ML19209C921
| ML19209C921 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 09/13/1979 |
| From: | Singer L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19209C922 | List: |
| References | |
| NUDOCS 7910180478 | |
| Download: ML19209C921 (11) | |
Text
NRC PUBLIC D000M1LTP 10eif 09/13/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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NUCLEAR ENGINEER.ING COMPANY, INC.
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Docket No. 27-39
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(Sheffield, Illinois Low-Level
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Radioactive Waste Disposal Site)
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NRC STAFF RESPONSE TO CHICAGO SECTION MOTION TO COMPEL FILING 0F A DRAFT ENVIRONMENTAL IMPACT STATEMENT AND TO COMPEL STUDY OF REASONABLE ALTERNATIVES TO SUSPENSION OF OPERATIONS AT SHEFFIELD By motion dated August 28, 1979, an Intervenor, Chicago Section of the American Nuclear Society (Chicago Section), asked this Licensing Board (Board) to compel the Nuclear Regulatory Commission Staff (Staff) to file a draft environmental impact statement with the Board by September 28, 1979 or before the date of a
" preliminary hearing," whichever is earlier.
In its motion, Chicago Section further requested the Board to compel the Staff to study, develop and describe alternatives to suspension of operations at Sheffield.
The Staff opposes the
. motion of Chicago Section in its entirety because the motion is premised upon a misconception of the scope of the issues presently before the Board and because it is not within the Board's jurisdiction to order the NRC Staff to issue an EIS as requested by Chicago Section.
Argument I.
THE BOARD HAS NO JURISDICTION TO DEFINE THE SCOPE OF THE STAFF'S ENVIRONMENTAL REVIEW AT THIS TIME The Board has no jurisdiction to presently define the scope of the NRC Staff's environmental review. The Licensing Boards are only directed to conduct such rl76 228 7910180 e
, hearings and perfonn such other regulatory functions as the Commission shall speci fy.
They only have those powers that have been specifically i
delegated to them.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station,. Units 1 & 2), ALAB-316. 3 NRC 167,170-171 (1976).
Environmental reviews are in the first instance conducted by the Staff.
10 CFR 51.22, 51.26, 51.40; Texas Utilities Generatino Co. (Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-260,1 NRC 50 (1975). These reviews are put in evidence by the Staff,10 CFR 2.743(e). After this work has been completed, the parties to the proceedings can then dispute the completeness or the adequacy of the Staff's environmental review and put such issues in controversy.
10 CFR 51.52(b)(1). The Boards then decide such matters and modify the Staff documents as they deem appropriate.
10 CFR 51.52(b)(2)&(3), cf. Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2) ALAB-479, 7 NRC 774, 792-794 (1978).
In Northeast Electric Eneray Co. (Montague Nuclear Power Station, Units 1 & 2)
LBP-75-19,1 NRC 436, 437 (1975), a Licensing Board stated:
Under the Commission's regulatory scheme, the Staff is given the duty of reviewing applications for licenses (Section 2.102).
This review results in at least two important products, the Safety Evaluation and the Draft Environmental State-ment. The regulations do not give the Licensing Board a part in tnis review or in the preoaration of the resul ting reports. The Commission has delegated to tne Licensing Board oower and duties with respect only to tne nearing process.
(2.104 and 2.718 The Staff's review and reporting function is largely comoleted in a setting outside 1776 229
. the hearing process and therefore without the purview or the Licensina Board. The fact that the two areas of activity may oroceed for a time, concurrently, does not extend to the Board any suoervisory authority over that Dart of the crocess that has been entrusted to the Staff.
If the parties here argue that such a trust is unwise or that the Staff should perform it in a different way, then that argument is an attack on the regulations which is beyond the cognizance of this Board.
(Emphasis supplied).
In Offshore Power Plants (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 202,206(1978), the Appeal Board held that Licensing Boards could inquire into Staff delays on the production of environmental documents.
However,_ in doing so it emphasized that the primary jurisdiction to prepare such documents rested in the Staff, and the Boards reviewed those documents after they were prepared to see if they were sufficient.
See also Vermont Yankee Nuclear Power Corp. v.
NROC, 435 U.S. 519, 526-527 (1978). The Board has no jurisdiction to now prescribe the contents of the Staff's environmental documents.
II. EXPANSION OF THE ORIGINAL 20 ACRE BURIAL SITE AT SHEFFIELD IS NOT AN ISSUE IN THE CURRENT PROCEEDINGS The scope of this proceeding originally embraced two applications of the Nuclear Engineering Company, Inc. (NECO). NECO wished both to renew its license for the original 20.45 acre low level waste disposal site and to receive a new license granting it permission inter alia to bury waste on an additional 168 1176 230
_4-acres adjacent to the original site.
However, the scope and focus of this proceeding has now been drastically changed, and the instant motion of Chicago Section inexplicably fails to comprehend the change. The original 20-acre site is full to capacity under the existing license. NEC0's application to expand the site has now been withdrawn and the proceeding now concerns what terms and conditions, if any, should be imposed on NEC0's surrender of its license.
In its Memorandum and Order of May 3,1979 (Order), this Board addressed the motions of the Nuclear Engineering Company (NECO) to withdraw its application for license renewal and site expansion and to dismiss the proceeding.
The Board expressly stated that the "... only real issues left for [its] decision
[were] (1) whether to grant [NEC0's] motion to withdraw its application for license renewal anJ site expansion, and (2) what, if any, conditions are appropriate to impose if such motion is granted.'"
It allowed withdrawal of the application for site expansion, but denied tnat portion of NECO's moti.on asking to withdraw its application for renewal of its license at this time ond-accordingly denied NEC0's motion to dismiss the proceeding.
In the interim, NEC0 notified the Director of Nuclear Materials Safety and Safeguards (Director) that as of March 8,1979, it was withdrawing its pending 1176
?31
. apolication to renew its license and expand the Sheffield burial site and that it was unilaterally terminating its license for all activities at the Sheffield site.
In response, the Director informed NECO that it could not unilaterally terminate its license and that it remained responsible to safeguard the public health and safety at the site. Because NECO questioned NRC's authority to insist that NECO remain answerable to its license, the Director ordered NECO to show cause why it should not resume its responsibilities under its license and in tne meantime ordered NECO to remain on the site and provide security and monitoring.
In a Memorandum and Order dated June 6, 1979, the Commission affinned the Director's actions finding that all of the prerequisites for an immediately effective order were present. At the same time, the Commission issued a Notice of Hearing directing the Board to consider "whether NECO can unilaterally terminate License No. 13-10042-01 for activities at Sheffield without affirmative action by the Commission."
As a result of the Board's Order and the Commission's rulings of June 6,1979, the only issues remaining in this proceeding are whether NECO can unilaterally terminate its existing license for activities at Sheffield, and what, if any, conditions are appropriate to impose in order to assure that the existing Sheffield burial site does not and will not give rise to impermissible environmental and radiological health and safety consequences. The belief of Chicago Section 1176 232 that the "... central public safety issue [at hand is] the appropriate location and method for the safe and effective disposal of low-level nuclear waste generated in mid-America," is therefore in error.
III. THE MAY 3,1979 MEMORANDUM AND GRDER OF THE BOARD IS NOT A MAJOR FEDERAL ACTION WITHIN THE ilEANING 0F :lEPA AND 10 C.F.R. 951.1 AND THUS DOES NOT REQUIRE PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT IN WHICH FUTURE USE OF THE SHEFFIELD WASTE SITE WOULD BE CONSIDERED AS AN ALTERNATIVE TO THE DECOMilISSIONING 0F THAT SITE Based on its mistaken understanding of the scope of the issue, Chicago Section is now asking that the Staff be directed to prepare an EIS on this Board's action in letting NEC0 withdraw its application for the expanded area,which does not yet contain radioactive material.
It argues that the expansion of the Sheffield burial site should be considered in an EIS regardless of the lack of any application for a Federal approval. Chicago Section maintains that the Board's May 3,1979 Order allowing NEC0 to withdraw its application to expand the site has as great an environmental impact as the converse order --
allowing expansion -- would have had because of possible shipment of the waste to licensed storage facilities over 1000 miles away.
However, before an environmental impact statement is required under NEPA, there must be a proposal for a major Federal action that significantly affects the quality S reviously, when there still existed a proposal bv NEC0 to utilize the P
new 168-acre area at Sheffield, it was the Staff's position that alternative sites and consiaeration of the need for a low-level waste burial site by prospective customers of NECO at Sheffield must be reviewed pursuant to NEPA.
See "NIC xaf. 's Caposition To Motica To Crcei Filing of Craf t EIS,"
dated December 1,19/8.
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- of the human environment.
4 U.S.C. s4332(2)(E); 10 CFR 551.l(a).
The Board's Order was not a major Federal action within the meaning of NEPA.
42 U.S.C.
64332(2)(C) or 1.0 C.F.R. 551.1. As defined in the Code of Federal Regulations, the Board is an organizational group with authority from the Commission to "make
... intermediate or final decisions... in proceedings to grant, suspend, revoke, or amend licenses or authorizations." Sg 10 C.F.R. 61.11.
The Board has no more power than members of the judiciary to enlarge or delimit the issues in a particular proceeding.
See Arkansas Power & Light Co. (Unit 2), ALAB-94, 6 AEC 25 (1978). Any action here that affected the environment was not the Board's, but NEC0's, in determining not to expand the site. See Kleppe v. Sierra Club, 427 U.S. 390 (1978). The Board could not compel NECO to accept waste it did not wa t.
It is difficult to understand how the withdrawal of a paper application fc. burial of waste on land where no radioactive material has previously been buried could give rise to a major Federal action significantly affecting the quality of the human environment.
Even if, arguendo, expansion of the Sheffield site may have been a preferable alternative to shipment of the waste to another burial site, the Board did not have jurisdiction to orde Nrt0 to seek licensing of new burial capacity at Sheffield or elsewhere because its present burial facilities are full.
Furthe r-more, an order that necessarily invites one action by precluding another is not a proposal for a major Federal action with significant environmental consequences.
See Kleope v. Sierra Club, supra at 401-02; 42 U.S.C. %4332(2)(C).
Because the Board's Order was not such a proposal, the provisions of NEPA do not pertain to 11/6 234
1
. the May 3,1979 Order, with the result that preparation of an environmental statement or analysis pursuant to that Order, including a statement of alterna-tives, is unnecessary.S IV.
THE BREADTH OF THE ISSUE BEFORE THE BOARD -- WHET
' THE LICENSEE MAY WITHDRAW ITS APPLICATION FOR LICENSE RENEWAL (AND UNDER WHAT CONDITIONS) -- PRESCRIBES THE NATURE OF THE ALTERNATIVES TO BE CONSIDERED NEPA requires every EIS to include a detailed statement of the adverse environ-mental effects of and alternatives to the proposed action.
Klepoe v. Sierra Club, 427 U.S. 390, 394 (1976); Mid-Shiawassee County Concerned Citize.is v. Train, 408 F. Supp. 650, 653 (E.D. Mich. 1976); 42 U.S.C. 54332(2)(C); 10 C.F.R. 551.l(a).
The purposes of an EIS are to detail the er.vironmental and economic effects of the proposed major Federal action so tbn those who did not participate in pre-paring the EIS may know of and meaningfully consider the factors involved.
Furthermore, the EIS should compel a decisionmaker, with discretionary choice-making capabilities, to seriously consider all environmental choices to a major federal action. Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir.1975).
Not all Federal actions require preparation of an EIS, however.
First National Bank v. Richardson, 484 F.2d 1369,1370 (7th Cir.1973). An EIS is not required where the impact of the Federal action is minor or unimportant.
Hanly v.
Kleindienst, 471 F.2d 823, 831 (2d Cir.1972). The responsible Federal agency has the authority to determine whether the contemplated Federal action falls 3
In this instance, the only " proposal" by NECO was its request to withdraw its earlier proposal to exr,and the site.
1176 2E
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within the " minor" category or whether it has a potentially significant adverse effect. First National Bank v. Richardson, suora at 1370. Absent a legislative directive concerning whether a major Rderal action will significantly affect the quality of the human environment, agencies should review the proposed action in light of two factors:
(1) the extent to which the action wi'. cause adverse environmental effects in excess of those created by existing uses in the area affected by it, and (2) the absolute, quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.
Hanl> v. Kleindienst, suora_ at 830-31.
If the responsible agency concludes that no EIS is required for a Federal project, the agency may still be required to issue a negative declaration supported by an environmental impact appraisal.
In either event, whether an EIS is prepared or a negative declaration is issued, the sponsoring agency must always discuss the alternatives inherent in an anti-cipated course of action.
See 42 U.S.C. 54332(2)(C)(iii) and (E).
If an EIS is mandated, a detailed statement of alternatives to the proposed major Federal action must be prepared.
Sierra Club v. Morton, suora at 825; 42 U.S.C.
54332(2)(c)(iii). Otherwise, the agency must study, develop and describe the appropriate alternatives to the recommended course of action.
42 U.S.C.
64332(2)(E).
Section (C) of NEPA imposes a more strenuoi:3 duty with regard to a discussion of alternatives than does Section (E), Trinity Eoiscopal Scncol Coro.
- v. Romney, 423 F.2d 88, 93 (2d Cir.1975); Trinity Eoisccal School Coro. v.
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, Harris, 445 F. Supp. 204, 218 (S.D.N.Y.1978), but not every conceivable alterna-tive to an action needs to be considered. An agency must only consider those alternatives necessary to permit a reasoned choice.
Louisiana Environmental Society Inc. v. Brinegar, 407 F. Supp.1309,1322 (W.D. La.1975).
In reviewing these alternatives an agency is not limited to a study of those measures within its jurisdiction to adopt.
N.R.D.C., Inc. v. Morton, 458 F.2d 827, 834 (D.C.
Ci r. 1972).
The range of alternatives open for consideration, however, is always circum-scribed by the type of Federal action being taken.
See Aberdeen & Rockfish Railroad Co. v. S.C.R. A.P., 422 U.S. 289, 322 (1975).
In view of the fact that the issue now before the Board, as shaped by the motions of the parties, is whether NEC0 may withdraw its application for license renewal,S the only type of Federal action under contemplation is decommissioning of the Sheffield low-level waste burial site.
For this reason, the only alternatives properly to be considered are differing methods of safeguarding the site. The Staff will thus study those alternatives of decommissioning the site that will permit a rational choice. Alternatives that would result in similar or greater harm than the proposed action need not be considered appropriate choices.
See Sierra Club
- v. Morton, suora at 825; Trinity Episcopal School Coro. v. Harris, supra at 221; Louisiana Environmental Society, Inc. v. Brinegar, suora at 1322. Moreover,
-Y The Board must also decide whether to grant NEC0's motion to dismiss the proceeding.
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alternatives "whose effect cannot reasonably be ascertained and whose implementatica is deemed remote and speculative" will not come within the Staff's study. See Sierra Club v. Stamm, 507 F.2d 788, 794 (13th Cir.1974), quoting N.R.D.C., Inc.
- v. Morton, 458 F.2d 827, 834 (D.C. Cir. 197?).
Conclus's For all of the reasons stated above, Ciicago Section's " Motion to Compel Filing of a Draft Environmental Impact Statement and to Compel Study of Reasonable Alternatives to Suspension of Operations At Sheffield" should not be granted.
Respectfully submitted, LO0 lY l
{
Lisa N. Singer Counsel for NRC Staff Dated at Betheeda, Maryland this 13th day of September,1979 1176 238