in 10 C.F.R.-Part' 73.M As is noted in the January 5, 1990 covering;1etter for LILCO's proposed amendmentE and the NRC's' Federal Reaister-notice, 55 Fed. Reg. 10540-(March 21, 1990), the ; amendment includes steps consistent with the plant's nonoperating and-defueled status, including-(though not limited to) appropriate-redefinition of " vital' areas." Each'o'f the proposals is.consis-tent with the NRC's regulations on their face: no request for_an-exemption from regulatory requirements was needed and none_was.
requested.
The only reason'LILCO even submitted the' application for prior NRC Staff evaluation was that LILCO had. determined'that-
.c the various plan modifications would-inevitably decrease-the absolute effectiveness of.its better-than-required plan.F Thus,-
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Egg Lona Island Lichtina Co. (shoreham Nuclear Power Station, Unit 1), Atomic Safety,and Licensing Board Memorandum:
and Order Canceling Hearing, Approving Final Security Settlement Agreement, and Terminating Proceeding (Dec. 3,.1982)
(unpublished).
I' Letter from William E. Steiger, Jr., LILCO Assistant Vice:
l President-Nuclear Operations, to NRC (Jan._5, 1990) (SNRC-1672).'
I l
A/
While the terms of the Physical Security Plan are not them-selven part of Shoreham's operating license, NRC. regulations ~
provide that a licensee may make.no change which would decrease the
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effectiveness of a security plan, or guard training and qualification plan, prepared I
(continued...)
.i
I s..
--6 LILCO requested a license amendment and performed a "significant i
hazards consideration" analysis pursuant to 10 ' CFR' $$. 50.54 (p) (1)-
1 and 50.90, though the plan's relative-effectiveness in the context of a nonoperative and defueled reactor was not affected and though the revised plan-clearly complied with NRC regula -
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f tions.
The NRC Staff subsequently issued a proposed."no significant' hazards consideration" determination on the plan amendment.. = 55:
Fed. Reg. 10540 (March 21, 1990).
The Staff's notice solicited-public comments on the proposed finding and provided'an oppor-tunity for an " interested person" to seek a hearing on the.
l amendment.F
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F
(... continued) pursuant to S 50.34 (c) or Part 73 of this.
chapter, or of the first~four-categories of information (Background, Generic Planning Base, Licensee Planning-Base, Responsibility' Matrix)~ contained in a licensee safeguards 3
contingency plan prepared pursuant to S 50.34(d) or Part 73 of this chapter, - as applicable, without orier amoroval~of the a
commission.
A licensee desiring to make such o
l
- a. change shall submit an. application for an-amendment to the licensee's-license pursuant to-S 50.90.
I I
10 C.F.R. S 50.54 (p) (1) (emphasis added). Correspondingly, S 50.54(p)(2) provides that the " licensee may make changes to the plans referenced-in paragraph (p) (1) of this section, without prior commission approval if the changes do-not, decrease the safeguards effectiveness of the plan."
1 F
Of course, under 42 U.S.C. S 2239(a)(2)(A) and S
- 50. 91 (a) (4 ), the Staff, upon making a final determination of "no significant hazards consideration," may grant the. requested amendment to be effective upon issuance, prior to any hearing.
l.
In a separate action, on March 29,- 1990,- the NRC Staff issued an immediately effective Confirmatory Order that modified Shoreham's license to include a provision that LILCO."is_prohi-bited from placing any nuclear fuel into the Shoreham reactor-vessel'without prior approval from the NRC." 55' Fed. Reg. 12759 (April 5, 1990).
According to the Staff, the public health and safety require that the licensee not return fuel to the reactor vas-sel for the following. reasons:
(1) The re-duction in the licensee's onsite support staff below that necessary for plant opera--
tions, and (2)1the absence of NRC-approved procedures'for returning--to an operational status systems and equipment that the lican-see has decided to deactivate and protect rather than maintain until ultimate'disposi-tion of the plant is determined.
If l
LILCO were to place nuclear fuel into the reactor vessel, this could result in a core l
configuration that could become critical and produce power without a sufficient number of i
t adequately trained personnel to control'op-eration.
In addition, it is questionable a
whether necessary safety equipment would be:
available.
Id2 at 12758.
Given these considerations, and after: noting that 1
in a letter submitted to the NRC on JanuaryL12, 1990, LILCO had given its commitment not to place fuel back into the Shoreham reactor without prior permission from the NRC,E' the Staff stated
~
EU See Letter from William E. Steiger, Jr., LILCO. Assistant.
Vice President-Nuclear Operations,,to NRC (Jan. 12, 1990) (SNRC-1674).
LILCO submitted SNRC-1674_to support an earlier filing, on December 15, 1989, of a combined regulatory exemption and license amendment request to disband'the Local Emergency Response Organization (LERO) and cease offsite emergency-preparedness activities at Shoreham.
LILCO stated that it:would " agree ()_to a
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requirement to never place fuel.back into the.shoreham reactor, without the prior establishment of an offsite emergency response organization _ comparable in effectiveness" to LERO.
SNRC-1674 at 1.
n that it had " determined that the public' health'and safety"'re-4 quired issuance ~of~an immediately effective order pursuant to S-j 1V 2.204. Id2 In issuing the order, the Staff allowed <that "(a)ny. person L
adversely affected by this Confirmatory order may request a i
hearing within twenty days of its issuance." Ist at 12759.ME If a hearing were to be held, the Staff added, "the issue to be con-sidered at such hearing shall be whether this confirmatory Order ~
l should be sustained." Id2 C. The Context in which the Petitions Have Arisen j
Petitioners complain of two pending matters: a Confirmatory order by the NRC to maintain the shut down; defueled status of the Shoreham reactor; and a~ proposal by LILCO to conform Shore-ham's Physical Security. Plan to the circumstances of defueled shutdown.
Petitioners claim that each of these actions violates i
the Atomic Energy Act and NEPA.
But.in truth, as Petitioners candidly admit,.their complaint springs out of the1 fact that each' of these actions could eventually facilitate decommissioning (of I1 Shoreham, an event neither of them favors.
BecauseLof'this relationship, they argue, each,of'these actions can im evaluated j
1U The Staff stressed that issuance of the Order."in no.way1 relieves the-licensee of the terms and conditions of its operating license or of its commitments covering the. continued-a maintenance of structures,. systems, and components outlined in-its letter of September 19, 1989." 53 Fed.-Reg.'12759.'(April 5, 7
1990).
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.By the literal terms of 5 2.204, the Staff need not have-c provided an opportunity for hearing to anyone'but LILCo.
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-e-only in the context of a-decommissioning plan, and thus none of F
them can be approved until a complete, acceptable" decommissioning plan has been prepared, submitted, and approved;by the NRC.
Petitioners want, in'short, to enlist this Commission's help in their effort to block' implementation of.the Shoreham~ settle-ment.
They are clearly motivated, though for highly disparate j
reasons,U' by a desire that Shoreham operate.
But they do not propose any means for LILCo-to be released.from its agreement-never to operate the plant, nor do they. offer to substitute-another owner / operator.
They also allege that the actions of
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which they complain in their petitions violate the law, though they do not seriously suggest that there-is a significant safety issue associated with either of these actions, and they concede' that their allegations depend on their view that these actions i
are merely part and parcel of eventual decommissioning, and have no independent utility.
The net effect of Petitioners.' theory,'if accepted, would be.
to require a nuclear power plant whose. realistic: prospects of l
ever operating are nil-to.be braced at parade rest for several' l
l E'
SE 2 is a broad-based group whose interests revolve around.
the promotion of nuclear. power plants generally; they do noti agree philosophically with LILCo's decision to-. settle with New York State.
SWRCSD's motivation-is:less abstract: money.
.For l
nearly two decades, real' estate taxes on the Shoreham plant have provided most of the School Discrict's revenues,-and now amount to about 90 percent of them.
The School District is not satis--
fied with the transition arrangement provided'by the New York-State Legislature to-compensate.for loss of Shoreham-related tax.
revenues to it and other local governmental -)urisdictions, and is trying, by a variety of means including this one, to slow the-plant's transfer to LIPA.
1
h l -
1 years, until final decommissioning plans'have been prepared, reviewed, and approved by.the NRC after asLaany public proceed--
ings as Petitioners' treasury and-the Commission's traditionally; generous jurisprudence will permit.
It would prevent the NRC-
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from granting, in the meantime, various; kinds'of' relief routinely-
'i L
l available to facilities in extended shutdowns, and inflict total-l ly avoidable costs -- ranging into the tens of-_ millions of dol--
l lars per year -- on LILCO and its ratepayers (and in:the case of' I
offsite emergency preparedness exercises,.on the federal govern-ment as well).
Petitioners' requests are premised on one legal argument.-
The argument, repeated four times in nearly identical pleadings, is straightforward:
This commission, having is.ued an operating license, must require that licensee to maintain its: reactor in full readiness to operate regardless of other circumstances'(so long as the plant has not operated for'itsl commercial' lifetime or l
l suffered some other loss of capability) unless and until 9 decom -
missioning plan meeting all pertinent regulations,=primarily 10 C.F.R. 5 50.82, has not only been prepared and subr.itted but;also' reviewed and finally approved.
This is apparently-true, in Petitioners' view, even where an irrevocable decision-hau been-made by the licensee not to operate the reactor further, and; where :here is no viable candidate -- not ~ Petitioners,t.not anyone else -- to succeed to tha license.
Petitioners apparently view; "i
the pendency of a decommissioning application as eliminating 7all-NRC discretion to permit various alternative means.of complying
1 L l
-with the license, or to issue normal license. amendments and-regulatory exemptions for the purpose of enabling the licensee to-avoid unnecessary-costs where there is no radiological safety;
-issue.
s As LILCO explains, under Commission:and federal judicial' precedent on standing to intervene, Petitioners have failed to establish that'they have a right to a hearing on either the t
confirmatory Order or the Physical Security Plan amendment..
Beyond this threshold bar, there are additional legal considera-tions that, while perhaps not directly dispositive of Peti :
tioners'. standing, dictate that their attempt to enlist the Commission's adjudicatory process to' obstruct the Shoreham Set-4 tlement Agreement should be cut off at the outset.
I First, the actions under review are-not:within the scope of the decommissioning regulations.
Each has. independent utility.
The likelihood that a decommissioning plan will be filed.in the:
future does not bring precursor acts, each~nf-whi~chthas inde-pendent utility, within the decommissioning regulations.
Second, the NRC Staff routinely exercises'flexibilityfin administering its regulations so as to permit licensees to avoid unnecessary or burdensome costs, so long:as safety'considerationsi are satisfied.
Petitioners argument that no action'on a con-tinuum arguably leading to eventual decommissioning can be taken until a decommissioning plan has been finally. approved would strip the Staff of that discretion.
That argument.is not consis-
., ~... - -.. -. -
l tent either with the decommissioning regulations,= principally 10 4
C.F.R. S 50.82, or with the NRC's regulations genera'lly.
i i
Third, Petitioners' basic theory presumes that this agency.
l=
is no longer a. radiological = risk regulator but rather has become-l l
an energy policy dictator.
Under their theory, the NRC is no l'
longer charged with conditioning access to the benefits.of using nuclear power on maintaining radiological risk at. acceptable.
i levels, but rather has the power and the obligation _to' review-and override the decisions of other entities, public'and private,,to forbear from using nuclear plants even when these: decisions do -
not create radiological risks.
That argument in wrong.
Though the NRC has certain emergency powers under the Atomic' Energy Act, not applicable here, to force the operation of. nuclear plants,.
its function ever since the Energy Reorganization <Act of-1974thas been as a regulator ratherithan as a' promoter of: commercial ~
nuclear energy.
Nor does any other organic statute confer-such l
power or obligation on the NRC.
Fourth, NEPA's requirement of. evaluation of the environmen-tal= effects of a-proposed federal action does-not: require com-l prehensive evaluation, in the context of reactor = decommissioning, ut of either of the subjects of the-current petitions.,The environ-5 l
mental effects of decommissioning have been evaluated generi.
+
cally,E' and any site-specific departures = fro'm those estimates M' _ The generic evaluation significantly overstates the likely:
effects of decommissioning of a plant like Shoreham, which is-only mildly contamination. -NUREG-0586', Final' Generic Environmen-tal Impact Statement on Decommissioning of Nuclear Facilities.
4 n
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can be covered, as necessary, in a-supplement in the_ context'of a decommissioning proposal.
In any. event, the effects which-Petit-l' ioners wish to see evaluated -- those-associated operating other plants -- are not effects'of the decommissioning of'Shoreham, but of circumstances and decisions outside the NRC's jurisidiction.
Even if discussion of such effects.were properly within the scope of-an evaluation offthe decommissioning;of Shoreham, NEPA does.
not impose on the NRC the burden'to refrain from' actions'within its authority -- 32g2, approving an adequate decommissioning plan j
-- based on the results of that discussion.
There is no reason (and Petitioners do not try.to suggest i
any) why a decommissioning plan for shoreham satisfying the regulations cannot and will not be prepared and approved by the i
NRC.
The merits, from-a policy standpoint, of decommissioning Shoreham and providing replacement energy from other sources,.
versus using Shoreham to produce electricity,: does' not affect that result.
Thus Petitioners cannot win their'a'rgument in:the.
long run.
The only product of their efforts can be delay and unnecessary costs to LILCO and its ratepayers.
The Commission.
- i should not be sympathetic to the abuse.of.its adjudicatory pro-cess for this purpose.
l 4
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5 4
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II.
8"===rv of Leaal Arcrument' A. The'Aoril 18 Petitions' Despite-their representations, Petitioners are not truly aggrieved by the NRC' Staff's issuance of'the= March 29 Confira-atory order.
Rather, springboarding_off the opportunity for i
hearing presented by-the order, Petitioners ' seek to address' at:
- length a broad range of issues.concerning tho' future disposition
' l of Shoreham and thereby challenge LILCo's determination not-to operate the plant.
q Such issues, including Petitioners oft-repeated;.(though' I
I incorrect) allegation that_the Staff is allowing-LILCO to engage
(
in "da facto decommissioning" of the' plant, are not within the narrow scope of the proceeding,as defined by the Staff's notice of opportunity for hearing, itat, whether the order itself should.
be sustained.
The NRC's authority to so-define-and limit the
]
proper scope of its proceedings has been affirmed by theLU.S.
l{
Court of Appeals in Bellotti v. NRC,-and' Petitioners' attempt.to i
expand the scope of the-proceeding beyond:that' established-by the notice of opportunity for hearing violates the principles set.
forth in the Bellotti decision.
It follows that, having failed to link the harms they allege to the NRC action at issue in this
. i proceeding, Petitioners!have not demonstrated that-they have suffered an " injury in fact" within the " zone of interest" pro.
tected by either the Atomic Energy Act or the NEPA.
- _ -. _ _ _ _ _ _._.. ~ ______ _ _ _ _ _ _ _ _ _ - _ _. -
-r is -
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B.
The April 20 Petitions In alleging that they will be harmed by the Physical Securi,
ty Plan amendment, Petitioners offer nothing but a' general'al--
legation that the amendment violatesLthe Atomic' Energy Act and I
NRC regulations.
In.so doing, Petitioners. fail to confront the Staff's determination that, even as amended,Lthe Physical Securi-ty Plan will continue to meet all applicable standards under 10 C.F.R. Part 73.. Petitioners'-vague complaints 1to the contrary.
are thus inadequate to allege an " injury'in fact."
t Equally important, as with the Confirmatory Order, Petition-ers seek to use the opportunity of a hearing on LILCo's amendment oto the Physical Security Plan to raise a. variety of. issues con-cerning LILCO's alleged "da' facto decommissioning" of the: plant.
Such issues fall well outside the scope of the proceeding as l
defined by the-Staff's notice of opportunity for hearing,;and i
Petitioners' attempt to introduce such issues is: irreconcilable.
a with both the NRC's own NEPA-implementing regulations and'the Bellotti decision.
I III. Local Standard for Intervention in'NRC'Proceedinas A.
Statutorv Provisions and Commission Precedent The right to a hearing in an NRC proceeding flows from S 189 j
of the Atomic Energy Act of 1954', 42 U.S.C.
SS.2011 et sec.,
i which provides, in relevant part, as follows:'
- )
In any proceeding under this chapter, for the granting, suspending, revoking, or' amending
.of any license or construction permit, or l
u.
a
nj I
-i application to transfer control,1
. the-Commission ~shall grant a hearing uoon the
.recuest of'any person whose interest nav-be affected by the croceedina, and shall admit any such person as a party to such-proceede ing.
42 U.S.C. ' $ 2239 (a) (1) (emphasis 'added).
Thus, the Atomic Energy L
Act'does not prescribe's mandatory hearing to' amend an-operating l
license.
Rather,.a hearing-need be held only if a person re-quests a hearing and that person establishes an interest that'may be affacted by the outcome of that proceeding.
SAR,-Sa.EA,- HiR-aara Mohauk Power coro. (Nine Mile-Point Nuclear' Station, Un'it 2), LBP-83-45, 18 NRC 213 (1983).
The NRC's implementing regulation, 10 C.F.R. S 2.714, speci-l fies that a petition to intervene must " set forth with par-
.l ticularity" the petitioner's interest in the proceeding and.how-(
that interest may be affected by its results - 10 C.F.R..$-
2.714 (a) (2).E' The petitioner'is also required to identify-the
" specific aspect or aspects of the subject matter of the. pro-ceeding as to which the petitioner wishes to intervene." IdakN E'
The regulation further provides that,.in explaining his interest, the petition should give.particular attention:to'(1) the nature of his right'under the Act to be made aiparty to the proceeding; (2) the nature and' extent of;his. property, financial, or other interest in the proceeding;'and (3) the-possible effect-of any order which may be enteredLi'n the proceeding onLthe~
petitioner's interest.
10 C. F.R. 5 2. 714 (a), - (d) '.,
IF Even if the petitioner is initially. successful in demonstra-1 ting his " interest," a full-blown proceeding:is'not guaranteed.
Under 5 2.714(b),--the petitioner must supplement his petition ~.
with a list of the contentions that he> seeks-to111tigate, includ-ing, as to each, an explanation of its basis, the alleged facts or expert opinion being relied upon (including documentary and other references), and a demonstration that a genuineidispute
>4 (continued...).
4 17 -
i Commission case law follows contemporaneous judicial con-i l
capts to determine standing.
Portland General Elec. co. (Pebble Springs Nuclear Plant, Units 1 and'2), CLI-76-27, 4 NRC 610 (1976).- Following the principles set forth in Sierra Club v.'
Morton, 405 U.S. 727 (1972), and Warth v. Seldin, 422 U.S. 490
- I (1975), the Commission in Pebble Sorinas adopted a.two-prong l
test.
- First, one must allege some injury that:has occurred L
or will probably result from the actiontin-l volved.
Under this " injury:in fact-test" a mere academic interest-in a matter, without any real impact on the person asserting it, will not confer standing.
4 NRC at 613.E' Second, the Commission said, one must " allege an interest ' arguably within the zone of interest' protected by the statute."
4 NRC at 613.
In other'words, unless the petitioner.
d alleges that he will suffer an " injury in fact" to an-interest that falls within the " zone offinterests"-protected by the Atomic Energy Act or NEPA (the two pertinent statutes), the petitioner 1
r r
W
(... continued) exists on a material issue of law or fact. 10 C.F.R. 2.714 (b) (2) (i)-(iii) ; see 54 Fed. -Reg. 33180' ( Aug. 11,.1989).
Significantly, if the petitioner " fails to~ file a~ supplement that satisfies the requirements of paragraph (b) (2)J of this section with respect to at least one contention," the petitioner "will c
l not be permitted to participate as a party." 10 C.F.R. S.
- 2. 714 (b) (1).
Fl The test for whether a petitioner has suffered or will suffer an " injury in fact," the Commission,has'added, is "whether a cognizable interest of the petitioner might be adversely
~
affected if the proceeding has one outcome rather than another."
Nuclear Enaineerina Co..
Inc. (Sheffield, Ill., Low-Level Radiol-f ogical Waste Disposal Site), ALAB-473, 7 NRC 737, 7431(1978).
a l
p 1
, i will not be' granted a hearing or otherwise-allowed.to intervene:
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L in a proceeding.
L, B. The Bellotti Case I
Given that intervention in an NRC proceeding. turns on a petitioner's " interest" in the outcome of the proceeding, the standard for intervention is necessarily governed not-only;by the nature of a petitioner's interest but also by.the se' ope or range; 1
of the matters at issus in the proceeding as well..The scope of NRC proceedings is typically oefined in the notice of' opportunity l
L for hearing.
Egg 42 U.S.C..$ 2241(a); Public Serv. Co. of In-diana.(Marble Hill Nuclear. Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167, 170-71~(1976);' Portland General'Elec.HCo.
(Trojan Nuclear Plant), ALAB-534,.9 NRC 287, 289 n.6 (1979).:.In Bellotti v. NRC, 725-F.2d 1380: (1983), the U.S. Court of: Appeals
[
l for the District of Columbia circuit upheld the Commission's authority under S 189 of the Atomic Energy Act to define that i
scope.
The court's reasoning and ruling in Bellotti:have sig-4 nificant implications for this case.
Before the court for review in Bellotti was an order: bytthe Commission denying a petition by_the Massachusetts attorney
-i general to intervene in an NRC enforcement proceeding involving Boston Edison Company's Pilgrim nuclear plant.
On January 18, t
1982, the NRC's Office of Inspection and Enforcement, concerned by what it viewed as serious management deficiencies, issued an immediately effective order modifying Pilgrim's license.
The-l
. 1
J l
r.
l
~:19 -
t order imposed by the NRC amended the Pilgrim license to require l
Boston Edison to develop a plan for reappraisal 1and improvement of management functions.. Egg Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44 (1982).
It further provided l
that the" issue at a hearing held pursuant to.the. order would be j
limited to
"(w)hether, on.the basis of-the matters set forth in
. this order, this order should be sustained." 47 Fed;' Reg -
4173 (Jan. 28, 1982).
On February 17, 1982, the Massachusetts attorney general, alleging a non-discretionary right to intervene pursuant to S-189(a) of the Atomic Energy Act, filed a petition with the Com-1 mission, asserting generally that-the NRC's actions at Pilgrim did not go far enough to assure protection of, Massachusetts' citizens.
16 NRC at 45-46.
The Commission' rejected that argu-ment and denied the petition, noting that (1) "section 189a does not provide a non-discretionary right'to'a hearing on all. issues-
.i l
arguably related to an acknowledged enforcement problem without
}
regard to the scope of the; enforcement action actually proposed i
or taken," and (2),-under 10 C.F.R.
$ 2.714, "[i]n. order to;be granted leave to intervene, one must demonstrate an interest 4
affected by the action." 1d2 at 45.
Reflecting on the nature.ofc the issues that the attorney general had indicated he wished to be heard, the commission stated:
These concerns are beyond the scope of the proceeding.
The Attorney General does~not oppose the. issuance of the order-nor does he raise in his petition or brief any suggestion that it is unsupported by-the facts its sets forth.
t
1
- to -
1 j ::
Id at-46.
The attorney general sought' review of the Commis-sion's denial of his petition, and, on appeal,'the D.C. Circuit-upheld the Commission's decision.'
In Bellotti, the court first' affirmed generally that the Commission has exclusive authority under the Atomic Energy Act to n
i r
define the scope of its own proceedings.
Such authority is; necessary, the court said,.because 133 read the statute very broadly so that any i
l proceeding necessarily~ implicates all issues l
that might be raised concerning.the facility in question would deluge:the Commission with-intervenors and expand many proceedings into virtually interminable, free-ranging inves-tigations.
Such'a reading of the sta-tute is plainly untenable'and cannot be'what Congress intended.
Bellotti, 725 F.2d at 1381.
Next, the court agreed with the commission that the-attorney general's petition did not' raise issues within the scope of.the proceeding defined by.the NRC.
.In so doing, the court rejected the attorney general's arguments.that-(1) the1 order had defined the proceeding in a way that clearly made:the attorney general, as the legal representative of the people of Massachusetts, a
" person whose interest may be affected," and-(2) the content of' the management reappraisal and improvement plan required under the order was necessarily an issue in the proceeding.
725 F.2d at 1381-82.
The court accepted instead as "not arbitrary".the l
Commission's limiting of the scope of the proceeding in. light of the Commission's view that-the the development of the management plan was to "take() place outside the proceeding," and that the
i
. 21 -
4 l
attorney general "would be an affected-person only if he opposed.
issuance of the Order," which he did not. Id2 at 1382 (footnote l
omitted).E' L
The court'then noted that the-issues the attorney general i
wished to litigate "would result in a' hearing virtually as.leng.
j I
thy and wide-ranging as if intervanors were allowed to specify the relevant issues themselves." 725 F.2d at 1382.
Though the attorney general " intends no such' result," the' court remarked, y
"the rule for which he contends is capable of turning focussed regulatory proceedings into amorphous'public extravaganzas." Id -
j
~
As applied here, Bellotti's acceptance of the. agency's; authority to define the scope of issues in its notice of appor-tunity for. hearing, and its proscription.on the introduction of issues beyond them, indicates.that a petitionerefor' intervention must do'something more than simply-allegelan " injury in fact."
t The petitioner must also demonstrate that.there is some plausible relationship between'the harm asserted and the NRC action that is actually at issue in the. proceeding.
l This'is' fully consistent with Pebble'Sprinas, which established that-one seeking to inter-vene must allege some injury that "has occurred;or will probably result from the action involved." CLI-76-27, 4 NRC at 613 (em-l 8'
A petitioner who " wishes to' litigate the need for still more safety measures" than are provided by an NRC enforcement. action',
the court said, is " remitted to section 2.206's petition procedures." 725 F.2d at 1383.
L
\\
k.
- phasis added); aga also Philadelnhia Elec. Co.l(Limerick-Genera-ting Station, Units 1 Land 2), LBP-82-43A, 15 NRC;1423 (1982).EU As is seen below, Petitioners cannot make'such-a showing as to either the March 29 Confirmatory' Order or tha' Physical' security Plan _ amendment.
t i
IV. The March 29 Confirmatory Order.
Neither SWRCSD nor SE 2 should.tm granted a hearing on':the.
- I r
I NRC's March 29 Confirmatory Order..As'their.; pleadings make manifest, Petitioners are not.at all interested in participating l
in a hearing on the narrow issue specified in the March 29 Con-1 firmatory Order:
whether the Order itself should be sustained.
Rather, Petitioners seek a. hearing as-a means to address at' length vastly broader issues regarding-the future disposition of:
Shoreham.
Their attempt-to expand the scope of. issues beyond the NRC's notice of opportunity for hearing is impermissible-under i
l the D.C. Circuit's holding in Bellotti.
The very arguments Petitioners offer to. support their asser-tion that they are " threatened with distinct injuries in. fact as:
i a direct consequence of the Confirmatory. Order," SWRCSD April 18-Petition at 5; SE 2 April 18< Petition at 5, reveal that they are i
truly. aggrieved by the issuance of the Order.
Indeed,_what In Limerick, the licensing board stated that "[t)o sfy the requirement.of injury in fact, the. injury must be ca. sed by the action. contemplated.
There must be "a ' fairly l
traceable' causal connection between the claimed injury and the challenged conduct." 15 NRC at 1443, citina Duke Power Co. v.
Carolina'Enytl. Study Grouo, 438 U.S.
59, 72 (1978).
J 2
Petitioners are actually seeking is additional enforcement-action-by-NRC to remedy what they allege to be both LILCO's and the NRC's violations of the Atomic Energy Act and NEPA.. Petitioners themselves admit as much.
For example, Petitioners state that they.
view () this order as one part of the larger proposal to decommission shoreham.
Each step in the decommissioning proposal-that moves Shoreham-closer to a. fully decommissioned state and further away from full-power opera-tional status is in violation of the dictates of the Atomic Energy'Act... and the Na-tional Environmental Policy Act.
,j SWRCSD April 18 Petition at 2; SE 2 April 18 Petition at 2.
Petitioners further note that they have " submitted an enforcement request.under Section 2.206 of the Commissi'on's Rules," in which they " argued that LILCO is taking the initial steps in a course 1
of action aimed at decommissioning the Shoreham facility.in violation of the terms of the operating license, the Commis-a sion's regulations, the AEA and NEPA." Idi' Petitioners specifi-s cally note that "[ajl1 of the arguments. advanced" in their S I
2.206 petitions are " pertinent to the issue at hand" and, there-i fore, "are incorporated herein by reference as additional support' for the specific aspects of the issues and content' ions-as to which petitioner (s) seek () leave to intervene and request []=a hearing." Id2 at 2-3.
Petitioners also' argue that the proper-response in this case is to-develop a schedule of-affirmative steps to be taken:by the licensee to meet'the deficiencies.
The 1
I licensee's conduct could be supervised by the NRC Staff through inspections and reports and H
ensured by the threat of enforcement. action j
by the Commission.
The NRC Staff's m.
~
.-_~.-..
4 t.
Confirmatory Order is, therefore, inadequate; in that, among other things, it lacks a-deli-neation of affirmative steps that the lican-see shall take to solve-the. problem.
SWRCSD April 18 Petition at 19-20;'SE 2 April 18 Petition at 20-L 3
l 21.
As the above makes clear, Petitioners are not asserting that-they have been adversely affected by the issuance of the confir-matory' Order itself or that, on.the basis of the findings set forth in the order, the order should not be sustained.1Instead,,
o Petitioners are attempting, irreconcilably'with Bellotti, to-expand the scope of the proceeding as. defined by the NRC.by arguing that they are adversely affected by (1)<.the failure by.
the NRC Staff to take enforcement action against LILCO's supposed
(
violations of the Atomic Energy Act, NRC regulations, and?the-terms of-Shoreham's license, and-(2)' the NRC Staff's authorizing-1 LILCO to take steps allegedly constituting "dg facto-decommis-:
I sioning" at Shoreham prior to the conduct of -an environmental:
review of the plant's decommissioning under NEPA.
As' explained below, in neither instance do Petitioners-credibly ~iinkithe
" injury in fact" they allegedly have suffered or purportedly will suffer with the actual action taken by the NRC, i.e.,,the is-suance of the Confirmatory order.E' E/
Apart from their attempt to expand the scope of the proceeding beyond that provided by the NRC in its. notices of opportunity for hearing, it is also byfno means clear'that either Petitioner has sufficiently demonstated that the " interests" they seek to protect are germane to their organizational purposes.
Such a demonstration-is necessary for an organization to establish standing.
Sag, stat, Houston Lichtina and Power Co.
(continued...)'
~.
I I
l.
l
- as -
A.=The Confirmatory Order Does Hot Cause " Injury in Fact" I
to Petitioners' Interests under the Atomic Enerav Act j
1 Petitioners try only feebly to connect the Order with the l
harms they assert they will suffer from LILCO's alleged 11-l legality.
For example, Petitioners speculate that their I
personal radiological and other health, safe-ty, and property interests would be adversely affected if the Confirmatory order is not in i
accord with the AEA and/or the regulations i
issued thereunder and/or if it does not i
(
otherwise provide reasonable assurance of the public health and safety and the national i
defense and security.
j SWRCSD April 18 Petition at 11; SE 2 Petition at 12.
Elsewhere, Petitioners say they want a hearing in order to explore such issues as
.l l
whether if a decision is made to go to full
+
power operation at Shoreham, the Confirmatory l
D'
(... continued)
(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 447 1
(1979), aff'd, ALAB-549, 9 NRC 644; 333 ging Hunt v. Washinoton t
State ADole Advertisina Comm'n, 432 U.S.
333, 343 (1977).
With respect to SWRCSD, it is nct immediately apparent that an entity i
whose primary, if not sole, purpose is the operation.of l
facilities for the education of school children.has an organizational interest in protecting persons from the supposed adverse radiological and environmental impacts from the non-I operation of a nuclear plant.
The only real interest SWRCSD would appear to have in Shoreham is an economic one.
See note 13, above.
This, however, is inadequate to establish standing.
gag, g2g2, Public Serv. Co. of New Hamoshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975 (1984); Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977); Lona Island Liahtina Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 640 (1975).
As for SE 2, it is also not clear that its asserted interest in protecting the health and safety of its members is germane to its organizational interests, which would appear to be primarily educational and informational in nature, and which are plainly not directed towards advocacy against perceived-health and safety threats from any specific nuclear plant.
~_
i
- as -
l l
Order gives reasonable assurance that such i
i full power operation would be conducted with reasonable assurance of the public health and safety and national defense and security, the reasonable assurance of.
particularly, ion (including their real and their protect f
personal property) from the radiological hazards of operating the facility.
SWRCSD April 18 Petition at 10-11; SE 2 April 18 Petition at 11-6 12, i
l The logic of Petitioners' position is not entirely clear..
l l
Their position would appear to be that, with issuance of the Confirmatory Order, the NRC has somehow given LILCO permission to i
i take steps at Shoreham that are inconsistent with the plant's l
operating license, thus potentially presenting a present threat to Petitioners' safety, as well as a future hazard, should Shore-ham ever operate at full power.
Petitioners' position is untenable for a number of reasons.
Most basically, it does not make sense to suggest that an order that merely confirms that LILCO is not to place-fuel back into the Shoreham reactor could possibly pose either a current or a i
future threat to public health and safety.EV Equally important, Petitioners' complaint is'little more j
than a recapitulation of the allegations they have made in their-pending S 2.206 requests.
As such, the relief they are seeking through a hearing on the Confirmatory order is greater enforce-EU The Staff expressly stated that issuance of the Order "in no way relieves the licensee of the terms and conditions of its operating license or of its commitments covering the continued maintenance of structures, systems, and components outlined in its letter of S6ptember 19, 1989."
55 Fed. Reg. 12759 (April 5, l
1990).
9
~. _...
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.,,,_.m...
,,m%
5,,,.
. ment action at Shoreham than the Staff has seen fit to undertake.
Petitioners themselves indicate that the " proper response" by the Staff would include the development of a " schedule of affirmative steps" to be taken by LILCO to alleviate the perceived safety threats, presumably to include returning the plant to a condition commensurate with full power operation.
But given Bellotti, Petitioners may not seek such additional remedies.
Sam, a g,
Seauovah Puels Corn. (UF 6 Production Facility), CLI-86-19, 24 NRC 508 (1986).U#
The fundamental problem for Petitioners here -- and it is a problem that, ultimately, they cannot hope to overcome -- is that they cannot credibly argue that the Confirmatory order should not be sustained.
To do so (to argue, in effect, that LILCO should be allowed to place fuel back in the reactor) would completely O'
In Secuovah, the Commission addressed a petition for inter-vention which alleged, inter alia, that an immediately effective enforcement order issued by the NRC gave rise to an " adverse effect" because the order -- which directed the licensee to establish third-party auditing and inspection -- failed to
" discover and address the root causes" of the problem at issue.
The Commission denied the petition for review, stating as fol-lows:
i While expressed as a concern about the order, in fact, [ petitioner's assertion of " adverse effect") has nothing to do with the order's terms; rather, (petitioner) is challenging the agency's process for investigation of the accident, a challenge already expressed in its S 2.206 petition.
The order has nothing to do with, and clearly does not provide, an alternative vehicle for [ petitioner) to gain an agency hearing on the denial of that peti-tion.
24 NRC at $15-16.
I
l'
- as -
undercut their position, advanced in their pending $ 2.206 re-l quests and reiterated in the present petitions, that the NRC is l
al'.. swing LILCO to maintain Shoreham in an. unsafe condition incon-l l-l sistent with NRC regulations and the plant's license.
After all, j
placing fuel back in the reactor, if such unsafe conditions in fact existed, would presumably be even anrs unsafe.EU To avoid l
this self-evident incongruity, Petitioners seek to place the Confirmatory order in an overall context of their own choosing, t
1232, that the order furthers LILCo's alleged "da facto decommis-sioning" of Shoreham.
But not only is this allegation untrue in fact, by so arguing Petitioners seek to raise issues that are outside the narrow scope of the proceeding as defined by the NRC.
This, in turn, is impermissible under Bellotti.
Finally, to demonstrate standing, Petitioners must also allege that they will be " adversely affected if the proceeding has one outcome rather than another." Egg, 3232, Nuclear En-7 aineerina Co..
Inc., 7 NRC at 743.
Petitioners cannot make such a showing, however, because the various " injuries" that Peti-tioners seek to avoid stem not from the issuance of the confirm-1 atory Order, but (as Petitioners characterize it) from the or-der's supposed contribution to the non-operation of Shoreham.
l Yet whether or not the Confirmatory order is sustained, LILCO U'
Petitioners do want Shoreham's fuel back in the reactor j
vessel; in their 5 2.206 petitions they expressly request that the NRC require LILCO to return the fuel.
But Petitioners only want the fuel returned on their own terms, demanding that the NRC also order LILCO to restore the " status auo ante" by maintaining all plants systems in " operable" status and keeping plant staffing at levels suitable to support full power operation.
h
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will not operate shoreham.
Thus, the outcome of a proceeding on whether the order should be sustained cannot possibly affect Petitioners' interests, as they themselves have defined them.
B. The confirmatory order Does Not Cause " Injury in Fact" to Petitioners' Interests under NEPA Petitioners' assertion that the confirmatory Order has caused, and will cause, " injury in fact" to their interests under NEPA is also an attempt to introduce issues that fall far outside the scope of the proceeding offered by the NRC.
In order to link the issuance of the order with the alleged environmental harms of which they complain, Petitioners contend that this " Federally-imposed operating restriction is one segmented part in implemen-tation of a proposed major Federal action which, if approved, will significantly affect the quality of the human environment."
SWRCSD April 18 Petition at 25; SE 2 April 18 Petition at 26.
The " injury" asserted by SWRCSD is the " adverse health and other environmental consequences of non-operation of Shoreham cog-nizable under NEPA, for example, the air pollution produced by the oil and/or gas burning plants which would be necessary sub-stitutes for Shoreham." SWRCSD April 18 Petition at 7-8.
Simii larly, SE 2 contends that it has an interest in " protecting.its members from the adverse health consequences of the air pollution produced by the oil burning plants which would be necessary substitutes for Shoreham." SE 2 April 18 Petition at 9.
Petitioners' argument fails for two basic reasons.
- First, as a threshold matter, Petitioners' attempt to raise supposed
_ _ _ _ _. _ _.. _ - ~ _ _ _ _
I l
l 30 -
NEPA-related issues in the context of a hearing on an order t
l issued by the NRC pursuant to 10 C.F.R. Part 2, Subpart B is inconsistent with the NRC's own NEPA-implementing regulations.
Specifically, 10 C.F.R. S 51.10(d) provides that I
Commission actions initiating or relating.to administrative or judicial civil or. criminal enforcement actions or proceedings are not i
subject to section 102(2) of NEPA.
These-actions include issuances of notices, orders, l
and denials of requests for action pursuant to Subpart B of Part 2 of this chapter.
and any other matters covered by Appendix C l
to part 2 of this chapter.
{
10 C.F.R.
S 51.10(d); 54 Fed. Reg. 43578 (Oct. 26, 1989).. The l
Confirmatory Order, as the NRC Staff notes, was issued pursuant l
l to 10 C.F.R. S 2.204.
55 Fed. Reg. 12759 (April 5, 1990).
- Thus, 4
NEPA issues need not be addressed in any hearing on whether the Confirmatory Order should be sustained.E' i
E' Petitioners, apparently recognizing that their attempt to introduce NEPA issues into a proceeding on.the Confirmatory Order I
is barred by NRC regulations, have petitioned for a waiver pursuant to 10 C.F.R.
S 2.758(b), on the ground that the "special circumstances of this particular enforcement action are such that the application of Section 51.10(d) would not serve =the purposes for which the regulation was adopted."
SWRCSD April'18 Petition at 26 n.1; SE 2 April 18 Petition at 27-n.1.
Petitioners indi-cate that these "special circumstances will be further explained" in an affidavit they intend to submit at some point as part of an amended petition filed pursuant to.10 C.F.R. S 2.714 (a) (3).
LILCO has not received any such affdavit.
Without waiving its opportunity to respond either to Petitioners' affidavit or to its amended petition if such documents are filed, LILCO. observes that, in light of the arguments provided in their April 18 Petitions, it is unlikely that Petitioners will be able to justify a regulatory waiver under S 2.758.
For instance, Petitioners' citation to language from the Supplementary Information accompanying an October 26, 1989 Federal Reaister notice of the NRC's issuance of'a clarifying amendment to S 51.10(d), is inapposite.
When the language cited by Petitioners is quoted fully, it is clear that there the NRC was addressing
(
(continued...)
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~ Second, and more importantly, it is simply not true that the environmental harms that Petitioners perceive they will-suffer if Shoreham does not operate would be caused by any action of the NRC, much less by the issuance of the Confirmatory Order.EY W
(... continued) only "[1)icensee actions undertaken voluntarily, as documented in a confirmatory action letter" issued pursuant to 10 C.F.R. Part 2, Appendix C, 1 V.H, and Det (as is the case with Shoreham) an order modifying a license issued under $ 2.204.
See 54 Fed. Reg. 43577 (Oct. 26, 1989).
UY In arguing to the contrary, and by asserting that the NRC is allowing LILCO to. engage in "da facto decommissioning,"
Petit-ioners betray a fundamental misconception of the applicability of NEPA to Shoreham's eventual decommissioning.
Even if it were assumed that Petitioners' speculation regarding the possible future construction of fossil-fired plants is true, it does not follow that the NRC's environmental review of Shoreham's decom-missioning under NEPA must include either an assessment of these alleged indirect effects of the plant's abandonment or a discus-sion of the alternative of plant operation.
The decision to.
abandon Shoreham was made by a private entity -- LILCO.
As such, this decision is n2t subject to federal environmental review under 5 102 of NEPA, which governs only " major federal actions."
Petitioners assert that, (w)hile the decommissioning proposal has been advanced by LILCO, a non-federal entity, the NRC's on-going supervision of the licensee's activities and the need for NRC approval of the various steps in the decommissioning' process make what otherwise might be a major l
private action in another industry into a
" major federal action."
SWRCSD April 18 Petition at 28; SE 2 April 18 Petition at 29.
This draws the scope of NEPA far too broadly.
It is true that, as a general proposition, a private action may be " federalized" for purposes of NEPA if federal agency approval -- sucn as permits, leases, and other forms of permission -- must be obtained in order for the private party to take the action.
- Egg, 32g2, Scientists' Inst. for Pub. Information v. AEC, 481 F.2d 1079 (D.C. Cir. 1973).
But this general principle does not stretch as far as Petitioners would have it.
The private action that has been " federalized" here is the physical set of decommis-
.i (continued...)
i
\\
i l
l 3a -
Petitioners' statement that the " Confirmatory order would make l
l the intended benefit and purpose of Shoreham.
. more remote and time and less likely in fact," SWRCSD April 18 Petition at 29-30; SE 2 April 18 Petition at 30-31, is a DSD annuitar.
The Confirmatory order is not the reason shoreham will not operate, i
and, indeed, even if the order were nei sustained LILCo still j
L would not operate the niant.
Moreover, the adverse consequences Petitioners purportedly fear -- e.gi.,
greater use of fossil fuels, with alleged cor-responding environmental degradation -- would result (if, indeed,-
l they result at all) not from the issuance of the Confirmatory Order, or from LILCO's decision to abandon Shoreham, or even from the decommissioning of the plant per se, but from the future use of fossil-fired replacement plants.
As none of the.NEPA-related
" injuries" that Petitioners allege stem from the NRC action that
?
IU
(... continued) sioning itself.
LILeo's decision to not operate Shoreham is Det
" federalized," however, because no NRC (or other federal)
I approval is required for LILCO to decide to close the facility.
Absent extraordinary circumstances (not present in this situation), the NRC has no authority under the Atomic Energy'Act to order a licensee to operate a particular facility.
Esa 42 U.S.C.
SS 2138, 2238.
The NRC itself has recognized that the
" decision as to whether a shutdown will be permanent is, of course, the licensee's." 50 Fed. Reg. at 5605 (Feb. 11, 1985).
Accordingly, while the physical act of Shoreham's decommissioning i
requires NRC approval and is subject to environmental review, 333 10 C.F.R. S 51.95(b), LILCO's decision to shut down Shoreham is not.
2f2 Winnebaco Tribe of Nebraska v. Rav, 621 F.2d 269, 272-l 73 (8th Cir. 1980), cert. denied, 449 U.S. 836 (1980) (the
"[c)ompletion of the non-federal aspects of (a) single project does not constitute a secondary or indirect effect of the federal action").
I F
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--s
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----- +
. is at issue in the proceeding, Petitioners' attempt to introduce 4
such matters is inconsistent with pallotti.
l l
It is instructive to recall that the court in Bellotti, using language that is particularly apt here, stated that the i
petitioner's own understanding of his intervention rights under i
the Atomic Energy Act would have had the effect of " expand (ing) many proceedings into virtually interminable, free-ranging inves-I tigations." 725 F.2d at 1381.
The court noted that, though the petitioner in that case " intend (ed) no such result," the inter-vention standard for which the petitioner was arguing was "capa-ble of turning focussed regulatory proceedings into amorphous public extravaganzas." Id at 1382.
The only difference between the present situation and Bellotti is that, unlike the Mas-sachusetts Attorney General, an " amorphous public extravaganza,"
involving an ultimately irrelevant debate over whether Shoreham should operate, is precisely what Petitioners here hope to ac-hieve.
This need not and should not be allowed.
Petitioners' request for a hearing should be denied.
- v. The security Plan kaandment i
Neither SWRCSD nor SE 2 should be granted a hearing on the amendment to the Shoreham Physical Security Plan.
As explained l
below, neither Petitioner adequately alleges that it will suffer J
1 an " injury in fact" to its interests under either the Atomic Energy Act or NEPA.
Indeed, Petitioners' arguments on the sup-posed adverse effects of the proposed amendment simply rehash the
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assertions they advance concerning the Confirmatory Order.
In j
i both instances, Petitioners seek to expand impermissibly the scope of the proceeding defined by the NRC in the notice of opportunity for hearing.
The March'21, 1990 notice on the Physical Security Plan 1
i amendment makes clear that the scope of a proceeding on the J
l amendment, if any, will be narrows Petitioners' contentions ~
"shall be limited to matters within the scope of the amendments 4
J under consideration." 55 Fed. Reg. 10529 (March 21, 1990).
But Petitioners are not interested in a hearing to explore whether l
the amendment should be sustained.
They want to use a hearing on the plan changes as a springboard to raise a myriad of issues related Det to physical security at Shoreham, but to irrelevant j
issues regarding the plant's abandonment and futura decommis-P sioning.
l For example, Petitioners concede at the outset that they
" view [] this Amendment as one part of the larger proposal to l
decommission Shoreham." SWRCSD April 20 Petition at 2; SE 2 April 20 Petition at 2.
Though Petitioners make a passing effort to allege that they will suffer actual harm from the amendment itself, they admit that the issues presented in their Petitions related not simply to the proposed amendment itself, but "neces-sarily include other unlawfully segmented actions taken and/or proposed by LILCO and the NRC Staff in furtherence of the decom-
{
missioning scheme." SWRCSD April 20 Petition at 2; SE 2 April 20 Petition at 2.
But with respect to their-alleging an " injury in
)
i
- as -
I fact" within the " zone of interests" protected by the Atomic Energy Act, Petitioners have failed to carry their burden. -With respect to NEPA, Petitioners wish to engage issues that have i
nothing to do with the plan amendment itself.
A.
The Amendment Would Not cause " Injury in Fact" to Petitioners' Interests under the Atomic Enerav Act Petitioners' allegation that the amendment to the Physical Security Plan would cause " injury in fact" to their' interests i
under the Atomic Energy Act is inadequate to establish their standing to intervene.
While Petitioners have made passing claims that they would be injured by the amendment, what they have overlooked is that, even as amended, the Shoreham' Physical Security plan will still be in full compliance with applicable NRC requirements.
As the Staff stated in the March 21 notice, the amended plan "will continue to save a level of protection a
that is adequate to meet a test of ' Radiological Sabotage:
as referred in 10 C.F.R. 73.2(a).'" 55 Fed. Reg. 10540'(March 21',
1990).
Thus, it is incumbent on Petitioners to allege something more than simply that they would be adversely affected if the proposed amendment is not in accord.with the AEA l
and/or the regulations and subsidiary guid-l ance issued thereunder and/or if it does not i
otherwise provide reasonable assurance of the public health and safety and the national defense and security.
SWRCSD April 20 Petition at 11; SE 2 April 20 Petition at 13.
L Indeed, this claim merely begs the question, given the Staff's
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determination that the security plan as amended la "in accord" with the pertinent regulations and Anna provide " reasonable assurance of the public health and safety and the national de-i fense and security." Petitioners' generalized allegation of hara,-
j by itself, is insufficient.
CIA Seouovah Puels corn. (UF 6 i
Production Facility), CLI-86-19, 24 NRC 508, 513 (1986) (petitio-nors' "conclusory assertion of ' danger' is totally inadequate to establish any adverse effect" from the terms of an order under which the licensee retained its " responsibility for conducting operations in a safe manner consistent-with all license condi-3 i
tions and other regulatory requirements").
]
Thus, for Petitioners properly to allege that the Physical Security Plan amendment threatens them with an " injury in fact"
)
under the Atomic Energy Act, they must explain why they believe that the amended pinn, which otherwise continues to meet-the l
NRC's generic standards under 10 C.F.R. Part 73,-would not pro-vide a sufficient level of protection against radiological sabo-tage at Shoreham.
If Petitioners wish to argue that the amended j
plan does not provide an adequate level of protection against-sabotage, they have a burden -- not met here -- to at least allege that there is something significant about the specific situation at Shoreham that mandates a continuing. level of protec-l tion that is highgr than is called for by the regulations for 1
'l other oDeratina plants.
- 212, e.g.,
Florida Power & Liaht Co.
i (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC l
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325, 329-30 (1989)E' This is particularly true considering that, as LILCO stated in its significant hazards consideration analysis of the proposed amendment, "with Shoreham in a non-operating, defueled configuration, the consequences of an act of radiologi-cal sabotage or theft, as defined in 73.1(a)(1)-(2), while not quantified, would likely be reduced." Application to Amend the Shoreham Nuclear Power Station Physical Security Plan at 4'(Jan.
t a
i EU In St. Lucie, the. Commission was faced with a petition for a hearing on a regulatory exemption request, in which the petitioner alleged, among other things, that the NRC's approval of the exemption request (which allowed the licensee to take credit for use of a chemical absorbent -- a sorbent canister --
in its air purifiers) would cause him " injury in fact" due to'the increase in the amount of low-level solid waste generated in the form of used sorbent canisters.
30 NRC at 326-328.
The Commission denied the petition, stating, in relevant-part, as follows:
It is true that in the past, we have held that living within a specific distance from-the plant is enough'to confer standing on an individual or group in proceedings for construction permits, operating licenses, or l
significant amendments thereto such as the expansion of the capacity of spent fuel pool.
However, those cases involved the construction or operation of the reactor R
itself, with clear imolications for the i
offsite environment, or maior alterations to 1
the facility with a clear notential for 1
offsite consecuences.'.
Absent i
situations involving:such obvious notential for offsite consecuene.gg, a-petitioner must allece some specific "iniurv in fact" that l
will result from the action taken.
30 NRC at 329-30 (emphasis added).
1
l l
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1
. 1 5, 1990) (SNRC-1672, Att. 1); see also 55 Fed. Reg. 10540 (March 21, 1990).L#l i
B.
The Proposed Amendment Would Not Cause " Injury i
in Fact" to Petitioners' Interests under NEPA Petitioners's argument that1they should be allowed to inter-i I
vene in the license amendment proceeding.because the amendment l
will injure their " interests" under NEPA is flawed in two re-i spects.
First, the argument rests on their assertion that the amendment "is another in a series of actions instigated by LILCO, to be approved by the NRC Staff, in furtherance of.the decommis-i sioning proposal."
SWRCSD April 20 Petition at 26; SE 2 April 20 Petition at 28.
Petitioners admit that.among the "particular aspects of the proposed amendment" they wish to address in a hearing are such questions as whether "a proposal to decommission the Shoreham Plant exist (s) 'in fact,'" and whether "NEPA re-quires a level of physical protection of the plant and nuclear materials located there consistent with full power operation ponding full NEPA review of the decommissioning proposal.
SWRCSD April 20 Petition at 34-35; SE 2 April 20 Petition at 36-37.
For the same reasons noted on pages-29-33 above, EY Petitioners' burden is raised even higher when-it is considered that, but for LILCO's own determination that, in an absolute sense, the proposed amendment would " decrease the effectiveness" of the plan within the meaning of 10 C.F.R. S
- 50. 54 (p) (1), it would not have even been necessary for LILCO to seek prior NRC authorization before implementing those amendments.
r i
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- . Petitioners' attempt to broaden the scope of issues to be a
addressed in the proceeding is impermissible under Bellotti, j
Second, Petitioners overlook that, under its NF.PA-implement-ing regulations, the NRC need not perform an environmental review before approving the amendment.
The NRC has determined that some i
i licensing actions "do not individually or cumulatively have a significant effect on the human environment," and has-concluded I
that, for these " categorically excluded" actions, "neither an environmental assessment nor an environmental impact statement is required." Egg 10 C.F.R. $$ 51.14(a); 51.22.
Specifically listed among these " categorical exclusions" is the
[ijssuance of an amendment to a license pur-l suant to Parts 50 of this chapter rela-i ting solely to safeguards matters (i.e.,
protection against sabotage or loss or-diver-sion of special nuclear material) or issuance i
of an approval of a safeguards plan submitted pursuant to Parts 50, 70, 72, and 73 of this chapter, provided that the amendment does not i
involve any significant construction impacts.
These amendments and approvals are confined to (i) organizational and procedural mat-ters, (ii) modifications to systems used for security and/or materials accountability, (iii) administrative changes, and (iv) review and approval of transportation routes pur-suant to 10 CFR 73.37.
10 C.F.R. S 51. 22 (c) (12).
The amendment that-LILCO has proposed-j to its Physical Security Plan is of an organizational and proca-l dural nature, and, thus, the NRC need not perform an environmen-tal review before approving the amendment.
Petitioners' attempt to raise environmental issues in a proceeding on the security plan amendment is a challenge to the NRC's regulations that, under 5 2.758, should.not be entertained.
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l VI. conclusion For the reasons given above, all of the petitions for leave to intervene and requests for hearing should be denied.
I
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l Respectfully su
- atted, l
(
W. Taylor Reveley, III Donald P. Irwin David S. Harlow Counsel for Longl Island Lighting Company k
Hunton & Williams 707 East Main Street P.O. Box 1535 t
Richmond, Virginia 23212 DATED:
May 3, 1990 i
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i LILCO, May 3, 1990
!%hlilD l
CERTIFICATE OF SERVICE U$NhC 3
i In the Matter of W MY -7 Pl2:41 LONG IS1AND LIGHTING COMPANY j
(Shoreham Nuclear Power Station, Un%ncxl tiNC A +;[6<ylci1)DF SECH Docket No. 50-322 u
ftRANCH I hereby certify that copies of LONG ISIAND LIGHTING COMPANY'S OPPOSITION TO INTERVENTION PETITIONS AND REQUESTS FOR HEARING ON CONFIRMATORY ORDER AND ON AMENDMENT TO PHYSICAL SECURITY PLAN were served this date upon the following by Federal Express, as indicated by
+
an asterisk, or by first-class mail, postage prepaid.
The Honorable Samuel J. Chilk James Lieberman
- Office of the Secretary Director ATTN: Docketing and Service Branch Office of Enforcement U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 Lawrence J.
Chandler, Esq.
- Thomas T. Martin
- Assistant General Counsel for Regional Administrator Hearings and Enforcement U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Region I One White Flint North 475 Allendale Road 11555 Rockville Pike King of Prussia, Pennsylvania 19406 Rockville, Maryland 20852 James P. McGranery, Jr., Esq.
- Dow, Lohnes & Albertson 1255 23rd Street, N.W.
Suite 500 Washington, D.C.
20037 AvY ! Ar d
( David s. Harlow '
Hunton & Williams 707 East Main Street i
P.O. Box 1535 Richmond, Virginia 23212 s
DATED:
May 3, 1990 F
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