ML18108A500
| ML18108A500 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 05/23/1977 |
| From: | Hodder M - No Known Affiliation |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| Download: ML18108A500 (36) | |
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ED S TATES OF AMERI CA NUCLEAR REGULATORY'OM'MI'S'SI'ON rare ATOMZC SAFETY'ND LI'GENS'I'NG APPEAL B'OARD yp p >o7p tl r Michael C. Farrar, Chairman Ciy .. ~ .rr, Richard S. Salzman Dr, W. Reed Johnson II
~
1'n
)
the Matter o f )
)
FLORIDA POWER 6 LIGHT COMPANY ) Docket No, 50-389 (St. Lucie Nuclear Power Plant, )
Unit No. 2) )
),
INTERVENORS MOTION FOR STAY PENDING APPEAL AND MOTION FOR ORAL ARGUMENT Intervenors motion, pursuant to 10 CFR 2.764 and in accordance with the good cause requirements contained therein, that the Atomic Safety and Licensing Appeal Board stay the effectiveness of the Initial Decision issued April 19, 1977 to the extent it allows issuance of a Construction Permit for the proposed facility until this Appeal Board and -the Commission have reviewed and decided Intervenors exceptions regarding the adequacy of the alternative sites review and need for power as stated in Intervenors Exceptions to Initial Decision filed April 27, 1977, prusuant to 10 CFR 2.762.
The Office of Nuclear Reactor Regulation issued a construction permit,to the Applicant utility Company on May 2, 1977 authorizing construction of the St. Lucie Nuclear Power Plant, Unit 2, on Hutchinson Island.
I'ntervenors further motion pursuant to 10 CFR 2.755'that they be granted on an expedited basis, an opport'unity to present oral argument on their motion for stay and, further, that in any event this Board issue a stay until said argument on motion has been heard or at the barest minimum restrict pendente lite work activity including assembling workers on site which the applicant may pursue under their authority (See Public Service Commissinn of New Hampshire et. al. Seabrook Station, Units 1 and 2, ALAB-.338, July 14, 1976 NRCI-.76/7 at ll. Upon information and belief the utility company is in the process of assembling construc-tion workers at the site and intends to have work fully resumed by the end of May 1977.
~ h "A meaningful num er of workers will be ons te by the end of the month."
.,Gene Van Curen, FPL Manager Stuart, Fla, Palm Beach Post Times, Sat. May 21, 1977.
Intervenors have previously filed on April 27, 1977 a Motion for they interpreted the Seabrook case (supra) to require "that in accordance with prevailing federal judicial practice, as stay pending appeal must initially be sought from the trial tribunal unless it .is not practicable to do so;"
"Fe adhere to the view reflected in those decisions that normally a party should look to the Licensing Board for a 'stay pending appeal before coming to us."
-.Public Service Company of New Hampshire Seabrook <Station, Unit 1 and 2 ALAB-,338, NRCI'6/7, at 12, On April 27, 1977 Intervenors counsel was without knowledge that ASLB Chairman Edward Luton, was at that time unavailable, Upon infor-mation and belief Mr, Luton first received Intervenors Motion for Stay Order and companion Motion for Ex edited Decisional Procedure on May 3, 1977 since he had Previously been in attendance at hearings on the Three Mile Point Nuclear Power Plant. In a telephone conference call with the parties, on May 3, -1977, Mr. Luton pointed out to Intervenors counsel that since the CP had been issued the previous day (May 2, 1977) some amendment of the wording of Intervenors'otion might be required.
INtervenors thereupon filed Intervenors Amended Motion for Stay Order dated May 5,feeling 1977.
Intervenors in seeking their motion for stay did not extensively brief their mo't<en for stay because their counsel'r'iginally prepared as a precautionary measure on rather short notice and also because was his that, unliRe'his. Appeal Board, the Licensing Board I't having just reviewed tFie testimony in this case and the pleadings of th.'e. Intervenors was charged wit% tFi.e know-ledge o f the conflicts exist-.
ing in tFie NRC S'taf f 's case wkicFi. Iatervenors. undertake to brief in I
some detail Berein and in thei'r accompanying Brief. og Exceptions to I(
the Alternative site review.
On May ll, 1977 the 'AS'LB is;gued an Order denying Intervenors. <
Motions for Stay wM'ch. was. f irs.t re.c'e'fyed By Intervenors. counsel on I
Saturday, May 14, 1%77.
Although. tBe construction permit has been issued, an Atomic Safety and Licensing Appeal Board:
"remains 'fully empowered to suspend the effectiveness of the constructton permit or to restrict pendente lite the activities which the applicants may pursue under their authority,"
-Public Service Company of New Hampshire, Seabrook:;
Station supra foot note 1, at 11.
This Board has previously held in the Seabrook case (supra) that:
"It is well settled that, in "determining" whether good cause exists for staying under 10 CFR 2.764 the effectiveness of an initial decision, we apply the criteria established by the Court of Appeals for the District of Columbia Circuit in its land-mark decision in Virginia Petroleum Jobbers association v. Federal Power Commission, 259 F.2d 921, 925 (1958) ." Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1),
ALAB~192, 7 AEC 420 (1974), and cases there cited. See also e.g.
Southern California Edison Co, (San Onofre Nuclear'enerating Station Units 2 and 3), ALAB-199,7 AEC 478, 479 (1974); Diablo Canyon, ALAB~320, supra. Those criteria are; (1) Has the movant made a strong showing that to prevail on the merits of its appeal?
it is likely (2) Has the movant shown that, without such relief, irreparably injured?
it will (3) Would the issuance of a stay substantially harm other parties interested in the proceeding?
(4) Where lies the public interest?"
wALABw338 NRCX 76/6 P 13.
LIKELIHOOD OF PREVAILING ON THE MERITS The Intervenors are likely to prevail on the merits as a matter of fact as well as a matter of law because the Initial Decision of the Atomic Safety and Licensing Board (ASLB) is based upon testimony that is conflicting and misleading as it relates to certain vital elements of the alternative site review. Specifically the Atomic Safety and Licensing Board (ASLB) ruled:
"This time, actual visits to several specific sites were made by the Staff evaluators. Particularly, the proposed site at Hutchinson Island; and sites known as DeSoto, South Dade, Martin, Slerno, and Juno Beach were inspected on August 17>>18, 1976, by aerial survey, on-site examination, or both. The availab'le technical literature concerning each of these places was re-viewed and characteristics of each of the sites were discussed with the Applicant's personnel. A detailed comparison of the proposed St, Lucie No. 2 site to each of the other sites in-.
vestigated is contained in Table 2, Testimony of J. R. Young, November 1976, pp. 19. 21 (following TR 5443.)
. Staf f ~itnesses have given testimony about each of the sites as viewed from the witness'wn field of expertise. This testimony covers terres~
trial and aquatic ecology and hydrology. (Testimony of Frank B.
Hungate, Site Alternative Analysis Update; Testimony of NRC Re.
gulatory Staff by Duane E. Fickheisen; Testimony of Robert G.
Baca on Hydro'logical Aspects of Alternative Site Analysis Up-date; following TR 5443),
-.Initial Decision ASLB 4-.19-.77 p.l6 This ASLB finding relies upon testimony fbi John R. Young of Battelle entitled Supplemental Testimony of SKO.'.Stp'f'f.'.:ia on Alternative Sites
,Evaluation. This Young testimony as relied upon by'ASLB is simply not
~
confirmed by the whole. transcript and indeed is controverted by the
'-statements on cross examination of the members of his Technical Team.
The Applicant cited and relied upon this misleading su lemental testi-
~mon gaby John R. Young (supra) in supporting their successful argument opposing granting .InteTveners Moti'on f'or< a'S't'ay 'Ocd'er before the Licens-ing Board. See A licants Res onse in 0 nosition to Motion for Sta Order filed filed by the Applicant the 29th of April, 1977 before the ASLB, which stated in part; "Criticism number 7 is that the Batelle reviewers lacked familiarity with available technical data relating to alter-.
native sites. However, the movants entirely ignore the consider-able amount of literature concernigg the alternative sites which was reviewed before the site visit. This included.:
4
1.
0 0 "Florida Po~er & Light Company Response to State of Florida Power Plant siting Act, 1976-1984," submitted to Department of Administration, Division of State Planning, April 1, 1975.
- 2. "Coastal Site Study Gar Florida Power & Light Company,"
Brown & Root, Inc., November, 1975.
- 3. Brochure, "DeSoto Site, April, 1976," Florida Power & Light.
This brochure contains aerial photographs of the DeSoto site, Pearl Rive'r, Hardee Site,"and transmission corridor from Miami
~
to size; sketches'f propos'ed'acilities; location maps; and general da ta sKe'e't,
- 4. "DeSoto Plant Initial Site Information," Florida Power
& Light Company, 1976, Brown & Root, Inc.
5 ~ "Inland Florida Cooling System Study," Florida Power &
Light Company, 1976, Brown & Root, Zhc,
- 6. "South Dade Plant Initial Site Information, .June 1975, "Florida Power &
N Light Company.
- 7. "South Dade Project, Summary Report on Site Development",
Florida Power & Light'Company, 1976.
- 8. "Martin Plant Environmental Impact Statement," Florida Power & Light Company, February, 1973.
- 9. Letter, R.S, Cleveland to V.A. Moore, "South Dade Site-Florida Power & Light: January.28, 1976 Briefing by Florida Power
& Light on Use of Floridian Aquifer for Make up for Cooling System,"
February 12, 1976.:
addition, they had available'o them the backgound of their 1973
'n evaluation which included the Enviro'nmental Reports for both St. Lucie Units 1 and 2, and FES for St. Lucie 1. In addition, appropriate descriptive material for Southern Florida had been studied. (Initial Decision pp. 6-7, paras, 8 and 9.)
Pith this backgound the contention that the 1976 site review "was cursory and of too few days duration" is without merit, This becomes particularly evident in view of the fact that the trip was made by Mr. Lynch, the'NRC Environmental .Pro]ect Manager, an experienced health physicist, ( See professional qualifications of Oliver D.T.
Lynch, Jr., follows TR 4572) and Messrs'. Hungate, Baca and Fickeisen, experts in the fields of terrestrial and aquatic ecology and hydrology....
The qualifications of each are set out following ZR 5443. As a result of .the visit it was possible for the team to prepare a table making a detailed comparison of the Hutchinson Island site with the DeSoto, South Dade, Martin, Salerno and Juno Beach sites, taking into account, among other things, aquatic and terrestrial biological impacts, seismic conditions and costs. In addition, they updated and corrected previous information relating to cooling water availability and liquid waste dis-posal. (See Supplemental Testimony of John R. Young and testimony of Messrs. Lynch, Hungate, Baca and Fickeisen, all following TR4443.
Consequently, while the visit to the other sites may be considered brief+/,
it cannot be said .to have been cursory."
applicants Response in Opposition to Motion for Stay Order April 29, 1977 pp.11-.13.
+/ Intervenors are gratified to note that at least the Applicant concurs in Intervenors belief that NRC alternative site review was brief in duration
P In support of t r Motinn for Stay Interv iors had originally raised 8 points in areas where they were likely to prevail on the merits:
"1. That said site review was cursory and of too few days duration.
- 2. That said site review was inadequate, since John R. Young, the Team Leader testified such reviews were "almost window dres-sing. TR 5613 3~ That detailed studies of distribution or exact location of populations or milk producing animals within a 50 mile radius of the alternative sites were not performed.
- 4. That hence, no radiological dose calculations were performed for populations'residing within a 50 mile radius around any al-ternative site.
5, That no evacuation feasibi'lity studies were performed for any alternative site or compaired sufficiently with'utchinson Island.
- 6. That no meteorological studies were performed at the Martin site.
- 7. That as late as the date of the December 1976. site review, when site review hearings began the Batelle reviewers still lacked familiarity with the availab'le technical data conceiving the alternative sites such as. the South Dade studies and the Martin Environmental Impact Statement (EIS),
- 8. That any subsequent site review such as that of August, 1976 should have been performed by a reviewer, independent of Batelle since the quality of the Batelle methodology was being challenged at that time."
-Intervenor's Motion for Stay Order, dated 4-27-77, pp2-3.
As a sample demonstration to this Appeal Board of the quality of their case, I'ntervenors will in this Motion, brief in some.:detail show why items No. 1, 2 and 7 of their earlier Motion for Stay before the ASLB should have been ruled in their favor. The remainder of the Inter-venors argument will be briefed in their accompanying brief of Excep-tions which they here incorporated by reference.
The NRC Staff case relies upon the Su lementar testimon of JNRC gta7f,':i" on Alternative Sites Evaluation prepared in November 1976 8'2IB filed and attested gP.'. John R; youngjn testimony on< Pr'ida 7
af ternoon Bec. 3, 1976, That testimony states among other things thatl
."A re-evaluation of alternative sites was made during August 1976.
A second site visit was made in August 1976 and included aerial and
ground inspection of specific alternative sites to assure thatof the no hetter alternative sites have been identified since issue FES and to assure that the FES analysis is currents This supplemen-tal testimony summorizes the results of that re-evaluation".....
-Supplementa3.~ Testimony of .~onS'tafgou"..<: on Alternative Sites follows TR 5443 at p. 3.
Included with the Young testimony is testimony of the four other individuals as Batelle Team members. They are Messrs. Baca, Hungatef Fickeisen and Sandusky. The Young testimony goes on to state at page 12 that:
"Available literature describing alternative "'power .plant sites in southern+Florida was obtained and reviewed. The s ecific documents 26v'iewed*were:
(1) "Florida Power & Light Company Response to 6tate of" Florida Power Plant Siting Act, 1975-1984," Submitted to Department of Administration, Division of State Planning, April 1, 1975 "Coastal Site Study for Florida Power & Light Company," '2)
Brown & Root, In., November, 1975.
(3) Brochure, "DeSoto Site, April, 1976," Florida Power &
Light. This brochure contains aerial photographs of the DeSoto site, Pearl River, Hardee Site, and transmission corridor from Miami to site> sketches of proposed facilities; location maps; and general data sheet.
(4) "DeSoto Plant Initial Site Information>" Florida Power
& Light Company, June, 1975.
(5} '"I'nland Florida Cooling System Study, Florida Power &
Light Company, 1976, Brown & Roote, Inc.
(,6) "South Dade Plant Initial Site Information, June 1975,"
Florida Power & Light Company.
(7) "South Dade Pro)ect, Summary Report on Site Development,"
Florida'Power & Light Company, 1976.
(8) "Martin Plant Environmental Impact Statement," Florida Power & Light Company, February, 1973.
(9) Letter, R. S. Cleveland to V.A. Moore, "South Dade Site Florida Po~er & Light: January 28, 1976 Briefing by Florida Power
& Light on Use of Floridan Aquife'r for Make-up for Cooling System,"
February 12, 1976.
.Supplementa1 Testimony of NRC Staff on Site Alternatives Evaluation Testimony gy John R, Young pp 12-13.
This language seems to imply that all members of the Battelle Team reviewed the "available literature", listed above. If such an inf erence was drawn by the ASLB, it was an incorrect one.
It is significant to note that a day af ter the Young testimony which was dated November 1976 and came into the record on December 3, 1976 and almost four months af ter the alleged August 1976 site review, the Battelle PNVL Technical Team Members testified they had not seen the Martin Site Environmental Impact Statement EIS (item 88 of "available Su lemental Tes timon . Besides Mr. Young there. were four members of the Battelle Team and here is what they said:
FRANK HUNGATE Frank Hungate of Battelle, the Terrestrial biologist testified as follows:
Q. Did you see the Martin Environmental Impact Statement dated February 1973?
A'. I hav e When did you first see it sir?
A. Last Night.
Q. Have you seen any .thingelse about any other site that is any-other alternat e sites that you visited August 17 and 18, 1976?
N A.. No.....,. .Frank Hungate Dec. 4, 1976 PM Tr 5673.
Indeed Mr. Hungate admitted at later hearings he hadn't drawon any cost benefit comparison on the Martin Site versus St. Lucie, By Mr, Coll; "Is the fact that the Martin Site has been prepared and cleared for fossil plants and (SIC) economic advantage when compared t'o the site preparation which has occurred at the St. Lucie site for a nuclear unit'?"
A. (By Dr. Hungate) Is it an economic advantage?
For the Martin site?
A. I really havent (SIC) in the economics, of the advantages one versus the other."
-Frank Hungate TR 6000 Dec. 16, 1976 AM.
These responses nearly four years after the Martin EIS was published and two and one half years a'fter the FES for Unit 2 and almost six months after the ALAB-335 Decision of June 29, 1976 and remand is not only typical of the lack of effort of the Battell'e reviewers butcontradicts the implication of the Young statement that available literature on alternative sites was reviewed.
Mr. Hungate then went on to justify his position in favor of the Hutchinson Island site l'.even though he had just admitted he had reviewed no data on any other alternative site) on 'the basis of the existing site pieparation on Hutchinson Island in conjunction with Unit 1.
DUANE FICKEISEN The same question was aked of Mr. Dnane 'Fickeisen, the Battelle aquatic biologist, on Dec. 4, 1976 PM.
Q. The Martin Environmental Statement dated Feb. 1973. %en did you first see that Sir?
A. Two days ago.
Q. Two days ago?
A. Yes That mae after yon prepared this testimony?
s A. That is correct.
~
Indeed, when asked what data was providdd to Battelle or the NRC on alternative sites Mr. Fickeisen could not identify any. This '.s again contrary to and contradicts .'he suggestion in the Young testimony that such available alternate site lit'erature had been reviewed.
Q< << << ...,Eave you analyzed any specific data such as you just described at any of the alternative sites since May 1974?
A; No, I have not,
~Duane H. Fickeisen Dec. 4, 1976 PM.
See also generally TR 5663-5666 where Mr. Fickeisen references only oral communications of the applicant's personel during the helicopter over flights of alternate sites on August 17, 18, 1976, concerning characteristics of the alternative sites, and is unable to cite any of the nine documents listed on p. 12~13 of the Nov, 1976 Young Supplemental Testimony, with'the sole"exception of the Martin EIs which he saw for the first time "two days ago", which was brought to his attention no doubt by Intervenors'ounsel.
, It was not necessary to cross examine Mr. Fickeisen to prove he had seen no technical data since he had stated in the Nov. 1976 Supplemental testimony filed on Dec. 3, 1976:
"Base line environmental- data was not available for any case other than the proposed site, consequantly, my conclusions are based on professional )udgement rather than a rigorous analysis of detailed designs'r an extensive review of environmental studies."
-Testimony of NRC Regulatory Staff on alternative site analysis Duane H. Fickeisen p. 1 follows TR 5443 This testimony apparently was prepared as Kate as November 1976 and filed on Dec. 3, 1976 PM WILLIAM F. SANDUSKY I
Mr. William F, Sandusky, the third Battelle PNWL team member, had responsibilities including meteorological analysis and support for con-sideration of alternative sites. Yet surprisingly, on Dec. 4, 1976 PM he testified he had never visited any of the alternative sites or parti-cipated in the August 1976 alternative site review. On cross examination by Intervenors'ounsel he stated:
Q. "Then there was a helicopter ride around alternative sites on August 17 and 18, 1976. I am asking you which one were you on?
A. I was,not on the second site visit.
Q. You didn't go for the helicopter ride?
A. Right. I base that information on telephone conversations I have had with FPL personnel........."
-William F. Sandusky TR 5561 Dec. 4, 1976 PM.
When asked about whether he had reviewed any meteorological data on the alternative sites, although he knew the applicant'as acquiring me-teorological data at South Dade(TR 5652), Mr. Sandusky testified:
Q," Did you ever obtain any meteorological data fr'm the Applicant on any other site other than DeSoto?
A. No, I did not."
-.William F, Sandusky TR 5653 Dec. 4, 1976 PM.
It appears from Sandusky's testimony that not only did he not participate in the subsequent alternative site review during August 1976 but that he too did not revie~ any of the "available literature" on the alternative I
sites that the Supplemental Tastimony B> John R. Young filed Dec. 3, 1976 indicates had been reviewed by the Battelle PNWL team.
ROBERT G ~ BACA The fourth member of the Battelle PNWL team was Robert G. Baca whose testimony was designed to:
"Provide supportive information related to the alternative sites Anal sis update presented in the testimony of Mr. John R. Young."
- Em hasis Su lied
-Testimon of Robert G. Baca Hydrolo Aspects of Alternative site Anal sis u date filed Dec. 3, 1976 follows TR 5443 p. l.
This testimony is short consisting of about two pages. It is base on "general visual inspections." (Baca Testimony Supra P. 2) and references no review of "available literature" as suggested by Mr. Young.
The hearings were adjourned Saturday, Dec. 5, 1976. Ten days later 'n Wed, Dec. 15, 1976, cross examination of the Battelle and Staff witnesses was resumed. It should be pointed out that by this time all the Battelle team members would now testify that they had now seen the Martin EIS in the past few days. See TR 5936-5938 generally. But the point is, that I
with the exception of Mr. Young, they had not seen the Martin EIS until was brought to their attention in early December 1976 by it.
Intervenors'ounsel and their testimony had be'en prepared before they saw See Objections of Intervenors counsel at TR 5938 which was overruled.
How a review of the Transcript of the resumed hearings from pages 5770<<.5780 on Wed, Dec, 15, 1976 demonstrably shows that even after this 10 day hearing break in med-December 1976 the vast bulk of the nine documents described as "available literature and listed as having been reviewed in Mr. Young's'ovember 1976 Supplemental Tes t imony had even" then escaped the notice, consideration and review of each one of the-Battelle Team members besides other than Mr. Young Here are excerpts from the transcripts of that Dec. 15, 1976 hearing; YOUNG Q, " Was that request ever complied with?
s A. We were given information during that site visit, for instance, we were given the Martin Environmental Impact Statement; we were given brochures on the DeSoho site, on the Sleuth Dade site.
Q. Was Mr. Hungate with you on that site visit?
A. In August of 1976?
Q. Yes,, August of '76.
A. Yes.
He testif ied the first time he saw the Martin Environmental Impact Statement was about December 8, of this year; was there any reason for his not showing that to your terrestrial biologist: ?
A. No.
Who saw the .impact statement, just you or other members of your team?
A. I had it and I thought I told the members of the 'team that I had it, but apparently I did not, Q. Do you think it is important that they see it in performing their update of the alternative site analysis?
A. I think that each one of them would have to answer that, because they are the ones that have reviewed it since that time to see if it had important information.
Q, How can they revie~ it if they don't have it to review?
A, They saw it within the last two weeks.
Q. What you a'e saying is that they have seen: it, subsequent to their filing of their prepared testimony at these hearings, A. Right, TR. 5771-.5772 Dec. 15, 1976 HUNGATE Q. Mr. Hungate,'id you do any additional site evaluation subsequent to August 17 and 18, 1976 when you returned to Washington state, or the State of Washington?
A. (By Mr, Hungate) In terms of preparing the testimony that was submitted, yes, Q, Did:you review any data submitted to you'y anyone as a basis for any new data, as a basis for your update of your testimony?
A, Not'n terms of data, I'erely reconfirmed in terms os the site> the specific site visits. That was merely visual reinforce-ment for a conclusion that had been made earlier. The basis for this was derived from the work done on St. Lucie 1 and on St. Lucie 2.
Is it your testimony, sir, that you did new data subsequent to August 17 and 18 not avail yourself of of '76?
any A. That is correct.
Q, Did you avail youself of any new data subsequent to June of 1974?
A. I guess I am a little hazy by what you imply by "new data."
Q. Well, you testified that first time you saw the Martin Environ~
mental Impact Statement was the evening of December 8,'76, the night before I asked you about it.
A. That paxticular document, correct.
Had you seen the DeSoto, anything on the DeSoto site or the South Dade site?
A. No, not specifically the documents.
Q, Have you ever seen anything on South Dade or DeSotoY A. I have never seen anything specifically. I have not been totally without access to knowledge of those sites."
TR 5773-.5775 SANDUSKY
- 0. "How about you, Mr. Sandusky, have you done any meteorological subsequent to that one you performed for the June 1974 FES 'eview for Unit 2, aside from the site visit and looking at maps that Mr.
Young had described which took place on August 17 and 18, 1967?
AD (By Mr, Sandusky) Well, first of all, I was not on the site visit of August of this year.
Q. Okay.
A. I revie~ed certain information before I prepared hy affidavit og November 197.5, g, ~
Did you Fiave availai'le 'to you any sp'ecif ic data such as the Environmental Impact S'tatement on. the Martin Site, or any environ-mental 'repox ts or otB.er data prepared. for either SouthDade or DeSoto sites at the time you updated'our eaxliex testimony for presentation at this hearing?
A, Well, I'evex have updated'y affidavit of November 1975, and before I'repared that affidavit I'id.not see the Martin Environ-,
mental Repoxt, Q. Vhen was the first time ~u saw that?
A, Two or three days prior to, us being pl'aced on the stand..
Q, I'n other words, you first saw 'it at these hearings; is that not true?
A. Right. -Tr 5775-5776
~%13~
ESCA Q. "Mr. Baca, have you reviewed any data on the Martin site, the South Dade site, the, DeSoto site or any other alternative site subsequent to that review you performed for the June '7l FES for Unit 2, and I should say, in addition to what you did on your site visit of August 17, and 18, 1976?
A. (By Mr. Baca} No. sir.
Q, When you made the site visit on August 17 and 18, 1976, Mr. Baca, did you do anything more than visit the site and look at maps of them?
A, Yes. I think following the visit, returning to Battelle, I consulted standard sources of data on flow rates of various rivers, Q. Was this done, sir, after you returned to Washington?
A. Yes." -Tr. 5776 5777 FICKEISEN Q. "Mr. Fickeisen, when you visited the alternative sites for St. Lucie 2 on August 17 and 18, 1976, did you do anything more at that time than look at the alternative sites and maps.
A.. (By Mr. Pickeisen) Well, we discussed aspects of the site with members of the Applicant's staff during that site visit.
Mr. Hodder: Have you nsed any data to update your original efforts as representative of the FES, for Unit 2, dated June 1974, since the publication of that PES, to the, present time; and I want to reference you to such things as the South Dade or the Martin environmental impact statement , and whatever data mig'ht or might not have been available to you for the DeSoto site?
Mr, Fickeisen; I used only the information which was gathered during that site visit on August 17th and 18th.
Mr, Hodder: When you made the site visit, did you see the environ-.
mental impact statement for the Martin Site?
Mr. 'Pickeiseni I don't recall that I did or did not, Mr, Hodder; Woold it be fair to say that you then did not use it in preparing your updated testimony?
Mr. Fickeisen'That's correct.
Mr. Hodder: How about the, any reports to the South Dade Site, have you ever seen any of them?
Mr. Fickeisen: No. I have not.
Mr. Hodder: I am holding up here a summary report on site develop-ment for the South Dade Site, dated 1976 by FP&L; have you ever seen it before?
Mr. Fic'keisen, I have not, no.
Mr. Hodder'. Have you seen any data or information on the DeSoto Site?
Mr. Fickeisen: No, I have not.
Mr. Hodder: I'm holding up here the Florida Power 6 Light Company's ten~year po~er plant site plan submitted to the State of Florida, April 1, 1976; have you ever seen this document?
Mr. Fickeisen; No:
Mr, Hodder; Have any of you gentlemen, Mr. Baca, Mr. Fickeisen, Mr.
Hungate, Mr. Sandusky, ever seen this document?
(Negative response.)
Mr. Hodder: Have any of you ever seen the South Dade project, dated 1976?
Mr. Sandusky: I have.
Mr, Hodder; Let the record reflect that Mr. Sandusky indicates he has seen it,"
~TR5777~5779 Dec. 15, 1976 Even at this late hour Mr. Young was unable to profess any in-depth familiarity with the Martin EIS:
A." (By Mr. Young) I first received that document in August of this year,,at the tiem of our site visit and that is the first time it I looked at in detail,"
it, read it, browsed through it. I did not read
~John R. Young Tr. 5930-.5931 December 15, 1976, The Zntervenors have regretted the length and emtensive detail, of
'his narrative but they feel was necessary to prove no alternative site it data was reviewed by the Staff. Intervenors would further refer the Board to the first portion of the argument in their brief as it capsules this point and ita significance to tke entire 'case, Xt is of final significance to note that the ~gn lemental Testimony Z24%X3'-.'0; tVOtlQ. ough33OX. t528"-. akgQ5e5'C",i5." e5tTZ'le'dD "Sun lemental Tes timon of NRC Staff on Site Alternatives Evaluation"aa.,.sprepared by John R. Young't is not entitled the "Su lemental Testimony of Joh R. Youn etc". The distinction is fine but of somelimportance to the Intervenors'ase.
-.15-.
CURSORY REVIEW The Applicant in its sucessful op'position to Intervenors Motion for Stay Order argued after citing the '"consideraBle amount of li..terature" referred to earlier)
"In addition they. had availaBle 'to them the Eackgound of their 1973 evaluation which included Environmental Reports for both St. Lucie Units 1 and 2 and the FES for Lucie l."
-Applicants Response in Opposition to Intervenors Motion for Stay Order, April 29, 1977.
This however was not entirely true since Mr. Young testified that his notes and material for the earlier review had been destroyed:
Chairman Luton: "Something was written down, is that right?
Witness Young: But these were destroyed about one year ago, so I had to redevelop some of that information but this type of in~
formation was destroyed because its thetype of information that you develop in a matter of five minutes by looking at maps and known characteristics."
~John R. Young Tr. 5610 lines 7-12 Apparently five minutes is the time Mr. Young dedicated to preparation
.of a comparison of alternative sites for the proposed facility beyond that data provided by the Applicant which he apparently declined to share with his other Battelle PNWL team members. When questioned by Dr. Hooper, Mr, Young indicated that the notes were the basis for his"final report."
DR. HOOPER:
these right Let now me see if I really understand.
in ten minutes, all your notes?
Could you develop WITNESS YOUNG; Yes, just by looking at maps. If you look at the informat'ion on page 8 in our last testimony you can look at a map or look't the information that is available in the Environmental Report or i5 the FES and you can develop every one of these just from knowledge of Southern Florida, use of a highway map-..that type of information. There's nothing difficult about developing this information.
Now the problem here I can see is that I do this routinely on a daily basis. This is my expertise. I have done literally hundreds of site alternatives analyses and I can-'turn out data like this one on" any site in a very minimum time, so I do not keep records.
DR, HOOPER; It W'ell, I don't unders.tand how. you can do seems to me you mould need a computer and about 20 itstaff in five minutes assistants
'to do ~ ~ ~ ~ ~
~Tr. 5611, lines 4~22
Mr, Young then candidly told the Board what he thought about site visits;
...,"But as a general rule, many of these site visits are almost window dressing."
-John R. Young Tr 5613 When asked about the site visit of August 17, 18, 1976 Mr. Young said:
BY MR. HODDER; Q. May I ask you if you consider that your other August 17 and 18 of 1976 were also window dressing site visits on to the other alternative sites?
A. (Witness Young) Partially, Ve did have information on the South Dade site and it's always convenient to visit the site to be sure the information is correct.
Well, that's just it. I beg to differ with you.
Isn't it true if you visit the site you might see a cooling pond there. or the people, the tourists in their Winnebagos there.
A. Oh, yes.
it's If you Q,
really troubled yourself to more than window dressing?
visit and look, don ' you think A. I said in in all some cases it's almost window dressing. I didn' say cases.
John R. Young Tr. 5613-5614 lines 21 10 Intervenors, in their concern about this type of review, urge each member of the Appeal Board Panel to read the testimony in the actual Dec, 4, 1976 P.M. transcript to become acquainted with the attitude of this man and this Battelle Agency charged with the responsibility for the health, welfare and safety of the millions of people around any nuclear reactro site to be'eviewed by Battelle. This attitude should be changed.
SEABROOK DECISION There has been a recent decision in the Seabrook Case. At page 29, the Commission stated in setting aside an Appeal Board Stay:
"Were it generally applicable~ a matter disputed by both staff and applicants-.-the approach suggested by the court's order in the Hodder case would seem to require suspension of outstanding construction permits whenever the NEPA requirement of consideration of alternate sites was found not to have been met. We do not need to decide whether that approach is applicable here."
~ln the Rnatter of Public Service Company of New Hampshire, et, al.
Seabrook Units 1 and .2 NRC Dockets 50,-443 and 50-444.
The Commission disting shes in foot note 19 the odder (St. Lucie)
Case from Seabrook:
"We note that there 'are 'ma]or d'ietinctions Between the Hodder case and this case. In particular, in Hodder the Appeal Board found that the FES treated the alternate site analysis in a "cavalier and misleading fashion" which appeared to reflect significant failures of effort by responsible parties. Florida Light and Power Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, NRCI 76 6 at 830,, 839 .40 (1976) . Here, the problem arises from the Licensing Board's statements regarding closed-.cycle acceptability and EPA's unanticipated about-face."
-Seabrook (supra)
Apparently where a"cavalier" and "misleading" analysis is found to exist or Herniae a stay pending appellate reviewmay be granted, the decision in Seabrook .supra not withstanding.
IRREPARABLE HARM Interveno'rs would experience irreparable harm to the environment in which they live if this construction were to begin at this time at the Hutchinson Island Site. The Intervenors are representative of the many persons that might incur harm in the event the proposed facility is built on Hutchinson Island.. Intervenors, E, Gardner Prime and Valerie Prime, reside at 168 Riverside Drive, Stuart, Florida which is by the Applicant's own estimate'approximately 10 miles" from the proposed plant site. This is certainly close enough to be benefited by the moving of the proposed plant wZQh its attendant radioactive emissions and risk of accident to a sparsely populated site in southwest Florida even if no other Intervenor were so benefited. Clearly'the farther away from population centers the greater the reduction of risk of all forms to an Intervenor be he one in Stuart such. as the Primes ten miles away or one such as Hodder 100 miles away in Miami, There is a need to recognize that like the many tourists and residents in the area, the Primes as well as the other Intervenors own automobiles and therefore, posess mobility and might be expected to visit the Hutchinson Island Beaches, marinas, resort motels, camp grounds. Travel Trail'er Parks, residences of friends be they single family or condominium all of which land uses abound on Hutchinson Island in close proximity to the proposed plant site. Verily, development and land uses on the island are in-creasing at a ever greater frequency with cap'acity crowds reported in all resort motel and camp grounds. It has been not mentioned lately, but conceivably even the sea turtles and oth'er minutenance might suffer unnecessary adverse effects if additional construction is permitted at
the Hutchinson Islan te when it has not been ly determined that this is the best site as required by the National Environmental Policy Act of 1969. The Applicant has argued in this case,'s Applicant utilities do, (See Seabrook NRCI'6/7 at 15)that no dire environmental impact will occur and hence activities confined to a 50 acre site can have no adverse effect on Intervenors.
But this technique is not unknown and was condemned by the Court in Calvert Cliffs. It is known as incremental rule making. To the extent the Applicant'alleges,their investment in Hutchinson Island forecloses consideration of other alternative sites in the present, Judge Wright addressed and resolved that issue .quite clearly in Calvert Cliffs, when he wrote:
"In order that the pre-operating license review be as effective as possible, the Commission should consider very seriously the requirement of a temporary hall in construction pending its review and the"backfitting" of t'echnological innovations. For no action ~hich might minimize environmental damage may be dismis-sed out of hand. Of course, final operation of the facility may be delayed thereby. But some delay is inherent whenever the NEPA consideration is conducted--whether"before-.or at the license proce-edings, ~'Y t<'i's 'f'ar'ore~'co'ne'i's't'en'tit'h 'th'einur uses> ofi the~ Adt, to dela o eration at a sta e ~here real environmental rotection ma come about than at a sta e where corrective action may be so costi .as to be im ossible.* Thus we conclude that the Commission must go further than it has in its present rules.
- Em hasis Sun lied Calvert Cliffs Coordinatipg Committee v. U.S.
AEC 449 F 2d at 1128.
PUBLIC INTEREST It is in the- best interest of the consumers and rate payers of the State of Florida that issues as basic as the one of site selection be fully resolved before the utility company'e again allowed to begin constructinn at a site that may not be the most suitable of the available alternative sites. Normally a private investor-owned utility company uses money derived either directly or indirectly from its stock holders and lenders for new plant construction. Such may not be the case for Florida Power and Light Company. That Company has recently filed for a
$ 349 million dollar rate increase with the Florida Public Service Comm.
(PSC) (the State regulatory Agency) where they seek a portion of the money to construct new power plants to be paid by from, the payments of
customers of the utility. The company wants an automatic charge on customers bills to pay the cost to construct new nuclear power plants (Miami Herald Nov. 1, 1976) . This is a novel request in the experience of Florida utilities and currently is under consideration by Florida PSC. If this measure receives favorable consideration then the risk of any financial loss due to the company's failure to select proper sites would fa3.1 on all members of the Florida public, who are FPL rate pay'ers, not just those who are investors Xn the company.
That no party would suffer substantial harm since no construction is presently underway and the appeal on alternative site selection is E
likely to be decided without unreasonable delay and.further that i' would be in the best interest of the Applicant, utility company a.stay were granted until an appeal is decided since it .might have the effect of sp aring them the cost of a second "false start" on the pro-.
posed-construction at Hutchinson Island.
Mhen the initial stay was ordered by the Court'f Appeals District of Columbia Circuit in October 1976, there was a construction force of some 300 onsite. Since no workers are presently assembled onsite, it is in the best interest of'he'se workers to Se 'assembled> that cons.truct-.
ion not be allowed to begin at th~s site if the Board feels there is, a strong showing by Intervenors that they are likely to prevail on the ',
merits lest the workforce be disbanded with the resultant adverse effect on the lives of those FPL employees and their families.
FPi has argued that the base load generating capacity represented by the addition of St, Lucie Unit No. 2 would be needed for the peak load anticipated in the summer of '1983, Actually, this need would materialize only if FPL had growth oc'cur at the upper spectrum of growth projections. Mr. Ed Biyans, FPL Vice pre~ident in charge of. systems planning testified if system growth occured at the lower spectrum of growth forecast, the system reserve in 1985 would be 11.5% (TR 4962) without St. Lucie 2. He further testified that the actual rate of growth of the system since 1973 was occuring at levels below their previous giowth forecasts. Mr. Bivans also testified that FPL had offered some of the capacity represented by St, Lucie 2 for sale to certain municipals
~
and rural electric coops. (TR 4974) And that if St. Lucie 2 is built, it might have surplus capacity to sell the Florida Power Corporation (TR 4907) Clearly the Applicant estimate need for power is not as great as it may ap'pea'r.
When the Applica t Utility, florida Power an Light Company began construction in June of 1976 under the Limited Work Authorization (LWA) which was stayed by the Court in October 1976, they did so at their own financial risk and had under NRC Rules 10 CFR 50 (e)(4) committed to redress the site in the event that a construction permit for St.
Lucie Unit No. 2 were ultimately denied by the Court or the NRC. No such commitment to protect the public exists here under the full construction Permit as now issued by NRC to FPL. It is not in the best public inte'rest if FPL be allowed to begin development of a site that may be ultimatelyfound by a court of- review to be unsuitable. To avoid this most objectionable incremental relemaking, issues so basic as alternative site selection, which have been described by the courts as'he very linchpin of the Final Environmental Statement as mandated by the National Environmental Policy Act of 1969 (NEPA), must be resolved before construcfion at a given site can be allowed. If this Appea'1 Board believes that the Intervenors are likely to prevail on the merits of this basic site selection issue, then fox construction at this site to commence now would not be in the best public interest.
President Carter in addressing the natio's energy crisis on national television said Cparaphrased} that until the nation completed its tran-sition to coal and new energy sources, yet to be developed, it should have to rely on the nuclear power provided by the present generation of light water reactors "awe f'rom eo'e".'hat's what this case is all about. The applicant utility proposes to build their second nuclear power plant along Floridas Atlantic Coast on property bisected by High-way. A1A -on Hutchinson Island, 4.5 miles from the municipal boundary of the City of Ft. Pierce, Fla., 4.5 miles from the City. of Port St, Lucie and about 8 miles from the City of Stuart, Fia. in'n area that is rapidly 'developing as a high density condominium center with vast numbers of recreation centers and activities growing in close proximity to the nuclear reactor. All of this is occurring on a 22 mile long barrier island with limited means of ingress and egress, which migh prevent> safe, rapid, evacuation Pin the event of a nuclear accident.
Clearly there is no pu5lic interest'ore paramount that, the one expressed by President Carter tFiat these plants he moved "away from
people", Here the applicant utility has almost clandestinely been developing a plant-site with a cooling pond designed to accomodate future nuclear units in sparsely populated western Hartin County in the same Eastern Division Service Area as the Hutchinson Island Site which was eo planned as early as March 17, 1972.
A. Certainly the site was designed to accomodate future nuclear units, As I said...
-.R. J. Gardner, Vic President 'Florida Po~er & Light Co. TR 6341 Dec, 17, 1976.
This is the same Hartin site which Hr. Young was unable to obtain in-formation on during his 1973-1974 alternative site review, said/ failuge contri-buting to the =ailure of the Staff's first alternate site review effort.
In his efforts to perform the original alternative site review, Mr. Young through his superior, Mr. Widrig, di.d during a six month period from May 17, 1973 till October 16, 1973 make three separate and repeated requests for additional information on alternate sites which were 'relapsed in three separate letters from the AEC to the Applicant, FPL, (See TR 5780=
5784, also a composite Board exhibit).
Mr, Young testified that he ~ever received an adequate response to the request for. additional information alternative sit.es contained at page 6, item 28 of the May 17, 1973 Battelle letter from Hr. Widrig .
to Mr, St, Mary. (aBoard composite exhibit See Tr 5782)
Mr. Young then explained that during the St, Lucie Eutchinson Island site visit in SeptemBer 1973 a FPL repres'entative told him the company was developing two inland sites'uita5le for nuclear generation, Martin and South Dad, (TR 5565.,5566$
Mr. Young added'hat tEiese sites were not properly identif ied, thei'r reference being only a name with no location or description or studies showing their suitaKility for nuclear generation (TR 5564}
Ee stated that th.e'EC Environmental Project manager made the decision that "w don't want to go see them'," CTR 5565-..5566)
In an almost sad note Mr. Young testified:
"We wrote three letters that I don' know what you mean by demand. The most we could do was request. We cannot order FP&L to give us any .-.~in other words, all we can do. is transmit our letters to the AEC and say this is the type information we would like to have. " (TR 5784)
~22~
In response to a Board question Mr. Young stated, "it was October of 1973 that the Battelle Team gave up their effort to obtain additional information on alternative sites form FPL TR 5784 line 19-.22, Equity as well as the Public Interest demand a stay of construction on Hutchinson Island until' proper alternative site analysis performed by 'unbiased and competent reviewers may be obtained.
Dated; May 23>1977 Martin Harold Hodder counsel for Intervenors 1131 N.E. 86 street Miami, Fla. 33138 Tel. No. 305 751<<8706 23~
CERTIFICATE OF SERVICE I. HEREBY CERTIFY,'hat a true and correct copy o f the "Xntervenors Motion for Stay Pending, Appeal and Motion for Oral Aigument" and a "Brief of Mcept5ons to the Alternative site review" has been mailed this 23rd day of May, 1977 by deposit in the U.S. Mail to the following:
Michael C. Parr ar, Esquire William D. Patton, Esquire Chairman Counsel f or NRC Staff Atomic Safety & Licensing U. S . Nuclear. Regulatory Commission Appeal Board Washington, .D. C. 20555 Nuclear Regulatory Commission Washington', D. C.'0555 Mr. C. R. Stephens, Supervisor
~
'- ~
'r. W. Reed
".A'Comic Safety Johnson
& Licensing Appeal Docketing & Service Section Office of the Secretary of'the Commission Board Nuclear Regulatory Commis s ioa
. Nuclear Regulatory Commission Washing toa, D . C:.
Washing toa, D. C. 20555 Norman A. Coll, Esquire Richard S. Salzman, Esquire ."McCar thy, S teel, Hector & Davis Atomic Safety- & Licensing First National Bank Building Appeal Board Miami, -Fla. 33131 Regulatory Commission
'uclear Washington, D. C. 20555 Harold P. Reis ~ Esquire Loweas.tein,'Newman, Reis & Azelrad Alaa S. Roseathal, Esquire 1025 Coanecticut Avenue, H.W.
Chairman Washington,,D. C. 20036 Atomic Safety & Licensing Appeal Panel Local Public Document Room Nuclear Regulatory Commission Indian River Junior College Library
'ashington, D. C. 20555 3209 Virginia Avenue Ft. Pierce, Pla. 33'450 Martin Harold Hodder Counsel for Zntervenoxs 1131 H.E. 86 Street Miami, Fla. 33138 Tel. No. (305) 751-8706r~
P) g)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COHMISSION oocvn!o ATOMIC SAFETY AND LICENSIiNG APPEAL BOARD I USNRC 6 MAY2 7 1S77 Michael C. Farrar, Chair'man Richard S . Salzman ofRce ol the secrNoeg Poc4tfro 5 $ 4fYtc~
Dr. !? . Reed Johnson Section Cg IN THE MATTER OF )
)
FLORIDA PONER & LIGHT COMPANY ) Docket No ..50-389
)
(S e . Lucia ':.uc lear P ower P lan t, )
Uni t No; 2)' )
)
ZNTERVENORS 'RIEF OF E'XCEPTIONS In a pleading filed April 27, 1977, the Intervenors listed nine exc'options to the Initial Decision of the ASLB dated April 19, 1977.
<?ith 1'mieed time and resources the Intervenors will undertake to brief as I many of these -exceptions as they are able:
1, The major argument .will bc presented on Exceptions 1 and 2 in a combined fashion.
- 2. Exceotions 3'nd 4 will not be briefed.
- 3. Exceptions 5;rill be treated incidentally.
- 4. E..ception 7 will be addressed.
- 5. Exception 8 will.be addressed'.
6,. Exception 9 vill be'ddressed in the sense it encompasses the other argument raised herein.
Ar ument 'on Excentions 1 and 2 regarding Alternative Site And Need CAlculation Ineervenors P
have presented ar'gument which they have brief ed in some detail in suppo't of their Motion for Stay Pending A elate Review wh ich is at ta'ched hereto and they hereby incorporate by ref erence each and every argument raised eherein as being supportive of this brief,
That argument addressed the adequacy and quality of the alternative site review performed by the Staff and Batcelle during August. 1976 and after their original alternative sites analysis as reported in the FES for Unit 2,.
The Staff 's FES of June 1974 was previous]y found by the Atomic Safety Licensing and Appeal Board to be "cavalier", "misleading" and to have contained indications "concrary to Cacc". (ALAB-33'5 itRCI 76/6 at 18) The Board remanded che case for fur the'r proceedings beCore the licensing board. Thq Licensing Board in their Initial Decision enduring o" A'pril 19, .1977 found concerning che Staff's alternative site analysis 1973 ana l974:
4
...'t e bc1ieve that NEPA demanded more. Upon that consideration of the alternate all the evidence in this r ard, we conclude sices analysis perCormed uy the Staff in the year 1973 and 'rei-lecced in i,cs FES did not, in the circumstances of chis case, conscicute reasonable compliance with the requirements of the Rational Environmental Policy Act."
-'ASLB initial Decision 4-19-77
."1RC I para . 17, p 15.
Tha't find'ng of the licensing Board dealt mainly with the enadequacy and unacceptability of the hypothetical imaginary or composite site techniaue utilized by the Hattelle consultants in their alternative sites analysis. (See generally para. 15, 16, 17 of Initial Decision of 4-.19-77) Tha t, oC course, was properly the responsibility of the Licensin Board since the Appeal Board on remand had ordered; "in either case, che parties shall brief --and the Board'elow decide--whether che, staf f 's cechnique sa'tisf ied NEPA,"
-ALAB-335 NRCI 76/6 ac 20.
F I c is significant co note, however, .that the appeal board had an ad~
ditional problem with the FES for Unit 2, beyond the selection and choice o f me thodologv. That was the ref'ere'nce in the FES co the "specif ic examole used" in drawing a comparison between the S t. Lucie site and ano cher site. They stated; "This manifestly indicates---,contrary to fact--that the Staff had reviewed and rej ec ted at,leas t one o ther actual site on Florida east coast".....
-ALAB-335 NRCI 76/6 at 18.
This misleading phraseology which it developed on cross-examination was composed by Nz. John R. Young of Battelle (TR ) closely re-sembles the similar misleading phraseology, a3.so authozed by iver. Young, "The specific documents reviewed were;" followed oy a listing of 9 documents chat appear at oage 12 13 of the Testimony entitled "Supp 1 cmental Tea cimony o f NRC S ta f f on S i te Al terna t ives Evalua cion" by John R. Young dated November 1976 (Follows Tr. 5443) The Intervenors have s nown a t pa i'ns taking o f the 9 do cumen't s des crib ed as "availab le literature describing alternative power plant sites in southern Florida" by John R. Young in the T stimony entitled Supplemental Testimony of NRC Stafi on Site Alternatives Evaluation (Fo3.1ows Tz". 5443).-
Therefore, the Incervenors argued that"sin'c'e "ch'ey had 'shown the Staff testimony was misleadin 'and cavalier and contained indications contrary to acc, they had mec the test estab].ished by the Commission in the Seabrook case at Footnote 19 which would not prevent issuance of a s cay pending review:
"Me note that there are major distictions between the Hodder case and this case. In particular, in Hodder the Appeal Board found THAT THE FES treated the alternate site a'nalysis in a "cavalier and misleading fashion" which appeared to reflect- significant failures of effort bv responsible oarties. Florida Light and Power NRCI 76/6 a't 830, 839-40 (1976) . Here, the problem arises from the Licensing Board's stacemenca regarding closed-cycle accepta<<
bility and EPA's unanticipated about-face."
'Public Service Company of New Hampshire Seabrook Station, NEABOL'D ISLAND The Newbo )g Island case f its this case in very respect, except the manner of creacment of the case by the successor agency to the AEC, the NRC. In a letter dated October 5, 1973, the AEC S taif Director of Regula cion L. Hanning Huntzing advised the oresident of che Public Service Flectric and "-s oi New Jersey (PSFC of N. J.) of the following;
'An important requirement in the preparation of an environmental impact statement for a nuc3,ear power plant is, of course< a con~
sideration'=. alternative sites. On che basis of ba3ancxng all the various factors whichmusc he, considered ac this location, including, parcicularly, popu3ation distribution, the Staff conc-ludes that the alternacive locacion oi these faci3.ities at Artifi<<
cial Island, adjacent co Salem Units 1 and 2, which are presently under construction, is a more desirable alternative'rom an envi-ronmental stadpo'nt. This conclusion will be incorporated in the Final Environmenc 1 Stacemenc foz the Newbold Island nuclear power
plants. The principal factor leading to this conclusion is the face chat che population density at the Nevbold site is signifi-cantly larger than at Salem location. For instance, our projections for 1980 show thac within five miles distance,, che Salem location vill have a population of about 4,700 persons, and the Newbold Island site vill have approzimately E25,00 persons.
30-mile radius in 1980. Salem vill have about 1,000,000 persons Hithin a vhereas Newbold Island will have over 4,500,000."
-Letter of ' ";fanning i'(untaing Oct, 5, l973 to PSEC of N J ~
The Nevbold Case is a ~ ine illustration o f a concrete application
\
and utilization of a concept of viable alternative site consideration.
The Calvert Cliffs decision has .m'ade it, veil 'settled that a federa'1 regulatozy agency must consider viable.alternat'ives to a proposed federal action.
"NEPA requires chat an agency must--to the fullest extent possible under ics other statutory obligations--consider alternatives co it's actions vhich would reduce environmental'amage. That principle establishes thai consideration of environmental matters must be more chan a pro zorma ritual. Clearly, it is pointless to "consider" environmenta'osts vichout also seriously considering action to "avoid them. Such a full exercise oi 'suhstantive'discretion is required at every importanc, appropriate and nonduplicative stage of an agency's proceedings,
-Calvert Cliffs Coord. Com. v, U.S.A.E.C. Comm. 449 F. 2d 1109 1971.
The Newbold Island case dovetails perzeccly vith the Hutchinson Island case, even to the similarity to the "Island" designation in their names. The PSEG of N.J, had proposed to build cvin nuclear reactors on an island in the Delaware River betveen Bucks County, Pa. and Bulington County N.J. vith a proposed 1 mile LPZ. -FPL also presently proposes a one mile LPZ for Sc. Lucie No. 2 on Hutchinson Island. In the Nevbold Island Island case PSGE oz N.J. had submitted population projections for the surzounding area up co 50 miles as required by AEC Regulation.
The Newbold Island project drew some formidable opposition and quickly became a hot ly con tes ced proceeding.
A. par tial lis t o f In tervenors in che Newbold Island case included:
- l. The Commonwealth of Pennsulvania.
- 2. The Bucks County Commissioners
- 4. Various lo~~er Bucks County municipal'ies.
5 .".azious environmental interest groups.
- 6. Rep, J. Eilberg, D Philade'phia.
- 7. Rep. Edwin Forsyche, R-Burlington.
- 8. State oz Nev Jersey.
- FPL originally proposed a five mile LPZ at St. Lucie 2 on Hucchinson Is.
but has agzeed to install emergency safetv features and thereby reduce the LPZ co 1 mile.
very clos -. ~crut J ny of the submit tais of the applicant utility, PSEC of N.J., resulted in the revelat.on that, as in the Hutchinson Island proceedings the applicant utility company had grossly under>>
estimated population proj ections.
On June 16, 1972 the Honorable Samuel Jensch ASLB Chairman for the Atomic Energy Commission suspended the hearings and in reference to ttle App'licant PSEG of N.J, population studies stated, "there are some things in this initi" 1 presentation that seem quite defficient to the Board".
-See Evening Times, Trenton, N.J. June 16, 1972 or Transcipt of that Hearing,
..., Sizteen. months or on again:of f again hearing proceeding ensued.
The last recess wns ordered to produce a more detailed evacuation plan.
U1 timately L. Manning ':funtzing wro te his his toric let ter of Oc tob'er 5, 1973, reccomend'ng the plant be built in sparsely populated Salem County neat to two s'milar power plants then under construction..
ln a press conf erence in November ot 1973 .L. Manning Muntzing in explanation of the AEC rejection of the Newbold Island site, there would .be about 125,000 people with'n .the zero to five miles radius of New Bold Island by 19SO while only about 4500 would live in a five mile area around Artificial Island. (Salem Site)
Except for the fortuitous St. Lucie name change, the Hutchinson Island 'case matches the Newbold island case on its very four corners and it was probably the first time the commission applied the standard o "obvious superiority's enunciated by the Commission in the recent case. It is the position of the Zntervenors that not only's
'eabrook the .a1ternative site review by the Staff been shown .to be'eriously defective but that by the same criteria that resulted in the Newbold Island facility relocation so should the Hutchinson Island plan't be moved to a sparsely populated site such as'he western Martin County site, 'a nuclear sized coolin oond site in the same Eastern Divisi'on service area as'he Hutchinson Island site.
THE SFABROOK CASE The rule tha t seems to have been applied in Newbold Island is eloquently stated in the concurrin opinion of Commissioner Kennedy in the Seabrook case where he stated:
"Under the test the Commission adopts today, an applicant may have his site found acceptable by a licensing board after a full review, only to have it rejected because later an "obviously su-time. The obviously perior" site is put forward, perhaps ac a superior test applies not only where a recomparison of sites is being made but also in initial selection. The opinion asserts sites, buc that ME?A mandates not only a compari on of alternate thac it also mandates rejection by che Federal agency of wholly acceptable sites vhen much, better ones can be found ~
-Public Service Company of Hev Hampshire Seabrook Station, Units 1 & 2) CLI-77/3 ';!arch 31, 1977, Sli p Op; concerning Op. o. 1)
The Intervenors have argued and presented testimony in the recent hea'rings that indicates the "obvious superiority" of the HartinSite in comparison wi h the Hutcninson Island site as was found in the In-itial Decision by the ASLB at para, 19:
"Intervenors have pressed che position that St. Lucie Un-c No. 2 should noc be conscruc ted at the site on Hutchinson Island',
but, rather, should be constructed at eh Hartin site. Interve-nors 'rincipal witness onthe alternative ion sices was Dr. Karl Z. Morgan S t. Lucie 2 at Nore t
(Tes imony Recommending Locac of. iVo .
Su'able Sice Than Hutchinson Island by Karl,Z. i!organ, following Tr. 6192) . Dr. ':!organ test if ied chat the site on Hutchinson Is.
has nany undesirable features. He listed the following: (1) the density of the populacion and the orospect of a rather rapid in-crease in neighboring oopulations over the operating lifetime of the plant; (2) difficulcies o" egress and safe evacuation in time of emergency.: (3) shioment oi fuel to and from St. Lucie 2 by truck inste d of rail: (4) the lac'k of holdup of cooling water before discharge and che insuf f icient capacity to hold up inter-mediate bight level liquid discharges; (5) the doubling of popula-tion ezposures result'ng from adding St. Lucie 2 to a site already containing one nuclear reactor: and (6) che likelihood of common made failures where cvo unics are operated by the same utility at a single site. Dr. Morgan concluded that chere are ocher sites tha t avoid cer tain of these shor tcomings,'tha t the Nar tin County site vould "score the highest" of these ocher'ites; and that lt would score better. than the sice on Hutchinson Island on each of the above enumerated f eatur es (i~!organ, pp. 1-4, 6) ."
par'* 19 Initial Decision ASLB NRCI 77]'4 Indeed, although the scaf f witness Young t'estif ied that the population within a 50 mile radius of the- Hartin Site is greater than that vichin a 50-mile radius of the Hutchinson Island site, he also testified A. "(By ~!r . Young) Yes ..
J Mould you tell me then hov those populations within f ive miles of the Hutchinson Island site, in che revised FFS, comoare vith the population in the environmental impact statement for the Hartin site wi cnin f ive miles?
A. The 1970 census data for the Martinxn ssite te iss 310 persons within five miles. The>e estimate estima populneion within five miles of the Hutchinson Island site
-John R,. Young Tr 6062.
y, it e in 1974 is 7,000--approxima eeI. 7 000 persons.
Mr, Young ~ene an'o testif y tliat .
w thin cen miles of che Martin site the population is 3 975 and ~ n within ten miles of the Huechinson Island site was'1,900 as es timated in 1974. T r 600~i4. 'tn response to a queseion b y 0 x'. Hooper, Mr. Young eestified thnc:
ll In eerms of numbers . cc lose in, probably thc growth around the
. artin site would be lower" and "The Marein N p ded aain of ehe coincidental similarity of the. e ..ew old Es e< bold Esl~land and Huechinson cases since the Newbold ew o. I s 1 an d site was dr iticized b~ Mr 'tun uncc ing due to the"significantly larger" papu~ o 10-5-73.)
h ." .-. '
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i~n compared to che alternate Salem site, to Robert I. Smieh PSEG f N J d aced C
Clearly ehe ;Mar tin s'ee possessed obvious superriority to che Hutchin-.
arein son Island site as was eseified by Dr. Karl Z. Moxgan, emminently qualiried (See Tr 6423-6437) former director of Health Physics at the Oak Rid.e iaac 'on acional Laboratories, now a ~1eeley professor ae the Georgia Institute of Techno c nology on behalx of the Incervenors case. Dr. Morgan testified ehe Mar tin site ras preferable in a cost benefic analysis to the tlu echinson Island site site. Tr 6455 in. che categories of transportation, emergency evacuataon, and discharge of radiation into the Public Domain which were items 7, 14 and 15 respectively of his testimony, entieled fi Table A IIDDeficiencies of Table 2 in ehe NRC Supplemental Teseimony."
Dr. Nor an testiried chat radiological dose 'ro populaeions around the Max'ein plant due to spent fuel shipment. due to che rail line there would be 1/10 of ehe dose ae' utchinson Is land, where it would be necessary to ship spent fuel offsite hy truck. (See Tr 6466 generally.) Indeed, the Martin site p resente nted real advantages in terms of emergency as well as. rou t'ine shipmencs (Tr 6467)
Dr Morgan tes cif i ed tha e at che Martin s ice 'discharge into a privacely owned cooling pond was far preferable to discharge into the public domain of the ocean at che Hutchinson Island site. Ee explained how radioactive nt '
contam~nants could beheld up ac che Martin cooling pond site till radio-accive decay occurred where as at ehe Eutchinson Island site they vervy possibly could be directly. discharged into the marine environment.
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Reconnaisance Type Inves tiga tions
';fr. Young, the Battelle Technical Team leader admitted under cross-ezamination that he didn't use Reg, Guide 4.2 as revised in July 1976 by assigning th'e various nomenclature in chapter 9.2. (Tr 6012)
Hence there was no distinguishment between the sites or the available terms including iegion of interest, candidate areas, potential sites, candidate sites and proposed sites. itz. O.D.T. Lynch the NRC Environ-mental Pzoj ect manager 'explained how, all that was conducted by them, was a reconnaisance-type site review. (Tr 6014) which consisted of the helicopter overfli"hts over a two day period of five sites the first day and one site the second'ay. See Sup'plemental Testimony of 01'iver D.T. Lynch (Follows Tr 5443)
Apparently, Hr, Lynch beli ved that mere inspection from the air of alternat've sites was all that was required of the Staff. It should be remembered, ho.iever, that this Sugust 17, 18, 1976 alternative site review was conducted in atime frame when the staff and Battelle both still .had confidence in their composite as hypothetical siting technique it is cer tainly conceiveable they felt'ore ef fort was no't warranted I'nd under the circumstances. Intervenors feel that the Staff in failing
~
to foll'ow their own Reg. Guides and performing this cursory aerial review broke with the mandate of the court in Calvert Cliffs where it was stated; "Sec. 102 (2) (D) requires all agencies specifically to study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved con-flicts concerning alternative uses of available resources.".
This requirement, like the ."detailed statement." requirement seeks ensure that each agency decision maker has before him and
'o takes into proper account all possible approaches 'to a particular oroj ect (including total abandonment of the pzoj ect) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by com-pelling a formal "detailed statement" and a description of alter-natives. NEPA provides evidence that the mandated decision making process has in fact taken place and, most importantly; allows those removed from the initial process to evaluate and balance the =actors on thezi own."
'Calvert Cliffs Coord. Com. v. U.S. A.E.C. 449 F, 2d 1109 (1971)
In expressing the mandate of the court, Judge Bright made it unmmistak-ably clear tht the efforts of federal regulatory agencies in performing
considerations of alternatives he performed "to the fullest estent possible":
"Of course, all of these Section 102 duties are qualified by the phrase "to the fullest extent possible." Me must stress as forcefully as possible that this langaage does not provide an escape hatch for footdragging agencies; it does no t mahe '.jEPA ' procedural r equirements some how discret 'on."-,'r, ." Congress did not intend the Act to be tlat such apaper ti er. 'ndeed, the requirement oi environmental consideration "to the fullest extent possible" sets a high.
standard for .the agencieg, n standard which must be regorously enrorced by the 'reviewing courts."
-Calvert Cliffs'oord. Com. v. U;S. AEC 449 F.2d 1109(1971) f~j)tp(~> g(~ I A $ Ij Q ct+.
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