ML20067A848
| ML20067A848 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/29/1990 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | Murley T Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20065C649 | List: |
| References | |
| 2.206, NUDOCS 9102070491 | |
| Download: ML20067A848 (3) | |
Text
-.
'90 17:25 FROM D.L.A.
WASHINGTON DC PAGE.005 DOW, LOHNES & ALBERTSON AT1oRNCYS AT LAW 18 65 TWE NTY*T HIRD sYM E ET WAS HINGTo N. D. C. Io047
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November 29, 1990 VIA 'rELECOPY AND MAIL Dr. Thomas E. Murley Director
-office of Nuclear Reactor Regulation Mail Stop 12-G18 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ret. Eighth Supplement to the section 2.206 Request by the shoreham-Wading Rivsr Central School District and Scientists and Engineers for Secure Energy, JAc. in USNRC Docket No. 50-322 Dear Dr. Murleys This is. a further supplement = to the Request for Immediately Effactive orders and other relief in the s;ubject docket with respect to the issues and on the bases set forth in the original' Request dated July 14, 1989, as supplemented by our letters of-July-19, July 22, and July 31, 1989 and ou letters of
-January 23 and April 5, May 4, and November 14, 1990.
By this. supplement, we wish draw your atteldion to the fact that LILco has recently informed the NRC that 137 fuel support castings and 12 peripheral-pieces from the Shoreham reactor vessel "are currently being stored in boxes on the south posting o/ Reheater Roof above the turbine deck, causing thef the only High Ra separator plant, per 10 C.F.R. Part 20."
November 16, 1990 letter from LILCO Vice President John D. Leonard, Jr. to Seymour-H. Weiss, Director, Non-Power Reactor, Decommissioning and Environmental Project Directorate,(SNRC-1774).
1/
our letter of November 14, 1990 was mistakenly captioned
" Sixth supplement"; please consider it to be the " Seventh Supplement".
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Dr. Thomas E. Murley November 29, 1990 paga 2 y
These admitted circumstances raise serious questions as to whether LILeo is violating NRC regulations and/or prudence in the storage of irradiated epipment and further raise questions as to whether LILCO is in violation of the confirmatory order of March 29,.1990 which recuires tlut continutLaaintenance of structures, systems, and spreonenta not required for safety in a defueled mode, but ne.csssary for ful.1 ppver oper3d;1Qn consistent with NRc regulations and LILCO's license obligations.
11a Alan, Letter from Dennis M. Crutchfield, Director, Division c5 Reactor Projects-III, IV, V and special Projects to LILCO Vice President John D.-Leonard, Jr., dated October 1, 1990.
We also' note the pendency of a LILCO license amendment application for-the shipment of the above-referenced reactor internals to the Barnwell south Carolina low-level vaste storage facility for burial.
As we stated in our comments submitted to others at the NRC yesterday (which are attached hereto and incorporated herein by reference), such a license amendment would be contrary to the decision reached by the Commission on reccamendations of SECY-89-247, as well as contrary to other regulato g requirements of 10 C.F.R. Chapter I, the Low-Level Waste Policy Amendments Act of 1985, and the National Environmental Policy Act.of 1969 as amended.
Drawing your. attention'to 42 U.S.C. 5-2284, we suggest that the attempt to bury the critical reactor internals at issue here (at least such an attempt _before issuance and judicial' review of a possession-only license) is a violation of that criminal statute requiring immediate preventative action by you.
E12, t &., 42 U.s.c. I 2280.
We believe that the existence of these circumstances requires enforcement actions by you to assure, among other things, the proper preservation of these important and valuable reactor internals pursuant to LILCO's license, the Confirmatory order, NEPA and the other authorities referenced.
The purpose of enforcement actions is to ensure compliance with NRC regulations and license conditions, obtain prompt correction of violations, and-adverse quality conditions which may affect safety and deter future violations and occurrences of conditions adverse to quality.
10 C.F.R. Part'2, Appendix C.I.
(1990 enforcement action p)ursuant to 10 C.F.R.This state of affairs cries out for Part 2, Subpart B &
Appendix C.
It is imperative that a notice of violation be leaued, i nc l u d i ng a proposed civil penalty and remedial action plan to t
9
DEC B ' 90 17:26 FROM D.L.A.
WASHINGTON DC ppgg,gg7
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l Dr. Thomas E. Murley November 29, 1990 i
Page 3
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bring LILCO into compliance with the confirmatory order and othe':
requirements to assure proper pres 4rvation of these valuable, and perhaps practically irreplacable reactor internals.
On behalf of the shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc., I urge you to taka prompt action pursuant to the above referenced authorities to investigate LILCO's conduct and correct and/or i
prevent the alleged violations of both the Atomic Energy Act and National Environmental Policy Act.
i l
Re pectfully ubmJ tted J I-5,,
ares P. McGranary, counsel for Shoreham-Wading River l
Central School District and l
Scientists and Engineers for secure Energy, Inc.
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.s DEFORE THE UNITED STATES OT AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Mattor of
)
)
long Island Lighting Company
)
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Docket No. 50-322, Shoreham Nuclear
)
Power Station, Unit 1,
)
USNRC Docket No.
Suffolk County, New York
)
50-322 (Application to Amend Operating Licence
}
License No. NPT-82 Under Exigent Circumstances to Allow
)
Shipment of Reactor Internals to the
)
Low-Level Radioactivo Waste Disposal
)
Ropository at Barnwell, South Carolina)
)
)
CORRECTION OF AND SUPPLEMENT TO COMMENT ON PROPOSED NO SIGNIFICANT HAZARDS CONSIDERATIONS DETERMINATION, REQUEST FOR HEARING, NOTICE OF INTENT TO INTERVENE, AND OPPOSITION TO ISSUANCE OF AMENDMENT BY AND ON BEHALF OF SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT AND SCTENTTGIL.htik_EjiGl#EERS - FOR SECURE ENERGY, TNC, Yocterday, the Shorcham-Wading River Central School District (" School District") and Scientists and Enginc.urc fg Secure Energy, Inc. ("SE2") furninhed, bycounsel,thereggsted comments, a requent for hearing on the proposed amendmont Micr to its issuanco, gave notice of their intent to intervene @ any hearing, and opponed the issuance of the abovo-captioned amendment.
The School District and SE2 hereby correct the last line of Section 7 of that submittal on page 18 by deleting "U.S.C.
5 709" and substituting "U.S.C. 5 706".
Further, the School District and SE2, recognizing that the Shoreham Nuclear Power Station, Unit 1 is currently a
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utilization facility. licensed under.the Atomit P.nergy Act, and that it will remain such=a facility (at least until a possession-
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only licenso is issued and survivoa judicial review), state that the shipment of the 137 fuel support bearings and 12 peripheral
-pieces of the reactor vessel for burial as wasto would constitute intentional and willful destruction of, and/or the causing of physical damage to, a utilization facility licensed under the Atomic Energy Act in violation of 42 U.S.C. f 2284 (a).
And such unnecessary disposal at this time, given the ponsibility (regardless of how romote the Staff or LILCO may consider that possibility) of future operation of Shoreham, would be an intentional and willful attempt to cause an interruption'of normal-operation of the facility in further violation of 42 U.S.C. 5 2284(b).
Finally, given the statement by LILCO in SNRC-1774
.(November 16, 1990) that those reactor internals are " currently being stored in boxes on the South Separator / Reheater Roof above the-turbine deck," there is a serious-question as to Whether LILCO-is in' violation of the Confirmatory Order of March 29, 1990.
That is,--there is a question whether-the current mode and site of storage constitutes continued maintenance of components nocessary for' full power operation consistent with NRC regulations - and LILCO'o liconoo obligations.-
If NRC investigation reveals ~that mode and/or site of storage for those reactor internals is'not in accordance with appropriate standards, it would constitute " tampering with the.
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of any such facility" also in violation of 42 components.
U.S.C.-$ 2284(b).
ThoLforegoing violations, or imponding violations, of 42 U.S.C. 5 2284 also (a) demonstrato that the current and-proposed activities of LILCO with respect those reacto'r fnternalo cannot be the subject of a no significant hazards considerations determination and (b) form more than an adequate basis for the
. denial of the license application and enforcement actions purauant to Appnndix e of Part 2 of the commionion's Regulations.
Finally, the School District and SE2 contend that, due to the speed with which irreversible actions can and would be accomplished under the proposed amendment, the granting of a hearing-subsequent to issuance of the amendment wo'uld be a violation of their rights to a hearing under the Atomic Energy
.Act, the Administrative Procodure Act, and the Due Process Clause of the constitution.
Respectfully submitted, db j
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November 29, 1990 J
s P. McGranery, J Counsel for the Petitioners Shoreham-Wading River Central 3u School District and Scientists and-Engineers for Secure Energy, Inc.
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August.!,
1989 3.1 HAND Dr. Thomas E. Murley Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission One White Fl. int North 11555 Rockville Pike Rockville, Maryland 20852 Re:
Long Island Lighting Company, Shoreham Nuclear Power Station, Unit 1
Dear Dr. Murley:
Enclosed are an original and one copy of the Long Island Association's Petition for an Order Suspending Lilco's
" Minimum Posture" Activities Pending an Investigation and Environmental Review.
This Petition is filed in relation to the operating license issued to Long Island Lighting Company for Shoreham Nuclear Power Station, Unit 1.
Sincerely, kk Leonard Bickwit, Jr.
LB/mpc Enclosures
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UNITED STATES NUCLEAR REGULATORY COMMISSION
)
In the Matter of LONG ISLAND
)
LIGHTING COMPANY, SHOREHAM UUCLEAR )
POWER STATION, UNIT 1
)
)
PETITION FOR AN ORDER SUSPENDING LILCO'S
" MINIMUM POSTURE" ACTIVITIES PENDING AN INVESTIGATION AND ENVIRORMENTAL REVIEW As described in its recent July 28 meeting with i
Commission staff, the Long Island Lighting Company has 1
embarked on a course of conduct aimed at achieving a so-called
" minimum posture condition" at Shoreham Nuclear Power Station, Unit 1 that_ raises serious questions under the Atomic Energy Act, the National Environmental Policy Act, and the Commission's-regulations. 'In fact, the'Long Island Association believes that, in certain respects, Lilco's
~
conduct contravenes:those statutes and regulations.
The i
Association therefore petitions the Commission to suspend that conduct pending (1) an investigation into whether license violations have occurred, (2) an environmental review of the planned decommissioning of Shoreham, and (3) the formulation
-of;an orderly process, under the Commission's regulations, to l
govern the future. consideration of Shoreham issues.
The Lon'g Island Association is a not-for-profit organization with more than 4,000 members, companies, and organizations.
Its membership includes businesses, labor
'p"'.p+e Q.
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organizations, trade associations, economic development agencies, local chambers of commerce, and educational institutions.
The Association is the region's largest business and civic organization and seeks to advance its membership's interests in improving Long Island as a place to live, work, and do business.
The Association and its members are located within closo proximity of Shoreham, are customers and ratepayers of the plant, and have a vital interest in ensuring that Long Island has available adequate sources of power and that the region's public health and safety are protected.
The Association strongly believes that, as a matter of long-term energy, environmental, and national security policy, it is in Long Island's and the nation's interests to preserve Shoreham's ability to function as an ef ficient and safe source of clean power.
But even if the plant never operates again, the Association has a strong interest in seeing that the plant's proposed decommissioning is carried out safely and in complete compliance with the Commission's regulations.
The activities leading to decommissioning must be carefully supervised to avoid the risk of harm to the public safety or the environment.
To achieve that goal, the Commission must set now to devise an orderly process, in full compliance with the terms and objectives of its regulations.
2
- ~-
I.
CONSISTENT WITH ITS REGULATORY OBLIGATIONS, THE COMMISSION SHOULD SUSPEND LILCO'S MOVEMENT TOWARD A " MINIMUM POSTURE CONDITIONH Shoreham-presents the Commission with a novel and difficult situation.- Based on a lengthy and exhaustive analysis, the Commission recently granted Lilco a-full-power license to operate the plant in accordance with the representations made in its application.
Now, however, Lilco has contractually disabled itself from operating the plant.
After being ravaged by extraordinary delays in the licensing process, Lilco has sought-to buy peace with the state and.to obtain some relief-from its financial woes by capitulating to the demands of state authorities.
It has signed an agreement that' obligates it to refrain from operating the plant and to
-cooperate fully with the state's efforts to bring about J
Shoreham's dismantlement in return for guaranteed rate and other relief.
The Commission is thus confronted with a regulatory
. anomaly.- On the one nand, Lilco continues to retain a full-power license with all the rights _and privileges that entails.
On the other hand, it has bound itself contractually-to take actions that are inconsistent with'the understandings on which
~ issuance of the license"was based.
Lilco seeks to dismiss concerns about that anomaly by repeatedly emphasizing that it
- has no' intention of ever operating the plant. ~ See Tr.
7, 18, 60, 63 (July 28,'1989).
But that response can give the Commission little comfort.
It not only perpetuates the 3
regulatory anomaly but also distorts the Commission's regulatory process.
Indeed, Lilco's strategy seems designed to maximize its ability to take actions that depart from the commitments underlying its full-power license, while forestalling formal Commission oversight in a public proceeding.
By refusing to amend its license, Lilco can shield itself from the need to obtain advance Commission approval of the actions that it is taking at Choreham in furtherance of the state's dismantlement objectives.
As a consequence, Lilco is now making judgments;fg about what procedures can be terminated or modified andI[dpM[
staff can be eliminated or redeployedat Shorehsm/with @
following any regularized or formal' regulatory processwa The uneasiness of the Commission's staff with that approach was apparent at the recent July 28 meeting.
For example, noting that it was entering "new territory" and navigating " uncharted waters," the staff expressed the need to think through-further the " fundamental," longer-term questions presented by Lilco's plan to move to a " minimum posture condition" at Shoreham.
Tr. 86 (stmt. of T. Murley).
The stnff understandably wants to avoid " allow (ing) the plant to decommission itseAf" or to " sit there and rust."
Idz at 81.
Thus, the staff exhibited considerable skepticism regarding the "long-term" viability and acceptability of Lilco's " minimum posture" approach and expressed the need to engage in "a lot more discussion."
Id2 4
S at 78, 81.
In. fact, the staff noted that it would be advisable "to stand back and look at the whole thing" so that "an overall consideration" could be given to the course of decommissioning rather than examining only isolated individual actions, on an after-the-fact basis, to determine whether they satisfy the " absolute minimum" required by the " tech specs."
1d2 at 37.
In the Association's view, now -- not later -- is the time to " stand back" and take that "look."
The Commission should suspend the minimum posture program at shoreham until it has thoroughly examined the issues and devised an overall plan for resolving them properly.
Byc'ntinuing'toperg(({
o Lilcototake=actionsinconsistentwith-the-premiseg underlyingitslicenseandmerelyrelyingonagafter-the-facg reviewwithoutthebenefitof. adequate,documentationogg explanation, the commission is following a course?. fraught witgg dangerg Both the regulatory scheme and principles of responsible regulation require the agency to examino the issues thoroughly before irreversible action is undertaken, environmentally preferable options are foreclosed, and safety hazards are. created.
Although the staff has properly expressed discomfort with Lilco's approach, it has not yet seen the need for taking affirmative and immediate action.
The staff apparently believes that no'such action is necessary in the short-term because, at present, Lilco is in technical compliance with its e
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a license. 1015 at 81, 86.
But that justification for inaction will not withstand scrutiny for three reasons.
1.
Violation of 6 50.59.
The licensee is taking actions, _ without prior commission approval, that give rise to
[
an unreviewed safety question as defined by 10 C.F.R.
f 5 50.59(a)(2).
Under the regulations, absent a license amendment, a licensee is prohibited from making a change at a Ili j
\\ i plant that " involves a change in the technical specifications I!
f incorporated in the license or an unreviewed safety question."
10 C.F.R. 5 50.59 (a) (1).
A change shall be deemed to involve an unreviewed safety question (i) if the probability of occurrence or the consequences J'
of an accident or malfunction of equipment important to safety previously evaluated in the safety analysis report may be increased; or (ii) if a possibility for an accident or malfunction of a different type than any evaluated previously in the safety analysis report may be-created; or (iii) if the margin of; safety as defined in the basis for any technical specification is reduced.
10 C.F.R.
E' 50.59(a) (2).
Here, Lilco's efforts to move to a " minimum posture condition" have a umber of advers safety implications under L
the regulations." Cutting staff, isregar g Commission l upgraderorders, educing maintenance an surveillance,.and{_
deactivating procedures -- all of which are part of the
- " minimum posture condition" ot Shoreham -- will undoubtedly 6
9 increase the risks'of accident or malfunction that would be associated with operating the plant as contemplated by the lic9nse and raise safety issues that have not been "proviously evaluated."
Indeed, the Commission evaluated the safety of Shoreham under a set of parameters wholly different from the conditions that currently exist at the plant.
Lilco itself has conceded, for example, that the substantial destcffing occurring at the_ plant is incompatible with the safety standards imposed by its license.
Lig, 2422.
Tr. 35 (stat, of W.
Steiger).
Lilco seeks to excuse that shortcoming on the ground that it does not ever intend to operate.the plant.
But Lilco's assurances cannot shelter it frem the requirements of the regulations.
The regulations do not make the existence of an unreviewed safety question turn on the licensee's " intentions."
Rather, the changes being implemented at the plant must be evaluated in light of what I,
the. licensee is authorized to do.
Here, Lilco has been t granted, and continues to retain, a full-power license, yet it y is making changes that depart significantly from tha basis ony which that license was-granted and that increase the-risks y associated withioperation.under the license.
Absent a license f.
amend M O5ddh7EIianges are flatly forbidden by the f regulin% Eis N L
At the July 28 hearing, the NRC staff emphauized the i
importance of enforcing compliance with the existing license.
The staff stated:
"(A]s long as there is a valid operating i
license, we intend to make sure that the equipment and condition (are) kept appropriate to a plant with an_ operating 7
4 Nor can Lilco elude the requirements of 5 $0.59 cn the ground that no violation of the licensee's technical specifications has yet occurred.
As the NRC staff has noted, j
reliance on the technical specificationo cannot be the sole test here.
The commission did not i
l draft these tech speco and write L
them on the basis tnat a plant I
would be in the extended non-operating period for months, if not years, on its way to L
l decommissioning.
So,
' thera may be certain parts of L
the plan?. that could ju1t turn l
.into rust buckets under (the) tech specs.
Tr. 37 (stat..of T. Murley) (July 28, 1969).
Sipilarlyg,t%d l
staff noted that,-without-regarde.tc the=tschniclA specifloations, the =" minimum posture,conditionTihangesiimeing effectuated by 1Lico "could impact sections of..thee.updatgf
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FSAR and/or other commitments, nada to,theJRG,inethe l-(licensing) proceam" ane-thus constitutesa-violation-6Y i
1 5 50.59 41dx at 39 (stmt. of W. Russell).
l The Association believes that such a violation han j
l
' occurred and that Lilco should be made to comply with the requirements of 9 S0.59.
But even if the Commission is not prepared to make such a finding, it should institute an
. investigation into the issue.
Otherwise, tilco will be left free to continue to make judgments about the safety of the changes it is effectuating without prior NRC approval and in license."
Tr._12 (stmt. of T. Murley).
8 l
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9 possible contravention of the regttlaci" 4.
Moreover, the 7
changs* ut issue are boj nj mr:de pursuant to a methodology de rot.ep6C hiely by Lilco and, as yet,. not fully documented or nphuined t> the Commission.
That is wholly incompatible with 5 50.159 art) neund safety regulation.
I 2.
Unauthorized Con M.
New York statd 7
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authorities, through the settlement agreement, have assumed
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unauthorized control over the Shoreham license.
Under the Atonic Energy Act, no license may "be transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through tradSt:e of
(
d n-c.nntrol of any license to hoy person" trit:.out prior Csswasion f
approval.
12 U.S.C.
S 2234; agg also y U.S.C.
$ 2233(c).,
LO C.P.R. 9 50.80(a).
The reason for that. prohihitior, is 1
TEprotectthepublichealthandsafety,Congreca obvious.
L has prcrvided that only those persons or entities wnese I
techrical, financial, anc1 segel qualiff, ations have been fully evaluated oy the Commission Aould be permi.tted to exercise corstrol over and conduct operations under a nuclear license.
In the present case, however, an entity that has not undergone such review is exerci' sing a substantial degree of control over nctivitlen u'ader the lit:ense.
Under the B cettlagtJf tef/4Wate hafs purchased a voice in the management v of 4 ShoEE{Nin'."*It has obtained L'.2.co's commitment thaP. it will not operate Sho'rcham ent that it will cooperate fully in s helping to effectuatu 1.he plant's; demise. 9 h m__
1 ) e Thus, this is not the typical situation in which a state simply seeks to assert its usual authority to regulate utility rates. Rather, the state here has entered into a binding contract with the company for the p3rpose of obtaining legal authority to direct and influence operatinnal decisions. Under the contract, for example, Lilco must remove the fuel ~ and deposlt it in the spent fuel pond; withdraw applicatiens to receive 25 and 50 percent power operating licenses; apply for a " possession only" license and other amendments to facilitate tranater; " cooperate with representatives of the ( power Authorities on transition and personnel planning and report matters of significance concerning the status of Shoreham"; and to keep the statt authorities informed of any _ _. - ~. _.. changes in the." normal" status of the facility. Amended and Restated Asset Transfer Agreement, Art. V, 5 5.1(b). The state also has a contractual right to obtain ~ specific performance to enforce L11co's obligations under ~ settlement. Idi Art. X, s 10.5. Thus, for example, if Lilco decided not to carry out the defueling at this time or refused to cooperate with the state's " transition and personnel planning" wishes, the state would have a right to seek an injunction foreing Lilco to take the desired _ action. 1 consistent with the statute and the regulations, such e ' operational matters should not be,under the control or l' nfluence of state authorities. They have neither appeared 10
before the Commission nor been found to comply with applicable ~ _. _ statutory and regulatory requirements. As a consequence of the settlement agreement, Lilco has ceded the power to operate the facility in accordance with its independent judgment. In the words of J. W. McDonnell, a Lilco vice president, the licensee is contractually obligated'\\ to " cooperate fully with the state as it determines what to do with the plant as a policy matter." N.Y. Times, Apr. 22, 198f, at 30, col. 4. Thus, with respect to decisions involving issues of resource commitments, Lilco ',5 emphasized that it will " ensure that all expel 31turen are prucent and consistent with the terms of the agreemert" with the state authorities. Tr. 13 (stat. of J. Leon',rd ) (July 28, 1989). Similarly, Peter Bradford, Chairman of the Hew.. York u Public Service commission, has emphasized in press accounts 4 that his str.ft will review Lilco's spending plans at Shorehagg to make sure that they do not include " expenditures above an4f beyond decommissioning." Newsday, June 29, 1989, at 28. The press has also reported that the state "is planning to allow Lilco to spend no more at Shoreham than is absolutely necessary, even if that means letting the plant deteriorate to a state where restarting it someday would be virtually impossible, or prohibitively expensive." Idu at 4. Thus, the state has made clear its intentions. Its ultimate goal is dismantlement, and it seeks to minimize its costs in the interim. Indeed, it is the state's objmetives that are 11 l I d 1 -- 1
i driving Lilco's movement toward a " minimum posture condition" at Shoreham. The potential for conflict with considerations of public safety and proper nuclear plant maint6 nance and management looms large. It is apparent that all decisions i regarding resource commitments-at Shoreham must be cleared 3 jg with and approved by the ste.te. Thus, even if Lilco were to ( 10"j/ e r determine that public safety or plant maintenance j considerations require an expenditure of funds, that determination may be effectively overruled by the state. The' l state's shadew control over the license must be halted pendinge the outcome of a proceeding to consider a properly filedf I transfer of control application. 3. De Facto Decommissionina. A da facto j decommissioning of Shoreham is already underway. The decision l to_ decommission has been made, Lilco and the state have I contracted to implement that objective, and the parties are taking actions designed to lead to the plant's ulticate dismantlement. In fact, but for the decision to decommission, l the licensee's current actions would not be taking place. Given the reality that present activities at the plant are aimed toward decommissioning, the commission should put those' actions "on hold" until it has worked out an overall procedure for ensuring that the entire decommissioning process is conducted in a' way that will further the public health and
- safety, otherwise,-the commission may later confront issues 1
12
i / that should have been anticipated or realize that it has lost options that should have been kept alive. In fact, absent careful and decisive action at this juncture, the Commission way soon find that the state's hope that "(t]he plant could gradually decommission itself" has come to pass.
- Newsday, June 29, 1989 at 28 (stat. of P. Bradford).
II. NEPA REQUIRES TRAT THE CCt04ISSION INITIATE AN ENVIRONMENTAL REVIEW To ENSURE THAT ALL PIl.30NABLE ALTERNATIVES ARE PRESERVED i The issuance of a license authorizing Lilco to conduct full-power operations at Shoreham involved a major federal action that required the Commission to undertake a thorough environmental analysis in accordance with the requirements of NEPA, 40 U.S.C. $ $ 4 3 21 31 191. Shoreham 7 continues to be a major federal project, requiring substantial Commission involvement. That has not been changed by the plan i to dismantla, rather than operate, the plant. Indeed, the Commission's regu]ations specifically provide that issuance of a license amendment authorizing the decommissioning of a nuclear power reactor is a regulatory action requiring 1 ( h, environmental review. 4 M <f ( '. \\." <+ t The Commission cannot escape its NEPA responsibilities by claiming that its environmental y/ ' ' [' obligations are not triggered until the filing of a formal decommissioning application. The actions that the parties are currently implementing at cihoreham purs'uant to the settlement agreement are aimed at the ultimate filing of a 13 l
i i decommissioning application. Thus, NRC involvement is a foreordained. Under 40 C.F.R. $ 1501.2(b) of the regulations of the Council on Environmental Quality, the Commission is " require (d) to take steps toward ensuring that" proper " environmental studies" are " initiate (d) ... as soon as ) federal involvement. . can be foreseen." 46 Fed. Reg. l 18,026, 18,028 (1981). The purpose of that directive is "to ensure that environmental factors are considered at an early stage in the planning process and to avoid the situation where the applicant-for a federal permit or approval has completed planning and eliminated all alternatives to the proposed action by the time the EIS process commences or before the EIS process has been completed." Id2 at 18,028. "(T]he purpose (of i 1501.2) cannot be fully served it consideration of the cumulative effects of successive, interdependent steps is delayed until the first step has already been taken." Thomas
- v. Peterson, 753 F.2d 754, 760 (9th Cir. 1985).
- Thus, consistent with the CEQ mandate that agencias " integrate the NEPA process with other planning at the earliest possible time" (40 C.F.R.
5 1501.2), the Commission should make certain i that appropriate environmental review of activities at Shoreham and of the-long-term decommissioning plan begins now and that options are not lost. Moreover, case law makes clear that the agency's current NEPA responsibilities cannot be circumvented on the 14
thuory that particular actions now being implemented at Shoreham do not, standing alone, constitute major matters and do not yet necessitate the invocation of federal processes. Where, as here, actions are taken that are part of an overall plan or project that will culminate in federal involvement, they cannot properly escape environmental scrutiny. Egg Lathan v. Voles, 455 F.2d 1111, 1120-21 (9th Cir. 1971); Themeson v. Fucate, 347 F. Supp. 120, 124 (E.D. Va.), aff'd in relevant cart, 452 F.2d 57 (4th Cir. 1972). Under the reasoning of those cases, NEPA's requirements cannot here be avoided through piecemeal action on segments of an overall plan leading to federal consideration of whether to decommission Shoreham. It is therefore impermissible for the Commission to permit the parties, through segmentation of the decommissioning process, to Ovoid NEPA's requirements and to make unguided decisions that may foreclose future options. In Conner v. Burford, 836 F.2d 1521 (9th Cir. 1988), the court held that an EIS was required before an oil lease on federal land could be granted even though site-specific 4 1 proposals for development had not yet been submitted. Tne-court explained that " relinquishing the 'no action' alternative without preparation of an EIS" would subvert the purposes of NEPA.* Id2 at 1531-32. The " heart" of the EIS " requires federal agencies to consider seriously the 'no action' alternative before approving a project with sigt.ificant environmental effects. That analysis would serve 15 + - ,..., _,, _. - - - - ~, - .m,- m
l no purpose if at the time the EIS is finally prepares, the 5' option is no longer available." 144 at 1532. Thus, the couct held, an EIS must be prepared prior to granting the lease 1 unless the lease forbids any surface-disturbing activities pending completion of the EIS. lix To prevent a similar frustration of NEPA's purposes here, the Commission must likewise halt any activities that are inconsistent with the "no action" option of preserving the Shoreham plant in an operating condition until an environmental review hasLbeen undertaken. Thus, before-Lilco's current plans make a return to "no action" infeasible, the Commission should suspend further steps toward decommissioning and initiate an appropriate environmental review of the decommissioning process from its inception. That may require the Ccamission's undertaking an environmental review or its ordering the parties to prepara environmental analyses that are faithful to NEPA's objectives. In either event, decisive action is necessary now. ' CONCLUSION The Commission should order the suspension of Lilco's actions in furtherance of a " minimum posture condition" at Shoreham, investigate the matters raised in this petition, initiate appropriate environmental reviews, and devise a process for the orderly consideration of Shoreham issues.- t i 16 ,S ..-.___..,.-,.-_s .............--,--s m -. - -- - ~ ~,... -....,.. -. -... - - -..
1 Respectfully submitted, l i Leonard Bickwit, Jr. James P. Tuite James B. Altman Hiller & Chevalier, Chartered 655 15th Street, N.W. 1 Suite 900 I Washington, D.C. 20005 l (202) 626-5800 Attorneys for the Long Island Association By + ' M G 17 I
. -. -. - = CERTIFICATE OF SERVICE i I certify that the foregoing Petition for an Order Suspending Lilco's " Minimum Posture" Activities Pending An Investigation and Environmental Review has been served this 4th day of August, 1989, by mailing a true and correct copy thereof to the following persons: Mr. John D. Leonard, Jr. Supervisor Vice-President--Nuclear Operations Town of Brookhaven Long Island Lighting Company 205 S. Ocean Avenue P.O. Box 618 P tchogue, New York 11772 Shoreham Nuclear Pcwer Station Wading River, New York 11792 Town Attorney Town of Brookhaven Victor A. Staffieri, Esq. 3232, Route 112 General Counsel Medford, New York 11763 Long Island Lighting Company 175 East Old County Road Environmental Protection Hicksville, New York 11801 Agency Region II W. Taylor Reveley, III, Esq. 26 Federal Plaza Hunton & Williams New York, New York 10278 Post Office Box 1..-5 707 East Main Street Mr. Bruce Blanchard, Richmond, Virginia 23212 Director Office of Environmental Mr. Lawrence Britt Project Review Shoreham Nuclear Power Station U.S. Department of the Post Office Box 618 Interior Wading River, New York 11792 18th and C Streets, N.W. Washington, D.C. 20240 Mr. John Scalice Plant Manager Mr. Allen Hirsch, Shoreham Nuclear Power Station Director P.O. Box 628 office of Federal Wading River, New York 11792 Activities U.S. Environmental Resident Inspector Protection Agency Shoreham NPS Washington, D.C. 20460 U.S. Nuclear Regulatory Commission P.O. Box B Mr. Paul D. Eddy Rocky Point, New York 11778 New York State Public Service Commission Admiral James D. Watkins P.O. Box 63 Secretary of Energy Lycoming, New York 12210 U.S. Department of Energy Washington, D.C. 20585
f Regional Administrator, Region I MHB Tehchnical Associates U.S. Nuclear Regulatory Commission 1723 Hamilton Avenue 475 Allendale Road Suite K King of Prussia, Pennsylvania 19406 San Jose, CA 95125 Ms. Donna Ross Jonathan D. Feinberg, Esq. New York State Energy Office New York State Department Agency Building 2 of Public Service Empire State Plaza Three Empire State Plaza Albany, New York 12223 Albany, New York 12223 Richard M. Kessel Gerald C. Crotty, Esq. Chairman & Executive Director Ben Wiles, Esq. New York State Consumer Counsel to the Governor Protection Board Executive Chamber Room 1725 State Capitol 250 Broadway Albany, New York 12224 New York, New York 10007 Mr. Charlie Donaldson Dr. Monroe Schneider Assistant Attorney General North Shore Committee NYS Department of Law Post Office Box 231 Room 3-118 Wading River, New York 11792 120 Broadway New York, New York 10271 Fabian G. Palomino, Esq. l Special Counsel to the Governor Herbert H. Brown, Esq. Executive Chamber - State capitol Lawrence Coe Lanpher, Esq. Albany, New York 12224 Karla J. Letsche, Esq. Kirkpatrick _ & Lockhart Martin Bradley Ashare, Esq. South Lobby - 9th Floor Suffolk County Attorney 1800 M Street, N.W. H. Lee Dennison Building Wash., D.C. 20036-5891 Veteran's Memorial-Highway Hauppauge, New York 11788 James P. McGranary, Jr., Esquire Robert Abrams, Esq. Dow, Lohnes & Albertson. Attornay General-of the State- -1255 Twenty-Third Street of New York Washington, D.C. 20037 ATTN: John Corwin, Esq. New York State Department of Law Ms.:Nora Bredes Consumer Protection Bureau Shoreham Opponents 120 Broadway Coalition l 3rd Floor. 195 East Main Street New York, New York 10271 Smithtown, New York 11787 Honorable Peter Cohalan Chris Nolin Suffolk-County Executive New York. State Assembly County Executive / Legislative Bldg. Energy Committee Veteran's Memorial Highway 626 Legislative Off. Bldg. Hauppauge, New York-11788-Albany, New York 12248 August 4, 1989 -( I r . _ _ _ -.}}