ML19259B297
| ML19259B297 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 01/16/1979 |
| From: | Degnan J, Hluchan R NEW JERSEY, STATE OF |
| To: | |
| References | |
| NUDOCS 7901260030 | |
| Download: ML19259B297 (14) | |
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'O In the Matter of Docket No. STN 50-437 0FFSHORE POWER SYSTEMS On Certification To The (Manufacturing License for Atomic Safety And Licensing Floating Nuclear Power Appeal Board Plants)
BRIEF FOR THE STATE OF NEW JERSEY JOHN J. DEGNAN Attorney General of New Jersey Attorney for State of New Jersey State House Annex Trenton, New Jers ey 08625 RICHARD M. HLUCHAN Deputy Ar.corney General Of Cou.:a1 and On the 3rief 7901260o30
TABLE OF CONTENTS Page STATEMENT OF THE CASE.....................................
1 ARGUMENT THE STAFF'S STUDY AND CONCLUSIONS RESPECTING THE CONSEQUENCES OF A CI. ASS 9 ACCIDENT AT A FLOATING NUCLEAR PLANT MUST BE INCLUDED IN ITS FINAL ENVIRONMENTAL STATEMENr.......................
3 CONCLUSION................................................
10 CERTIFICATE OF SERVICE....................................
11 i-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of Docket No. STN 50-437 0FFSHORE POWER SYSTDIS On Certification To The (Manufacturing License for Atomic Safety and Licensing 10 Floating Nuclear Power Appeal Board Plants)
BRIEF FOR THE STATE OF NEW JERSEY STATEMENT OF THE CASE On August 21, 1978, the Atomic Saf ety and Licensing 20 Appeal Board decided ALAB-489, refusing to direct the Nuclear Regulatory Commission (NRC) Staff to exclude from its environ-mental impact statement consideration of class 9 accidents at floating nuclear plants.
On September 29, 1978, the Appeal Board denied the Applicant's motion for reconsideration, but certified the Class 9 issue to the Commission (ALAB-500).
In 30 its order of December 8,1978, the Commission accepted review of the certified issue.
As stated in that order, the issue presently under consideration is whether " Class 9 accidents are a proper subj ect for consideration in the staff's environmental statement on the floating nuclear power plant application."
y es submission of this brief, the State of New 40 Jersey, an intervenor in this matter which participated in the proceedings below, urges the Con: mission to answer the certified question in the affirmative as did the Appeal Board.
10 20 30 40 ARGLHEST THE STAFF'S STUDY AND CONCLUSIONS RESPECTING THE CONSEQUENCES OF A CIASS 9 ACCIDENT AT A FLOATING NUCLEAR PIANT MUST BE INCLUDED IN ITS FINAL ENVIRONMENTAL STATEMENT.
1 From the outset of this licensing proceeding, it has 10 been the firm position of the State of New Jersey that the floating nuclear plant (FNP) concept is a new and novel one.
New Jersey has never accepted the contention that FNPs are merely a minor extension of existing technology, but believes that mounting a nuclear generating plant with a net capacity of 1150 MWe on a floating platform and the installation of that 20 platform in a liquid environment is new, novel, and extra-ordinary.
In furtherance of this conviction, the State of New Jersey filed a petition for rule-making with the Commission (PRM 50-10, 39 Fed. Reg. 15900-01, May 6,1974) which inter alia requested the NRC to adopt a rule which would recuire the 30 consideration of Class 9 accidents in licensing proceedings when new or novdL siting or design considerations are involved.
The petition for rule-making specifically cited the floating nuclear power olant concept as an example of the proceedings in which Class 9 accidents should be considered.
40 The filing of PRM 50-10 was not a recognition by the State of New Jersey that NRC regulations orchibited the consid-eration of Class 9 accidents in licensing proceedings or in independent NEPA documents.
Rather, it was a practical response to what was then, and until this proceeding had been, the knee-j erk response of the then Atomic Energy Commission ("AEC") and all applicants in licensing proceedings to r.he exposure of a 10 very sensitive nerve, the Class 9 accident..*
In other words, the State recognized that the AEC had not exercised its discretion to consider the Class 9 accident in licensing proceedings or to include discussion of that type of accident in NEPA documents, and probably would not unless it bound itself to do so.
Fortunately, 20 the NRC Staff has demonstrated in this proceeding that it is willing to consider such an accident without being forced to do so.
It is New Jersey's position that the NRC Staff was not prohibited from considering Class 9 accidents in its Final Environmental Statement (FES) and that the Staff was imbued with the discretion to do so.
Moreover, now that the Staff's 30 The State of New Jersey has not actively pursued PRM 50-10 as it relates to the Class 9 accident because the NRC staff committed to undertake the Liauid Pathway Generic Study ("LPGS") and to consider therein Class 9 accidents at FNPs.
It certainly came as no surprise to the State of New Jersey that the NRC Staff intended to include and consider the Class 9 accident in the FES for OPS because it is inconceivable that consideration of Class 9 accidents in the LPGS by the NRC Staff could be reasonably viewed as an academic exercise.
40 study of Class 9 accidents at FNPs is complete,* it would be arbitrary, capricious and an unprecendented violation of NEPA if the Commission were now to excise that study from consideration in this licensing proceeding.
The plain language of the only standard ** guiding e nsideration of Class 9 accidents for EIS purposes nowhere 10 expressly or impliedly prohibits such consideration.
The standard merely states that "it is not necessary to discuss such events in applicants' Environmental Reports."
Nor does the primary judicial exposition in this area, Carolina Environmental Study Group v.
U.S.,
510 F. 2d 796 (D.C. Cir. 1975) in any way 20 indicate that NRC policy is to prohibit discussion of Class 9 accidents.
That case merely asserts that on the record then b efore the court, the failure to consider Class 9 accidents did not warrant a finding that an EIS was inadequate.
]:d. at 799.
OPS has never pointed to any authority which plainly prohibits the Staff from conducting a Class 9 analysis for FNPs.
30 At b es t, the annex to Appendix D is vague as to whether the Commission intended to permit the Staff to consider Class 9 FES, Phrt III (NUREG-0502) was published in Dece=ber,1978.
- The standard is the annec to former Appendix D to 10 C.F.R. Part 50 (1970), published at 36 Fed. Reg. 22851-52 (December 1, 1971.).
The annex is not a promulgated regulation and technically is not entitled to be considered as " law".
40 accidents where "special circumstances
. about the cons equences" of such an accident could be demonstrated (ALAB-489 at p. 39).
New Jersey submits that in the absence of any other interim guidance or instructions from the Commission ( and there apparently was none here), the language of the annex provided sufficient flexibility for the Staff to undertake a Class 9 study for FNPs.
Moreover, as the Appeal Board pointed out, because FNPs present " risks of a different kind than those associated with plants ashore," and since the annex was not prepared with FNPs in mind, the Staff's decision "to inform itself of the consequences of using this novel siting concept" 20 was proper and necessary. Id. at 47, 51.
The Appeal Board's comment that "The first question likely to be asked by anyone confronted with the concept of an offshore nuclear power plant is 'what will happen in the ocean in the event of a serious accident?'"
is neither hypothetical nor prescient.
This is precisely the 30 question.,ew Jersey, its citizens, and other intervenors in this proceeding have been asking for years.
The Board quite properly decided that the " full disclosure" provisions of NEPA give the State and its c'itizens the right to an answer, and de=and that the answer be considered in the licensing process.
It is incumbent upon the Commission to require answers respecting Class 9 40 6-
consequences not only in the context of FNPs, but in all situations where nuclear technology is applied to novel and unusual sites or designs.
The fact that the Staff, guided only by the annex in question, has conducted and published a Class 9 study for FNPs ann t be ignored in the instant proceeding.
This study was not 10 produced overnight, but has been in process for 3 years.
See ALAB-489, at 3 n.5.
Both OPS and the Com=ision were aware of the pendency of this Staff study.
Now that the study and resultant recommendations have been concluded, however, it would be a gross violation of NEPA (42 U.S.C. 54332(2)(C)) to cast aside 20 and ignore this significant document.
OPS takes an ancmalous and quite unprecedented position by demanding thata portion of an EIS be deleted by the agency which prepared it.
OPS wishes the NRC, other agencies of govern-ment, and the public to close their eyes to the class 9 report for FNPs and pretend that it never existed.
This extraordinary 30 position is without any basis under either statutory or case law.
No court has ever ordered an agency to excise part of an EIS in a published decision.
As a " full disclosure" statute, the NNPA balance requires that available, relevant material be included, rather than excluded, from an EIS wherever possible.
Thus, in Committee for Nuclear Resconsibility v. Seaborz, 463 F. 2d _
783, 787 (D.C. Cir. 1971), the court disapproved an agency's
" arbitrary and impermissible approach of completely omitting from the [EIS), and hence from the focus that the statement was intended to provide for the deciding officials, any reference whatever to the existence of responsible scientific opinions n ernin8 Possible adverse environmental effects."
- Moreover, 10 the court concluded that "there is room for discretion on the part of the officials preparing the statement, but there is no room for an assumption that their determination is conclusive."
_I.d.
Clearly, now that the Class 9 study has been concluded, 20 it would be arbitrary and an abuse of discretion for the Commission to excise it from the EIS.
No rational basis for such excision exists, especially in light c _" the Staff's conclusions therein.
The Staff had at leastcolorable authority, pursuant to the annex, to prepare the study, and the Comission and OPS have been aware of the study for 3 years.
As such, any protest at this point 30 comes too late.
The Comission, which is ultimately responsible for the Staff's actions, and OPS, which waited until now to object, are now estopped from opposing the inclusion of the report in the EIS.
NEPA cannot sanction the deletion of this study merely because OPS finds its conclusions unfavorable.
It is recognized that "an EIS need not discuss remote and highly speculative consequences."
EDF v. Corps. of Engineers, 348 F. Supp. 916, 933 (N.D. Miss. 1972), aff'd 492 F. 2d 1123 (5th Cir. 1974).
Having undertaken a Class 9 study, however, and having found that the consequences of a Class 9 accident at one FNP are far greater than at a land based plant, such information cannot now be covered up.
Even in instances where courts have upheld the adequacy of an EIS in the face of challenges on account of the omission of various data or studies, it is unusally indicated that the better practice is to include such data and thereby improve the overall EIS.
EDF v. Hoffman, 566 F. 2d 1060,1067 (8th Cir.1977); City of Des Plaines v.
20 Metro. Sanitarv Dist., 552 F. 2d 736, 738 (7th Cir. 1977).
Inclusion of such material is surely the essence of full disclosure and thorough consideration.
30 40.
CONCLUSION The State of New Jersey urges the Comission to honor the full disclosure provisions of NEPA by answering the certified question in the affirmative for the foregoing reasons.
Respectfully shbmitted, 10 JOHN J. DEGNAN Attorney General of New Jersey Attorney for State of New Jersey b
C Richard M. Hluchan Deputy Attorney General 20 30 40 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of Docket No. STN 50-437 0FFSHORE POWER SYSTDIS On Certification To The (Manufacturing License for Atomic Safety And Licensing Floadting Nuclear Power Appeal Board Plants)
CERTIFICATE OF SERVICE I hereby certify that copies of the "Brief For the State of New Jersey" were served upon the person' listed on the attached service list by personal delivery or by deposit in the United States Mail (First Class), postage prepaid, this RM day of January, 1979.
kM d
Richara M.
Hluchan Deputy Attorney General.
In the Matter Of:
Offshore Power Systems Docket No. STN 50-437 SERVICE LIST Richard S. Salzman, Esa.
Dr. John H. Buck Michael C. Farrar, Esq.
Atcmic Safety & Licensing Atomic Safety & Licensing Atomic Safety & Licensir Appeal Bd.
Appeal Bd.
Appeal Bd.
U.S. Nuclear Reg. Comm.
U.S. Nuclear Reg. Comm.
U.S. Nuclear Reg. Comm.
Washington, D.C. 20555 Washington, D.C. 20555 Washington, D.C. 20555 Sheldon J. Wolfe, Esq.
Dr. David R. Sching Anthony Z. Roisman, Esq.
Atomic Safety & Licensing Department of Oceanography Natural Resources Bd.
Texas A & M University Defense Council U.S. Nuclear Reg. Comm.
College Station, Texas 917 15th St., N.W.
Washington, D.C. 20555 77840 Washington,D.C.
20005 Mary M. Cheh, Esq.
Barton Z. Cowan, Esq.
Thomas M. Daugherty, Esq Suite 1000 Eckert, Seamans, Cherin &
Offshore Power Systems 600 New Hampshire Ave,NW Mellot 800 Arlington Expressway Washington, D.C. 20037 600 Grant St. - 42nd Floor P. O. Box 8000 Pitsburgh, Pa.
15219 Jacksonville, Fla. 32211 Vincent W. Campbell, Esc Mr. John H. Williamson Mr. Lester Kornblith Jr.
P e$
i js 211 Fo3est Drive Atomic Safety & Licensing 0 f ho e ho ar Sy t Linwoou, nm Ters ey Bd.
P O
Bo 8000 08221 U.S., Nuclear Reg. Comm.
8 00'Arlinoton Expresswa-Washington, D.C. 20553 Jacksonvil e, Fla. 32211' Dr. David L. Hetrick Marc R. Staenberg, Esq.
Prof, of Nuclear Eng.
Stephen M. Schinski, Esq The Univ of Nuclear Eng.
Counsel for NRC Staff Tucson, Arizona 85721 Washington, D.C. 20555 Dr. Glenn L. Paulson Mr. Michael Attalla William Potter, Esq.
Asst. Comm. of the State 4028 P6nce DeLeon Ave.
Dept. of Public Advocate of N.J.
Jacksonville, Fla. 32217 P. O. Box 141 Johc Fitch Plaza 520 East State Streer Trer. con, N.J. 08625 Trenton, N.J.
08625 Atomic Safety & Licensing City of Brigantine Harold P. Green, Esq.
' card Panel Attn: Mr. George B. Ward 600 New Hampshire Ave,r.c U.S. Nuclear Reg. Comm.
Brigantine, N.J. 08203 Washington, D.C 20337 Uashington, D.C. 20555 Carl Valore, Esq.
Dr. Willard W.
Ros enb erg Mr. Harold P. Abrams 535 Tilton Road 8 N. Rumson Avenue 9100 Amherst Avenue P. O. Box 152 Margate, New Jersey 08221 Margate, New Jersey 0840.
Northfield, N.J.
08225 Atomic Safety & Licensing Docketing & Service Section Appeal Panel Office of the Secretary U.S. Nuclear Reg. Comm.
U.S. Nuclear Reg. Comm.
Wasaington, D.C. 20555 Washington, D.C.
20555