ML19210E178

Ack Receipt of IE Insp Repts 50-369/79-33 & 50-370/79-19 on 790928.No Proprietary Info

ML19210E178
Person / Time
Site:	Mcguire, McGuire
Issue date:	11/13/1979
From:	Parker W DUKE POWER CO.
To:	James O'Reilly NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
Shared Package
ML19210E179	List: ML19210E178
References
NUDOCS 7911300663
Download: ML19210E178 (1)

Text

. W ;. r 11/6/79 NRC PUBLIC DOCUMgig g x$ s UNITED STATES OF AMERICA N Id NUCLEAR REGULATORY COMMISSION '3 i f[ 'C

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s BEFORE THE ATOMIC SAFETY AND LICENSING BOARD M W 6 In the Matter of ) Ad:/ '

PUGET SOUND POWER & LIGHT ) Docket No. STN-522 COMPANY, ET AL. STN-523 (Skagit Nuclear Power Projects, )

Units 1 and 2) )

NRC STAFF'S ANSWER TO INTERVENOR SCANP'S MOTION TO REQUIRE IMPLEMENTATION OF EXECUTIVE ORDER 12114 On October 17, 1979, Intervenor SCANP filed a motion requesting that the Licensing Board direct the Staff to evaluate and consider the environmental impacts of the proposed Skagit Nuclear Power Project upon the human environ-ment in Canada and to prepare an environmental impact statement concerning these impacts (Motion, p. 4.). This request is premised on SCANP's assertion that the NRC is " constrained and prohibited from issuing any construction permits, limited work authorizations, or taking any other major federal action until the NRC has adopted procedures to implement Executive Order 12114, and until those procedures have been followed in this docket." (Id_. ) SCAND finally requests that the Board defer consideration of the issue in contro-versy pertaining to the adequacy of the environmental impact statements (SCANP Contentions J-l and J-16) until compliance with Executive Order 12114 has been implemented, executed, and litigated in this proceeding. The NRC Staff opposes this Motion and submits that it should be denied for the reasons set forth below.

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• Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, was issued by the President on January 4, 1979. Its purpose was to ensure that Federal agencies which authorized and approved of major actions that significantly affected the environment outside the United States would take pertinent environmental considerations into account. To implement the established purpose, the Executive Order directed every Federal agency taking actions encompassed by the order and not exempted therefrom to have implementing procedures in effect by September 4,1979.E The President designated the Department of State, in conjunction with the Council on Environmental Quality, as the lead agency to work with other relevant agencies to develop unified procedures for environmental review of actions covered by the Order. (See, Executive Order Sec. 2) These unified procedures have not yet been* implemented.2_/ However, the fact that these procedures to implement if SCANP asserts, incorrectly, that the implementing date is October 4, 1979.

-2/ These procedures cannot become effective until the provisions of Sec-tion 1913 of P.L.95-630 (92 Stat. 3727) have been complied with. That Section providt.s that:

SEC. 1913. No environmental rule, regulation, or procedure shall become effective with regard to exports subject to the provisions of 22 U.S.C. 3201 et seq., the Nuclear Non-Proliferation Act of 1978, until such time as the President has reported to Congress on the progress achieved pursuant to section 407 of the Act (42 U.S.C. 2153c) entitled " Protection of the Environment" which requires the President to seek to provide, in agreements required under the Act, for cooperation between the parties in protecting the environment from radioactive, chemical or thermal contamina-tions arising from peaceful' nuclear activities.

Since the President has not reported to Congress on the progress achieved pursuant to section 407 of the Nuclear Non-Proliferation Act of 1978, the unified procedures developed by the Department of State under Executive Order 12114 have not become effective.

143(?34

. Executive Order 12114 have not yet become effective is not important to the Staff's response to this Motion for several reasons.

First of all, SCANP's assertion that the NRC is clearly required to imple-ment the Executive Order is erroneous as a matter of law. The NRC is an independent regulatory agency established by an Act of Congress. Its func-tion is to put into effect and perfonn the legislative policies embodied in the statute which created the agency. It is clear that the President has no inherent constitutional authority or statutory basis to unilaterally impose the requirements set forth in this Exentive Order on independent regulatory agencies.E While the NRC remains free to implement these requirements as a matter of policy, we submit this motion should be denied because there clearly is no legal requirement that the NRC do so.

y Such an agency "cannot in any proper sense be characterized as an ann or an eye of the executive." Humphrey's Executor y. United States, 295 U.S. 602, 628 (1935) (discussing the Interstate Commerce Commission).

Presidential orders have the force and effect of law only "when issued pursuant to the statutory mandate or delegation of authority from Congress." See Independent Meat Packers Association v. Butz, 526 F.2d 228, 234 (8th Cir.1975), cert, denied, 424 U.S. 966 (1976), reasoning that an executive order which required inflation impact statements was not authorized by statute or the Constitution. While this Executive Order states that it furthers the purpose of the National Environmental Policy Act (NEPA), the Marine Protection Research and Sanctuaries Act, the Deepwater Port Act, and is consistent with the foreign policy and national security policy of the United States, it concedes that it is

" based on independent authority." (Executive Order 12114, Sec.1-1)

Accordingly, this Executive Order is not authorized by any statute, but rather is based on the independent authority of the President to further environmental policy set forth in NEPA.

The Executive Order also cites the President's authority " vested in me by the Constitution, and the laws of the United States...."

Although the President "shall take care to see that the laws be faithfully executed" (Article II, Section 3), he has no inherent power to regulate nuclear power. And the "take care" language of the Constitution does not give an executive order the force of law.

Independent Meat Packers, supra, 565 F.2d at 235.

143d235

. Secondly, even assuming that the NRC develops procedures or regulations as a matter of policy to implement the requirements of Executive Order 12114, those procedures or regulations would not apply to the licensing of the Skagit Nuclear Power Project. Executive Order 12114 procedures pertain only to export related activities of Federal agencies.O With regard to the related activities of the NRC that may become subject to this Eucutive Order, the Exemptions and Considerations set forth in Section 2-5(v),

specifically exempts all " actions relating to nuclear activities except actions providing to a foreign nation a nuclear production or utilization facility as defined in the Atomic Energy Act of 1954, as amer.ded, or a nuclear waste management facility." Since the Skagit project does not involve an export related NRC licensing function or an action providing a reactor to a foreign nation, it is clearly not subject to the provisions of this Executive Order.

y See White House Fact Sheet, dated January 5,1979 attached to SCANP's Motion. For example:

"The Order rect qciles competing but legitimate goals of environ-mental protection and those of foreign and export policy and national security." (Paragraph 2)

"The Order is designed to minimize any adverse effects upon U.S. exports and to further the Administration in nuclear non-proliferation, national security and other foreign policy objectives." (Paragraph 4)

"A minor fraction of the dollar volume of U.S. exports will require environmental reviews under this Order. The Order's procedures define and focus on those export actions which should receive special scrutiny because of their serious impacts on the environ-ment and public health." (Page 2, Paragraph 3)

"The President designated the Department of State as the lead agency to develop unified procedures for environmental reviews of nuclear exports covered by the Order." (Page 2, Paragraph 4) d '

.3h

For the reasons set forth above, the NRC Staff submits that this Motion must be denied.

Respectfully submitted, ik -

Richard L. Black Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of November,1979 kb . bl

, UNITED STATES OF AMERICA NUCLEAh REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PUGET SOUND POWER & LIGHT ) Docket Nos. STN 50-522 COHPANY, ET AL. ) STN 50-523

)

(Skagit Nuclear Powcr Project, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO INTERVENOR SCANP'S MOTION TO REQUIRE IMPLEMENTATION OF EXECUTIVE ORDER 12114" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of November, 1979:

Valentine B. Deale, Esq., Chairman

• Robert C. Schofield, Director Atomic Safety and Licensing Board Skagit County Plannino Department 1001 Connecticut Avenue, N.W. 120 W. Kincaid Street Washington, DC 20036 Mount Vernon..WA 98273 Dr. Frank F. Hooper, Member Roger M. Leed, Esq.

Atomic Safety and Licensing Board 1411 Fourth Avenue -

School of Natural Resources Seattle, WA 98101 University of Michigan Ann Arbor, MI 48109 Mr. Nicholas D. Lewic, Chairman Washington State Energy Facility Mr. Gustave A. Linenberger, Member

• Site Evaluation Council Atomic Safety and Licensing Board 820 East Fifth Avenue U.S. Nuclear Regulatory Commission Olympia, WA 98504 Washington, DC 20555 F. Theodore Thomsen, Esq.

Robert Lowenstein, Esq. Perkins, Coie, Stone, Olsen Lowenstein, Newman, Reis, & Williams Axelrad & Toll 1900 Washington Building Suite 1214 Seattle, WA 98101 1025 Connecticut Avenue, N.W.

Washington, DC 20036 Richard D. Bach, Esq Rives, Bonyhadi & Drummond Mr. Lloyd K. Marbet .. 1400 Public Service Building c/o Forelaws on Board \ 920 S.W. 6th Avenue 19142 S. Bakers Ferry Road Portland, OR 97204 Boring, OR 97009 1436 ?38

(

Richard M. Sandvik, Esq. Thomas F. Carr, Esq.

State of Oregon Assistant Attorney General Department of Justice Temple of Justice 500 Pacific Building Olympia, WA 98504 520 S.W. Yamhill Portland, OR 97204 Donald S. Means Attorney for Swinomish Tribal Canadian Conselate General Community Robert Graham P. O. Box 277 Vice-Consul LaConner, WA 98257 412 Plaza 600 6th & Stewart Street Russell W. Busch, Esq.

Seattle, WA 98101 Attorney for Upper Skagit Indian Tribe and Sauk-Suiattle Indian Donald W. Godard, Supervisor Tribe Siting and Regulation Evergreen Legal Services Department of Energy 520 Smith Tower Room 111, Labor and Tudustries Seattle, WA 98104 Building Salem, OR 97310 Atomic Safety and Licensing Board Panel

• Warren Hastings, Esq. U.S. Nuclear Regulatory Commission Associate Corporate Counsel Washington, DC 20555 Portland General Electric Company Atomic Safety and Licensing Appeal 121 S.W. Salmon Street Panel (5)*

Portland, OR 97204 U.S. Nuclear Regulatory Commission Washington, DC 20555 Patrick R. McMullen Skagit County Prosecuting Docketing and Service Sectio 1 (4)*

Attorney Office of the Secretary Courthouse Annex U.S. Nuclear Regulatory Commission Mount Vernon, WA 98273 Washington, DC 20555 James W. Durham, Esq.

Portland General Electric Company 121 S.W. Salmon Street TB 17 Portland, OR 97204 Patrick Moore, PhD, President Greenpeace Foundation P.O. Box 34307 2623 West 4th Avenue Vancouver, B.C.

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Richakd L. Black Nkd Counsel for NRC Staff