ML103630001
| ML103630001 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 12/29/2010 |
| From: | Bihn S, Coronado D, Gunter K, Lodge T, Mandeville L, Mantei F, Mcardle E, Meyers M, Newnan H, Steinman S, Timmer M, Keegan M, Stokes H Beyond Nuclear, Citizens Environmental Alliance of Southwestern Ontario, Citizens for Alternatives to Chemical Contamination, Don't Waste Michigan, Sierra Club, Michigan Chapter |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 52-033-COL, ASLBP 09-880-05-COL-BD01, RAS 19339, +reviewed AXM8 | |
| Download: ML103630001 (9) | |
Text
December 29, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of: ) Docket No.52-033 The Detroit Edison Company )
(Fermi Nuclear Power Plant, )
Unit 3)
)
INTERVENORS MEMORANDUM IN OPPOSITION TO DTES MOTION TO STRIKE PORTIONS OF INTERVENORS RESPONSE TO MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 8' Now come Intervenors Beyond Nuclear, Citizens for Alternatives to Chemical Contamination, Citizens Environmental Alliance of Southwes-tern Ontario, Dont Waste Michigan, Sierra Club (Michigan Chapter),
Keith Gunter, Edward McArdle, Henry Newnan, Derek Coronado, Sandra Bihn, Harold L. Stokes, Michael J. Keegan, Richard Coronado, George Steinman, Marilyn R. Timmer, Leonard Mandeville, Frank Mantei, Marcee Meyers, and Shirley Steinman (hereinafter Intervenors), by and through counsel, and set forth their opposition to the Motion To Strike Portions of Intervenors Response to Motion for Summary Disposition of Contention 8 brought by DTE, the Applicant.
DTES INTERPRETATION OF THE CONTENTION Intervenors memorandum in opposition was designed to meet, in good faith, DTEs own interpretation of the gravamen of Contention No.
- 8. Applicant characterized the contention this way in its Motion (pp.
2, 3):
As the Board explained in its decision admitting a portion of Contention 8,Contention 8 is a contention under the National Environmental Policy Act (NEPA) alleging that the ER fails to adequately assess the projects impacts on the Eastern Fox snake.
LBP-09-16 at 62.
At bottom, the admitted Contention 8 relates to (1) the discrepancy in the ER regarding the presence of Eastern Fox snakes at the Fermi Unit 3 site; and (2) the failure of the ER to discuss mitigation measures related to the Eastern Fox snake.
DTE believes that Contention No. 8 is one of omission, whereas Inter-venors claim it is a contention of inadequacy. Generally, the plain language of a contention will reveal whether the contention is a claim of omission, a specific substantive challenge to an application, or a combination of both. It may be necessary to examine the language of the contention bases to determine the scope of the contention. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-16, 63 NRC 737, 742 (2006); see also Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-08-2, 67 NRC 54, 63-65 (2008)
(examining the language of the bases of contention to determine if it is a contention of inadequacy or a contention of omission).
The disagreement which prompted the Motion to Strike, then, comes down to one of scope, i.e., whether DTEs initial denial of presence of the Eastern Fox Snake at the Fermi site - which includes Fermi units 1 and 2 on a two-square-mile area - is remedied by DTEs belated acknowledgment of the snakes presence together with a minimal, rote plan aimed at avoiding its road kill; or whether the projects impacts on the Eastern Fox Snake must be analyzed and quantified for their cumulative or synergistic effects on the snake from other human activities and projects expected to occur at the Fermi site contemp-oraneously to Fermi 3 construction. Intervenors submit that the scope of the project requires NEPA analysis of the impacts of the traffic and congestion from Fermi 3 construction, cooling tower salt deposi-tion, refueling outages at Fermi 2, the new ISFSI at Fermi 2, and the human and traffic congestion from dismantling Fermi 1 must be cumulatively analyzed before there can be a serious mitigation plan (even if such a plan cannot be imposed on DTE). Intervenors maintain that adding a poorly-considered mitigation plan into the mix without a predicate analysis of potential environmental impacts - cumlative ones
- renders the mitigation plan legally inadequate, based upon the failure to follow the NEPA obligation to perform cumulative analysis.
When determining the scope of a contention, one looks not only to the contention itself, but also to the bases provided for the content-ion, which clarify the reach and focus of a contention. Those bases originally offered in support of a contention, together with the issues stated in the contention itself, establish an envelope within which information will be considered to be within the reach or focus of a contention and therefore relevant in litigation of the contention. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP-04-12, 59 NRC 388, 391 (2004) (characterizing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Sta-tion, Units 1 and 2), CLI-02-28, 56 NRC 373, 379 (2002) and Pub. Serv.
Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991), cert. denied, 502 U.S. 899 (1991)); Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 254 (2007).
Why There Should Be A Cumulative Effects Analysis There can be no doubt but that NEPA requires the cumulative effects of an action to be disclosed in an environmental impact state-ment. Kleppe v. Sierra Club, 427 U.S. 390 (1976) NRDC v. Callaway, 24 F.2d 79, 88 (2d Cir. 1975); Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013 (5th Cir.
1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775 (1972); 40 C.F.R. §§ 1508.7, 1508.8.
In NRC proceedings involving NEPA, when several proposals for actions that will have a cumulative or synergistic environmental impact upon a region are pending concurrently before the NRC, their environmental consequences must be considered together. Sequoyah Fuels Corp. (Gore, OK, Site Decommissioning), LBP-99-46, 50 NRC 386 (1999).
Sequoyah Fuels Corp. (Gore, OK, Site Decommissioning), LBP-99-46, 50 NRC 386 (1999). 6 at 57, citing Kleppe, 427 U.S. at 410. The term synergistic refers to the joint action of different parts - or sites
- which, acting together, enhance the effects of one or more individ-ual sites. Sequoyah Fuels Corp. (Gore, OK, Site Decommissioning), LBP-99-46, 50 NRC 386 (1999).
In Kleppe, the Supreme Court stated (at p. 410) that
. . .[W]hen several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environ-mental consequences must be considered together. [Footnote omitted].
Only through comprehensive consideration of pending propo-sals can the agency evaluate different courses of action.
Obviously, the NRC must consider the cumulative and synergistic environmental consequences within the affected region - meaning, here, at least the two-square-mile Fermi site - which except for its built-up portions is deemed habitat for the Eastern Fox snake. CEQ regula-tions (40 C.F.R. §§ 1508.7 and 1508.27) require an analysis of whether it is "reasonable to anticipate cumulatively significant impacts" from the specific impacts of the proposed project which, when added to the impacts from "past, present and reasonably foreseeable future actions" are "related" to the proposed project. The regulation does not limit the inquiry to the cumulative impacts that can be expected from pro-posed projects; rather, the inquiry also extends to the effects that can be anticipated from "reasonably foreseeable future actions." Cf.
40 C.F.R. § 1508.25(a)(2) (cumulative actions are "proposed actions
...").
No matter how small the incremental impacts of a project are expected to be, 40 C.F.R. § 1508.7 requires the NRC to add [] [the incremental impacts] to other past, present, and reasonably fore-seeable future actions. Once this is done, the NRC must to the fullest extent practicable, [] quantify the various factors con-sidered. 10 C.F.R. § 51.71; cf. Hall v. Norton, 266 F.3d 969, 978 (9th Cir. 2001) (EA that failed to quantify the cumulative emissions from potential development was inadequate, even when project would only contribute a small portion of overall emissions). See United States v. Larionoff, 431 U.S. 864, 872 (1977) ("In construing admin-istrative regulations, 'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'", quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
The regulation clearly mandates consideration of the impacts from actions that are not yet proposals as well as from actions - past, present, or future - that are not themselves subject to the require-ments of NEPA. See 40 C.F.R. § 1508.7 ("past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions"). The future, unavoidable actions include multiple Fermi 2 refuelings, and likely the teardown of Fermi 1, along with expanded use of dry cask storage at Fermi 2.
The Nuclear Regulatory Commission reads post-Kleppe rulings to indicate that to bring NEPA into play, a possible future action must at least constitute a proposal pending before the agency (i.e.,
ripeness), and must be in some way interrelate with the action that the agency is actively considering. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 14, 55 NRC 278, 295 (2002). The hurdle is easily surmounted as to Fermi 1 and 2, which must undergo NRC checks and balances for refuel-ing and dismantling, the plans for which are well-known.
DTE acknowledged in the Environmental Report that [m]ost of the past environmental impacts that occurred at the Fermi site were asso-ciated with the construction and operation of the existing Fermi 2 and the decommissioned prototype Fermi 1. These actions include the con-struction and operation of the two nuclear reactors and associated facilities. ER, Chapter 3, 5-197. Presumably, past environmental effects include construction and initiation of Fermi 2's ISFSI (which is also a present and future radiation-emitting source), and the salt deposition emissions from Fermi 2's cooling towers. The latter will pose intensified (and as yet unevaluated) environmental effects for the Eastern Fox Snake or its habitat, when combined with the expected deposition from Fermi 3's cooling tower setup.
NEPA mandates that the environmental analysis of Fermi 3 must take a hard look at individually insignificant, but cumulatively significant, impacts (10 C.F.R. § 1508.27(b)(7)), so as to prevent harm to the surrounding ecosystem - the fragile habitat which sustains the Eastern Fox snake - by a thousand small cuts. Intervenors urge the Commission to require DTE to include within that hard look a serious set of analyses of the synergistic effects of construction congestion for Fermi 3, together with refueling employees traffic impacts at Fermi 2, and the workers dismantling Fermi 1; along with the effects of snake exposure to the ISFSI as an alternative sunning/
lazing site, to precisely what impacts the multi-year but temporary loss of the construction-disrupted 95 or 100 acres which DTE predicts will be borrowed from the snakes habitat during construction of Fermi
- 3. An DTE should be obliged to include within its ER analyses a care-ful inquiry into the implications, if any, of recurring salt deposi-tion from the expanded array of cooling towers which will result from the construction of Fermi 3.
CONCLUSION Although federal agencies are given considerable discretion to define the scope of NEPA review, that does not obviate them from considering connected, cumulative, and similar actions together to prevent an agency from dividing a project into multiple actions, each of which individually has an insignificant environmental impact, but which collectively have a substantial impact. Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105, 1118 (9th Cir.2000) (quoting Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985)).
For these reasons, the Motion to Strike should be denied; cumu-lative impacts analysis ordered; and summary disposition of Contention 8 denied to the Applicant.
Respectfully,
/s/ Terry J. Lodge Terry J. Lodge (Ohio 0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-8582 Counsel for Intervenors December 29, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of: ) Docket No.52-033 The Detroit Edison Company )
(Fermi Nuclear Power Plant, )
Unit 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of INTERVENORS MEMORANDUM IN OPPOSITION TO DTES MOTION TO STRIKE PORTIONS OF INTERVENORS RESPONSE TO MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 8' have been served on the following persons via Electronic Information Exchange this 24th day of December, 2010:
Ronald M. Spritzer, Chair Commission Administrative Judge Washington, DC 20555-0001 Atomic Safety and Licensing E-mail: HEARINGDOCKET@nrc.gov Board Panel Mail Stop: T-3F23 Randall J. Charbeneau U.S. Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing Washington, DC 20555-0001 Board Panel E-mail: Ronald.Spritzer@nrc.gov Mail Stop: T-3F23 U.S. Nuclear Regulatory Office of Commission Appellate Commission Adjudication Washington, DC 20555-0001 Mail Stop O-16C1 E-mail:
U.S. Nuclear Regulatory Randall.Charbeneau@nrc.gov Commission Washington, DC 20555-0001 Bruce R. Matters E-mail:OCAAmail@nrc.gov Detroit Edison Company One Energy Plaza, 688 WCB Michael F. Kennedy Detroit, Michigan 48226 Administrative Judge E-mail: matersb@dteenergy.com Atomic Safety and Licensing Board Panel David Repka, Esq.
Mail Stop: T-3F23 Tyson R. Smith, Esq.
U.S. Nuclear Regulatory Counsel for the Applicant Commission Winston & Strawn, LLP Washington, DC 20555-0001 1700 K Street, NW E-mail: Michael.Kennedy@nrc.gov Washington, DC 20006-3817 E-mail: drepka@winston.com Office of the Secretary trsmith@winston.com ATTN: Docketing and Service Mail Stop: O-16C1 Marcia Carpentier U.S. Nuclear Regulatory Counsel for the NRC staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-4126 Marcia.Carpentier@nrc.gov
/s/ Terry J. Lodge Terry J. Lodge (Ohio 0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-8582 Tjlodge50@yahoo.com Counsel for Intervenors