ML19260A613

Answers in Opposition to Intervenor Skagitonians Concerned About Nuclear Power 791017 Motion for Implementation of Executive Order 12114.FES & Final Suppl to Fes Addressed Environ Issues.Certificate of Svc Encl

ML19260A613
Person / Time
Site:	Skagit
Issue date:	11/01/1979
From:	Bauser M, Little D, Thomsen F LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912030007
Download: ML19260A613 (8)

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i NRC PUBLIC DCCEE'T i'.C "'

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

PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

)

(Skagit Nuclear Power Proj ect, ) November 1, 1979 Units 1 and 2) )

APPLICANTS' ANSWER TO INTERVENOR SCANP'S MOTION TO REQUIRE IMPLEMENTATION OF EXECUTIVE ORDER 12114 On October 17, 1979, Intervenor SCANP's Motion to Require Implementation of Executive Order 12114 (" Motion") was filed with this Board and the parties. In it, SCANP " asserts that the NRC, acting through this Licensing Board, is constrained and prohibitcd 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." Motion, p. 4. SCANP also d requests the Board to direct the Staff immediately to undertake such research and 146l 208 U12080 00S

. t study as is required to insure full consideration of the envi-ronmental effects of the proposed Skagit project upon the human environment in Canada, including preparation of an EIS or EIS s upplement , " and "because the adequacy of environmental impact statements . . . is an issue which cannot be resolved until Executive Order 12114 has been implemented and executed in this docket, that the Board defer consideration of that issue until evidentiary hearings with respect to the Staff's compliance with Executive Order 12114 are concluded, and until the parties have had the opportunity to propose findings of fact and con-clusions of law with respect thereto." Id., pp. 4-5.

The Motion, however, is without merit and should be denied.1 1The following analysis assumes, for the sake of addres-sing the Motion on its merits, that SCANP may properly raise the matter of compliance with Executive Order 12114 before this Board. Section 3-1, however, provides that the Order "is solely for the purpose of establishing internal procedures for Federal agencies to consider the significant effects of their actions on the environment outside the United States, its ter-ritories and possessions, and nothing in this Order shall be construed to create a cause of action. (Emphasis added.)

Since Judicial concepts at stancing are applicable in Commis-sion proceedings (see generally, e.g., Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),

CLI-76-27 4 NRC 610, 612-614 (1976)) it does not appear that SCANP is entitled to question complianch with Executive Order 12114 before this Board.

1461 209 First, the Motion constitutes an improper attempt to raise a now contention. In essence, it charges that the environ-mental review for the Skagit Project is inadequate because of fai. lure to comply with Executive Order 12114. Contentions may not be added, however, except by leave of the Board based upon a balancing of f actors set forth in section 2.714 (a) (1) of the Commission's regulations. See 10 CFR S 2.714 (a) (3) , (b). In its Motion SCANP has not only failed to make the required show-ing, it has not even attempted to address the pertinent factors listed in the rules. Accordingly, the Motion is improper and, for that reason alone, should be denied, Second, the procedures prescribed in the Executive Order--which, by the terms of sections 2-3 (b) and 2-5 (a) (i) ,

are triggered only by major Federal actions with signifi ' ant environmental impacts outside of the United States--do not apply to the Skagit proceeding.2 A complete environmental impact statement (follows Tr. 2913) and supplement (follows Tr.

7767) have already been prepared in connection with the Skagit 2Although Applicants express no view in this regard, it appears from the White House Fact Sheet, which was included along with the SCANP Motion, that Executive Order 12114 might apply only to export activities. For example, the third full paragraph on page two states:

The Executive Order clarifies the kinds of environ-mental reviews required for U.S. actions abroad, and removes uncertainties faceo by tne agencies anc 1461 210 Project. The cnalysis contained therein is not limited to domestic effects but addresses environmental impacts broadly, regardless of international borders. Thus, for example, such things as the influence of the Project on waterfowl using the Pacific Flyway, eagles, fish, and the ef fect of radioactive effluents from normal and accidental releases on the population (including Canadians) within 50 miles have all been con-sidered. See, e.g., Final Environmental Statement (NUREG-75/055), SS 2.7.2, 4.4.2, 5.4.3, 7.1, 10.1.2.2, 10.1.3, 11.17.1; Final Supplement to the. Final Environmental Statement (NUREG-0235 ) SS 4.3.4, 11.1.1, 11.6.1. No significant effects on the Canadian environment have been identified, nor has SCANP demonstrated that any would occur.3 Thus, Executive Order 12114 is by its own terms, inapplicable.

exporters. The Order states that it is not to be construed to create a cause of action. A minor fraction of the dollar volume of U.S. exports will require environmental reviews uncer tnis Orcer. The Order's procedures define and focus on those export actions which should receive special scrutiny because of tneir serious impacts on the environment and public health.

(Emphasis added. )

3O n page three of the Motion SCANP does refer to " con-cerns expressed by Canadians and residents of British Columbia over the possibility of _ air contamination, the effects of radiation, potential necessity to evacuate major Canadian cities, expected damage to Salmon and shellfish beds, adverse 1461 211 Finally, even assuming that--contrary to the provisions of sections 2-3 (b) and 2-5 (a) (i) discussed above--the Executive Order applied, and, assuming even further that an environmental impact statement were required,4 the preparation of a special document now would not be necessary. Section 3 5 of Executive Order 12114 provides that "If a major Federal action having eff ects on the environment of the United States . . . requires preparation of an environmental impact statement, and if the action also has effects on the environment of a foreign nation, an environmental impact statement need not be prepared with effects upon bald eagles and other birds using the Pacific fly-ways, and the limitation of liability placed by the Price-Anderson Act," citing to a limited appearance statement by Dr.

R. Woollard of the British Columbia Medical Association.

Nowhere, however, is the environmental nature or severity of these concerns discussed. And, of course, a limited appearance statement is not evidence. Iowa Electric & Power Co. - (Duane Arnold Energy Center), ALAB-108 6 AEC 195, 196n.4 (1973).

4U nder section 2-4 (b) (ii) , which prescribes the review procedure required for the type of action SCANP alleges to be here involved, either: (1) " concise reviews of the environ-mental issues involved, including environmental assessments, summary environmental analyses or other appropriate documents" (section 2-4 (a) (iii)) , or (2) " bilateral or multilateral envi-ronmental studies . . . by the United States and one or. moire foreign nations, or by an international body or organization in which the United States is a member or participant" (section 2-4 (a) (ii) ) are sufficient. A full-blown environmental impact statement (EIS) is not required. Further, to the extent that SCANP requests the Board, on page four of its Motion, "to direct the Staf f immediately to undertake . . . preparation of an EIS or EIS supplement," its does not appear that, in any event, the Board possesses the requisite authority to do so.

See, Offshore Pcwer Systems (Floating Muclear Plants), ALAB-489 8 NRC 194, 207 (1978); New England Power Co. (NEP, Units 1 and 2), LBP-78-9 7 NRC 271, 279 (1978). See also, Tr. 11,900 (statement by Chairman Deale that Boarc is "not the director of study by the Staff").

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1461 212

respect to the ef fects on the environment of the foreign nation." (Emphasis added.) As noted above, a complete EIS and supplement addressing environmental impacts, without regard to international boundaries, have already been prepared. Accord-ingly, the preparation of a new document now, directed at eval-uating effects of the Project in Canada, would be unnecessary.

In sum, SCANP's Motion is wholly without merit. It not only attempts to improperly raise a contention, but is based upon a fundamental misunderstanding of the applicability and terms of Executive Order 12114. Accordingly, the Motion and the relief it requests should be denied.

Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WI IAMS By 4 '"N F. Theocore Thomsen By M .

NDoqglas S. Little Attorneys for Applicant 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 Of Counsel:

Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue N.W.

}4hj 2)3

. Washing ton, D. C. 20036 (202) 862-8400 By w Micnael A. Bauser -

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

)

PUGET SOUND POWER & LIGHT COMPANY,) DOCKET NOS.

et al. )

) 50-522 (Skagit Nuclear Power Project, ) 50-523 Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that the following:

APPLICANTS' ANSWER TO INTERVENOR SCANP'S MOTION TO REQUIRE IMPLEMENTATION OF EXECUTIVE ORDER 12114 in the above-captioned proceeding have been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on November 1, 1979 with proper postage affixed for first class mail.

DATED: November 1, 1979 1

aA -

@u(lag / S . Little C Mnsel for Puget Sound Power &

Light Company '

1900 Washington Building Seattle, Washington 98101 1461 214

Date: November 1, 1979 Valentine B. Deale, Chairman Robert C. Schofield, Director Atomic Safety and Licensing Board Skagit County Planning Department 1001 Connecticut Avenue, N.W. 218 County Administration Building Washington, D. C. 20036 Mount Vernon, WA 98273 Dr. Frank F. Hooper, Member Richard'M. Sandvik, Esq.

Chairman of Resource, Ecology, Assistant Attorney General Fisheries and Wildlife 500 Pacific Building University of Michigan 520 S.U. Yamhill School of Natural Resources Portland, OR 97204 Ann Arbor, MI 48109 Roger M. Leed, Esq.

Gustave A. Linenberger, Member Room 610 Atomic Safety and Licensing Board 1411 Fourth Avenue Building U.S. Nuclear Regulatory Commission Seattle, WA 98101 Washington, D. C. 20555 CFSP and FOB Alan S. Rosenthal, Chairman Eric Stachon Atomic Safety and Licensing 2345 S.E. Yamhill Appeal Board Portland, OR 97214 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Robert Lowenstein, Esq.

Lowenstein, Newman, Reis, Dr. John H. Buck, Member Axelrad & Toll Atomic Safety and Licensing 1025 Connecticut Avenue, N.W.

Appeal Board Washington, D. C. 20036 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Warren Hastings, Esq.

Associate Corporate Counsel Michael C. Farrar, Member Portland General Electric Company Atomic Safety and Licensing 121 S.W. Salmon Street Appeal Board Portland, OR 97204 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 James W. Durham Portland General Electric Company Docketing and Service Section 121 S.W. Salmon Street Office of the Secretary- Portland, OR 97204 U.S. Nuclear Regulatory Commission -3 Washington, D. C. 20555 Richard D. Bach, Esq.

(original and 20 copies) Stoel, Rives, Boley, Fraser and Wyse Richard L. Black, Esq. 2300 Georgia Pacific Bldg.

Counsel for NRC Staff 900 S.W. Fifth Avenue U.S. Nuclear Regulatory Commission Portland, OR 97204 Office of the Executive Legal Canadian Consulate General Director Donald Martens, Consul Washington, D. C. 20555 412 Plaza 600 -

6th and Stewart Street Nicholas D. Lewis, Chairman Seattle, WA 98101 Energy Facility Site Evaluation Council Patrick R. McMullen, Esq.

820 East Fif th Avenue Skagit County Prosecuting Attorney Olympia, WA 98504 Courthouse Annex Mount Vernon, WA 9827.3 Thomas F. Carr, Esq.

• Assistant Attorney General j4hj Temple of Justice })}

Olympia, WA, 98504 8/22/79