ML19259C487
| ML19259C487 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 05/25/1979 |
| From: | Wolfe S NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7906220180 | |
| Download: ML19259C487 (11) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION g
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD e
In the Matter of
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0FFSHORE POWER SYSTEMS
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Docket No. STN 50-437 CP
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(Manufacturing License for
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Floating Nuclear Power Plants)
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MEMORANDUM AND ORDER Our Order of April 15, 1974, admitted as an issue in controversy the following contention advanced by the Natural Resources Defense Council:
"The sole contention advanced by NRDC is that the environmental impact statement being prepared by the Staff will not be a ' programmatic' impact state-ment and therefore will not meet the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 el. seq."
On February 16, 1979, the Natural Resources Defense Council filed a Motion For Summary Disposition of the following issue:
The FES for the manufacture of floating nuclear plants is legally deficient because it fails to consider the environmental impact of and alterna-tives to the entire proposed floating nuclear plant program and is not a programmatic impact statement.
Applicant filed its Answer and Cross-Motion for Summary Disposition on March 8, 1979, and the Staff filed its Response to NRDC's Motion on March 13, 1979.
On April 6,1979, NRDC filed its Reply to Applicant's and Staff's 0ppositions To its Motion For Summary Disposition and its Opposition To Applicant's Motion For Summary Disposition.
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MEMORANDUM Certain facts undi'.guted by any of the parties are as follows:
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In January 1973, pursuant to 10 C.F.R. Part 50, Appendix M of the Commission's regulations, Offshore Power Systems filed an application for a license to manufacture eight floating nuclear plants.
The scope of the Final Environmental Statement is limited to a consideration of that specific proposal and the hypothetical sites relevant thereto.
NRDC states that the following material facts are not in dispute:
1.
OPS intends to produce substantially more than eight floating nuclear power plants.
a.
The facility being built at Blount Island is designed to produce as many as four FNPs per year (OPS Editorial Fact Book 1974-75, p. 3).
b.
OPS considers that it has a potential market for at least 80 FNPs between now and the year 1985 in the East Coast and Gulf Coast utili-ties (OPS Press Release, December 4, 1972, by George F. Gilliland, p. 1).
l/ Appendix M provides in pertinent part:
3.
An applicant for a manufacturing license pursuant to this Appendix M shall submit with his application an environ-mental report as required of applicants for construction pennits in accordance with Part 51, provided, however, that such report shall be directed at the manufacture of the reactor (s) at the manufacturing site; and, in general terms, at the construction and operation of the reactor (s) at an hypothetical site or sites having characteristics that fall within the postulated site parameters.
The related draft and final detailed statements of environmental considera-tions prepared by the Commission's regulatory staff will be similarly directed.
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. 2.
The FES prepared for the OPS application is limited to consideration of a proposal to build, site and operate only eight FNPs.
a.
The need for power (including energy alternatives and conservation) is limited to consideration of the period during which the eight FNPs would be available for delivery (NUREG-0056, Vol.1, p. 2-1).
b.
The combined impacts of preparation of the site for an FNP and the operation of an FNP at the site do not include an analysis of the total environmental consequences of the siting of a substantial number of these facilities as planned by OPS (e.g., NUREG-0056, supra, pp. 11-4 et. seq.).
c.
The loss of the use of portions of the outer con-tinental shelf is dismissed as essentially de minimis because only eight FNPs are being proposed to be built and operated (NUREG-0056, supra, p. 9-5).
d.
The analysis of alternative energy systems to FNPs essentially dismisses all solar options on the theory that the only period of interest is the period during which the eight FNPs will be available for delivery (NUREG-0056, suora, pp.10-22 to 10-23).
e.
The Staff has explicitly refused to consider the environmental impact of more than eight FNPs (NUREG-0056, Vol. 2, pp.12-2 to 12-3).
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. 3.
The FNP involves substantial new and unique concepts.
a.
The total risk associated with use of an FNP re-quires it to take special design protections not applicable to land-based nuclear plants (NUREG-0502, pp. XV-XVI).
b.
The unique problems associated with estuarine, riverine and barrier island siting require estab-lishment, in advance of any specific siting pro-posal, of special conditions relating to the ability to demonstrate environmental protection measures that will be taken (NUREG-0502, p. XVI).
While urging that NRDC's statement of material facts is neither material nor relevant to summary disposition of the legal issue, Appli-cant submitted a counter-statement of material facts in the event we might find certain of NRDC's factual assertions to be material-2/ The 2f For its counter-statement of material facts, Applicant relies upon an affidavit of two of its employees who attested that (a) Applicant has no current plans to seek authority to manufacture more than the eight FNPs, but that, should market conditions improve and should the eight FNP3 be licensed and sold, application may be nade for authority to manufacture additional FNPs; (b) the proposed FNPs, even with some novel features, do not represent a basic new technology; (c) the risk addressed by the Staff's proposed design provision for the replacement of the concrete pad beneath the reactor vessel is solely that associated with releases to the liquid pathway and not the airborne pathway which must be included in assessing total risk; (d) any special consideration of riverine, estuarine or barrier island siting of FNPs with respect to environmental review will await the filing of a construction permit application by a utility / owner of a FNP; 2281 061
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. Staff basically does not challenge NRDC's statement of undisputed material facts, but argues that, as a matter of law, NRDC's motion should be denied, and, in effect, cross-moves for summary disposition.
We agree with the Applicant and the Staff that there is no genuine issue as to any material fact and that, as a matter of law, NRDC's motion for summary disposition must be denied and Applicant's and Staff's cross-motions must be granted.
Kleppe v. Sierra Club, 427 U.S. 390 (1976) is dispositive of the legal issue of whether Section 102(2)(C) of the National 3/
Environmental Policy Act of 1969, 42 U.S.C. 6 4332(2)(C), requires the Footnote 2 (cont'd.):
(e) no siting of a FNP is authorized under Appendix M until a utility / owner has filed an application for a construction permit which under Commission regulations must include an environmental assessment of the siting of the FNP; (f) the eight proposed FNPs could be deployed along the Eastern Sea-board and Gulf Coast; since typically siting of FNPs will be in pairs, the eight FNPs could be sited along only four statute miles of more than two thousand such miles of shoreline available; and that any conflicts in the use of a zone would be addressed at the time of the environmental review for the siting of FNPs by a utility / owner in its application for a construc-tion permit, and (g) none of the programs for the commercial utilization of solar power will demonstrate economic practicality or be available for wide-scale application by the 1990's.
3f Section 102(2)(C) requires that all Federal agencies shall include in every recommendation or report on proposals for legislation or other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -
"(i) the environmental impact of the proposed action,
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
"(iii) alternatives to the proposed action,
"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." (Emphasis added.)gj Q62 s
. preparation of a comprehensive programmatic environmental statement cover-ing substantially more than eight FNPs before proceeding to approve the specific pending apW ication to manufacture eight FNPs. In the Kleppe case, respondents (several environmental organizations) had secured an injunction from the Court of Appeals against petitioners' (officials in the Department of Interior) approval of four coal mining plans in one small section of a region identified as the " Northern Great Plains Region" (NGPR), despite the fact that petitioners had prepared four envircnmental impact statements on these proposed private, localized actions. Respondents contended that the Department of Interior could not issue coal leases, approve mining plans, grant rights-of-way, or take the other actions necessary to enable private companies and public utilities to devel ap coal reserves in this federally owned and controlled region without firrt preparing a comprehensive environ-mental impact statement under Section 102(2)(C) of NEPA. In reversing the judgment of the Court of Appeals, at pages 401-402 of the Kleope opinion, the Supreme Court stated: Quite apart from the fact that the statutory language requires an impact statement only in the event of a proposed action, respondents' desire for a regional environmental im-pact statement cannot be met for practical reasons. In the absence of a proposal for a regional plan of development, there is nothing that could be the subject of the analysis envisioned by the statute for an impact statement. Section 102(2)(C) requires that an impact statement contain, in essence, a detailed statement of the expected adverse environ-mental consequences of an action, the resource commitments involved in it, and the alternatives to it. Absent an overall plan for regional development, it is impossible to credict the level of coal-related activity that will occur in the region identified by respondents, and thus impossible to analyze the environmental consequences and the resource commitments in-volved in, and the alternatives to, such activity. A regional plan would define fairly precisely the scope and limits of the proposed development of the region. Where no such plan exists, any attempt to produce an impact statement would be little more than a study along the lines of the NGPRP, containing estimates of potential development and attendant environmental colsequenc.:. There would be no factual predicate for the production of an environmental impact statement of the type envisioned by NEPG. (footnotes omitted). N81 063
.. L _.. ~ _ , At pages 409-410 of its opinion, the Supreme Court explained that Section 102(2)(C) of NEPA may require a comprehensive impact statement in certain situa-tions where several proposed actions are pending at the same time - i.e. "... when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, then environmental consequences must be considered to-gether". Further, at page 410 n. 20 of its opinion, after observing that respondents appeared to seek a comprehensive impact statement covering contemplated projects in the region as well as those that already have been proposed, the Supreme Court noted that: ... The statute, however, speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated actions later reach the stage of actual proposals, impact state-ments on them will take into account the effect of their approval upon the existing environment; and the condition of that environ-ment presumably will reflect earlier proposed actions and their effects. Cf. n. 26, infra. Finally, at pages 414-415 n. 26 of its opinion, the Supreme Court stated: Nor is it necessary that petitioners always complete a comprehensive impact statement on all proposed actions in an appropriate region before approving any of the projects. As petitioners have emphas ued, and respondents have not disputed, approval of one lease or mining plan does not commit the Secretary to approval of any others; nor, apparently, do single approvals by the other petitioners commit them to subsequent approvals. Thus, an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals. Cf. n. 20; suora. 2281 064
. In the instant case, Applicant has submitted a specific proposal to manufacture eight FNPs, and it is undisputed that the scope of the Final Environmental Statement is limited to a consideration of that specific proposal. The statutory language of NEPA's Section 102(2)(C), however, only requires that an environmental impact statement be pre-pared in conjunction with that specific proposal and thus the Staff's Final Environmental Statement cannot be faulted for not being the comprehensive programmatic statement desired by NRDC. Further, even assuming for the sake of argument, that Applicant (as alleged by NRDC) plans or intends to manufacture a substantial number (in the hundreds) of FNPs over the next several decades, there is no " specific action of known dimensions" for the Staff to evaluate and thus there is no factual predicate for the preparation of a comprehensive programmatic environ-mental statement. See Kleppe at page 402 n.14. We note that NRDC argues that, where the first steps of a wide-scale commercialization of -4/ a new technology are involved, the Commission has never interpreted its 4/ If we assume arguendo that substantia,1 new and unique concepts are involved, we would note that, except for claiming that the FES is defi-cient in not addressing the environmental impact of a larger number of FNPs, NRDC does not contend that the FES is deficient in not adequately assessing the environmental impact of the proposed eight FNPs.
- Further, in passing, we note that NRDC discusses the purported " unique risks" associated with FNPs (NRDC Mot. for S. Disposition at p. 7).
Such a discussion is irrelevant to the basic legal issue before us.
- Finally, we note that NRDC speaks of the high unlikelihood that any shoreline sites for FNPs will be found which are acceptable.
(Ibid at p. 7). Once again such a discussion is irrelevant to the basic legal issue herein. Moreover, such a discussion is irrelevant in light of our Order of September 11, 1978 which denied NRDC's Motion To Amend Conten-tions. Therein NRDC had sought to assert that the Staff must locate and evaluate specific estuarine and riverine sites at the manufacturing license stage. We denied the Motion because said motion constituted a challenge to Appendix M and thus violated 10 C.F.R. 3 2.758. 2281 065
..... ~ . NEPA duties to preclude its investigation of environmental implications of a far larger number of applications than were currently pending before it. (NRDC Reply Brief of April 6, 1979, pp. 2-3). However, as of March 31, 1977, in Public Service Company of New Hampshire, et al. (Sea-brook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 542 (1977), the Commission concluded that "Kleppe confirms that NEPA distinguishes between direct Federal action and Federal approval of private action and that NEPA requires an analysis appropriate for the proposal and not the maximum possible environmental analysis for every proposal". Certainly in the instant case, the Commission has neither directed the Staff to prepare a programmatic im-pact statement nor this Board to consider the maximum possible env.ronmentai impact of a substantial number of FNPs in excess of eight FNPs. While NRDC raises the spectre that approval of construction of eight FNPs will preordain the subsequent approval of the construction of more FNPs (NRDC's Reply Brief of April 6,1979, pp. 4-7) its arguments are specu-51 lative and barrenly denigrate the Staff's, the Ccnnission's and the 5] NRDC argues that (a) approval of the construction of the eight FNPs will forestall development and implementation of alternative energy systems, such as solar energy, and of conservation, (b) the possible loss of jobs by workers hired to build the eight proposed FNPs, if further FNPs are not approved, will be used to justify building more FNPs, and (c) the adverse environmental im-pacts inevitably associated with the siting of the eight FNPs will be used to demonstrate that the ocean and coastal environment is already so degraded that further FNP sitings will not significantly degrade the environment. 2281 066
. Department of Energy's dedication to fulfill their statutory and regula-tory duties. As recognized by the Supreme Court in Klepoe, a single approval of a plan does not comit the agency to subsequent approvals and, should contemplated actions later reach the stage of actual proposals, the environmental effects of the existing project can be considered when preparing the comprehensive statement on the cumulative impact of the remaining proposals.~6/ Accordingly, we conclude that Section 102(2)(C) of NEPA does not require the preparation of a comprehensive programmatic environmental statement covering substantially more than the eight FNPs before pro-ceeding to approve the specific pending application to manufacture eight FNPs. The FES complies with Section 102(2)(C) in addressing the proposed action herein - viz. the manufacture of eight FNPs. 6f See the Final Environmental Statement, Part II at page 12-3 (NUREG-0056, September 1976) wherein the Staff stated: ..., in the event that the applicant (0PS) should at some future date file an application for a license to manufacture additional floating nuclear plants beyond the eight units cited in the present application, an additional environmental impact statement will need to be prepared. At that time, the NPC staff will consult with interested Federal agencies, including EPA and CEQ, to define the scope and extent of that statement. Any future statemetn (sic) pre-pared in conjunction with a license to manufacture (or extension of an existing license) would address the cumulative effects of pre-viously sited plants with a view to design improvements or other environmental impact mitigating measures. 2281 067
l m ORDER NRDC's Motion for Sumary Disposition is denied, and the Applicant's and Staff's Cross-Motions for Sumary Disposition are granted. IT IS SO ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD M e Sheldon J. WoT'e, Esqufre' Chairman Dated at Bethesda, Maryland this 25th day of May, 1979. 2281 068}}