ML18059A323

Judgment (Appendix 1)(DC Cir.) (Case No. 15-1173) 2-27-18

ML18059A323
Person / Time
Site:	Fermi
Issue date:	02/27/2018
From:	Meadows K US Federal Judiciary, District Court for the District of Columbia
To:	NRC/OGC
References
15-1173
Download: ML18059A323 (121)

Text

App. 1 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT NO. 15-1173 September Term, 2017 FILED ON: NOVEMBER 27, 2017 BEYOND NUCLEAR, INC.,

PETITIONER V.

U.S. NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS DTE ENERGY COMPANY, INTERVENOR On Petition for Review of an Order of the Nuclear Regulatory Commission Before: GARLAND, Chief Judge, HENDERSON, Circuit Judge, and EDWARDS, Senior Circuit Judge.

JUDGMENT This petition for review was considered on the rec-ord from the Nuclear Regulatory Commission (NRC) and on the briefs filed by the parties. See FED. R. APP.

P. 34(a)(2); D.C. CIR. R. 34(j). The court has accorded

App. 2 the issues full consideration and determined that they do not warrant a published opinion. See D.C. CIR. R.

36(d). It is ORDERED AND ADJUDGED that the petition for review be denied.

Petitioner Beyond Nuclear challenges the NRCs decision to grant DTE Electric Company a combined license to construct and operate a nuclear power plant.

Specifically, it challenges NRCs denial of petitioners:

(1) request to admit for an adjudicatory proceeding an untimely contention challenging the NRCs Environ-mental Impact Statement (EIS); (2) request to consider that untimely contention at a contested hearing on a sua sponte basis; and (3) challenge to the adequacy of DTEs quality-assurance program. Each argument is unsuccessful.

We owe an agencys interpretations of its own pro-cedural regulations substantial deference, giving them controlling weight unless plainly erroneous or in-consistent with the regulation. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citation omitted). The NRC did not plainly err in determining that Beyond Nuclears contention regarding the EIS was untimely under its regulations and was not based on information that was not previously available, 10 C.F.R. § 2.309. Nor did it abuse its discretion in decid-ing that the issue presented by the contention was not so serious as to warrant sua sponte review in a contested hearing under 10 C.F.R. § 2.340, because the EIS did consider the issues presented by the

App. 3 contention and because the NRC had already sched-uled a hearing to review the overall sufficiency of the EIS. See Lorion v. NRC, 785 F.2d 1038, 1042 (D.C. Cir.

1986).

Finally, we reject Beyond Nuclears claim that the NRC was arbitrary and capricious in accepting DTEs quality-assurance program. The record does not support the claim that the NRC ignored undisputed evidence regarding the program. Rather, the record in-dicates that the NRC rationally considered all relevant facts before denying Beyond Nuclears challenge to the program. Nor do the NRCs regulations support Be-yond Nuclears assertion that the NRC acted unlaw-fully in ruling that DTE could rely on the quality-assurance program of its contractor while preparing its license application, as long as DTE retained respon-sibility for that work. To the contrary, the regulations expressly permit an applicant to delegate to others . . .

the work of establishing and executing a quality-as-surance program, so long as the applicant retains final responsibility over the program. 10 C.F.R. Pt. 50 App.

B.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days af-ter resolution of any timely petition for rehearing or

App. 4 petition for rehearing en banc. See FED. R. APP. P. 41(b);

D.C. CIR. R. 41.

Per Curiam FOR THE COURT:

Mark J. Langer, Clerk BY: /s/

Ken Meadows Deputy Clerk

App. 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Stephen G. Burns, Chairman Kristine L. Svinicki William C. Ostendorff Jeff Baran

)

In the Matter of

)

DTE ELECTRIC COMPANY )

Docket No. 52-033-COL (Fermi Nuclear Power Plant, )

)

Unit 3)

)

CLI-15-01 MEMORANDUM AND ORDER (Filed Jan. 13, 2015)

Today we rule on the Atomic Safety and Licens-ing Boards request to review, sua sponte, issues re-lating to the environmental impacts of the proposed transmission-line corridor for Fermi Unit 3.1 For the reasons set forth below, we deny the Boards request for sua sponte review. In addition, we deny Intervenors petition for review of the Boards dismissal of Conten-tion 23, also relating to transmission-corridor environ-mental impacts.2 1

LBP-14-9, 80 NRC ___ (July 7, 2014) (slip op.).

2 Intervenors Petition for Review of Atomic Safety and Li-censing Boards Dismissal of Contention 23 for Lack of Time-liness (Oct. 6, 2014) (Petition). Intervenors are Beyond Nuclear,

App. 6 I. BACKGROUND This proceeding concerns DTEs combined license application to construct and operate a GE-Hitachi Eco-nomic Simplified Boiling Water Reactor (ESBWR) on the Fermi site in Monroe County, Michigan.3 Interve-nors sought a hearing and originally proposed fourteen contentions; the Board granted a hearing and admitted four of those contentions.4 Since their entry into the Citizens for Alternatives to Chemical Contamination, Citizens Environmental Alliance of Southwestern Ontario, Dont Waste Michigan, Sierra Club, Keith Gunter, Edward McArdle, Henry Newman, Derek Coronado, Sandra Bihn, Harold L. Stokes, Mi-chael J. Keegan, Richard Coronado, George Steinman, Marilyn R.

Timmer, Leonard Mandeville, Frank Mantei, Marcee Meyers, and Shirley Steinman.

3 See Detroit Edison Company; Notice of Hearing, and Op-portunity To Petition for Leave To Intervene and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Prepara-tion on a Combined License for Fermi 3, 74 Fed. Reg. 836 (Jan. 8, 2009).

4 The Board admitted Contentions 3, 5, 6, and 8. LBP-09-16, 70 NRC 227, 306 (2009). In three separate opinions, the Board granted summary disposition of Contentions 3, 5, and 6 in favor of DTE. See Order (Granting Motion for Summary Disposition of Contention 3) (July 9, 2010) (unpublished); Order (Granting Motion for Summary Disposition of Contention 5) (Mar. 1, 2011)

(unpublished); LBP-12-23, 76 NRC 445, 452 (2012) (among other things, granting summary disposition of Contention 6). After an evidentiary hearing, the Board ruled on the merits of Contention 8 in favor of the NRC Staff and ruled on the merits of a new ad-mitted contention pertaining to quality assurance, Contention 15, in favor of DTE. LBP-14-7, 79 NRC 451 (2014). In a separate de-cision, we denied Intervenors petition for review of the Boards ruling on the merits of Contention 15. See CLI-14-10, 80 NRC ___

(Dec. 16, 2014) (slip op.).

App. 7 proceeding in July 2009, Intervenors have proposed several additional contentions, including Contention 23, their challenge to the NRC Staff s compliance with the National Environmental Policy Act of 1969 (NEPA) as it pertains to the anticipated environmental im-pacts of the proposed transmission line corridor for Fermi Unit 3, the subject of our decision today.

Intervenors first proposed Contention 23 after the Staff issued the draft Environmental Impact State-ment (EIS) for DTEs application.5 Later, after the Board dismissed the contention as late, Intervenors re-submitted Contention 23 in response to the Staff s fi-nal EIS.6 The Board again dismissed the contention as late.7 In Contention 23, both as originally proposed and resubmitted, Intervenors challenged the adequacy of the Staff s consideration of the environmental impacts of building new transmission lines for Fermi Unit 3.8 5

See Motion for Resubmission of Contention 10, to Amend/

Resubmit Contention 13, and for Submission of New Contentions 17 through 24 (Jan. 11, 2012), at 1-2, 41-52 (Original Contention 23).

6 See LBP-12-12, 75 NRC 742, 776-80 (2012); Motion for Re-submission of Contentions 3 and 13, for Resubmission of Conten-tion 23 or its Admission as a New Contention, and for Admission of New Contentions 26 and 27 (Feb. 19, 2013), at 2, 21-53 (Resub-mitted Contention 23).

7 Licensing Board Memorandum and Order (Denying In-tervenors Motion for Resubmission of Contentions 3 and 13, for Resubmission of Contention 23 or its Admission as a New Con-tention, and for Admission of New Contentions 26 and 27) (Apr.

30, 2013), at 21 (unpublished) (Second Board Ruling).

8 Compare Original Contention 23 at 41-52, with Resubmit-ted Contention 23 at 21-53.

App. 8 Although the Board did not admit Contention 23, it found some merit to Intervenors arguments.9 In its first ruling dismissing the contention, the Board sug-gested that the contention might have been admissible if not for its tardiness and recommended that the Staff consider Intervenors concerns when preparing the fi-nal EIS.10 In its second ruling, the Board again found the contention to be unjustifiably late, but it reiterated its view that Intervenors had raised a substantial . . .

issue that might have been admissible had it been timely filed.11 The Board further observed that the ad-equacy of the Staff s review of transmission-corridor impacts might be appropriate for the Boards consider-ation sua sponte, pursuant to 10 C.F.R. § 2.340(b).12 The Board thus sought briefing from the parties on the appropriateness of the Boards taking review of the is-sues raised in Contention 23 on its own motion.13 In-tervenors supported sua sponte review; DTE and the Staff opposed it.14 9

See LBP-12-12, 75 NRC at 776-80; Second Board Ruling at 22-23.

10 LBP-12-12, 75 NRC at 776, 780.

11 Second Board Ruling at 23.

12 See id.

13 Id. at 23-24.

14 Intervenors Memorandum in Support of Sua Sponte ASLB Referral of Transmission Line Corridor NEPA Compliance Issue (May 30, 2013); Applicants Brief Opposing Sua Sponte Review of Environmental Impacts in the Offsite Transmission Corridor (May 30, 2013); NRC Staff Response to Board Order Concerning Proposed Sua Sponte Review of Contention 23 (May 30, 2013).

App. 9 As it considered the parties views on sua sponte review, the Board proceeded to hearing on Intervenors then-pending admitted contentions and issued an ini-tial decision ruling on those contentions in favor of the Staff and DTE.15 The Board returned to the sua sponte issue shortly thereafter. In LBP-14-9, the Board determined that the issues raised in Contention 23 merited sua sponte review.16 In accordance with section 2.340(b), the Board requested our approval to under-take that review.17 We now have before us the briefs that we invited from the parties in response to the Boards sua sponte request,18 as well as a motion from the Nuclear Energy 15 See supra note 4.

16 LBP-14-9, 80 NRC at ___ (slip op. at 4).

17 Id. at ___ (slip op. at 16-17, 58).

18 Applicants Opposition to Sua Sponte Consideration of Transmission Corridor Issues (July 28, 2014) (DTE Brief); NRC Staff Response to Commissions Order Inviting Comments on the Boards Request for Approval to Conduct Sua Sponte Review of Contention 23 (Transmission Lines) (July 28, 2014) (NRC Staff Brief ); Intervenors Motion for Commission Approval of LBP 09 (Memorandum Determining that Issues Related to Intervenors Proposed Contention 23 Merit Sua Sponte Review Pursuant to 10 C.F.R. § 2.340(b) and Requesting Commission Approval) (e-mailed July 28, 2014 and re-filed on July 30, 2014); Applicants Reply Brief Opposing Sua Sponte Consideration of Transmission Issues (Aug. 7, 2014); NRC Staff Reply to Other Parties Pleadings Re-lated to the Boards Request for Approval to Conduct Sua Sponte Review of Contention 23 (Transmission Lines) (Aug. 7, 2014); In-tervenors Corrected Reply Memorandum in Support of Motion for Commission Approval of LBP-14-09 (Aug. 8, 2014) (Intervenors Reply Brief). Intervenors apparently experienced technical diffi-culties that prevented their use of the agencys e-filing system on July 28, 2014. They e-mailed their reply on July 28, 2014, and

App. 10 Institute (NEI) to file a brief as amicus curiae in this matter.19 Also pending before us is Intervenors peti-tion for review of the Boards dismissal of Contention 23.20 It makes sense for us to review first whether the then properly re-filed the document on July 30, 2014. Although they did not request leave to file their reply out of time, we note that counsel for Intervenors also filed the same day a declaration that detailed these technical difficulties in the context of a sepa-rate filing in this proceeding. See Intervenors Motion for Enlarge-ment of Time to Reply in Support of Petition for Review (July 30, 2014); see also Intervenors Reply to DTE Answer Opposing Peti-tion for Review of LBP-14-07 (Ruling for Applicant on Quality As-surance) (July 30, 2014), at n.1; Intervenors Reply to NRC Staff Answer to Petition for Review of LBP-14-07 (Ruling for Applicant on Quality Assurance) (July 30, 2014), at n.1. We therefore will consider Intervenors' reply for good cause shown. The same is true for Intervenors re-filed reply dated August 8, 2014 (in which only the caption appears to have been corrected from what was filed on August 7, 2014). But see CLI-14-10, 80 NRC at (slip op. at 10 n.41) (observing that failure to comply with agency procedural rules could result in disciplinary action).

19 Motion of the Nuclear Energy Institute, Inc. for Leave to File Amicus Curiae Brief in Response to the Commissions July 11, 2014 Briefing Order (July 28, 2014); Amicus Curiae Brief of the Nuclear Energy Institute, Inc. in Response to the Commissions July 11, 2014 Briefing Order (July 28, 2014). Our rules of practice permit persons who are not parties to file a brief amicus curiae if a matter is taken up by the Commission under [10 C.F.R.] § 2.341 or sua sponte. 10 C.F.R. § 2.315(d). Although this rule does not squarely apply here, it is within our discretion to grant leave for participation as amicus curiae. See Calvert Cliffs 3 Nuclear Pro-ject, LLC and UniStar Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-13-4, 77 NRC 101, 104 n.9 (2013). NEIs motion is unopposed, and we find that its brief would further contribute to the record. We exercise our discretion and consider NEIs brief.

20 See generally Petition; Order of the Secretary (Sept. 10, 2014) (unpublished) (amending the deadline to file a petition for

App. 11 Board properly dismissed the contention to determine whether the transmission-corridor impacts issue is lit-igable in the traditional sense - as a contested matter between the parties - before turning to the Boards sua sponte request. Therefore, we rule on both Intervenors petition for review and the Boards sua sponte request in todays decision.21 II. DISCUSSION A. Intervenors Petition for Review We will grant a petition for review at our discre-tion, upon a showing that the petitioner has raised a substantial question as to whether review of the Boards ruling on Contention 23 [b]ecause the is-sues raised . . . in [that contention] are intertwined with the Boards [sua sponte] request). DTE and the Staff oppose Interve-nors petition for review. Applicants Opposition to Petition for Re-view on Contention 23 (Oct. 31, 2014) (DTE Response to Petition);

NRC Staff Response to Intervenors Petition for Review of Atomic Safety and Licensing Boards Dismissal of Contention 23 for Lack of Timeliness (Oct. 30, 2014) (NRC Staff Response to Petition).

Intervenors filed a reply. Intervenors Reply in Support of Petition for Review of Atomic Safety and Licensing Boards Dismissal of Contention 23 for Lack of Timeliness (Nov. 10, 2014) (Reply).

21 Intervenors expressed concern in their petition for review that we would treat their contention as legally intertwined with the Boards request. Petition at 11-13; Reply at 1-5. We clarify that we do not view the two matters as legally intertwined but rather factually (and procedurally) intertwined. Although we ad-dress both matters in this decision, we consider them separately.

App. 12 (i) a finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) a necessary legal conclusion is without gov-erning precedent or is a departure from or contrary to established law; (iii) a substantial and important question of law, policy, or discretion has been raised; (iv) the conduct of the proceeding involved a prej-udicial procedural error; or (v) any other consideration that we may deem to be in the public interest.22 Intervenors seek review of the Boards dismissal of the resub-mitted version of Contention 23; they do not request review of the Boards dismissal of the contention as originally proposed.23 Intervenors claim that the Board erred when it found late the version of Contention 23 that was sub-mitted in response to the Staff s final EIS.24 Interve-nors focus their argument on dicta in the Boards first ruling in which the Board recommended that the Staff consider Intervenors transmission-corridor claims when preparing the final EIS.25 They assert that the Boards recommendation to the Staff constituted new infor-mation, a new dispute with the draft EIS, that cured 22 10 C.F.R. § 2.341(b)(4)(i)-(v).

23 See Petition at 1. We discuss both Board decisions here, however, for completeness.

24 Id. at 2-3.

25 Id. at 2-3, 6-11.

App. 13 the contentions lateness the second time around.26 In-tervenors also assert that language in the final EIS relating to the transmission corridor is materially dif-ferent from that in the draft EIS. They argue that this language raises an issue suitable for a new conten-tion.27 Intervenors acknowledge that they could have raised Contention 23 at the outset of this proceeding.28 They assert that they purposely waited to see whether the Staff would supplement the analysis provided in DTEs environmental report at the draft EIS stage and that they again waited to see whether the Staff would take on the Boards recommendation in the final EIS.

But our rules of practice require contentions to be raised at the earliest possible opportunity.29 And al-though environmental contentions are, in essence, 26 Id. at 7-8.

27 Id. at 8-11.

28 See id. at 3-4, 6.

29 See 10 C.F.R. § 2.309(b)(3)(i), (c). We amended our rules of practice in 2012, including the provision governing new or amended contentions in section 2.309(c). The standard for admitting a new or amended contention, however, was simplified rather than over-hauled. See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,571 (Aug. 3, 2012) (Part 2 Amendment). Both before and after the 2012 amendment, proponents of new or amended contentions were, and are, required to demonstrate good cause for their fil-ing, which includes a demonstration that the information on which the new or amended contention is based is materially different from information previously available. See 10 C.F.R. § 2.309(c)(1)(i)-

(iii); Part 2 Amendment, 77 Fed. Reg. at 46,571 (focusing the re-quirements on the factor given the most weight - good cause).

App. 14 challenges to the Staff s compliance with NEPA, those contentions must be raised, if possible, in response to an applicants environmental report.30 Petitioners who choose to wait to raise contentions that could have been raised earlier do so at their peril. They risk the possibility that there will not be a material difference between the application and the Staff s review docu-ments, thus rendering any newly proposed contention on previously available information impermissibly late.31 Contrary to Intervenors claims, the Boards rec-ommendation to the Staff in its first decision did not create a new reference point for determining whether the information raised in the second iteration of Con-tention 23 was timely raised. Our rules of practice re-quire a material difference between the information on which the contention is based and the information that was previously available - for example, a differ-ence between the environmental report and the draft EIS or the draft EIS and the final EIS.32 In both of its contention admissibility decisions the Board noted Intervenors failure to point to any material dif-ference between DTEs or the Staff s environmental documents. The Board was satisfied that each of the 30 10 C.F.R. § 2.309(f)(2); see also Part 2 Amendment, 77 Fed.

Reg. at 46,566-67.

31 See 10 C.F.R. § 2.309(c); see also Entergy Nuclear Genera-tion Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 492-94 (2012).

32 10 C.F.R. § 2.309(c), (f)(2); see also Pilgrim, CLI-12-10, 75 NRC at 488-89; Paina Hawaii, LLC, CLI-10-18, 72 NRC 56, 87-88 (2010).

App. 15 issues that comprise the subject matter of the conten-tion was discussed in the [Environmental Report] and that [t]he same issues were also reviewed in the

[draft] EIS.33 We see nothing that would cause us to disturb the Boards rulings on the timeliness of Con-tention 23 in this regard.

On appeal, Intervenors point to language in the fi-nal EIS that they claim is materially different from in-formation in the draft EIS.34 But as the Staff and DTE point out, Intervenors compare language from two dis-tinct sections of the Staff s review documents.35 When the same sections of both documents are properly aligned, there is in fact no difference between the draft EIS and the final EIS, let alone a material difference.36 Therefore, this claim must fail. Because Intervenors have not demonstrated a substantial question war-ranting review of the Boards dismissal of their conten-tion, we deny their petition for review.

33 Second Board Ruling at 21; see also LBP-12-12, 75 NRC at 775-76.

34 See Petition at 8-11.

35 NRC Staff Response to Petition at 13-14; DTE Response to Petition at 10-12.

36 Compare Draft Environmental Impact Statement for Combined License (COL) for Enrico Fermi Unit 3 (Draft Report for Comment), NUREG-2105 (Oct. 2011), at 2-45, 3-17 (ADAMS accession no. ML13274A468 (package)) (DEIS), with Environ-mental Impact Statement for the Combined License (COL) for En-rico Fermi Unit 3 (Final Report), NUREG-2105, Vols. 1-4 (Jan.

2013), at 2-46, 3-18 (ML12307A172, ML12307A176, ML12307A177, and ML12347A202) (FEIS).

App. 16 B. The Boards Request for Sua Sponte Re-view We turn now to whether issues pertaining to transmission-corridor environmental impacts should nevertheless be litigated in a contested proceeding be-fore the Board. The Board specifically requests our ap-proval to review two issues sua sponte:

(1) [w]hether the building of offsite transmission lines intended solely to serve . . . Fermi Unit 3 qualifies as a connected action under NEPA and, therefore, requires the Staff to consider its environmental impacts as a direct effect of the construction of Fermi Unit 3; and (2) [w]hether the Staff s consideration of envi-ronmental impacts related to the transmis-sion corridor, performed as a cumulative impact review, satisfied NEPAs hard look re-quirement.37 Section 2.340(b) sets forth the standard for sua sponte review in a combined license proceeding. With our express approval, a licensing board may make find-ings on a serious safety, environmental, or common defense and security matter not put into controversy by the parties.38 This authority shall be used only in extraordinary circumstances.39 We find that the two 37 LBP-14-9, 80 NRC at ___ (slip op. at 16).

38 10 C.F.R. § 2.340(b).

39 Statement of Policy on Conduct of Adjudicatory Proceed-ings, CLI-98-12, 48 NRC 18, 22-23 (1998). The Board notes the absence of an express regulatory requirement that the authority for sua sponte review be used sparingly or in extraordinary

App. 17 issues identified by the Board do not merit sua sponte review.

The Board appears to have focused on the distinc-tions between a direct impacts analysis and a cumula-tive impacts analysis, with the underlying conclusion that a cumulative impacts analysis will yield a shal-lower analysis than a direct impacts analysis. While that may be true in other cases, here the Staff has in-cluded what appears to be a comprehensive analysis of transmission-corridor impacts throughout the final EIS. Without commenting on the sufficiency of the Staff s review, we note that the Staff discussed trans-mission-corridor impacts in Chapters 2, 3, 4, 5, 9, and 10 of the final EIS, in addition to referencing those im-pacts in the cumulative impacts analysis in Chapter 7.40 circumstances. LBP-14-9, 80 NRC at ___ (slip op. at 17-19). But our 1998 Policy Statement, which instructs boards to limit their use of sua sponte review, remains valid. Further, section 2.340(b) references the standard for Commission review in sections 2.323 and 2.341, both of which, we have held, require a heightened showing to prevent overuse, including a demonstration of ex-traordinary circumstances. See 10 C.F.R. §§ 2.323(f), 2.341(f )(1)

(governing referred rulings or certified questions that raise sig-nificant and novel legal or policy issues or issues whose early res-olution would materially advance the orderly disposition of the proceeding); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant), CLI-12-13, 75 NRC 681, 685 (2012); cf. Diablo Can-yon, CLI-12-13, 75 NRC at 687 (regarding the standard for inter-locutory review). The Board correctly notes that a request to engage in sua sponte review should not be undertaken lightly.

LBP-14-9, 80 NRC at ___ (slip op. at 19).

40 See FEIS at M-1 to M-2.

App. 18 The final EIS itself is a source of minor confusion.

Despite the final EISs introductory statement that preconstruction activities (which would include trans-mission-line development) are not part of the proposed action and are discussed in the context of cumulative impacts,41 the Staff further stated that it included per-tinent information related to . . . potential impacts from the transmission lines as part of its integrated evaluations of potential environmental impacts from the proposed Fermi 3 facilities.42 Consequently, the Boards discussion as to whether development of the transmission corridor is a connected action under NEPA, while thorough, is inapposite.43 The Boards treatment of this issue does not acknowledge that the Staff did discuss the proposed transmission corridor in the final EIS, across multiple chapters, together with the impacts of constructing and operating Fermi Unit 3.44 The first issue proposed for review would therefore appear to be moot.45 41 FEIS at 1-7. The Board referenced this statement in its sua sponte request. See LBP-14-9, 80 NRC at ___ (slip op. at 15).

42 FEIS at M-1.

43 See LBP-14-9, 80 NRC at ___ (slip op. at 20-42).

44 See, e.g., FEIS at 4-3 (explaining that due to its collabora-tion with the United States Army Corps of Engineers in the envi-ronmental review, the combined impacts of . . . preconstruction and construction activities . . . are presented in [Chapter 4] even though the environmental effects of preconstruction activities on each resource area would be addressed as cumulative impacts normally presented in Chapter 7).

45 In any event, the Board apparently has already estab-lished a position on this issue - after briefing from the parties -

that the transmission corridor is connected to the licensing

App. 19 Moreover, much of the Boards request fundamen-tally challenges the agencys Limited Work Authoriza-tion Rule.46 For example, the Board takes issue with the Staff s classification of the proposed transmission lines as a preconstruction activity rather than con-struction.47 In the Limited Work Authorization Rule, however, we expressly excluded transmission lines from the delineated construction activities that would require NRC approval before being undertaken.48 We would not allow a litigant to challenge a rule in an NRC adjudicatory proceeding absent a showing of spe-cial circumstances;49 we likewise will not allow the Board to do the same.50 decision for Fermi Unit 3. See LBP-14-9, 80 NRC at ___ (slip op.

at 27-28) (opining, based on the information . . . before the Board, that the transmission corridor appears to be a proposed action and that it has no discernible purpose apart from con-necting Fermi 3 to the grid). For these reasons, further litigation of this issue would not significantly inform the record on the con-nected action question.

46 See, e.g., LBP-14-9, 80 NRC at ___ (slip op. at 30-41); see generally Final Rule, Limited Work Authorizations for Nuclear Power Plants, 72 Fed. Reg. 57,416 (Oct. 9, 2007) (Limited Work Authorization Rule).

47 LBP-14-9, 80 NRC at ___ (slip op. at 28-29).

48 See 10 C.F.R. §§ 50.10(a)(2)(vii), 51.4 (defining construc-tion); see also Limited Work Authorization Rule, 72 Fed. Reg. at 57,417 (requiring NRC authorization only before undertaking ac-tivities that have a reasonable nexus to radiological health and safety and/or common defense and security).

49 See 10 C.F.R. § 2.335(a), (b).

50 See LBP-14-9, 80 NRC ___ (slip op. at 31-32).

App. 20 The Boards second issue proposed for review, aside from its reference to cumulative impacts, is in es-sence a concern about the overall sufficiency of the Staff s transmission-corridor analysis. But this is a po-tentially amorphous issue that does not appear to lend itself well to a contested proceeding, and the Board has not given us the benefit of a roadmap of what specifi-cally would be litigated with regard to the Staff s anal-ysis. For example, the Board opines that the Staff must evaluate reasonable alternatives as well as measures to mitigate any detrimental environmental impacts.51 But again, without making a sufficiency finding, the Staff discussed the proposed transmission corridor in its alternatives analysis (including alternative sources of electricity and alternative sites) and also discussed potential mitigation measures for constructing new transmission lines in its main analysis of the impacts of constructing and operating Fermi Unit 3.52 Our rules 51 See id. at ___ (slip op. at 23-25, 51).

52 See, e.g., FEIS at 4-60 (noting that the small streams that would be crossed by the proposed transmission line corridor could be easily spanned without placing structures in stream channels and that [best management practices] would be implemented to protect water quality in streams during building activities); id.

at 9-7 (noting that new transmission lines would be needed to deliver power from the alternative coal-fired plant and that these lines would be identical in both capacity and location to the lines being proposed to support Fermi 3); id. at 9-87 (noting that

[e]nvironmental conditions along the transmission line corridor

[for the alternative Belle River-St. Clair site] are similar to those of the site, with a mixture of cropland, wooded areas, and some wetlands).

App. 21 of practice are designed to avoid such an unfocused in-quiry in contested proceedings.53 In February of this year, we will be holding the un-contested hearing on the Fermi combined license ap-plication. The uncontested hearing will provide us with an opportunity to review the sufficiency of the Staff s environmental (and safety) analyses. Given that the Boards request, at bottom, questions the sufficiency of the Staff s consideration of the environmental impacts of the proposed new transmission lines for Fermi Unit 3, the issue whether the Staff has taken a hard look at the environmental impacts of the transmission cor-ridor is among the range of issues that are appropri-ately before us in the uncontested hearing.54 Thus, as 53 See 10 C.F.R. § 2.309(f )(1)(i)-(vi). The Board, to be sure, is not strictly bound by the contention admissibility rules when re-questing approval to review issues sua sponte. But our contested proceedings must be governed by some level of specificity to en-sure the proceeding is conducted efficiently, with fairness to all of the parties. Cf. Final Rule, Rules of Practice in Domestic Licens-ing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,179 (Aug. 11, 1989) (amending the rules of practice to ensure[ ] that the resources of all participants in NRC proceedings are focused on real issues and disputes among the parties).

54 We reject Intervenors argument that the uncontested hearing is not a serious avenue of relief. Intervenors Reply Brief at 10. As the Intervenors note, compliance with NEPA is the re-sponsibility of the NRC. See Petition at 3, 6. In the uncontested hearing it is our duty to ensure, among other things, that we have adhered to our obligations under that statute. See 10 C.F.R.

§ 51.107(a). We therefore find the uncontested proceeding to be an appropriate venue in which to address the transmission-corridor issue.

App. 22 part of this hearing, we will take the Boards concerns regarding examination of the environmental impacts of the transmission corridor in the final EIS under ad-visement.

III. CONCLUSION Intervenors have failed to raise a substantial question warranting review of the Boards dismissal of Contention 23. We therefore deny the petition for re-view. In addition, we deny the Boards request for sua sponte review. We will review the adequacy of the Staff s environmental review, including consideration of transmission-corridor environmental impacts, as part of the uncontested hearing.

IT IS SO ORDERED.

For the Commission NRC Seal /s/ /RA/

Annette L. Vivetti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 13th day of January, 2015.

Concurring Opinion of Commissioner Baran I concur in the result of the memorandum and or-der but write separately to respectfully express my dis-agreement with the majoritys treatment of the Boards request for sua sponte review in section IIB. In my view, this portion of the opinion would benefit from

App. 23 a more tailored discussion of only those issues neces-sary to reach a decision. I do not believe it is necessary for the opinion to characterize the Boards request for sua sponte review as fundamentally challeng[ing] the Limited Work Authorization Rule, the Board as having already established a position on the question of whether the transmission corridor construction is a connected action under NEPA, or the requested review of the Staff s transmission corridor analysis as poten-tially amorphous and unfocused. I also do not be-lieve that it makes sense for the opinion to state that the Staff has included what appears to be a compre-hensive analysis of transmission-corridor impacts throughout the final EIS. This description of the Staff s analysis as comprehensive could leave read-ers with the impression that the Commission is pre-judging the sufficiency of the final EIS in advance of the uncontested hearing. The juxtaposition of this de-scription with the subsequent statement that the Com-mission is not commenting on the sufficiency of the Staff s review may also confuse readers.

For these reasons, this section of the memoran-dum and order could simply state:

With respect to whether the building of offsite transmission lines for Fermi Unit 3 qualifies as a connected action under NEPA, the Boards request for sua sponte review appears rele-vant only to determining if an analysis of the direct effects of such activities is warranted.

However, the Staff examined the impacts of the proposed transmission corridor on land

App. 24 use, terrestrial ecology, aquatic ecology, his-toric and cultural resources, and nonradiolog-ical health in Chapters 2, 3, 4, 5, 9, and 10 of the final EIS, in addition to referencing those impacts in the cumulative impacts analysis in Chapter 7. Without commenting on the suffi-ciency of the review, there is no question that the Staff discussed the environmental im-pacts of the proposed transmission corridor in multiple chapters of the final EIS. Conse-quently, a sua sponte review by the Board of the legal question of whether a direct effects analysis was required is unnecessary. At their core, both issues raised by the Board relate to the sufficiency of the Staff s consideration of the environmental impacts of the proposed new transmission corridor for Fermi Unit 3.

The upcoming uncontested hearing is a natu-ral time for the Commission to examine whether the Staff has taken the requisite hard look at the environmental impacts of the transmission corridor in its final EIS.

[Certificate Of Service Omitted]

App. 25 LBP-14-09 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ronald M. Spritzer, Chairman Dr. Anthony J. Baratta Dr. Randall J. Charbeneau In the Matter of Docket No. 52-033-COL DETROIT EDISON ASLBP No.

COMPANY 09-880-05-COL-BD01 (Fermi Nuclear Power July 7, 2014 Plant, Unit 3)

MEMORANDUM (Determining that Issues Related to Intervenors Proposed Contention 23 Merit Sua Sponte Review Pursuant to 10 C.F.R. § 2.340(b) and Requesting Commission Approval)

[2] Table of Contents I. BACKGROUND................................................. A. The Fermi 3 Transmission Corridor ........ . B. The Draft Environmental Impact State-ment .................................................................. C. The NRCs changing position on its au-thority to impose environmental restrictions

App. 26 on transmission lines that serve nuclear power plants ..................................................... D. Contention 23 .......................................... E. The Boards Ruling on Proposed Conten-tion 23 ............................................................. F. EPA comments on the DEIS .................... G. The Final Environmental Impact State-ment ................................................................ H. The Boards ruling on re-submitted Con-tention 23 ........................................................ II. BOARD DETERMINATION, SUPPORTING ANALYSIS, AND REQUEST FOR COMMISSION APPROVAL ............................................................ A. The Standard for Sua Sponte Review .... B. NEPA Requirements ............................... 1. The Scope of an EIS .......................... 2. The FEIS must evaluate all reasona-bly foreseeable environmental impacts of the proposed action ................................. 3. The FEIS must evaluate alternatives to the proposed action, including mitiga-tion ........................................................... 4. Cumulative Impacts ......................... 5. Limitation on actions ........................ C. There is a serious question whether the building of an offsite transmission corridor in-tended solely to serve the new Fermi Unit 3 qualifies as a connected action under NEPA and, therefore, requires the Staff to consider

App. 27 its environmental impacts as a direct effect of the construction of Fermi Unit 3 ................... 1. Proposed Action ................................ 2. Independent Utility .......................... 3. Federal Control and Responsibility ... 4. The 2007 LWA Rule and Statement of Considerations ......................................... 5. Impact of Excluding Transmission Corridor from the Scope of Proposed Ac-tion ........................................................... 6. Conclusion ......................................... [3] D. There is a serious question whether the Staff s consideration of environmental impacts related to the transmission corridor, performed as a cumulative impact review, sat-isfies NEPAs hard look requirement ............ 1. Unavailable or Incomplete Informa-tion ........................................................... 2. Reliance on Anticipated Certifica-tions ......................................................... 3. Inadequate Analysis of Mitigation ... 4. Conclusion ......................................... E. Sua Sponte Review is Warranted ........... III. CONCLUSION ............................................. [4] Before the Licensing Board is the question we raised in our Order of April 30, 2013: whether Interve-nors proposed Contention 23, although untimely filed, is appropriate for sua sponte Board review pursuant to

App. 28 10 C.F.R. § 2.340(b).1 Contention 23 alleged that the Staff s Draft and Final Environmental Impact State-ments for the Fermi Unit 3 project failed to adequately evaluate the environmental impacts of the new high-voltage transmission line corridor that will be con-structed to serve the Project. For the reasons explained below, the Board determines that two issues arising from the contention merit sua sponte review.2 The Board therefore respectfully requests that the Com-mission approve the Boards determination that sua sponte review is warranted pursuant to § 2.340(b).

I. BACKGROUND A. The Fermi 3 Transmission Corridor This combined license (COL) contested proceed-ing involves the application of DTE Electric Company (formerly the Detroit Edison Company) (Applicant or DTE) under 10 C.F.R. Part 52, Subpart C, to construct and operate a GE-Hitachi Economic Simplified Boiling Water Reactor (ESBWR), designated Unit 3, on its existing Fermi nuclear facility site in Monroe County, Michigan.3 1

Licensing Board Order (Denying Intervenors Motion for Resubmission of Contentions 3 and 13, for Resubmission of Con-tention 23 or its Admission as a New Contention, and for Admis-sion of New Contentions 26 and 27), at 22-24 (Apr. 30, 2013)

(unpublished) [hereinafter Denial Order].

2 The two specific issues are identified infra Section II.

3 Letter from Jack M. Davis, DTE, to NRC, Detroit Edison Company Submittal of a Combined License Application for Fermi

App. 29

[5] Fermi Unit 3 will require the construction and operation of transmission lines to connect it to the grid.

The Final Environmental Impact Statement (FEIS) explains the current status of plans for the transmis-sion lines and the transmission corridor4 in which the lines will be located:

ITC Transmission has not yet formally an-nounced a route for the offsite portion of the proposed new transmission line serving Fermi

3. Detroit Edison expects that the proposed new transmission line would be built within the existing Fermi 2 transmission corridor for approximately 18.6 mi extending outward from the Fermi site boundary. Detroit Edison expects that the remaining 10.8 mi, extending to the Milan Substation, would be built within an undeveloped right-of- way (ROW) pos-sessed but not yet used by ITC Transmission.5 The FEIS estimates the total acreage to be occu-pied by the new transmission corridor as 1069.2 acres, assuming a 300-foot-wide corridor.6 The FEIS states that the Fermi 3 site includes 1260 acres.7 The latter 3 (NRC Project No. 757) (Sept. 18, 2008) (ADAMS Accession No. ML082730763).

4 We will refer to the transmission lines and the corridor in which they will be constructed as the transmission corridor.

5 Division of New Reactor Licensing, Office of New Reactors, Final Environmental Impact Statement for the Combined Li-censed (COL) for Enrico Fermi Unit 3, NUREG-2015, at 2-10 (Jan. 2013) [hereinafter FEIS] (citations omitted).

6 FEIS at 2-47 (Table 2-7).

7 Id. at 2-5.

App. 30 figure includes the entire Fermi tract owned by DTE, including, but not limited to, the land where Fermi Unit 3 would be constructed.8 The FEIS further re-ports:

The western 10.8-mi segment of the proposed transmission corridor, which does not follow previously cleared and regularly maintained corridors, crosses a mosaic of pastures and for-est, including forested wetlands, shrub/scrub, cropland, and developed land. Forested and emergent wetlands are present, and three wetlands extend more than 900 ft along the corridor. It is possible that towers may need to be placed in these wetlands in order to con-struct crossings. The proposed Milan Substa-tion site is located entirely in an area of cropland and planted grassland.9

[6] B. The Draft Environmental Impact Statement On October 28, 2011, the NRC Staff and the U.S.

Army Corps of Engineers (USACE or the Corps) published the Draft Environmental Impact Statement (DEIS) for the Fermi Unit 3 COL.10 The DEIS states that the new transmission corridor for Fermi Unit 3 will be built and operated by ITC Transmission.11 ITC 8

Id.

9 Id. at 2-46 to 2-47 (citations omitted).

10 Office of New Reactors, Draft Environmental Impact Statement for Combined License (COL) for Enrico Fermi Unit 3, NUREG 2015, Vol. 1 (Oct. 2011) (ADAMS Accession No. ML11287A108) [hereinafter DEIS].

11 Id. at 2-10.

App. 31 Transmission operated as a wholly owned subsidiary of DTE until 2004.12 The DEIS further explained that the NRC catego-rizes the construction of transmission lines as a pre-construction activity.13 Preconstruction activities include various actions required to construct a nuclear power plant that, as the result of changes to agency regulatory policy made by the 2007 limited work au-thorization rule (2007 LWA Rule), the NRC now de-fines as outside its regulatory authority and therefore not part of the NRC action to license the proposed new plant.14 Such preconstruction activities include, in ad-dition to the construction of transmission lines, clear-ing and grading, excavating, dredging, discharge of fill, erection of support buildings . . . , and other associated activities.15 Because preconstruction activities are no longer included within the scope of the proposed NRC action, the Staff concluded it was not [7] required to evaluate their impacts as a direct effect of the NRC ac-tion. Rather, the impacts of the preconstruction 12 Applicants Brief Opposing Sua Sponte Review of Environ-mental Impacts in the Offsite Transmission Corridor (May 30, 2013) unnumbered attach. at 2 (Affidavit of Peter Smith on Transmission Corridor Topics (May 30, 2013) [hereinafter Smith Affidavit]) [hereinafter Applicant Brief].

13 DEIS at 1-6.

14 Id. (citing Final Rule, Limited Work Authorizations for Nuclear Power Plants, 72 Fed. Reg. 57416 (Oct. 9, 2007)).

15 Id.

App. 32 activities are considered in the context of cumulative impacts.16

[7] C. The NRCs changing position on its authority to impose environmental restrictions on transmis-sion lines that serve nuclear power plants The Commissions position on the regulation of transmission lines for nuclear power plants has changed over several decades.

Prior to the 1969 enactment of [the National Environmental Policy Act (NEPA)], the Commission perceived its duties under the Atomic Energy Act primarily in terms of pro-tecting the public from radiation hazards.

NEPA, however, made environmental protec-tion a part of the mandate of every federal agency and department . . . (The Commission) is not only permitted, but compelled, to take environmental values into account in carry-ing out its regular functions. Under NEPA, federal agencies must use all practicable means to avoid environmental degradation to the extent consistent with other essential considerations of national policy. Thus, in the early 1970s the Commission began to con-sider the environmental implications of pro-posed nuclear facilities.17 16 Id.

17 Detroit Edison Co. v. NRC, 630 F.2d 450, 451 (6th Cir.

1980) (footnote and citations omitted) (quoting Calvert Cliffs Co-ordinating Comm., Inc. v. Atomic Energy Commn, 449 F.2d 1109, 1112 (D.C. Cir. 1971) and 42 U.S.C. § 4331(b)).

App. 33 In 1972, following enactment of NEPA,18 the Com-mission adopted a major amendment to the definition of construction in 10 C.F.R. § 50.10(c) that generally prohibited, absent an NRC construction permit, any clearing of land, excavation, or other substantial action that would adversely affect the natural environment of a site and construction of non-nuclear facilities (such as turbogenerators and turbine buildings) for use in connection with the facility. . . .19 This prohibition en-sured that environmentally damaging activities re-lated to construction of a new nuclear power plant would not occur before the agencys EIS was completed and the agency had balanced the benefits of all aspects of the project against their environmental costs. The Commission explained that this expansion of its per-mitting authority was

[8] consistent with the direction of the Con-gress, as expressed in Section 102 of the NEPA, that, to the fullest extent possible, the policies, regulations, and public laws of the United States shall be interpreted and admin-istered in accordance with the policies set forth in that Act. Since site preparation constitutes a key point from the standpoint of environmental impact, in connection with the licensing of nuclear facilities and materi-als, these amendments will facilitate consid-eration and balancing of a broader range of realistic alternatives and provide a more 18 National Environmental Policy Act of 1969, 42 U.S.C

§ 4321 (2012).

19 37 Fed. Reg. 5745, 5748 (Mar. 21, 1972).

App. 34 significant mechanism for protecting the en-vironment during the earlier stages of a pro-ject for which a facility or materials license is being sought.20 Thus, [b]y 1974, the Commission had adopted an aggressive approach to its environmental responsibili-ties in the context of transmission line siting.21 In that year, an Atomic Safety and Licensing Appeal Board, re-jecting a legal challenge by Detroit Edison, ruled that the Commission could, as a condition of licensure, in-sist that off-site transmission lines built solely to serve a nuclear facility be designed to minimize environmen-tal disturbance.22 The United States Court of Appeals for the Sixth Circuit, whose jurisdiction includes Mich-igan, subsequently upheld the Commissions policy.23 In 2007, however, the NRC altered its regulatory approach, stating that changes were needed to allow some non-safety related activities to begin earlier than allowed under the regulations then in effect.24 The pre-amble to the 2007 LWA Rule explains:

[T]he nuclear power industry has reviewed the overall construction process based upon lessons learned from the construction and li-censing process used for currently operating reactors. The industry submitted what is 20 Id. at 5746.

21 Detroit Edison, 630 F.2d at 451.

22 Detroit Edison Co. (Greenwood Energy Ctr., Units 2 & 3),

ALAB-247, 8 AEC 936 (1974).

23 Detroit Edison, 630 F.2d at 450.

24 72 Fed. Reg. at 57426.

App. 35 essentially a petition for rulemaking seeking changes to the LWA process, reflecting those lessons learned and their understanding of the current state of NEPA law. The NRC has reviewed the applicable law, and for the rea-sons stated elsewhere in this [statement of considerations], agrees with the petitioner that the current definition of construction and the current LWA requirements in § 50.10 are not compelled by NEPA or the Atomic Energy Act (AEA) of 1954, as amended. While the [9]

agencys regulations on construction and LWAs were a reasonable implementation of NEPA as understood in 1972, the NRC be-lieves that, with more than 30 years experi-ence in implementing NEPA and the evolving jurisprudence, the time is appropriate for re-consideration and revamping of these NRC requirements.25 Accordingly, the 2007 LWA Rule revised 10 C.F.R.

§ 50.10 and made conforming changes in 10 C.F.R. Parts 2, 51, and 52. The rule narrowed the scope of activities requiring permission from the NRC in the form of an LWA by eliminating the concept of com-mencement of construction formerly described in

§ 50.10(c) and the authorization formerly described in

§ 50.10(e)(1).26 Instead, under the final LWA rule, NRC au-thorization would only be required before un-dertaking activities that have a reasonable 25 Id. at 57420.

26 Id. at 57426.

App. 36 nexus to radiological health and safety and/or common defense and security for which regu-latory oversight is necessary and/or most ef-fective in ensuring reasonable assurance of adequate protection to public health and safety or common defense and security.27 Thus, the building of transmission lines to serve a nu-clear power plant is no longer classified as a construc-tion activity and no longer requires authorization from the NRC.28 The agencys NEPA regulations (10 C.F.R. Part 51) also exclude the building of transmission lines from the definition of construction.29 An NRC Staff member, commenting on the pro-posed 2007 LWA Rule, contended that the proposal was inconsistent with NEPA:

The impacts of the construction of a nuclear power plant that NRC now proposes to ex-clude from NRC regulations are probably 90 percent of the true environmental impacts of construction. Before even talking to the NRC, a power company can clear and grade the land, build roads and railroad spurs, erect per-manent and temporary buildings, build nu-merous plant structures (e.g., cooling water intake and discharge, cooling towers), and build switchyards and [10] transmission lines.

After potentially doing all of that, THEN the company would come to the NRC and ask 27 Id.

28 10 C.F.R. § 50.10(a)(2)(vii).

29 Id. § 51.4(1)(ii)(G).

App. 37 permission to build the power plant for which all of this work was done. How does this com-ply with NEPA?30 In response, the NRC stated that the pre-construction private actions of clear-ing, grading, access road construction, etc.,

will be considered in the cumulative impacts analysis in the LWA EIS as the baseline for analyzing the environmental impacts associ-ated with the Federal action authorizing LWA activities. This information will be used when evaluating the environmental impacts of con-struction and operation of the proposed nu-clear power plant.31 D. Contention 23 Intervenors filed a number of proposed new con-tentions in response to the DEIS. Among these was proposed Contention 23, which alleged that:

The high-voltage transmission line portion of the project involves a lengthy corridor which is inadequately assessed and analyzed in the Draft Environmental Impact Statement.32 Intervenors claimed that the DEISs discussion of the environmental impacts to the approximately 30 72 Fed. Reg. at 57420.

31 Id.

32 Motion for Resubmission of Contention 10, to Amend/Re-submit Contention 13, and for Submission of New Contentions 17 through 24, at 41 (Jan. 11, 2012).

App. 38 1,000 acres of transmission corridor is deficient in a host of ways.33 For example, Intervenors emphasized that substantial construction will take place in unde-veloped wetlands, forests, and grasslands:

NRC reports that the final western 10.8 miles of transmission lines would be built in an undeveloped segment of an existing trans-mission ROW . . . Some transmission tower footings were installed there as part of earlier plans but were never used. NRC reports that the proposed new Fermi 3 transmission line corridor would cross open water, deciduous forest, evergreen forest, mixed forest, grass-land, 93.4 acres of woody wetlands, and 13 acres of emergent herbaceous wetland. (Table 2-7, Vegetative Cover Types in the Proposed 29.4 mi. Transmission Corridor, page 2-46).

This shows what is at stake - major impacts, or perhaps even complete destruction, to irre-placeable habitat, vital for the viability of en-dangered and threatened species, as well as overall ecosystem [11] health. . . . DEIS Table 4-2 repeats the sensitive vegetative cover forms at risk from the proposed Fermi 3 trans-mission corridor: 170 acres of deciduous for-est, 74 acres of woody wetlands, and 9 acres of herbaceous emergent wetlands.34 Intervenors maintained that the DEIS failed to ade-quately assess the impacts to these areas. For example, they criticized the DEIS for failing to provide any 33 Id.

34 Id. at 44-45.

App. 39 quantitative information about impacts to wetlands, such as the acreage that will be filled and/or de-stroyed.35 Intervenors also stressed potential impacts to threatened and endangered species:

NRCs DEIS section 2.4.1.4 Important Terres-trial Species and Habitats - Transmission Lines (page 2-60) also reports the high biolog-ical stakes. Important species may occur along transmission lines, but because the ex-act route of the corridor has not been finally determined, no surveys have yet been con-ducted to confirm the presence of any species.

. . . [T]able 2-9 (page 2-61) shows state-listed and federally-listed species which inhabit the counties (Monroe, Washtenaw, Wayne) that would be crossed, including over 80 plant spe-cies, 8 insect species, 2 amphibian species, 4 reptile species (including the Eastern Fox Snake), a dozen bird species, and 2 mammal species. The Michigan Dept. of Natural Re-sources (MDNR/now DNRE) has not provided concurrence for the project to proceed, be-cause DTE has provided no details about the transmission line corridor route for determin-ing the damage that would be done to threat-ened and endangered species and their habitats. MDNR has identified five State-listed species likely present on the Fermi site, which could also be present along the pro-posed Fermi 3 transmission corridor. In 35 Id. at 45.

App. 40 addition to all of the above, the U.S. Fish and Wildlife Service has identified the eastern massasauga snake as a candidate species po-tentially inhabiting Washtenaw and Wayne Counties, and thus, at risk along the proposed new transmission corridor.36 Intervenors argued that the DEIS failed to provide suf-ficient information concerning transmission corridor impacts on threatened and endangered species.37 Intervenors further argued that maintenance of the transmission corridor will continue to impact wet-lands and other environmental resources after con-struction is completed. They noted that, according to the DEIS, [d]uring operation of Fermi 3, the power transmission line [12] system would need to be main-tained free of vegetation by ITC Transmission. Vegeta-tion removal activities would include trimming and application of herbicides periodically and on an as-needed basis along the transmission line corridor.38 Intervenors complained of the failure to analyze the environmental consequences of these actions:

It is clear that the deforestation will be an in-definitely long, or even permanent, condition.

Although herbicides designed for use in wet-lands are mentioned, no specifics are given.

The impact of these biocides on species inhab-iting the corridor is thus impossible to ana-lyze, given the lack of specificity. The 36 Id. at 45-46.

37 Id. at 44-48.

38 Id. at 49 (quoting DEIS at 3-31).

App. 41 downgrade in the ecological quality and quan-tity (or even permanent loss and complete de-struction) of forested wetlands in an extended area along the Fermi 3 transmission line cor-ridor is a major ecosystem impact, which cur-rently goes unreflected.39 E. The Boards Ruling on Proposed Contention 23 In its June 12, 2012 Order ruling on the DEIS con-tentions, the Board agreed with DTE and the Staff that proposed Contention 23 was untimely because the de-ficiencies Intervenors alleged were also present in DTEs Environmental Report. Thus, Intervenors had failed to establish that the contention was based on any data or conclusions in the DEIS that are signifi-cantly different from those in the ER.40 The Board stated, however, that while Contention 23 was untimely, it raises substantial questions con-cerning the adequacy of the DEIS that the NRC Staff should carefully consider in preparing the FEIS.41 In-tervenors criticized the DEIS for, among other things, an inadequately defined route for the corridor,42 a fail-ure to identify endangered or threatened species along the corridor,43 an inadequate discussion of impacts on 39 Id. at 48.

40 LBP-12-12, 75 NRC 742, 775-76 (2012).

41 Id. at 776.

42 Id. at 777-78.

43 Id. at 776-77.

App. 42 wetlands and vegetation,44 and a failure to [13] ade-quately investigate historic or cultural resources that may be affected.45 The Board concluded that, [g]iven the very limited analysis in the DEIS of [the environ-mental impacts] arising from the transmission line corridor, these claims may have been admissible had they been filed in a timely manner.46 The Board further observed that, even though the transmission corridor is a preconstruction activity and therefore not included in the COL application, con-struction and maintenance of the transmission corri-dor are sufficiently closely connected with Fermi Unit 3 that its environmental consequences must be fully analyzed in the FEIS as direct impacts of the proposed action.47 Because the Staff must comply with NEPA re-gardless of whether Intervenors filed a timely conten-tion, the Board recommended that the NRC Staff consider the issues raised by Intervenors when it pre-pares the FEIS.48 F. EPA comments on the DEIS The Board was not alone in recommending that transmission corridor impacts be fully evaluated in the FEIS as direct impacts of the proposed action. Like the Board, the United States Environmental Protection 44 Id. at 776-78.

45 Id. at 778.

46 Id.

47 Id. at 778-80.

48 Id. at 780.

App. 43 Agency (EPA), concluded that, even though the NRC may regard preconstruction activities as outside the scope of the COL application, these activities are within the scope of the NEPA review because they are all connected actions, per 40 CFR 1508.25(a)(1)(iii).49 Specifically addressing the DEISs failure to analyze the construction of the [14] transmission lines and the expansion of the substation as direct impacts of the proposed action, EPA commented:

Transmission Lines and Substation EPA understands that NRC analyzes impacts from the lengthening of the transmission lines and expansion of the Milan Substation as cumulative impacts and outside the scope of the COL permit application and accompa-nying NEPA document. However, per NEPA, EPA views these actions as connected to the granting of the license and, therefore, should be analyzed as direct impacts as a result of the proposed action. The Draft EIS even acknowledges the connectedness of the build-ing of Fermi 3 and the expansion of the Sub-station on page 3-17, lines 31-21, among other locations: The 350-ft-by-ft-500-ft Milan Sub-station may be expanded to an area about 1000 ft by 1000 ft to accommodate the Fermi 3 expansion (Detroit Edison 2011 b). There-fore, because the lengthening of the 49 Letter from Kenneth Westlake, EPA, to Cindy Bladey, NRC, Re: Draft Environmental Impact Statement for the Com-bined License (COL) for Enrico Fermi Unit 3, Monroe County, Michigan, CEQ# 20110364, attach. 1, at 2 (Jan. 10, 2012) (AD-AMS Accession No. ML12023A034).

App. 44 transmission lines and the expansion of the Substation are only necessitated by granting the COL license for Fermi 3, the Final EIS should analyze impacts from these two ac-tions as direct impacts.

Recommendation: The Final EIS should an-alyze the construction of the transmission lines and the expansion of the Substation as actions part of the proposed action; any una-voidable impacts should be accounted and mitigated for.50 EPA also expressed concern about the amount of habitat lost in the trans-mission corridor and due to the proposed ex-pansion of the Substation, at 1,069 and 21 acres, respectively. As outlined under Trans-mission Corridor and Substation, EPA views these developments as connected actions.

Therefore, estimated impacts should be con-sidered when preparing mitigation plans.

This includes wetlands mitigation ratios.51 G. The Final Environmental Impact Statement The FEIS for the Fermi Unit 3 COL was published in January 2013.52 As it had done in the DEIS, the Staff defined the construction of the transmission corridor 50 Id. at 14.

51 Id. at 7.

52 FEIS at i.

App. 45 as a preconstruction activity.53 Again relying upon the 2007 LWA Rule, the Staff maintained that the NRC lacks [15] regulatory authority over construction of the transmission corridor because it is a preconstruction activity.54 The Staff again stated that [b]ecause the preconstruction activities are not part of the NRC ac-tion, their impacts are not reviewed as a direct effect of the NRC action. Rather, the impacts of the pre-construction activities are considered in the context of cumulative impacts.55 With respect to the environ-mental impacts raised by proposed Contention 23, the analysis in the FEIS is much like that in the DEIS.

In its comments on the FEIS, the EPA reiterated its earlier criticism, stating that impacts resulting from the construction and maintenance of the new transmission lines and substations should be consid-ered as direct impacts and mitigated for as part of the proposed project. Total impacts are estimated to be over 1000 acres of habitat, including over 93 acres of impacts to forested wetlands.56 53 Id. at 1-6.

54 Id. at 1-6 to 1-7.

55 Id. at 1-7.

56 Letter from Kenneth Westlake, EPA, to Cindy Bladey, NRC, Re: Comments on the Final Environmental Impact State-ment for the Combined License for Enrico Fermi Unit 3, Monroe County, Michigan, CEQ No. 20130006, attach. 1, at 1 (Feb. 19, 2013) (ADAMS Accession No. ML13063A434) [hereinafter EPA Comments on FEIS].

App. 46 H. The Boards ruling on re-submitted Contention 23 On February 19, 2013, Intervenors re-submitted proposed Contention 23, together with various other new and re-submitted contentions filed in response to the FEIS.57 Intervenors summarized their claim as fol-lows:

The FEIS for a combined operating license for Fermi 3 fails to satisfy the requirements of NEPA because it does not address the envi-ronmental effects of the associated transmis-sion line corridor extending nearly thirty (30) miles from the proposed plant site, despite the fact that the transmission lines are indispen-sable to completion of the power plant project, and the NRC Staff was ordered to analyze the transmission corridor within the FEIS by the Atomic Safety and Licensing Board. The FEIS fails to disclose what the U.S. Army Corps of

[16] Engineers has determined to be the least environmentally damaging practical alterna-tives (LEDPAs) under the Clean Water Act, for some 30 jurisdictional wetlands and other water bodies within the transmission corridor, and there is no detailed discussion of mitiga-tion measures which would be implemented 57 Motion for Resubmission of Contentions 3 and 13, for Re-submission of Contention 23 or its Admission as a New Conten-tion, and for Admission of the New Contentions 26 and 27 (Feb.

19, 2013).

App. 47 to compensate for the water resource and up-land damage.58 The Board again rejected Contention 23 as un-timely. But the Board also concluded that, because the FEIS had been issued and the Board had ruled that Contention 23 remains procedurally defective, this was an appropriate point for Board consideration of whether Contention 23 merits sua sponte review under 10 C.F.R. § 2.340(b).59 The Board allowed the parties to file briefs on the issue. Intervenors supported sua sponte review, while DTE and the Staff opposed it.60 II. BOARD DETERMINATION, SUPPORTING ANALYSIS, AND REQUEST FOR COMMISSION APPROVAL The Board has determined that the following two related issues arising from Contention 23 merit sua sponte review, and requests Commission approval to undertake such review:

(1) Whether the building of offsite transmission lines intended solely to serve the new Fermi Unit 3 qualifies as a connected action under NEPA and, there-fore, requires the Staff to consider its environmental 58 Id. at 22.

59 Denial Order at 21-24.

60 See Intervenors Memorandum in Support of Sua Sponte ASLB Referral of Transmission Line Corridor NEPA Compliance Issue, at 1 (May 30, 2013). See also Applicant Brief at 1; NRC Staff Response to Board Order Concerning Proposed Sua Sponte Review of Contention 23, at 2 (May 30, 2013) [hereinafter Staff Response].

App. 48 impacts as a direct effect of the construction of Fermi Unit 3.

(2) Whether the Staff s consideration of environ-mental impacts related to the transmission corridor, performed as a cumulative impact review, satisfied NEPAs hard look requirement.

Below, we explain the reasons that support our de-termination. First, we discuss the regulatory standard for sua sponte review. Second, we review the NEPA re-quirements most [17] relevant to the environmental analysis of the transmission corridor. Next, we analyze the two specific issues and explain why they raise se-rious legal and factual questions that merit further re-view by the Board. Finally, we explain why the issues we have determined to be appropriate for sua sponte review can be distinguished from those likely to arise in the ordinary case. On the basis of this analysis, the Board respectfully requests that the Commission ap-prove its determination.

A. The Standard for Sua Sponte Review Under 10 C.F.R. § 2.340(b), a licensing board may request Commission approval to consider the merits of a serious environmental issue even when, as with Con-tention 23, it was excluded from the proceeding for pro-cedural reasons.61 This sua sponte regulation provides that the presiding officer shall 61 See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-79, 16 NRC 1116, 1119 (1982).

App. 49 make findings of fact and conclusions of law on any matter not put into controversy by the parties, but only to the extent that the presid-ing officer determines that a serious safety, environmental, or common defense and secu-rity matter exists, and the Commission ap-proves of an examination of and decision on the matter upon its referral by the presiding officer. . . .62 The regulation does not define what constitutes a seri-ous environmental issue, leaving that determination to the presiding officer subject to the Commissions ap-proval.

Section 2.340(b)s predecessor, unlike the current version, did not require Commission approval before a presiding officer could exercise sua sponte authority. It did, however, instruct presiding officers that their sua sponte review authority should only be used spar-ingly and in extraordinary circumstances.63 These terms were removed from the regulation in 1979.64 The

[18] Commission subsequently stated, in a 1998 policy statement, that licensing boards should only use sua 62 10 C.F.R. § 2.340(b)(1).

63 10 C.F.R. § 2.760a (1979) (Matters not put into contro-versy by the parties will be examined and decided by the presid-ing officer only in extraordinary circumstances where he determines that a serious safety, environmental, or common de-fense and security matter exists. This authority is to be used spar-ingly.)

64 See 44 Fed. Reg. 67088 (Nov. 23, 1979) (stating that the amended rules eliminate an apparent constraint on boards).

App. 50 sponte review in extraordinary circumstances,65 but the terms sparingly and extraordinary circum-stances have never been reinserted into the regula-tions.66 In 2004, the Commission codif[ied] appropriate portions of the [1998] Policy Statement, noting that the statement was developed as a foundation for pos-sible rule changes.67 The 2004 rule codified the re-quirement that licensing boards request approval from the Commission prior to conducting sua sponte review 65 Policy on Conduct of Adjudicatory Proceedings, 63 Fed.

Reg. 41872, 41874 (Aug. 5, 1998) (stating that sua sponte author-ity is to be exercised only in extraordinary circumstances).

66 In 1984, the NRC published a series of proposals developed by a Regulatory Reform Task Force that included reinsertion of the word sparingly and a requirement that any proposed use of sua sponte review be approved by a licensing board established to screen such proposals, though [t]he individual proposals [were]

not Commission proposals. See 49 Fed. Reg. 14698, 14703 (Apr.

12, 1984) (Section 2.760a is revised to revoke the 1979 relaxation of the sua sponte rule for review of uncontested matters by adju-dicatory boards. Experience under the relaxed standard has indi-cated that issues have been raised sua sponte which do not warrant such consideration. . . . the sua sponte authority of pre-siding officers to raise new issues will be limited to extraordinary circumstances and is to be used sparingly.). This document did not, as NRC Staff suggest, constitute a revocation of the 1979 rule change. Staff Response at 6 n.19. Two years later, the Commis-sion published a proposed rule that identified five proposals which merit continued consideration for possible inclusion in . . .

the Commissions Rules of Practice, none of which addressed sua sponte review. 51 Fed. Reg. 24365, 24366 (July 3, 1986).

67 69 Fed. Reg. 2182, 2182, 2186 (Jan. 14, 2004) (emphasis added).

App. 51 of a matter not put into controversy.68 Notably absent, however, was any requirement that the presiding of-ficers determination or the Commissions approval be limited to issues presenting extraordinary circum-stances. Evidently the Commission concluded that that particular aspect of the 1998 policy statement was not appropriate for inclusion in the new rule.

The 2012 rule revision, which clarified that sua sponte authority extends to Board review of combined license applications, states only that review is limited to . . . serious matters not [19] put into controversy by the parties that concern safety, common defense and security, or the environment that the Commission has approved for review upon the presiding officers refer-ral of the matter.69 Again, there is no requirement of extraordinary circumstances.

Given the historical development of the sua sponte provision and that Commission approval is now re-quired prior to sua sponte consideration of an issue, the Commission is not constrained to approve only those issues that arise under extraordinary circumstances.

Still, a request to engage in sua sponte review should not be undertaken lightly. And it has not been. Recent years have seen sparing use of sua sponte review.70 In 2011, in what would have been the first such request 68 Id. at 2210.

69 77 Fed. Reg. 46562, 46584 (Aug. 3, 2012).

70 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrica-tion Facility), LBP-11-9, 73 NRC 391, 422 (2011) (J. McDade, dis-senting) (noting that no Board has attempted to invoke sua sponte review in the past 20 years).

App. 52 in twenty years, all members of the Licensing Board in Shaw AREVA MOX Services determined that extraor-dinary circumstances existed such that sua sponte re-view would have been warranted had the serious safety issue raised been deemed untimely.71 Here also, the issues we have determined to be appropriate for sua sponte review are extraordinary in that they dif-fer from those likely to arise in the ordinary case.72 B. NEPA Requirements The centerpiece of environmental regulation in the United States, NEPA requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the pre-ferred course of action as well as reasonable alterna-tives.73 When an agency proposes a major Federal action significantly affecting the quality of the [20] hu-man environment, NEPA requires the preparation of an EIS concerning the proposed action.74 The require-ment to prepare an EIS is a procedural mechanism designed to assure that agencies give proper consider-ation to the environmental consequences of their 71 Id. at 412, 422.

72 See infra Section II(E).

73 N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009) (citing 42 U.S.C. § 4331(b) (congres-sional declaration of national environmental policy); Pub. Citizen, 541 U.S. at 756-57; Marsh v. Or. Natural Res. Council, 490 U.S.

360, 371 (1989); and Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1172 (10th Cir. 2007)).

74 42 U.S.C. § 4332.

App. 53 actions.75 However, NEPA does not require agencies to elevate environmental concerns over other appropriate considerations.76 The following NEPA requirements are particu-larly relevant here.

1. The Scope of an EIS The scope of an EIS is defined as the range of actions, alternatives, and impacts to be considered in an environmental impact statement.77 The NRC reg-ulation governing the scope of the EIS states that the agency should use the provisions of a CEQ regulation, 40 C.F.R. § 1502.4, for that purpose.78 Section 1502.4 in turn directs that

[a]gencies shall use the criteria for scope

(§ 1508.25) to determine which proposal(s) shall be the subject of a particular statement.

Proposals or parts of proposals which are re-lated to each other closely enough to be, in ef-fect, a single course of action shall be evaluated in a single impact statement.79 Under the referenced CEQ regulation, the proposed ac-tion that is the subject of the EIS must include all 75 See Vt. Yankee Nuclear Power v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978).

76 Stryckers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980).

77 40 C.F.R. § 1508.25.

78 10 C.F.R. § 51.29(a)(1).

79 40 C.F.R. § 1502.4(a).

App. 54 connected actions.80 The definition of connected actions in § 1508.25 is also adopted by 10 C.F.R.

§ 51.14(b). Under § 1508.25, separate actions are con-nected if, among other things, they [c]annot or will not proceed unless other actions are taken previously or simultaneously, or they [a]re interdependent parts of a larger action and depend on the larger [21] action for their justification.81 Thus, all connected actions as defined in § 1508.25 must be included within the scope of the proposed action evaluated in the NRCs FEIS.

In general, NEPA case law defines connected ac-tions as those that lack independent utility.82 The Sixth Circuit applies that test.83 Projects lack inde-pendent utility when it would be irrational, or at least unwise, to build one without the other.84 For example, the Ninth Circuit held that the construction of a road to facilitate logging and the sale of timber from the log-ging were connected actions that had to be addressed in a single EIS.85 The court pointed out that the timber sales cannot proceed without the road, and the road 80 Id. § 1508.25(a)(1).

81 Id. § 1508.25(a)(1)(ii) and (iii). NRCs NEPA regulations specifically adopt this definition. See 10 C.F.R. § 51.14(b).

82 See Socy Hill Towers Owners Assn v. Rendell, 210 F.3d 168, 181 (3d Cir. 2000) (collecting cases); Nw. Res. Info. Ctr. v.

Natl Marine Fisheries Serv., 56 F.3d 1060, 1067-69 (9th Cir.

1995) (collecting cases).

83 Communities, Inc. v. Busey, 956 F.2d 619, 627 (6th Cir.

1992).

84 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974).

85 Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985).

App. 55 would not be built but for the contemplated timber sales.86 The failure to include all connected actions within the scope of the proposed action is generally referred to as segmentation. Segmentation or piecemeal-ing occurs when an action is divided into component parts, each involving action with less significant envi-ronmental effects.87 Segmentation is to be avoided in order to insure that interrelated projects[,] the overall effect of which is environmentally significant, not be fractionalized into smaller, less significant actions. 88

[22] 2. The FEIS must evaluate all reasonably foreseeable environmental impacts of the pro-posed action.

Once the NRC has properly defined the scope of the proposed action, including any connected actions, the agencys EIS must evaluate the environmental effects of the proposed action.89 The NRC uses this in-formation to [d]etermine, after weighing the environ-mental, economic, technical, and other benefits against environmental and other costs . . . whether the com-bined license should be issued, denied, or appropriately 86 Id.

87 Town of Huntington v. Marsh, 859 F.2d 1134, 1142 (2d Cir.

1988) (citing City of W. Chi. v. NRC, 701 F.2d 632, 650 (7th Cir.

1983)).

88 Id. (quoting Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987)).

89 10 C.F.R. §§ 51.71(d), 51.90; 40 C.F.R. § 1508.25(a)(1).

App. 56 conditioned to protect environmental values.90 The EIS must address all reasonably foreseeable environ-mental impacts . . . even if the probability of such an occurrence is low.91 NEPA requirements, however, are subject to a rule of reason, and an EIS need not address remote and highly speculative consequences.92 In 10 C.F.R. § 51.14(b), the NRC adopted the CEQs definition of effects in 40 C.F.R. § 1508.8. Un-der the CEQ rule, effects include both direct effects, which are caused by the action and occur at the same time and place, and indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. The CEQ regulation further provides:

Effects and impacts as used in these regula-tions are synonymous. Effects includes ecolog-ical (such as the effects on natural resources and on the components, structures, and func-tioning of affected ecosystems), aesthetic, his-toric, cultural, economic, social, or health, whether direct, indirect, or cumulative.93 When information relevant to a reasonably fore-seeable environmental effect is [23] incomplete or un-available, CEQ regulations require an agency to obtain 90 10 C.F.R. § 51.107(a)(3).

91 Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 188 (D.C. Cir. 2013) (citing 40 C.F.R. § 1502.22(b)).

92 Deukmejian v. NRC, 751 F.2d 1287, 1300 (D.C. Cir. 1984)

(quoting Trout Unlimited, 509 F.2d at 1283). See also Blue Ridge Envtl. Def. League, 716 F.3d at 189.

93 40 C.F.R. § 1508.8.

App. 57 the unavailable information and include it in the EIS so long as the costs are not exorbitant.94 If the cost of obtaining the information is exorbitant, the agency must still include in the EIS a statement that the in-formation is unavailable, the relevance of the unavail-able information, a summary of existing credible scientific evidence, and the agencys evaluation of the impacts that might be caused.95

3. The FEIS must evaluate alternatives to the proposed action, including mitigation.

An EIS must include a detailed statement of rea-sonable alternatives to the proposed action.96 When considering alternatives, agencies are to:

(a) Rigorously explore and objectively evalu-ate all reasonable alternatives, and for alter-natives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

(b) Devote substantial treatment to each al-ternative considered in detail including the proposed action so that reviewers may evalu-ate their comparative merits. . . .97 The CEQ regulation itself and numerous courts have recognized that the alternatives analysis is the heart 94 See id. § 1502.22(a).

95 See id. § 1502.22(b).

96 42 U.S.C. § 4332(2)(C)(iii). See also La. Energy Servs., L.P.

(Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 104 (1998).

97 40 C.F.R. § 1502.14.

App. 58 of the environmental impact statement.98 The exist-ence of reasonable but unexamined alternatives ren-ders an EIS inadequate.99 The NRCs NEPA regulation governing prepara-tion of a DEIS directs that it include a preliminary analysis that considers and weighs the environmental effects of the proposed action; [24] the environmental impacts of alternatives to the proposed action; and al-ternatives available for reducing or avoiding adverse environmental effects. . . .100 The NRCs regulation governing preparation of an FEIS imposes the same requirement by directing that the NRC Staff prepare a final environmental impact statement in accordance with the requirements of . . . [10 C.F.R. § 51.71] for a draft environmental impact statement.101

4. Cumulative Impacts Activities excluded from the scope of the proposed action may still be relevant to the NRCs NEPA analy-sis to the extent they affect the environmental baseline for the evaluation of cumulative impacts. Under CEQ regulations, cumulative impact is defined as the im-pact on the environment that results from the 98 Id. See also Alaska v. Andrus, 580 F.2d 465, 474 (D.C.

Cir.), vacated in part as moot sub nom. W. Oil & Gas Assn v.

Alaska, 439 U.S. 922 (1978).

99 Friends of Se.s Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998).

100 10 C.F.R. § 51.71(d) (emphasis added).

101 Id. § 51.90.

App. 59 incremental impact of the [proposed] action when added to other past, present, and reasonably foreseea-ble future actions regardless of what agency (Federal or non-Federal) or person undertakes such other ac-tions.102 In the FEIS, the Staff treated the construction of the transmission corridor as a separate non-federal ac-tion rather than a connected action. The Staff therefore evaluated the transmission corridor solely as a reason-ably foreseeable future action that forms part of the environmental baseline for evaluating the cumulative impact of the proposed action, i.e., the licensing of the construction and operation of Fermi Unit 3.

5. Limitation on actions An important consequence of the decision whether to include new construction within the scope of the pro-posed action is that, if it is included, it will be subject to the limitation on actions in 10 C.F.R. § 51.101(a).

Under that provision, when the Staff prepares an EIS under 10 C.F.R. § 51.20, then until a record of decision is issued [n]o action concerning the proposal [25] may be taken by the Commission which would (i) have an adverse environmental impact, or (ii) limit the choice of reasonable alternatives.103 Also, [a]ny action con-cerning the proposal taken by an applicant which would (i) have an adverse environmental impact, or (ii) limit the choice of reasonable alternatives may be 102 40 C.F.R. § 1508.7.

103 10 C.F.R. § 51.101(a)(1).

App. 60 grounds for denial of the license.104 For separate activ-ities, on the other hand, there is no obligation on the Commission to avoid regulatory action before the rec-ord of decision is issued that would allow the activity to proceed, regardless of its environmental impact or its effect on the range of alternatives. And the appli-cant may proceed with (or allow its contractor to pro-ceed with) an activity outside the scope of the proposal that would have an adverse environmental impact or limit the choice of reasonable alternatives even though the NEPA review is ongoing or has not even begun.

This was precisely the point that the NRC Staff com-menter made about the proposed 2007 LWA Rule.105 C. There is a serious question whether the building of an offsite transmission corridor intended solely to serve the new Fermi Unit 3 qualifies as a connected action under NEPA and, therefore, requires the Staff to consider its environmental impacts as a direct effect of the construction of Fermi Unit 3.

Given that the transmission corridors sole appar-ent purpose is to serve the Fermi Unit 3 project and the new nuclear power plant would be useless without the new transmission lines, Intervenors (and the EPA) have raised a serious question whether the construc-tion of the new transmission corridor should have been analyzed as a connected action in the FEIS.

104 Id. § 51.101(a)(2).

105 72 Fed. Reg. at 57420.

App. 61 In order for construction of the transmission corri-dor to constitute a connected action under 40 C.F.R.

§ 1508.25, three requirements must be met. First, the transmission corridor must be a proposed action rather than one that is merely conceivable.106 Second, the transmission corridor must lack independent utility, that is, its sole purpose must be serving [26] Fermi Unit 3.107 Third, for an action such as the transmission corridor that will not be constructed by or expressly permitted by the federal agency preparing the EIS, there must be sufficient federal control and responsi-bility that the action qualifies as a federal action.108 We review each of these issues in turn.

1. Proposed Action The FEIS states that ITC Transmission has not yet formally announced a route for the offsite portion of the proposed new transmission line serving Fermi 3, but it also states that Detroit Edison expects that the proposed new transmission line would be built along the corridor identified in the FEIS.109 The FEIS 106 See Kleppe v. Sierra Club, 427 U.S. 390, 410 & n.20 (1976).

107 See Thomas, 753 F.2d at 759-60 (citing Trout Unlimited, 509 F.2d at 1276 (stating that an EIS must address interdepend-ent projects when [t]he dependency is such that it would be irra-tional, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken.)).

108 See Sw. Williamson Cnty. Cmty. Assn, Inc. v. Slater, 243 F.3d 270, 278-80 (6th Cir. 2001).

109 FEIS at 2-10.

App. 62 repeatedly refers to the proposed transmission corri-dor.110 For example, the FEIS includes a map identify-ing the Proposed Transmission Corridor from Fermi 3 to the Milan Substation.111 The FEIS reports that

[t]hree new 345-kV transmission lines have been pro-posed to serve Fermi 3.112 The FEIS also refers to the proposed route from the Fermi 3 site in Monroe County to the existing Milan Substation in Washtenaw County.113 Furthermore, in response to written ques-tions propounded by the Board, DTE informed the Board that it is unaware of any other transmission cor-ridor route [27] currently under consideration.114 An action with potential impacts subsequent to the initial federal action may not constitute a proposed action if it is insufficiently certain.115 Here, by contrast, there is no doubt that offsite transmission lines would be built to serve Fermi 3 and no suggestion of any plan to build them anywhere but along the proposed route identified in the FEIS. Therefore, based on the information now 110 See, e.g., id. at 2-61, 2-126, and 3-18 to 3-19. The fact that the Staff declares the transmission lines to be a proposed action is significant, as under CEQ regulations [a] proposal may exist in fact as well as by agency declaration that one exists. 40 C.F.R.

§ 1508.23.

111 FEIS at 2-11 (emphasis added).

112 Id. at 4-8 (emphasis added).

113 Id. at 2-208 (emphasis added).

114 Applicant Brief at 8; Smith Affidavit at 5.

115 See Webster v. U.S. Dept of Ag., 2011 WL 8788223, at *8 (N.D.W. Va. June 13, 2011) (finding that the building of a water treatment plant to serve a proposed dam was not sufficiently cer-tain and any attempt to determine environment impacts would be speculative and contingent).

App. 63 before the Board, it appears that the transmission cor-ridor identified in the FEIS is a proposed action.116

2. Independent Utility The FEIS clearly shows that the purpose of the new transmission corridor is to serve Fermi Unit 3 (i.e.,

to transmit electrical energy from Fermi Unit 3 to the grid).117 No party has identified any other function that the corridor is intended to serve. Just as the construc-tion of a road to facilitate logging and the sale of timber that would result from that logging were connected ac-tions,118 so too the construction of a new nuclear power plant and the transmission corridor that will transmit the newly generated power to the grid are also con-nected actions.

116 Whether a project qualifies as a proposal is somewhat intertwined with the independent utility question. CEQs regu-lations state that a [p]roposal exists at that stage in the develop-ment of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alter-native means of accomplishing that goal and the effects can be meaningfully evaluated. Preparation of an environmental impact statement on a proposal should be timed so that the final state-ment may be completed in time for the statement to be included in any recommendation or report on the proposal. 40 C.F.R.

§ 1508.23. In a situation such as this, where the granting of a li-cense makes the building of offsite transmission lines inevitable, an evaluation of their direct environmental impacts will only be meaningful if engaged in before the license issuance.

117 FEIS at 2-10 to 2-11, 3-17 to 3-19.

118 Thomas, 753 F.2d at 758.

App. 64 DTE stated in response to a question from the Board that the new transmission lines [28] might pos-sibly serve some as yet unidentified source of electrical energy if Fermi 3 is not constructed.119 Absent addi-tional evidence, this theoretical possibility is too spec-ulative to establish that the transmission corridor actually has independent utility. Our view is supported by the Appeal Boards ruling in Greenwood upholding the NRCs authority to impose environmental re-strictions on new transmission lines intended to serve two new Detroit Edison nuclear power plants.120 The Licensing Board had described the new transmission lines as an integral part of nuclear generating plants, observing that [a] power plant without transmission lines is like an airplane that cant fly. 121 The Appeal Board agreed. As in this case, in Greenwood, DTE could not represent that identical power lines along identical routes would be erected irrespective of the Greenwood nuclear facility.122 The Appeal Board therefore had no hesitation in concurring in the Licensing Boards assumption that the lines are a fore-seeable consequence of licensing construction of the nuclear power units. Indeed, no other conclusion is reasonable. Without transmis-sion lines the Greenwood facility would be lit-tle more than a very expensive double boiler 119 Applicant Brief at 8; Smith Affidavit at 5-6.

120 Greenwood Energy Ctr., ALAB-247, 8 AEC at 936.

121 Id. at 937.

122 Id. at 939.

App. 65 serving no discernible purpose. It is scarcely likely that Detroit Edison would embark upon such an enterprise even if given the green light by the regulatory bodies which oversee its operations.123 Here also, the proposed transmission corridor is an in-tegral part of the Fermi 3 project with no discernible purpose apart from connecting Fermi 3 to the grid.

3. Federal Control and Responsibility The FEIS does not refer to any purpose of the new transmission corridor other than serving Fermi 3. But the Staff did not analyze the transmission corridor as a connected action. Instead, it defined the construction of the transmission corridor as a preconstruction ac-tivity, [29] and excluded it from the scope of the pro-posed action because of the 2007 LWA Rule narrowing the definition of construction and disclaiming NRC regulatory authority over all preconstruction activi-ties.124 Thus, the Staff evaluated the impacts of the transmission corridor solely in the context of cumula-tive impacts.125 In substance, the Staff concluded that the scope of the proposed federal action should include only the power plant and not the transmission corridor necessary to make the plant serve its intended purpose because, in the Staff s view, the transmission corridor is outside the scope of the federal action.

123 Id.

124 FEIS at 1-6 to 1-7.

125 Id. at 1-7.

App. 66 The requirement to prepare an EIS applies to ma-jor Federal actions, not to private or state actions.126 Thus, only those activities that have sufficient federal involvement to qualify as federal actions need be in-cluded in the scope of the proposed action evaluated in an EIS.127 But this does not necessarily mean that the action in question must be taken or expressly author-ized by a federal agency. In Southwest Williamson County Community Assn, Inc. v. Slater, the court de-fined the test for determining when a non-federal pro-ject should be analyzed under NEPA as a major federal action:

With the CEQ regulations and case law in mind, we conclude that there are two alterna-tive bases for finding that a non-federal pro-ject constitutes a major Federal action such that NEPA requirements apply: (1) when the non-federal project restricts or limits the stat-utorily prescribed federal decision-makers choice of reasonable alternatives; or (2) when the federal decision-makers have authority to exercise sufficient control or responsibility over the non-federal project so as to influence the outcome of the project. If either test is satisfied, the non-federal project must be 126 42 U.S.C. § 4332(2)(C).

127 See Sw. Williamson Cnty., 243 F.3d at 278-80. But see Colo. Wild, Inc. v. U.S. Forest Serv., 523 F.Supp.2d 1213, 1224-25 (D. Colo. 2007) (rejecting the U.S. Forest Services claim that road construction and development planned by a private party seeking access rights-of-way over national forest land cannot be con-nected actions under NEPAs regulations because the Forest Ser-vice lacks authority to control them).

App. 67 considered a major federal action. Both tests require a situation-specific and fact-intensive analysis.128

[30] We understand that construction of the trans-mission corridor has not begun. Therefore, the first test is not satisfied. This is not an instance where, at least thus far, the non-federal project restricts or limits the statutorily prescribed federal decision-makers choice of reasonable alternatives.129 On the other hand, in this case the federal decision-makers have authority to exercise sufficient control or responsibility over the non-federal project so as to influence the outcome of the project.130 In Southwest Williamson County, the court held that the second test was not satisfied be-cause the authority of the Federal Highway Admin-istration (FHWA) was limited to certain interchanges between a federally financed highway project and a state highway. No part of the statute confers jurisdiction on the FHWA . . . to oversee the construction of the highway corridor that runs be-tween the interchanges unless the state attempts to comply with federal regulations in order to seek fed-eral reimbursement for construction costs.131 Here, by contrast, the NRC long interpreted its statutory authority under the Atomic Energy Act 128 Sw. Williamson Cnty., 243 F.3d at 281 (footnote omitted).

129 Id. at 281-83.

130 Id. at 283-84.

131 Id. at 283.

App. 68 (AEA)132 to include conditioning approval of nuclear power plant licenses on environmentally acceptable routing of transmission lines.133 The United States Court of Appeals for the First Circuit upheld the NRCs authority to regulate offsite transmission lines under the AEA, affirming a licensing board decision condi-tioning approval of permits to the Seabrook Nuclear Power Station on the rerouting of two offsite transmis-sion lines to avoid environmental [31] impacts on marshlands, tree species, and migratory waterfowl.134 Two years later, the Sixth Circuit also upheld the Com-missions authority, unequivocally holding that 1) the regulation of off-site transmission lines is within the Commissions authority under Section 101 of the Atomic Energy Act; and 2) that nothing in the Atomic Energy Act precludes the Commission from imple-menting, through the issuance of conditional licenses, NEPAs environmental mandate.135 The holdings of the First and Sixth Circuits con-tinue to be the law in those jurisdictions. Under those rulings, the NRC may consistently with the AEA and NEPA impose environmental restrictions on transmis-sion lines built to serve nuclear power plants should it choose to do so. The NRCs regulations, including 10 C.F.R. §§ 50.36(b) and 51.107(a)(3), authorize the agency to impose environmental conditions in a license 132 Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. (2012).

133 Pub. Serv. Co. of N.H. v. NRC, 582 F.2d 77, 82 (1st Cir.

1978). See discussion supra Section I(C).

134 Pub. Serv. Co. of N.H., 582 F.2d at 80.

135 Detroit Edison, 630 F.2d at 452.

App. 69 to prevent or mitigate adverse environmental impacts that might otherwise be caused by the construction or operation of a nuclear power plant.136 Environmental protection is a central part of NRCs core mission and is in its mission statement.137 Thus, under Sixth Cir-cuit precedent, the federal decision-makers have au-thority to exercise sufficient control or responsibility over the non-federal project so as to influence the out-come of the project.138 To be sure, in the 2007 LWA Rule the NRC decided that the building of transmission lines to serve a nu-clear power plant would no longer be classified as a construction activity and would no longer require au-thorization from the NRC.139 Intervenors have not challenged the Rule and we would be precluded from hearing such a challenge had they done so, absent a

[32] showing of special circumstances.140 But an agencys narrowed construction of its statutory author-ity, as distinct from an express prohibition by Con-gress, may not be used to limit the agencys obligations under NEPA.141 NEPAs legislative history reflects 136 Progress Energy Fla., Inc. (Levy Cnty. Nuclear Plant, Units 1 & 2), LBP-13-4, 77 NRC 107, 217 (2013).

137 Id.

138 Sw. Williamson Cnty., 243 F.3d at 281.

139 10 C.F.R. § 50.10(a)(2)(vii).

140 10 C.F.R. § 2.335.

141 Ctr. for Biological Diversity v. Natl Highway Traffic Safety Admin., 538 F.3d 1172, 1213 (9th Cir. 2008); Sierra Club

v. Mainella, 459 F. Supp. 2d 76, 105 (D.D.C. 2006) (distinguishing agency NEPA responsibilities in situations where an agency has no ability because of lack of statutory authority to address the

App. 70 Congresss concern that agencies might attempt to avoid any compliance with NEPA by narrowly constru-ing other statutory directives to create a conflict with NEPA. Section 102(2) of NEPA therefore requires gov-ernment agencies to comply to the fullest extent pos-sible. 142 The Supreme Court has explained that this statutory directive was neither accidental nor hyper-bolic.143 Thus, courts have held that NEPA obligations supplement existing statutory authority and must be complied with to the fullest extent, unless there is a clear conflict of statutory authority.144 In short, absent clear conflict an agency cannot interpret its way out of its NEPA responsibilities.

Also, although the NRC now takes the position that it lacks authority to impose environmental re-strictions on transmission corridors, Border Power Plant Working Group supports the view that the trans-mission corridor impacts should have been analyzed as a direct effect of the NRC action even under that new impact with situations where an agency is only constrained by its own regulation from considering impacts).

142 Ctr. for Biological Diversity, 538 F.3d at 1213 (quoting Forelaws on Bd. v. Johnson, 743 F.2d 677, 683 (9th Cir.1985)).

See also Flint Ridge Dev. Co. v. Scenic Rivers Assn of Okla., 426 U.S. 776, 787 (1976) (quoting House and Senate Conferees, who inserted the fullest extent possible language into NEPA, to say that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance).

143 Flint Ridge Dev. Co., 426 U.S. at 787.

144 Calvert Cliffs, 449 F.2d at 1115.

App. 71 interpretation.145 In that case, an environmental group challenged two federal agencies issuance of permits and rights-of-way allowing two [33] utilities to build electricity transmission lines to connect new power plants in Mexico with the power grid in southern Cal-ifornia. The Mexican plants were outside the jurisdic-tion of the federal agencies. Nevertheless, the district court held that increased air pollution in California re-sulting from two export turbines at one of the Mexi-can plants was a direct effect of the new transmission lines, and that DOE therefore had to evaluate the air pollution impacts under NEPA.146 The same analysis applies here. Although the NRC has renounced regula-tory jurisdiction over the transmission lines, the con-struction of the lines and the resulting environmental impacts will be a direct effect of the COL, should it be issued, and must be analyzed as such under NEPA.

Both the Staff and Applicant emphasize that the offsite transmission lines will be owned and operated by ITC Transmission and not by DTE.147 For this rea-son, Applicant notes, Staff relied on publicly available information and reasonable expectations of the config-urations that ITC Transmission would likely use for the offsite corridor based on standard industry prac-tice.148 But the significance placed on this fact by Staff and Applicant appears misplaced. Multiple projects 145 See Border Power Plant Working Grp. v. U.S. Dept of En-ergy, 260 F. Supp. 2d 997, 1012-18 (S.D. Cal. 2003).

146 Id.

147 Staff Response at 10; Applicant Brief at 5.

148 Applicant Brief at 5.

App. 72 are often deemed connected actions despite being un-dertaken by separate entities.149 In fact, projects un-dertaken by separate entities may still be considered connected actions even in the absence of formal agree-ment between the parties.150 After all, NEPA [34]

mandates a case-by-case balancing judgment on the part of federal agencies, not the private parties seek-ing federal action.151 If it is established that ITC Trans-missions proposed new transmission corridor lacks independent utility, the Staff should have included it within the scope of the proposed action, analyzed its impacts as direct effects of the NRC action, and evalu-ated alternatives available for reducing or avoiding any adverse environmental effects.152 149 See, e.g., Hammond v. Norton, 370 F. Supp. 2d 226, 247-53 (D.D.C. 2005) (ruling that the Bureau of Land Management improperly segmented consideration of two pipeline projects be-ing constructed by two separate companies despite evidence that they lacked independent utility and thus qualified as connected actions); Natural Res. Def. Council v. Hodel, 865 F.2d 288 (D.C.

Cir. 1988) (rejecting as inadequate an FEIS that failed to consider the cumulative impacts on migratory species caused by multiple outer-continental lease sales in the California and Alaska re-gions).

150 See Hammond, 370 F. Supp. 2d at 245, 251 (making clear that a determination that actions are connected does not rest upon formal agreement between the entities undertaking the ac-tions, and noting EPAs argument that CEQ does not require a formal agreement in order for two projects to be defined as con-nected actions).

151 Calvert Cliffs, 449 F.2d at 1123.

152 We note, additionally, that nothing in the FEIS suggests that the NRC Staff gave much, if any, consideration to EPAs sug-gestion that offsite transmission lines should have been

App. 73

4. The 2007 LWA Rule and Statement of Con-siderations According to DTE, the Commission has specifi-cally directed, by regulation, that the impacts of pre-construction activities be addressed cumulatively with the impacts authorized by a combined license, and that [t]his is precisely the approach taken by the NRC Staff.153 That argument would have merit only if the provision cited by DTE, 10 C.F.R. § 51.45(c), re-pealed, materially altered, or directed the Staff to ig-nore the NRC and CEQ regulations previously described which require that the proposed action that is the subject of an agency EIS include all connected actions as defined in 40 C.F.R. § 1508.25.154 Section 51.45(c) contains no language to that effect. Concern-ing preconstruction activities, it merely provides that considered as a connected action. See FEIS, app. E, at E-42 to E-

43. While NEPA does not require an agency preparing an EIS to respond to EPA concerns, [an agencys] failure even to address them in the EIS at the very least brings into question the suffi-ciency of the agencys analysis. Hammond, 370 F. Supp. 2d at 251 (citing Citizens Against Burlington v. Busey, 938 F.2d 190, 201 (D.C. Cir. 1991) (stating that an agency does not have to fol-low the EPAs comments slavishly - it just has to take them seri-ously.); Natural Res. Def. Council v. Hodel, 865 F.2d at 297-99 (stating that the court considered the failure to meaningfully ad-dress EPA concerns in its decision that FEIS did not comply with NEPA); and Alaska v. Andrus, 580 F.2d at 475 (stating that EPAs determination that the EIS was unsatisfactory did give rise to a heightened obligation on [the lead agencys] part to explain clearly and in detail its reasons for proceeding)).

153 Applicant Brief at 12.

154 See supra Section II(B)(1).

App. 74

[35] [a]n environmental report prepared at the

. . . combined license stage under § 51.50(c) must include a description of impacts of the preconstruction activities performed by the applicant at the proposed site (i.e., those ac-tivities listed in paragraph (1)(ii) in the defi-nition of construction contained in § 51.4),

necessary to support the construction and op-eration of the facility which is the subject of the . . . combined license application. The en-vironmental report must also contain an anal-ysis of the cumulative impacts of the activities to be authorized by the . . . combined license in light of the preconstruction impacts de-scribed in the environmental report.155 This direction concerns the content of the ER, a docu-ment prepared by the applicant. The definition of the scope of the EIS, however, is the responsibility of the NRC Staff.156 For the purpose of defining the scope of the proposed action that is to be the subject of an EIS, the Staff is instructed to use 40 C.F.R. § 1502.4, which directs that [p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.157 Section 51.45(c) does not alter that obligation or the obligation to include within the 155 10 C.F.R. § 51.45(c).

156 Id. §§ 51.28, 51.29.

157 40 C.F.R. § 1502.4. Under 10 C.F.R. § 51.29(a)(1), the Staff is directed to use that provision to determine the scope of the proposed action that is the subject of an agency EIS.

App. 75 scope of the proposed action all connected actions as defined in § 1508.25.

DTE also relies on the Statement of Considera-tions for the 2007 LWA Rule (the SOC).158 Courts reg-ularly rely upon the preamble in interpreting an agency rule.159 Similarly, the Commission often refers to the Statement of Considerations as an aid in inter-preting the agencys regulations.160 But the preamble, unlike the rule itself, does not have the force of law [36]

and may not be used to expand the reach of the regu-lations.161 Thus, the SOC, while it may be used to inter-pret any ambiguous text of the 2007 LWA Rule, cannot add new requirements or prohibitions. As we have ex-plained, § 51.45(c) contains no language modifying the Staff s obligation under NRC and CEQ regulations to include connected actions in the scope of the proposed action, and the SOC cannot interpret what the regula-tion itself does not contain.

158 See Applicant Brief at 11-12.

159 See Natl Mining Assn v. EPA, 59 F.3d 1351, 1355 n.7 (D.C. Cir. 1995).

160 Paina Haw., LLC (Materials License Application), CLI-08-3, 67 NRC 151, 163 n.46 (2008) (quoting Duke Energy Corp.

(Catawba Nuclear Station, Units 1 & 2), CLI-04-11, 59 NRC 203, 208 n.12 (2004)).

161 See A & E Coal Co. v. Adams, 694 F.3d 798, 802 (6th Cir.

2012) (explaining that the preamble merely explains why the regulations were amended and did not expand their reach). See also Curators of the University of Missouri (TRUMP-S Project),

CLI-95-1, 41 NRC 71, 98 (1995) (stating that NRC guidance can-not prescribe requirements).

App. 76 The SOC also does not invalidate the reasoning underlying the decisions of the First and Sixth Circuits that upheld the NRCs authority to impose environ-mentally protective restrictions on transmission lines.

The SOC discusses the Commissions reasons for changing its interpretation of its statutory authority, but it did not address those rulings of the courts of ap-peal. The Commission acknowledged that its previous broad assertion of regulatory jurisdiction over activi-ties now classified as preconstruction was a reason-able implementation of NEPA as understood in 1972. . . .162 The SOC also stated that the NRCs broad definition of construction in the pre-2007 version of the 10 C.F.R. § 50.10(c) was originally added to Part 50 due to the interpretation that the enactment of NEPA required the NRC to expand its permitting/licensing authority.163 But the Commission stated that subse-quent judicial decisions have made it clear that NEPA is a procedural statute and does not expand the juris-diction delegated to an agency by its organic stat-ute.164 Although the NRC concluded it had overestimated NEPAs legal effect, the federal courts of appeal deci-sions upholding the NRCs authority to impose envi-ronmental restrictions on transmission lines were not premised on the theory that NEPA had expanded the jurisdiction [37] delegated to the NRC by its organic 162 72 Fed. Reg. at 57420.

163 Id. at 57427.

164 Id.

App. 77 statute (the AEA). In Detroit Edison, the Sixth Circuit upheld the Commissions authority to regulate trans-mission lines in order to prevent environmental dam-age, making clear that this authority was founded upon the AEA:

The Commission is empowered by [the AEA]

to regulate off-site transmission lines; in the exercise of that power it must pursue the ob-jectives of the Atomic Energy Act and NEPA simultaneously. Under the Atomic Energy Act, the Commission can issue conditional li-censes for regulatory purposes. There can be no objection to its use of the same means to achieve environmental ends as well.165 In its brief in Detroit Edison, the NRC argued that NEPA requires consideration of all significant environ-mental impacts of a proposed action, including off-site transmission lines that are solely attributable to a pro-posed nuclear power plant.166 The NRC also argued that the Commission is required to administer the Atomic Energy Act in accordance with the national policy of environmental protection and, therefore, must have the authority to use its license conditioning power when necessary to protect the environment.167 Additionally, the NRC asserted that the AEA and NEPA provide independent sources of authority to 165 Detroit Edison, 630 F.2d at 454.

166 Brief for Respondents at 10, Detroit Edison, 630 F.2d 450 (No. 78-3196). The Brief was also filed on behalf of the United States, represented by the Department of Justice.

167 Id. at 19.

App. 78 condition licenses based upon the environmental im-pacts related to off-site transmission lines. But the court of appeals, in ruling that the NRC had appropri-ately interpreted the AEA to include regulatory au-thority over attendant transmission lines, made clear that [w]e need not, and do not, decide whether NEPA is an independent source of substantive jurisdic-tion.168 Thus, the court did not base its holding on the theory that NEPA had expanded the NRCs jurisdic-tion beyond that already provided in the AEA.

[38] Similarly, the First Circuit did not assume that NEPA had expanded the NRCs jurisdiction. Ra-ther, the court of appeals understood that NEPA re-quired the NRC to construe its existing statutory authority consistently with NEPAs goals:

NEPAs mandate has been given strict en-forcement in the courts, with frequent admon-itions that it is insufficient to give mere lip service to the statute and then proceed in blissful disregard of its requirements. Section 102(2)(C) is an action forcing provision, which imposes a duty upon federal agencies to act so as to effectuate the purposes of the statute to the fullest possible degree. The di-rective to agencies to minimize all unneces-sary adverse environmental impact obtains except when specifically excluded by statute or when existing law makes compliance with NEPA impossible. As stated by the court in Calvert Cliffs, Unless (specific statutory) 168 Detroit Edison, 630 F.2d at 452.

App. 79 obligations are plainly mutually exclusive with the requirements of NEPA, the specific mandate of NEPA must remain in force. Un-less there are specific statutory provisions which necessarily collide with NEPA, the Commission was under a duty to consider and, to the extent within its authority, mini-mize environmental damage resulting from Seabrook and its transmission lines.169 The First Circuit found no inevitable clash be-tween the NRCs broad regulatory authority under the AEA and the action-forcing provisions of NEPA.

Both the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974 confer broad regulatory functions on the Commis-sion and specifically authorize it to promul-gate rules and regulations it deems necessary to fulfill its responsibilities under the Acts. In a regulatory scheme where substantial discre-tion is lodged with the administrative agency charged with its effectuation, it is to be ex-pected that the agency will fill in the inter-stices left vacant by Congress. The Atomic Energy Act of 1954 is hallmarked by the amount of discretion granted the Commission in working to achieve the statutes ends. The Acts regulatory scheme is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it 169 Pub. Serv. Co. of N.H., 582 F.2d at 81 (emphasis added)

(footnotes and citations omitted) (quoting Calvert Cliffs, 449 F.2d 1109, 1125 (D.C. Cir. 1971)).

App. 80 shall proceed in achieving the statutory objec-tive. The agencys interpretation of what is properly within its jurisdictional scope is en-titled to great deference, and will not be over-turned if reasonably related to the language and purposes of the statute.170 Based on this understanding, the First Circuit up-held the agencys decision to include transmission lines that serve a nuclear power plant within the defi-nition of utilization facility in [39] 42 U.S.C.

§ 2014(cc).171 It further held that the NRC could, con-sistent with its authority under the AEA, impose per-mit conditions on the routing of the transmission lines in order to further NEPAs mandate.172 Thus, the First Circuits ruling, like that of the Sixth Circuit, was not premised on the theory that NEPA had expanded the jurisdiction delegated to the NRC in the AEA.

The SOC states that the elimination of the blan-ket inclusion of site preparation activities [including transmission lines] in the definition of construction . . .

170 Id. at 82 (citations omitted) (quoting Siegel v. Atomic En-ergy Commn, 400 F.2d 778, 783 (D.C. Cir. 1968)).

171 See id. at 82-83.

172 Id. at 86 (In this instance, the Commission used one of its statutory powers in the furtherance of NEPA, whose mandate the Commission must follow. The Commission is under a dual ob-ligation: to pursue the objectives of the Atomic Energy Act and those of the National Environmental Policy Act. The two statutes and the regulations promulgated under each must be viewed in Para (sic) Materia. We find that the Commission correctly dis-charged its responsibilities here. (citation omitted) (quoting Cit-izens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1299 (D.C. Cir.

1975))).

App. 81 does not violate NEPA.173 As we have already stated, we have no authority to consider that issue. But we find nothing in either the text of the LWA Rule or the SOC that prohibits inclusion of the construction and maintenance of a specific transmission line within the scope of the proposed NRC action when those activities qualify as a connected action under the applicable reg-ulations and case law, as they likely do in this instance.

This may be an appropriate opportunity for the Com-mission to clarify whether, in the event of a conflict be-tween general statements in the SOC and the specific law that applies in the jurisdiction where the proposed facility will be located, the Staff and licensing boards should follow the controlling law in the jurisdiction when defining or reviewing the scope of the proposed action.

5. Impact of Excluding Transmission Corridor from the Scope of Proposed Action DTE and the Staff maintain that the question whether the transmission corridor should have been analyzed as a connected action rather than as part of the cumulative impact analysis [40] is merely of aca-demic interest because, they maintain, the Staff took the required hard look at the corridors impacts.174 For several reasons, we are not persuaded that the issue is merely a matter of semantics.

173 72 Fed. Reg. at 57427.

174 Applicant Brief at 13; Staff Response at 11.

App. 82 First, excluding the transmission corridor from the scope of the proposed action also removes it from the limitation on actions in 10 C.F.R. § 51.101(a).175 When an activity is excluded from the scope of the pro-posed action, the effect is to allow construction to begin

- or even be completed - before the agency has com-pleted its NEPA review. But NEPAs purpose is to in-fluence the decision making process by focusing the

[federal] agencys attention on the environmental con-sequences of a proposed project, so as to ensure . . .

that important effects will not be overlooked or under-estimated only to be discovered after resources have been committed or the die otherwise cast. 176 [W]hen a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered.177 Thus, the NEPA analysis of the proposed action must be completed before, not after, construction begins. In this case, the Staff has completed the FEIS for Fermi 3 and, as far as the Board is aware, construction of the transmission corri-dor has not started. But the record of decision has not been issued and, accordingly, the § 51.101(a) limitation on actions remains in effect. Therefore, excluding the transmission corridor from the scope of the proposed action may allow construction of the corridor to begin 175 See supra Section II(B)(5).

176 Colo. Wild, Inc., 523 F.Supp.2d at 1219 (quoting Robert-son v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)).

177 Id. (emphasis omitted) (quoting Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) (Breyer, J.)).

App. 83 before the NRC has balanced the benefits of the Fermi 3 project against all of its environmental costs, despite NEPAs goal of a fully informed agency decision before the [41] proposed action is authorized.

We are also not persuaded that excluding the transmission corridor from the proposed action had no effect on the depth of the environmental analysis. In Colorado Wild, where the defendants made the same argument as DTE and the Staff, the district court found fair grounds for litigation regarding Defend-ants assertion that the treatment of the highway in-terchanges and Village development as cumulative impacts in the FEIS was sufficient under NEPA even if these actions should have been treated as connected actions under the statutes implementing regula-tions.178 The administrative record reflected a heated debate on that issue, and the court concluded that this debate would not have occurred unless the label attached to these actions made a difference to the con-tent, scope and/or depth of analysis.179 We similarly find that the Staff s refusal to evaluate the transmis-sion corridor as a connected action may have made a difference to the content, scope and/or depth of analy-sis. As we explain in Section II(D) below, the FEIS pro-vided very limited information concerning the transmission corridors impacts to wetlands, streams, threatened and endangered species, and historical and cultural resources. By contrast, the FEIS provides a far 178 Colo. Wild, Inc., 523 F.Supp.2d at 1225.

179 Id. at 1225-26.

App. 84 more in-depth analysis of the impact of the construc-tion and operation of Fermi Unit 3 on those re-sources.180 It is likely that the Staff s decision to exclude the transmission corridor from the scope of the proposed action influenced the far more limited analy-sis it received.

[42] 6. Conclusion There is a serious question whether the transmis-sion corridor is a connected action under NEPA and whether the Staff should have evaluated its environ-mental impacts as a direct effect of the proposed ac-tion.

D. There is a serious question whether the Staff s consideration of environmental impacts related to the transmission corridor, performed as a cu-mulative impact review, satisfies NEPAs hard look requirement.

Although the Staff did not consider the trans-mission corridor to be part of the proposed action, it included some information about the corridors envi-ronmental impacts in its evaluation of cumulative im-pacts. The Staff and DTE claim that this analysis was sufficient to satisfy NEPA requirements. We find, 180 See, e.g., FEIS at 2-33 to 2-44 and 2-66 to 2-78 (describing impacts on wetlands and aquatic resources); id. at 2-48 to 2-59 and 2-82 to 2-125 (describing impacts on terrestrial and aquatic species and habitats); id. at 2-195 to 2-207 (describing impacts on historic and cultural resources).

App. 85 however, a serious question whether those require-ments were satisfied.

The principal goals of an FEIS are twofold: to force agencies to take a hard look at the environmen-tal consequences of a proposed project, and, by making relevant analyses openly available, to permit the pub-lic a role in the agencys decision-making process.181 The FEIS must comply with Sections 102(2)(A), (C),

and (E) of NEPA and the agencys Part 51 regula-tions.182 NEPA Section 102(2)(C) requires that an EIS provide a detailed statement concerning among other things, the environmental impact of the proposed ac-tion, any adverse environmental effects which cannot be avoided should the proposal be implemented, and any irreversible and irretrievable commitments of re-sources which would be involved in the proposed action should it be implemented.183 The Part 51 regulations impose equivalent requirements.184 There is a serious question whether the Staff satisfied those require-ments [43] regarding transmission corridor impacts on wetlands, streams, threatened and endangered spe-cies, and historical and cultural resources. The Staff acknowledged that, in those areas, it lacked the 181 Claiborne, CLI-98-3, 47 NRC at 87 (citing Robertson, 490 U.S. at 349-50; Hughes River Watershed Conservancy v. Glick-man, 81 F.3d 437, 443 (4th Cir. 1996)).

182 See 10 C.F.R. § 51.107(a)(1).

183 42 U.S.C. §§ 4332(C)(i), (ii), (v).

184 10 C.F.R. §§ 51.45(b)(1), (2), (5) (listing ER requirements);

id. § 51.71 (requiring that the DEIS address the matters specified in § 51.45); id. § 51.90 (requiring that the Staff prepare the FEIS in accordance with the requirements of § 51.71 for a DEIS).

App. 86 necessary surveys to determine the extent of impacts to federally and state-listed species, wetlands, and other resources. But, rather than obtaining the neces-sary information or explaining why it could not be ob-tained, the Staff assumed that the necessary surveys would be conducted by other agencies in their regula-tory reviews, that adequate mitigation to prevent en-vironmental damage would be imposed by those other agencies, and that accordingly the environmental im-pacts would be minimal. In so doing, the Staff effec-tively deferred the analysis required by NEPA until a later date and delegated the NRCs NEPA responsibil-ities to other agencies. An impact statement cannot ful-fill its role of providing a springboard for public comment185 if it defers indefinitely and delegates to other agencies the duty to inform the public of the en-vironmental impacts of the proposed action and poten-tial measures to mitigate those impacts.

For example, concerning impacts of the transmis-sion lines on Important Terrestrial Species, the FEIS acknowledges that the United States Fish and Wildlife Service (FWS) identified several terrestrial species that are listed under the [Endangered Species Act] or candidates for listing that could occur in the area of the proposed transmission line corridor, some of which are not known to occur at the Fermi site.186 The FEIS in-cludes a table listing numerous federally and state-listed species that [m]ay occur with the Transmission 185 Robertson, 490 U.S. at 349 (citation omitted).

186 FEIS at 2-61.

App. 87 Line Corridor.187 But the FEIS fails to identify the spe-cies that do in fact occur within the corridor and the potential impacts to those species. Instead, it states that [f ]ield surveys of the corridor [44] route have not yet been conducted to confirm the presence of any spe-cies,188 and that no additional monitoring is planned along the proposed transmission line corridor.189 The FEIS reports that [p]rior to installation of the offsite transmission line, FWS and [the Michigan Depart-ment of Natural Resources] would need to review de-tailed information on the transmission line corridor.

The agencies may, at that time, require surveys of the proposed transmission line corridor for the presence of important species and habitat.190 In other words, the surveys necessary to determine whether the transmis-sion corridor will harm important species and habitat were not conducted during preparation of the FEIS, but may be conducted by other agencies at unknown future dates, which may not be until after the NRC has issued the COL. The Staff failed to explain why it did not require such surveys to assist in preparation of the FEIS.

Similarly, with regard to endangered or threat-ened freshwater species that may occur in streams crossed by the transmission corridor, the FEIS fails to provide the information necessary to determine either 187 Id. at 2-62.

188 Id. at 2-61.

189 Id. at 2-65.

190 Id. at 2-61.

App. 88 the species that will be affected or the extent of the impacts. For example, concerning the Northern Riffleshell, a federally listed endangered freshwater mussel species, the FEIS explains that [t]he survival of this species depends on the protection and preserva-tion of suitable habitat host fish species, but that it is currently unknown if appropriate habitats are pre-sent in stream areas that are crossed by the proposed transmission line corridor.191 Concerning the Purple Lilliput, a freshwater mussel species listed as endan-gered by the State of Michigan, the FEIS reports that it is currently unknown if appropriate habitats [45]

are present in stream areas that are crossed by the proposed transmission line corridor.192 As with terres-trial species, the FEIS includes a table (Table 2-16) identifying Federally and State- listed aquatic species that have a potential to occur along the new transmis-sion line route. . . .193 But the Staff reported that it is not known whether suitable habitat or populations of species identified in Table 2-16 occur in portions of the drainage that would be crossed by the proposed trans-mission route.194 Again, rather than identifying the species that the transmission corridor will impact and the nature of the impacts, the FEIS defers the analysis until some unknown future date, informing the reader that [t]he [Michigan Department of Environmental Quality (MDEQ)] and/or USACE may require 191 Id. at 2-104.

192 Id. at 2-105.

193 Id. at 2-101, 2-126.

194 Id. at 2-126.

App. 89 surveys of the proposed transmission line corridor to evaluate the presence of important species and habi-tat.195 As with terrestrial species, the Staff failed to explain why it did not require such surveys so that the necessary information could have been included in the FEIS.

The East Lansing Field Supervisor of the FWS, in his comments on the DEIS, was unable to concur in the Staff s conclusions regarding the impact of the trans-mission corridor on threatened and endangered spe-cies:

You have also made a determination of effects for the 29.4 miles of proposed transmission lines associated with the project. We are not able to concur with your effects determina-tions for the proposed transmission lines at this time. Your evaluation indicates that terrestrial and/or aquatic surveys for listed species will be conducted once the location of the transmission line corridors have been finalized. We will defer concurrence with your determinations until corridor locations are finalized and we have reviewed the re-sults of future surveys. We also recommend that future surveys include those for the Indi-ana bat and for listed mussel species at stream crossings when the stream bottom is to be disturbed. Future consultation should be completed prior to submission of Michigan Department of Environmental Quality and/

or the Army Corps of Engineers permit 195 Id. at 2-126.

App. 90 applications for stream crossings or wetland fill associated with [46] the transmission line towers.196 The FEIS also states that the NRC, in conjunction with the USACE, chose to comply with the National Historic Preservation Act (NHPA) through the NEPA process.197 As the lead Federal Agency in this process, the NRC has responsibility for determining potential impacts on the cultural environment under NEPA and on historic and cultural resources that may qualify for the National Register of Historic Places (NRHP) un-der NHPA § 106.198 However, as with other impacts, the FEIS fails to fully evaluate the impact of offsite trans-mission lines on these historic and cultural resources.

Despite acknowledgement that [t]he proposed new approximately 11 mi transmission line route . . . has been assessed as having a moderate to high potential for identifying archaeological resources . . . , no Phase I cultural resource investigations were conducted dur-ing DTEs preparation of the ER.199 Though NRC sub-sequently conducted 106 consultations with interested federal, state, and tribal entities, the NRC did not con-sult on the impact of offsite transmission lines because it does not consider the building of transmission lines

[to be] an NRC-authorized activity and considers the proposed transmission lines to be outside the NRCs 196 Id., app. F, at F-23.

197 Id. at 2-193.

198 Id. at 5-91.

199 Id. at 2-207.

App. 91

[area of potential effects].200 Thus, the Staff states only that there is an approximately 11-mi portion of the proposed offsite transmission line route [that] will re-quire a new transmission line route and may result in impacts on historic and/or cultural resources that could be minor or could be greater.201 Despite the lack of essential information in these and other areas, the Staff concluded [47] that the envi-ronmental impacts of the transmission corridor would be minimal. In large part, it relied on permits and cer-tifications it assumed would be issued and enforced by other federal and state agencies. For example, concern-ing impacts on federally and state-listed aquatic spe-cies, the Staff stated that

[b]uilding of offsite transmission lines could affect Federally and State-listed organisms in the vicinity of stream crossings in the same ways as described in the previous section for commercially and recreationally important species. Additional regulatory review of pro-posed plans for construction of the needed transmission lines, which would be built, owned, and maintained by ITC Transmission, may be conducted by the MDEQ and/or USACE, and potential impacts on Federally and State-listed aquatic species are expected to be addressed through mitigation measures 200 Id. at 2-212.

201 Id. at 4-101 to 4-102.

App. 92 and [Best Management Practices (BMPs)]

required under issued permits.202 The Staff s conclusion that wetland impacts would be minimal similarly relied on permits and mitiga-tion it assumed would be required by other agencies:

A conceptual transmission line corridor has been identified, but wetland delineation surveys have not yet been conducted to de-termine the precise locations and extent of wetlands. Permanent impacts on wetland areas would be mitigated according to a wet-land mitigation plan ITC Transmission would develop in coordination with the MDEQ and/

or USACE, as necessary. Any mitigation measures required for the impacts are ex-pected to be determined by ITC Transmission in coordination with applicable regulatory agencies, which may include the MDEQ and/or USACE, at the time permit applica-tions are submitted.203 The Staff also stated:

Offsite hydrological alterations are associated with the proposed new or expanded trans-mission line corridors where the lines cross wetlands and drainages. The impacts of hy-drological alterations resulting from both on-site and offsite construction activities would be localized and reduced with the implemen-tation of BMPs and mitigation measures 202 Id. at 4-56 (emphasis added).

203 Id. at 4-44 to 4-45 (emphasis added).

App. 93 required by the necessary permits and certifi-cations. Any impacts on USACE jurisdictional water resources associated with the compen-satory mitigation construction activities pro-posed by Detroit Edison would be evaluated by the USACE during its permit evaluation process.204

[48] As to impacts on historic and cultural re-sources, the Staff declared that any further investiga-tions to identify the presence of cultural and historic resources and to evaluate the NRHP-eligibility of such resources would be the responsibility of ITC Trans-mission, who would conduct such investigations in ac-cordance with applicable regulatory and industry standards to assess impacts.205 Based on the foregoing review of the FEIS, the Board has identified the following probable deficien-cies.

1. Unavailable or Incomplete Information The FEIS repeatedly states that the NRC lacked the information necessary to fully evaluate the envi-ronmental impacts associated with offsite transmis-sion lines. The FEIS failed to address CEQs NEPA regulation requiring an agency to do more than simply state that necessary information is unavailable206 -

204 Id. at 4-15 (emphasis added).

205 Id. at 4-102.

206 40 C.F.R. § 1502.22. The regulation requires an agency to acquire the information that is lacking if it is essential to a

App. 94 a regulation that clearly contemplates original re-search if necessary.207 A determination of minimal en-vironmental impact would make little sense when an agency lacks essential information and has not sought to compile it through independent research. To rule otherwise would turn NEPA on its head, making igno-rance into a powerful factor in favor of immediate ac-tion where the agency lacks sufficient data.208 The [49]

FEIS makes no effort to explain why the NRC could not obtain the information, spurning analysis in favor of conclusory statements about the lack of environ-mental impact and assurances that any potential im-pacts will be remedied in the future. But, as the First Circuit has stated, [a] conclusory statement unsup-ported by . . . explanatory information of any kind not only fails to crystallize issues, but affords no basis for reasoned choice and costs of obtaining it are not exorbitant. If the costs are exorbitant, the regulation still requires the agency to state that the information is unavailable, explain the relevance of the unavailable information, summarize existing credible sci-entific evidence, and evaluate potential impacts.

207 Save Our Ecosystems v. Clark, 747 F.2d 1240, 1249 (9th Cir. 1984) (Federal agencies routinely either do their own studies or commission studies of the particular area in which a proposed project is to be located. Almost every EIS contains some original research. And, almost every time an EIS is ruled inadequate by a court it is because more data or research is needed.). The court cited district court interpretations that have imposed the same NEPA requirement to conduct original research, if necessary. See, e.g., Montgomery v. Ellis, 364 F. Supp. 517, 528 (N.D. Ala.1973)

(stating that NEPA requires each agency to undertake research needed adequately to expose environmental harms).

208 Sierra Club v. Norton, 207 F. Supp. 2d 1310, 1334-35 (S.D. Ala. 2002).

App. 95 a comparison of the problems involved with the pro-posed project and the difficulties involved in the alter-natives.209

2. Reliance on Anticipated Certifications As previously described, the Staff assumed in the FEIS that because the transmission corridor will re-quire permits from various federal and state agencies, the construction and operation of the transmission cor-ridor will have only small or minimal impacts on wet-lands, streams, and endangered or threatened species.

There is a significant question whether such blanket reliance on predicted future action by other regulatory agencies is sufficient to satisfy NEPAs hard look re-quirement.

In Calvert Cliffs Coordinating Committee, Inc. v.

Atomic Energy Commission, the D.C. Circuit explained why merely referencing an actual or anticipated certi-fication by another agency fails to satisfy NEPA re-quirements:

Certification by another agency that its own environmental standards are satisfied in-volves an entirely different kind of judgment

[from that required by NEPA]. Such agencies, without overall responsibility for the particu-lar federal action in question, attend only to one aspect of the problem: the magnitude of certain environmental costs. They simply 209 Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973) (cita-tions omitted).

App. 96 determine whether those costs exceed an al-lowable amount. Their certification does not mean that they found no environmental dam-age whatever. In fact, there may be significant environmental damage (e.g., water pollution),

but not quite enough to violate applicable (e.g., water quality) standards. Certifying agencies do not attempt to weigh that damage against the opposing benefits. Thus the bal-ancing analysis remains to be done. It may be that the environmental costs, though passing prescribed standards, are nonetheless great enough to outweigh the particular economic and technical benefits involved in the planned action. The only agency in a [50] position to make such a judgment is the agency with overall responsibility for the proposed federal action-the agency to which NEPA is specifi-cally directed.210 The D.C. Circuits analysis is fully applicable to the present case. For example, the Staff assumed that damage to wetlands and other jurisdictional waters of the United States would be minimal because permits from the Corps would be required. But the Corps reg-ulations do not require that it reduce all impacts to a minimal level. When reviewing an application for a 404 permit under the Clean Water Act, the Corps evaluates whether the issuance of the permit is in the public in-terest, weighing all relevant factors, including eco-nomic, environmental, and aesthetic concerns.211 The 210 Calvert Cliffs, 449 F.2d at 1123.

211 33 C.F.R. §§ 320.4(a)(1), 323.3(g).

App. 97 Corps may not issue a permit if there exists a practi-cable alternative . . . which would have less adverse impact on the aquatic system, the permit would cause significant degradation of the water of the United States, or appropriate and practicable mitigation has not been undertaken.212 However, the regulations governing Corps review do not require that mitigation measures insure minimal environmental impacts, as the FEIS seems to suggest.

Moreover, the NRCs Part 51 regulations prohibit such blanket reliance on Clean Water Act permits:

Compliance with the environmental quality standards and requirements of the Federal Water Pollution Control Act (imposed by EPA or designated permitting states) is not a sub-stitute for, and does not negate the require-ment for NRC to weigh all environmental effects of the proposed action, including the degradation, if any, of water quality, and to consider alternatives to the proposed action that are available for reducing adverse ef-fects.213

[51] The Staff s reliance on predicted future regu-lation is also similar to the argument that the D.C. Cir-cuit rejected in New York v. NRC.214 The NRC argued that its environmental assessment did not need to deal with the potential impacts of leaks from spent fuel 212 40 C.F.R. §§ 230.10(a), (c), (d).

213 10 C.F.R. § 51.71(d) & n.3.

214 New York v. NRC, 681 F.3d at 481.

App. 98 pools because its monitoring and regulatory compli-ance program would prevent such leaks. The court stated:

That argument . . . amounts to a conclusion that leaks will not occur because the NRC is on duty. With full credit to the Commissions considerable enforcement and inspection ef-forts, merely pointing to the compliance pro-gram is in no way sufficient to support a scientific finding that spent-fuel pools will not cause a significant environmental impact dur-ing the extended storage period.215 Similarly, in the FEIS, the Staff relied on compli-ance programs of other federal and state agencies to support its findings that the impact of the transmis-sion corridor upon environmental resources will be small or minimal. Such blanket reliance is subject to serious question.

3. Inadequate Analysis of Mitigation The FEISs limited discussion of mitigation suffers from the same problem as its analysis of environmen-tal consequences. Courts have held that an EIS must include a serious and thorough evaluation of envi-ronmental mitigation options.216 Mitigation must be discussed in sufficient detail to ensure that 215 Id.

216 Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 178 (5th Cir. 2000).

App. 99 environmental consequences have been fairly evalu-ated.217 Rather than identifying and evaluating poten-tial mitigation options, the FEIS merely assumes that mitigation for the transmission corridors impacts to wetlands, streams, and threatened and endangered species will be adequately addressed in permit reviews to be conducted by other agencies. As a result, the FEIS fails to provide a detailed evaluation of potential miti-gation [52] measures, as required, but only a series of predictions that the issue will be adequately addressed in other reviews.

4. Conclusion There is a serious question whether the analysis of transmission corridor impacts in the FEIS satisfies NEPAs hard look requirement.

E. Sua Sponte Review is Warranted We have explained that the two issues the Board has identified raise serious factual and legal questions regarding the Staff s compliance with NEPA. Those is-sues can readily be distinguished from those likely to arise in the ordinary case. First, the Staff s failure to include the transmission corridor as part of the pro-posed action significantly reduced its scope, both in terms of the total area affected and the environmental resources that would be impacted. The Staff effectively eliminated from the proposal nearly half of the total 217 Id. at 176-77 (quoting Robertson, 490 U.S. at 352).

App. 100 acreage that will be affected by the entire project.218 The Staff s narrow definition also meant that potential impacts to important environmental resources were excluded from the scope of the proposed federal action.

For example, as EPA noted in its comments on the FEIS, the construction and maintenance of the new transmission lines and substations are estimated to impact over 1000 acres of habitat, including over 93 acres of impacts to forested wetlands.219 The construc-tion and maintenance of the new transmission lines will also potentially impact streams, threatened and endangered species, and historic and cultural re-sources. Given the size of the transmission corridor and the environmental resources it will affect, the cor-ridor clearly represents a major component of the en-vironmental impact of the Fermi Unit 3 project.

[53] The Staff might have compensated for its nar-row definition of the proposed action by including in the FEIS a thorough analysis of the potential environ-mental impacts of the transmission corridor, as the agency committed to do in the SOC.220 But the Staff instead deferred major components of the required analysis to other agencies that it assumed would even-tually undertake the necessary surveys and develop 218 The FEIS estimates the total acreage of the transmission corridor as 1069.2 acres. FEIS at 2-47 (Table 2-7). The Fermi site as defined in the FEIS (which includes the entire property owned by DTE, not just the site of Fermi Unit 3) is 1260 acres. FEIS at 2-5.

219 EPA Comments on FEIS at 1.

220 72 Fed. Reg. at 57417, 57421.

App. 101 appropriate mitigation - even though such regulatory actions, even if they occur as predicted, may not take place until after the COL is issued. This gives rise to the problem that the rule against segmentation seeks to avoid, when the environmental impacts of projects are evaluated in a piecemeal fashion and, as a result, the comprehensive environmental impacts of the en-tire Federal action are never considered or are only considered after the agency has committed itself to continuation of the project.221 The Appeal Board observed that in inquiring on its own initiative into the transmission line question, that Board was discharging an important function as-signed to it. Licensing boards have independent re-sponsibilities in the realm of the enforcement of the NEPA command; i.e., their role is not confined to the arbitration of those environmental controversies as may happen to have been placed before them by the litigants in the particular case.222 Though this respon-sibility has changed - now requiring Commission ap-proval before a board may exercise its responsibility -

the authority still exists, as the Commission has made clear.223 This authority [54] cannot reasonably be 221 72 Fed. Reg. at 57427-28.

222 Tenn. Valley Auth. (Hartsville Nuclear Power Plant, Units 1A, 2A, 1B & 2B) ALAB-380, 5 NRC 572, 575 (1977).

223 Cincinnati Gas & Electric Co. (William H. Zimmer Nu-clear Power Station, Unit 1), CLI-82-20, 16 NRC 109 (1982). The Appeal Board has likewise stressed the need for licensing boards to judiciously exercise the sua sponte authority when faced with a serious, and unraised, issue. La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076 1111-

App. 102 limited to only a situation which involves a significant environmental impact of a type not considered previ-ously and could destabilize an environmental re-source or . . . involve[s] severe adverse environmental impacts.224 A serious environmental issue also exists when an FEIS only cursorily deals with important en-vironmental issues and concludes that impacts will be small based largely on unavailable and incomplete in-formation and predicted future certifications from other agencies. A serious issue is also presented when the Staff s NEPA analysis significantly understates the scope of the proposed federal action, particularly when it does so on a basis that conflicts with the law of the federal judicial circuit where the new facility will be located. Moreover, as justification for the agencys rule change excluding transmission lines and other pre-construction activities from the scope of its pro-posed action, the NRC committed that the effects of the non-Federal activities would be considered during any subsequent cumulative impacts analysis.225 It is at least questionable whether the Staff s analysis of the impact of offsite transmission lines satisfies this commitment. The Staff s alleged failure to live up to a commitment the NRC made to justify a significant change in policy is a serious issue that a board should be permitted to address.

12 (1983) (noting that Zimmer should not be read to present an insurmountable barrier to the exercising of sua sponte author-ity).

224 Applicant Brief at 9.

225 72 Fed. Reg. at 57417.

App. 103 Although the FEIS may be deficient in significant respects, a contested hearing may enable the Board to cure those deficiencies and thus bring the agency into compliance with NEPA and 10 C.F.R. Part 51. Boards frequently hold hearings on contentions challenging the staff s final environmental review documents. . . .

In such cases, [t]he adjudicatory record and Board de-cision (and . . . any Commission appellate decisions) become, in effect, part of the FEIS. 226 Thus, the Staff s FEIS, along with the adjudicatory record, becomes the relevant [55] record of decision for the environmental portion of the proceeding.227 Federal courts of appeal have approved of this process in which an EIS is effec-tively amended through the adjudicatory process.228 The Boards review would encompass all pertinent in-formation properly before it, including the FEIS and the witness testimony and exhibits that were received into evidence at the evidentiary hearing. The Board would base its decision on whether the FEIS complies with NEPA on those sources of information, and that 226 Nuclear Innovation N. Am. LLC (S. Tex. Project, Units 3

& 4) CLI-11-06, 74 NRC 203, 208-09 (2011) (citing Claiborne, CLI-98-3, 47 NRC at 89 and Phila. Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 705-07 (1985)).

227 See, e.g., Pac. Gas & Electric Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526 (2008), petition for review denied on other grounds, San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir.

2011).

228 New England Coal. on Nuclear Pollution v. NRC, 582 F.2d 87, 93-94 (1st Cir. 1978); Citizens for Safe Power, 524 F.2d at 1294 n.5. See also Ecology Action v. Atomic Energy Commn, 492 F.2d 998, 1001-02 (2d Cir. 1974).

App. 104 decision, along with the rest of the record for this pro-ceeding, would in effect become part of the FEIS.

The Staff and DTE maintain, however, that if any further inquiry needs to be made concerning the issue raised by Contention 23, it should be made by the Com-mission during the mandatory hearing (also referred to as an uncontested hearing) rather than in a con-tested hearing.229 But the mandatory hearing ordinar-ily takes place at the end of the licensing proceeding.230 If the FEIS is found deficient at that point, the need to cure the deficiencies through amendment of the FEIS could substantially delay the licensing process. The Board, by contrast, can minimize the potential delay by taking up the issue as soon as the Commission au-thorizes sua sponte review.231

[56] Furthermore, the uncontested hearing, unlike a contested hearing, would make it more difficult to cure deficiencies in the FEIS through the hearing pro-cess. Although several federal courts of appeal have 229 See Staff Response at 3, 12-16; Applicant Brief at 2 n.5.

230 The Staffs target for completing the FSER is July 2015, so the mandatory hearing will not take place before mid-2015 at the earliest. Application Review Schedule, http://www.nrc.gov/

reactors/new-reactors/col/fermi/review-schedule.html.

231 In Zimmer, the Commission ordered a Licensing Board not to exercise sua sponte authority because the Commission had already initiated an ongoing investigation to deal with the is-sues raised. Zimmer, CLI-82-20, 16 NRC at 110. Here, by con-trast, the NRC Staff has completed the FEIS, it has provided no indication of any intent to revise the document, and the Commis-sion has not instructed the Staff to reconsider the transmission line issue.

App. 105 accepted that a contested hearing may cure deficien-cies in the FEIS,232 no court of appeals has given the same effect to an uncontested hearing. The function of the uncontested hearing is only to review the adequacy of the Staff s work, not to make a de novo inquiry into NEPA issues.233 Thus, an uncontested hearing would make it more difficult to cure deficiencies in the FEIS by, for example, developing relevant information on the environmental impacts of the transmission corridor that the Staff omitted.

In addition, the uncontested hearing excludes public participation in the review of the FEIS. Because

[t]he scope of the Intervenors participation in adjudi-cations is limited to their admitted contentions, they are barred from participation in the uncontested por-tion of the hearing.234 Thus, unlike contested proceed-ings, there is no public participation in an uncontested (i.e., mandatory) hearing. The only participants would be DTE and the Staff, with no opportunity for the In-tervenors to offer evidence or to argue their position.

Thus, in substance, the Staff and DTE would limit any further inquiry to a hearing in which they will partici-pate but from which the Intervenors will be excluded.

But public participation is essential to the justifi-cation for allowing amendment of an FEIS through an agency hearing. In the Limerick licensing proceeding, 232 See supra note 228 and accompanying text.

233 Dominion Nuclear N. Anna, LLC (Early Site Permit for N. Anna ESP Site), CLI-05-17, 62 NRC 5, 35-36, 39 (2005).

234 Id. at 49.

App. 106 the Appeal Board had to determine whether the presiding officers findings and conclusions modified the FEIS in the absence of the agency regulation that had previously required that they be given that effect.235 The NRCs NEPA regulations require a re-quest for public comment on a DEIS and a [57] supple-ment to a DEIS distributed in accordance with 10 C.F.R. § 51.74,236 and on any supplement to the FEIS prepared pursuant to 10 C.F.R. § 51.92(a) or (b).237 The intervenor in the Limerick proceeding therefore ar-gued that NEPAs purpose in providing the oppor-tunity for public comment on an environmental statement [would be] thwarted by board amendment of an [FEIS].238 The Appeal Board disagreed because the licensing boards hearing arguably allows for ad-ditional and a more rigorous public scrutiny of the

[FEIS] than does the usual circulation for com-ment. 239 Given that the opportunity for rigorous pub-lic scrutiny of the FEIS was essential to the Appeal Boards decision that the FEIS could be amended through the hearing process, eliminating such public participation would weaken the rationale of that deter-mination.

If the FEIS violates NEPA and Part 51, the Inter-venors failure to file Contention 23 in response to DTEs ER will not excuse the agencys violation. The 235 Id.

236 10 C.F.R. § 51.73.

237 Id. § 51.92(f)(1).

238 Limerick, ALAB-819, 22 NRC at 707.

239 Id.

App. 107 primary responsibility for compliance with NEPA lies with the Commission.240 The issues here concern the scope of the FEIS and its failure to adequately assess the environmental impacts of a critical component of the Fermi 3 project, basic issues that the Staff must correctly evaluate whether or not they were raised by Intervenors.241 Moreover, Intervenors previously noti-fied the NRC of their concern by filing proposed Con-tention 23 in response to the DEIS. EPA raised the same concern, arguing that the environmental impacts of the transmission corridor should have been evalu-ated as direct effects of the proposed action. And the Board itself raised the same issue in its ruling [58]

holding that the DEIS version of Contention 23 was untimely.242 The Staff therefore had both the legal ob-ligation to correctly define the scope of the FEIS and ample notice that Intervenors, the EPA, and the Board questioned whether the Staff had adequately fulfilled that obligation. Thus, if Intervenors are correct that the Staff should have analyzed the transmission corri-dor as a connected action and that the FEIS is materi-ally deficient, Intervenors failure to file Contention 23 in response to the Applicants ER will not excuse the agencys potential violation of NEPA and Part 51.243 240 New York v. NRC, 681 F.3d at 482 (citing Pub. Citizen, 541 U.S. at 764). Accord Paina Haw., LLC (Materials License Ap-plication), CLI-10-18, 72 NRC 56, 82 (2010).

241 See 10 C.F.R. § 51.29(a)(1).

242 See supra Section I(E).

243 See Vt. Dept of Pub. Serv. v. United States, 684 F.3d 149, 156 (D.C. Cir. 2012) (stating that, in an action under the Hobbs Act for review of an NRC final order, exhaustion of remedies is not a jurisdictional requirement).

App. 108 It would therefore be in the public interest to address the issues now rather than postponing their resolution indefinitely.

III. CONCLUSION For these reasons, the Board determines that sua sponte review of the two issues previously described is warranted and respectfully requests that the Commis-sion authorize such review.

THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Ronald M. Spritzer, Chairman ADMINISTRATIVE JUDGE

/RA/

Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE

/RA/

Dr. Randall J. Charbeneau ADMINISTRATIVE JUDGE Rockville, Maryland July 7, 2014

[Certitificate Of Service Omitted In Printing]

App. 109 Federal Register/ Vol. 80, No. 88/

Thursday, May 7, 2015/Notices NUCLEAR REGULATORY COMMISSION

[Docket No.52-033; NRC-2008-0566]

DTE Electric Company; Fermi 3 AGENCY: Nuclear Regulatory Commission.

ACTION: Combined license and record of decision; is-suance.

SUMMARY

The U.S. Nuclear Regulatory Commis-sion (NRC) is providing notice of the issuance of Com-bined License (COL), NPF-95 to DTE Electric Company (DTE, formerly Detroit Edison Company) and Record of Decision.

ADDRESSES: Please refer to Docket ID NRC-2008-0566 when contacting the NRC about the availability of information regarding this document. You may ac-cess publicly-available information related to this doc-ument using any of the following methods:

NRCs Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.

gov/reading-rm/ adams.html. To begin the search, se-lect ADAMS Public Douments and then select Begin Web-based ADAMS Search. For problems with AD-AMS, please contact the NRCs Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737,

App. 110 or by email to pdr.resource@nrc.gov. The ADAMS ac-cession number for each document referenced in this document (if that document is available in ADAMS) is provided at the end of this document.

NRCs PDR: You may examine and purchase copies of public documents at the NRCs PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Adrian Muniz, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-4093, email: Adrian.Muniz@ nrc.gov regarding safety matters; or Mallecia Sutton, at 301-415-0673, email: Mallecia.Sutton@nrc.gov regarding environmental matters.

SUPPLEMENTARY INFORMATION:

I. Introduction Under section 2.106 of Title 10 of the Code of Fed-eral Regulations (10 CFR), the NRC is providing notice of the issuance of COL NPF-95 to DTE and, under 10 CFR 51.102(c), the Record of Decision (ROD). With re-spect to the application for the COL filed by DTE, the NRC finds that the applicable standards and require-ments of the Atomic Energy Act of 1954, as amended, and the Commissions regulations have been met. The NRC finds that any required notifications to other agencies or bodies have been duly made and that there is reasonable assurance that the facility will be

App. 111 constructed and will operate in conformity with the li-cense, as amended, the provisions of the Act, and the Commissions regulations. Furthermore, the NRC finds that the licensee is technically and financially qualified to engage in the activities authorized, and that issuance of the license will not be inimical to the common defense and security or to the health and safety of the public. Finally, the NRC finds that the findings required by subpart A of 10 CFR part 51 have been made.

Accordingly, the COL was issued on May 1, 2015, and is effective immediately.

II. Further Information The NRC has prepared a Final Safety Evaluation Report (FSER) and Final Environmental Impact Statement (FEIS) that document the information re-viewed and NRCs conclusion. The Commission has also issued its Memorandum and Order documenting its final decision on the uncontested hearing held on February 4, 2015, which serves as the Record of Deci-sion ROD in this proceeding. The NRC also prepared a document summarizing the ROD to accompany its ac-tion on the COL application that incorporates by refer-ence materials contained in the FEIS. In accordance with 10 CFR 2.390 of the NRCs Rules of Practice, details with respect to this action, including the FSER FEIS, Summary ROD, and accompanying documenta-tion included in the combined license package, as well as the Commissions hearing decision and ROD, are

App. 112 available online in the ADAMS Public Documents col-lection at http://www.nrc.gov/reading-rm/adams.html.

From this site, persons can access the NRCs ADAMS, which provides text and image files of NRCs public documents.

The ADAMS accession numbers for the documents related to this notice are:

ML14296A540................................................................

ML12307A172, ML12307A176, ML12307A177, and ML12347A202.

ML14308A337................................................................

ML15120A040................................................................

ML15120A221................................................................

ML15084A160................................................................

Final Safety Evaluation Report for Combined Li-censes for Enrico Fermi Unit 3.

NUREG-2105, Final Environmental Impact State-ment for the Combined License for Enrico Fermi Unit 3.

DTE COL Application - Revision 8 of the application.

Commissions Memorandum and Order on the uncon-tested hearing (Record of Decision).

Summary of the Record of Decision.

Combined License No. NPF-95.

App. 113 Dated at Rockville, Maryland, this 1st day of May 2014.

For the Nuclear Regulatory Commission.

Mark Delligatti, Deputy Director, Division of New Reactor Licensing, Of-fice of New Reactors.

[FR Doc. 2015-11038 Filed 5-6-15; 8:45 am]

App. 114 NATIONAL ENVIRONMENTAL POLICY ACT Statute 42 U.S.C. § 4332 Cooperation of agencies; reports; availability of information; recommendations; interna-tional and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall -

(A) utilize a systematic, interdisciplinary ap-proach which will insure the integrated use of the nat-ural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on mans environment; (B) identify and develop methods and proce-dures, in consultation with the Council on Environ-mental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given ap-propriate consideration in decision-making along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal ac-tions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -

App. 115 (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be imple-mented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of mans environment and the mainte-nance and enhancement of long-term productivity, and (v) any irreversible and irretrievable com-mitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsi-ble Federal official shall consult with and obtain the comments of any Federal agency which has jurisdic-tion by law or special expertise with respect to any en-vironmental impact involved. Copies of such statement and the comments and views of the appropriate Fed-eral, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Envi-ronmental Quality and to the public as provided by section 552 of title 5, and shall accompany the proposal through the existing agency review processes;

App. 116 NATIONAL ENVIRONMENTAL POLICY ACT Regulation 40 C.F.R. § 1508.25 Scope.

Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental im-pact statement. The scope of an individual statement may depend on its relationships to other statements

(§§ 1502.20 and 1508.28). To determine the scope of en-vironmental impact statements, agencies shall con-sider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simulta-neously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be dis-cussed in the same impact statement.

App. 117 (3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences to-gether, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined im-pacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.

(b) Alternatives, which include:

(1) No action alternative.

(2) Other reasonable courses of actions.

(3) Mitigation measures (not in the pro-posed action).

(c) Impacts, which may be: (1) Direct; (2) in-direct; (3) cumulative.

App. 118 ATOMIC ENERGY ACT Statutes 42 U.S.C. § 2133(d)

(d) Limitations No license under this section may be given to any person for activities which are not under or within the jurisdiction of the United States, except for the export of production or utilization facilities under terms of an agreement for cooperation arranged pursuant to sec-tion 2153 of this title, or except under the provisions of section 2139 of this title. No license may be issued to an alien or any corporation or other entity if the Com-mission knows or has reason to believe it is owned, con-trolled, or dominated by an alien, a foreign corporation, or a foreign government. In any event, no license may be issued to any person within the United States if, in the opinion of the Commission, the issuance of a li-cense to such person would be inimical to the common defense and security or to the health and safety of the public.

42 U.S.C. § 2232(a)

(a) Contents and form Each application for a license hereunder shall be in writing and shall specifically state such information as the Commission, by rule or regulation, may deter-mine to be necessary to decide such of the technical and financial qualifications of the applicant, the char-acter of the applicant, the citizenship of the applicant, or any other qualifications of the applicant as the

App. 119 Commission may deem appropriate for the license. In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications, including infor-mation of the amount, kind, and source of special nu-clear material required, the place of the use, the specific characteristics of the facility, and such other information as the Commission may, by rule or regula-tion, deem necessary in order to enable it to find that the utilization or production of special nuclear mate-rial will be in accord with the common defense and se-curity and will provide adequate protection to the health and safety of the public. Such technical specifi-cations shall be a part of any license issued. The Com-mission may at any time after the filing of the original application, and before the expiration of the license, re-quire further written statements in order to enable the Commission to determine whether the application should be granted or denied or whether a license should be modified or revoked. All applications and statements shall be signed by the applicant or licensee.

Applications for, and statements made in connection with, licenses under sections 2133 and 2134 of this title shall be made under oath or affirmation. The Commis-sion may require any other applications or statements to be made under oath or affirmation.

App. 120 ATOMIC ENERGY ACT Regulations 10 C.F.R. § 50.10 License required; limited work au-thorization.

(a) Definitions. As used in this section, construc-tion means the activities in paragraph (a)(1) of this section, and does not mean the activities in paragraph (a)(2) of this section.

(2) Construction does not include:

(vii) Building of service facilities, such as paved roads, parking lots, railroad spurs, exterior utility and lighting systems, potable water systems, sanitary sewerage treatment facilities, and transmission lines; (b) * * * ;

(c) Requirement for construction permit, early site permit authorizing limited work authorization ac-tivities, combined license, or limited work authoriza-tion. No person may begin the construction of a production or utilization facility on a site on which the facility is to be operated until that person has been is-sued either a construction permit under this part, a combined license under part 52 of this chapter, an early site permit authorizing the activities under par-agraph (d) of this section, or a limited work authoriza-tion under paragraph (d) of this section.

App. 121 10 C.F.R. § 50.57. Issuance of operating license.

(a) Pursuant to § 50.56, an operating license may be issued by the Commission, up to the full term au-thorized by § 50.51, upon finding that:

(3) There is reasonable assurance (i) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public, and that such activities will be conducted in compliance with the regula-tions in this chapter; and (4) * * * ;

(5) * * * ;

(6) The issuance of the license will not be in-imical to the common defense and security or to the health and safety of the public.