ML19261C382
| ML19261C382 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 01/16/1979 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19261C376 | List: |
| References | |
| REF-10CFR9.7 SECY-A-79-006, SECY-A-79-6, NUDOCS 7903220360 | |
| Download: ML19261C382 (18) | |
Text
UNITED STATES NUCl. EAR REGULATORY CoMMIS$1oN January 16' 1.979 SECY-A-79-6 ADJUDIC_ATORY IT.EM CONSENT CALENDAR ITEM For:
The Cenmissicners From:
James A. Fitzgerald Acting Assistant General Counsel
Subject:
ALAB-502 (In the Matter of Rochester Gas and Electric Corporation, et al.)
Facility:
Sterling Power Proj ect, Nuclear Unit No. 1 Petitions for Review:
Ecology Action of Oswego Review Time Excires:
February 9, 1979 (as previously extended)
Purcose:
To inform the Commissioners of an Appeal Board decision for which a petition for review has been filed, and which, in my view, does not require Commissicn review; and to suggest that denial of the petition would provide the appropriate occc.Sicn for an order which would limit the effects of the Appeal Board's interpretation of the obviously superior standard fo" alternative site selection.
Summarv:
In ALAB-502, the Appeal Board partially affirmed the Licensing Board's decision authorizing issuance of a construction permit for the Sterling ?cwer Proj ect, 1/
and made a significant interpretation of the "obviously supericr" standard for choosing among alternative sites.
The Appeal Board interpreted the word " obvious' '
to mean " clearly and substantially", and on this basis rejected the alternative Ginna site even though it already contains 1/
For the reasons discussed below, the Appeal Beard retained jurisdicticn over two issues:
environmental impact of raden releases arising from uranium mining and milling, and need-fc?-pcwer.
CCNTACT:
Shelden L. Trubatch, CGC
--3222 7 903220360
2 a nuclear power plant and was fcund by the Licensing Board to be marginally preferable in the environmental aspects considered. 2/
Intervenor Ecology Action of Oswego (EA) petitioned the Cctmis-sion for review of the Appeal Ecard's interpretation of the obvicusly superier standard and several other aspects of its decision.
Applicant Rochester Gas and Electric (RG&E) and the NRC staff opposed review.
In our view, most of the issues raised by EA are without merit and do not warrant Ccmmission review. 3/
T However, we find that the Appeal Board s interpretation of the obviously superior standard in this proceeding raises several questions.
In addition, we expect this decision could significantly influence adjudication of the alternative sites issue in future licensing proceedings as well as Staff's conduct of alternative sites review.
Consequently, we discuss three optionc for Commission action:
review, no review, and no review coupled with issuance of an order which would have the effect of limiting future use of the Appeal Board's interpretation.
We recommend the last alternative.
Discussion:
A.
Introduction The Licensing Board authorized issuance of the Sterling construction permit on August 26, 1977 Applicant Rochester Gas and 'lectric (RG&E and Intervenor Ecology Action both filed excepticns. 1/
2/
Slip op. at 17 1/
For your ccnvenience these arguments are summarized in an attachment.
-4/
Because RG&E challenged the Licensing Board's analysis and not its result, the Appeal Ecard dismissed RG&E's exceptions.
Ecwever, RG&E's brief in suppcrt of the exceptions was treated as a reply to Eccicgy Action's objections to the Licensing 3 card's site-ccmparison analysis.
3 During the pendency of the appellate proceeding Ecology Action also filed several =ctions before the Appeal Board to reopen the record on several issues:
need for power, environmental costs of raden, choice of sites, and availability and cost of uranium fuel.
In addition, on April 28, 1978, Ecology Action moved before the Appeal Scard to suspend the effectiveness of the construction permit pending a decision on the radon and alternative sites issues and to enj oin the applicant from entering into a contract for uranium while EA's appeal was being considered.
This motion for suspension and injunction was denied in an unpublished Appeal Board Order of May 5, 1978, j/ which also deferred decision on the need for power issues raised earlier.
In ALAB-502 the Appeal Board deferred decision en the issues of radon and need for power and retained jurisdiction over them. 6/
All other issues raised by EA's 5/
See SECY-A-78 for a discussion of this Order.
EA has also petitioned the U.S. Court of Appeals for the District of Columbia Circuit for review of this Order.
Civ. No. 78-1855
~6/
The Appeal Beard was correct in deferring decision on the issues of need-for-power and raden.
RGLE has postponed initiation of construction at Sterling until the fall of 1980.
Slip cp. at 3 By that time the current review of these two issues should be completed and they should be resolved.
Consequently, EG&E is not prejudiced by this deferral of Appeal Ecard action.
The need-for-power issue involved two matters:
intervencr's
=ctions to reopen the record to consider an updated pcwer forecast predicting reduced demand (the so-called secticn 149-b report), and the Appeal Scard's ability Oc evaluate this report and reach a decision.
The Appeal Ecard deferred its consideration and did not order recpening cf the record en need fcr power because that issue is cur-rently being reconsidered by the New ?crk State Ecard (Continued on following pa e) e
4 exceptions were decided in accordance with the conclusions of the Licensing Board. 1/
However, the Appeal Scard found that the Licensing Scard had used the wrong standard in making its alterna-tive site ccmparison.
The Licensing Scard approved of the Sterling selection en the basis of the costs of delay which would result from relocating the plant to the Ginna site.
The Appeal Board found that delay costs should not have been con-sidered once the Licensing Board found that environmentally no site was obviously superior to the Applicant's choice. 8/
Consequently, the Appeal Board affirmed the Licensing Board's approval of the Sterling site based on its own application of the "obviously superior" standard.
-6/
(Continued frcm preceding page) on Electric Generating Siting and the Environment (Siting Board).
Ecology Action is a participant in that proceed-ing.
In addition, the Appeal Board found that the Siting Board is qualified to make an informed judgment which will be due the deference usually accorded need-for-power deter-minations by competent State agencies.
Consequently, the Appeal Board saw no reason to duplicate the Siting Board's ongoing proceeding.
Slip op. at 5 With regard to the radon issue, the Appeal Scard acted consistently with its decision in ALAB 480.
7 NRC 796 (1978).
Sterling is one of the facilities consolidated into procedures established by that decision.
There is no reason for the Licensing Board in this proceeding to duplicate the ongoing proceeding.
~7/
In addition, the Appeal Board summarily denied EA's motion to reopen the record on the cost and availability of uranium.
Slip cp. at 25 n.28.
-8/
Slip op. at 24
5 3.
Site Selection The controversy over site selection centers on two sites:
RG&E's proposed
" virgin" site at Sterling and its already " spoiled" site at Ginna which contains a 490 MWe nuclear power plant.
After comparing several aspects of the two sites, the Licensing Board found that environmentally the Ginna site was
" marginally preferable."
However, after factoring in delay costs which would result from transferring the project to Ginna, the Licensing Board sustained the applicant's choice of the Sterling site.
In affirming the Licensing Board's choice of the Sterling site, the Appeal Board applied the obviously superior standard and interpreted the word obviously to mean
" clearly an '. substantially. "
This interpre-tation was terived from the rationale developed in the Seabrook decision which announced the standard. 9/
The Appeal Board found the supporting realities of the NEPA process identified in that opinion apply in this proceeding. 10/
Ecology Action petitioned for Commission review on several grounds.
The only one which merits discussion is EA's contention that the Seabrook decision clearly stated the Commission's intention to find an alter.
native site obviously superior when the facts clearly establish it as environmentally preferable.
The Appeal Scard's interpreta-tion, in EA's view, contradicted this inten-tion by replacing the Commission's standard with a " greatly superior" test.
RG&E and the NRC staff both disagreed.
of a
Public Service Comeany of New Hampshire (Seabrook Station, Units 1 and 2), 5 NRC 503, 52c-30 (1977).
~~10/
Slip op. at 23 These realities are:
inherent bias against the applicant's proposed site, and inherent imprecision in the cost-benefit analysis.
6 RG&E argued that the Appeal Scard did not create a new standard but merely applied the obviously superior standard to the particular factual situation and found no site obviously superior to Sterling.
Applicant felt this application of the standard to be correct because the Board explicitly found this site comparison involved the NEPA uncertainties support-ing the obviously superior standard.
Staff, in addition, argued that the Licensing and Appeal Boards had found Ginna only " marginally better."
Conse-quently, no different interpretation of obviously superior could change the outcome.
Therefore, in staff's view, Commission review would lead to an advisory opinion inapprop-riate for a litigated proceeding.
In our opinion, each argument has its weak-nesses.
J4's suggested alternative is only one of several possible interpretations of the Seabrook decision.
Applicant's and staff's " mere application" arguments ignored the possibility that the NEPA realities in this case may not support the Appeal Board's interpretation.
RG&E and the NRC staff understandably relied on the Appeal Board's explicit finding concerning the applicability of the NEPA realities discussed in Seabrook.
However, as discussed below, we are not certain that the facts in this proceed-ing support the Appeal Board's findings on this matter.
Consequently, we are concerned that the Appeal Board's interpretation in this proceeding may lead to the erection of too high a threshold for choosing an alternative site in a situation where the NEPA realities are closer to those contemplated in the Seabrook decision.
Such a high threshold could be contrary to the Ccmmission's intentions and could lead a court to find the Commission had acted unreasonably in complying with NEPA.
t In this preceeding chere may be no inherent clas against the applicant's chosen site because the Ginna alternative has been examined earlier when chosen as a reactor site.
The prcbable absence of this NEPA reality may render inappropriate a requice-ment of substantial superiority.
Withou',
the suppcrting reality the substantiality requirement may be found to unduly prejudice the NEPA evaluation process in favor of the applicant's proposal.
The Appeal Board's comparison of alternative sites also does not show inherent imprecision in the cost-benefit balance.
At least two of the key factors were quantified.
For all of the factors discusscd, the Ginna site was consistently better.
See Table I below.
TABLE 1 - Ccmparison of Key Site Differences Site Ginna Sterling Factor Type of site
" Spoiled" - no public
" Virgin" - current use for recreation public use for recreation #
Acreage cleared 150 201 Acres of forest cleared 3-15 33 Types of trees Intermediate to Mature beech maple cleared mature hardwoods no yes Canger to swamp "The applicant owns the site and may disconcinue public use at any time.
8 A shewing of substantiality may be inappropriate when all factors considered pointed to the environmental preferability of the alternative site.
The finding that the totality of all these environmental differences was insubstantial may be interpreted as the Commission's failure to give sufficient weight to environmental values.
Courts have said that such a failure may be found to be arbitrary and capricious. 11/
The Appeal Board found the alternative site was not substantially superior because the quality of the acreage cleared must be con-sidered and the trees to be removed at Sterling are not unique and are relatively common in the area. 12/
In effect, then, the Appeal Board multiplied the quantitative differences between the sites by a very small weighting factor chosen on the basis of its perception of the quality of the trees.
A uniqueness requirement for con-sidering as substantial the loss of 18-25 acres of trees may be taken by some as an assignment of insufficient weight to environmental values.
However, we believe that selection of th* Sterling site could reasonably be defended.
In view of the questions raised by this decision, the Commission should consider the following options for acting on the petition for review.
1.
No Review.
This option is supported by the Appeal Board's explicit confirmation of the applicability of the two NEPA realities suppcrting the obviously superior standard.
In addition, the Seabrook deci-sion may fairly be read as requiring a large margin of environmental preferability for substituting an alternative site.
The
--11/
Calvert Cliffs Coord. Com. v. AEC, 449 F.2d 1109, 1115 (D.C. Cir. 1971).
12/
Slip op. 19 70.
9 presence of that margin in this proceeding is open to question.
Consequently, the Appeal Ecard's decision in this case could be sustained as reasonable.
However, several undesireable ecnsequences may follow.
The substantiality requirement may affect Staff's conduct of the NEPA review process even though such a result would be contrary to the Seabrook decision and the First Circuit's understanding of the obvicusly superior standard.
If a staff member perceives of a particular site difference as a criori insubstantial then he might not fully analyze that site aspect because the Appeal Board has announced it will not consider insubstantial site differences.
Imposition of a substantiality requirement in this proceeding could lead to an almost insurmountable threshold for considering alternative sites in future proceedings.
As discussed above, the NEPA " realities" are not clearly present here.
Consequently, in the usual situation involving a less well-known alternative site it would not be considered as a substitute unless the site differences substantially exceeded those considered in this proceeding.
2.
No Review But Commission Conment.
The Commission eculd issue an order explaining that by not granting review it did not intend to express an opinion en the correct-ness of the Appeal Board's interpretation.
A draft crder is attached.
The Order should have the effect of signalling to staff that the NEPA review process should not be affected by the Appeal Board's deci-sion.
In addition, the Order should sf.gnal the Licansing Boards that interpretation of the cbviously superior rule is still cpen.
However, such an order would leave uncertain the substantive use of the cbviously superior standard.
10 3
Commission Review.
Review would give the Commission an opportunity to clarify the substantive centent of obvious superiority.
However, such action would decide the need for rulemaking on this issue before public comments are even received in response to the Interim Policy Statement on Generic Rulemaking to Improve Nuclear Power Plant Licensing. -13/
In that state-ment NRC Staff proposed several candidate issues for rulemaking including Alternative Siting Methodology and Requirements. 14/
Rulemaking on this issue was expected to lead to clarifying the obviously superior standard.
Consequently, Ccmmission review of the Appeal Board's interpretttion may be premature.
If the Commission were to take review it must also consider its scope.
Tre Commis-
-sion could narrowly focus on tne conse-quences of using the word "substantially".
Alternatively, the scope of review ccu d be broadened to include consideration of the interpretation's influence on alternative siting policies like Dr. Weinberg's sug-gestion that new reactors be placed mainly on existing sites. 15/
We reccmmend the Commission deny review and issue an order disclaiming any opinion on the correctness of the Appeal Board's interpretation.
Denial of the petition for review would preserve the Appeal Board's decisic4 which could reasonably be supported as correct.
Issuance of the order should limit the effect of the Appeal Board's
--13/
43 Fed. Reg. 58377 (1978).
14/
Id. at 58379 15/
Briefing by COE cn Feas!.ility of a Nuclear Siting Policy Based on the Expansion of Existing Sites, November 1, 1973.
11 interpretation on Staff's alternative site review process, on cngoing policy develop-ment, and on future Licensing Board decisions.
Recommendation:
Deny the petition for review and issue the attached order.
/
?[sms.
T vActingAssistant
"=
^
'==8 "" "
General Counsel Attachments:
1.
Other Arguments Raised in Ecolocy Action's Petition 2.
Order Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Monday, January 29, 1979.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT January 23, 1979, with an infonnation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of February 5, 1979.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Secretariat
ATTACHMENT 1
Other Arguments Raised in Ecology Action's Petition EA's other arguments concerning site selection are summarized below.
In our opinion they do not warrant Commission review.
EA argued that NEPA was violated by the Appeal Board's interpretation because it did not require NRC to choose an alterna-tive site which is clearly environmentally superior.
RG&E and the NRC staff rej ec0ed this argument by noting that the First Circuit recently held that the obviously superior standard did not in its face vio-late NEPA because it did not interfere with the Commission's duty to consider alternatives. 1,/
It is well established that the choice of site is a substantive decision left to agency discret';n, and that NEPA does not require an adency to choose the environmentally best site. 2/
In view of this decision, EA's argument is clearly incorrect.
The Appeal Board's interpretation affects only the NRC's exercise of discretion, not its compliance with NEPA's alternative site review require-ment.
Furthermore, the record in this proceeding could not reasonably support an argument based on abuse of discretion.
EA argued that the Appeal Board erred in overruling the Licensing Board's implied finding that the Ginna site is obviously superior.
This character 1:ation of the Licensing Board's decision is clearly con-trary to its finding that:
a small advantage must be accorded the Ginna site on environ-mental considerations.
-3/
(emphasis supplied)
-1/
New Encland Coalition on Nuclear Power v. NRC, 582 F.2d c7, 95 (1st Cir. 1975).
~2/
_I _d.
1!
1BF-77-53, 6 MEC 350, 316 (1977).
2 Thus, this argument must be rejected.
EA also obj ected to the Appeal Board's reliance on its own observation of the site in addition to evidence in the record.
It is a well-settled principle in administrative law that the trier of fact is not bound by expert evidence in the record. 4/ Furthermore, where the trier of fact is experienced in the issue at controversy, he may rely on his own observations and judgment in direct centradiction to expert opinion in the record. 5/
RG&E and NRC staff correctly noted that in this case, EA has not even presented an inconsistency between the record and the Appeal Board's observations.
It is entirely possible that the record is correct in reporting that there are some mature hardwoods at the Sterling site and that the Appeal Board is also correct in reporting that it saw a site populated essentially with second and third growth trees.
Thus, on the law and on the facts, there is no reason for the Commis-sion to review the choice of site because the Appeal Board relied partially on its direct observations.
EA also sought review of the Appeal Board's finding that selection of Sterling instead of Ginna need not be re-evaluated as a result of an announced fcur year deferral of the plant's in-service date.
EA argued that this delay, coupled with the new forecast of reduced need fcr power, gives the Commission time to reconsider alternative sites without
-4/
Contractors v. Pillsbury, 150 F.2d 310, 313 (9th Cir.
1945).
~5/
Cullers v. Ccmmissioner, 237 F.2d 611, 616 (3th Cir.
195c).
- s prejudicing power supplies.
EA then asserted that NEPA recuired this recon-s _a s
_. ~
e -._a
. ~. _ s, _ s u. a s. ~. h _, o G.. m-,_
n.
appears to be obvicusly supericr.
NEC staff rejected this assumption and with it the dependent argument.
EG&E argued that the mere passage of time does not by itself support site reconsideration.
We agree that EA's argument is without merit because it is not supported by any new facts arising from this postponement of Operation.
EA sought reconsideration of alternatives to Sterling because postpenement of its operation will probably lead to increased cost of the plant, an altered cost-benefit balance, and possibly permit the New York State Energy cffice to develcp new energy alternatives.
Staff and EG&E replied that such generalized assertions unsupported by new facts do not provide a basis for Cccmission review.
We agree.
Increased plant cost is not a facter which can be considered in this case.
In ALAS 453, the Appeal Ecard held that such costs can be considered only when ecmparing less expensive environmentally-superior alternatives. 5/
The only specific environmentally superior alternative offered by EA is the Ginna site.
Ecwever, EA has not argued that ecnstruction will cost less at Ginna.
Therefore, increased cost is not a basis for Cccmission review here.
Furthermore, EA's bald assertion concerning new alternatives does not even remotely satisfy the Cc= mission's "threshcid test" which has been approved by the Supreme Court. 7/
Consecuentl", this s
-c/
w i
s.e.., _;;, _c -cc (_,c;c-).
v
-7/
Verment Yankee Nuclear Fewer Corp. v. NEEC, 55 L.Ed.2d ac0, 4:5 (1970).
4 assertion of new alternatives does not support review.
EA argued that the record on uranium cost and availability should be reopened because the price and quantity estimates made by RG&E and staff conflicted with testimony by co-applicant Niagara Mohawk before the New York State Public Service Commission.
RG&E stated that the record speaks for itself concerning the differing uranium procedurement philosophies of the facility's co-sponsors.
Staff argued that EA wants to introduce Niagara Mohawk's testi-many for the sole purpose of impeaching RG&E's testimony.
Furthermore, since EA did not allege that these new statements would lead to a different result, there is no need to reopen the record.
Finally, the Niagara Mohawk testimony offered by EA would not change the Licensing Board.'s conclusions which the Appeal Board summarily affirmed.
We agree and find no merit in the petition to reopen the record on this matter.
Finally, EA asserted that the Licensing Board unfairly prevented intervenors from supolementing the values in Table S-3 or challenging the S-3 source terms used by staff's witness.
This unfairness can be remedied only by allowing EA to supplement the values in Table S-3 at a reopened Licensing Board hearing.
NRC staff argued that this issue should not be considered now because this proceeding is still pend-ing on issues relating to the environmental impact of radon releases.
Furthermore, staff's witness did not impermissably challenge any value in Table S-3 but only supplemented the Table to permit a complete comparison of the health effects of coal and nuclear power plants.
Applicant RG&E noted that EA was given an opportunity to present evidence and permitted to cross-examine staff's witness, but was prevented only from challenging the Commission's regulations.
In our view, the pendency of the radon issue, and Intervenors' active
cs participation in the proceeding considering it, render EA's requested relief inappropri-ate and redundant.
Consequently, EA's petition en this issue should be denied.
ATTACHMENT 2